Archives for posts with tag: SSA

When a claim ends, the matter of disability is resolved, but in what manner a disability claim can be considered resolved is less precise.  The doctrine of administrative finality defines what is meant by resolving a claim regarding a claimant’s disability and that claimant’s eligibility for benefits.  The doctrines of res judicata and collateral estoppel transfer the effect of the resolution of a prior proceeding regarding disability to a future proceeding regarding disability of the claimant (who was also the claimant in the prior claim). The doctrine of stare decisis makes a particular method for resolving claims used in a prior claim mandatory for all future claims that involve nearly identical circumstances (even though different claimants are involved).  Navigating the effects that prior claims have on the current claim in a manner advantageous to the client is an important skill for any advocate to have, but it requires a thorough understanding of how these doctrines are applied by the Social Security Administration (in an administrative context) and by the Federal Courts (in a judicial context).

What is Administrative Finality and how can it be Circumnavigated:

A case is final when all the appeals have been exhausted and there is nothing more to be decided.  See, 20 C.F.R. §§ 404.905, 404.921, 404.955, 404.972, 404.981, 416.1405, 416.1421, 416.1455, 416.1472, 416.1481.  In the claims before the Social Security Administration, the concept of finality is complicated by both the rules for reopening and the relaxation of the principle of res judicata.  The result is administrative finality, which is more relaxed concept in the Social Security Administration’s administrative context than its judicial counterpart.

It is important to note that the rules regarding administrative finality are set by regulation (and not legislation) under the Commissioner’s rulemaking authority under Sections 205(a) and 1631(a)(1) of the Social Security Act and that the regulations for Titles II, XVI, and XVIII mirror each other.  42 U.S.C. §§ 405(a), 1383(a)(1); POMS § SI 04070.001A.

The Difference Between a Determination and a Decision:

Please note that determinations refer to the pronouncement concluding a claim by the Disability Determination Service (DDS) of the State Agency acting on behalf of the Social Security Administration (though the determination is written on Social Security letterhead).  Decisions refer to the to the pronouncement concluding a claim by an Administrative Law Judge (ALJ) of the Office of Disability Adjudication and Review (ODAR) or by the Appeals Council of the Office of Disability Adjudication and Review.

The Effect Appealing a Claim has on Administrative Finality:

Appealing generally takes a claim from a lower forum to a higher forum.  Remanding takes a claim from a higher forum and sends it back a lower forum.  Higher and lower describe the level of authority of the forum in question.  In Social Security practice there is one exception to this rule: requesting reconsideration [which is considered an appeal though the appeal is made to the same forum as made the decision being appealed, just (a) different adjudicator(s) within that forum].  The claims in Social Security cases are usually remanded in order to resolve an issue that was ambiguously decided, erroneously decided, or not addressed in the prior determination or decision.  Also, any part of the Social Security Administration may revise its determination or decision.

An appeal continues what could have been a final pronouncement of the Social Security Administration regarding a claim (whether it is a determination or decision).  In fact, an initial, reconsidered, or revised determination or an Administrative Law Judge’s, an Appeals Council’s, or a court decision or revised decision does not be come final until the time to appeal has passed.  20 C.F.R. §§ 404.987(a), 416.1487(a); HALLEX I-3-9-1; POMS §§ DI 27501.001A.3, SI 04070.001.  Curiously, a dismissal of a request for Appeals Council review is the exception as it is binding and not subject to further review.  20 C.F.R. §§ 404.972, 416.1472.  In the appeals process, a claim will be considered regardless of whether new evidence is introduced. POMS § GN 04040.010.

Under certain circumstances, filing the wrong sort of document will be taken to be a proper appeal so long as it requests Social Security review the same issues as the application from which an appeal is considered to have been taken.  For example, if there is no change in the alleged onset, a new application filed within 60 days of the initial determination will be treated as a reconsideration request pursuant to POMS § DI 27010.001B.5.

Additionally, an appeal may be considered timely though late if good cause for missing the deadline to request review is shown (including mental incapacity).  20 C.F.R. §§ 404.911(a), 416.1411(a); SSR 91-5p.  In determining whether a claimant lacked the mental capacity to understand the procedures for requesting review, there are 4 factors that will be considered as they existed at the time of the prior administrative action: (1.) the inability to read or write, (2.) the lack of facility with the English language, (3.) limited education, and (4.) any mental or physical condition which limits the claimant’s ability to do things for the claimant own person.  SSR 91-5p.  Additionally, the inability to pursue an appeal due to a physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) is also good cause (not just the inability to understand how to appeal).  20 C.F.R. §§ 404.911(a)(4), 416.1411(a)(4).  Doubt as to whether good cause exists is to be resolved in the favor of the claimant.  SSR 91-5p.

The Effect of Reopening a Claim has on Administrative Finality:

When examining finality in the context of Social Security claims, it is important to note the applicability of the rules of reopening under 20 C.F.R. §§ 404.987 –404.996, 416.1487 – 416.1494.  Conditions for reopening and revising are guided by the rules of administrative finality. If a claimant does not file an appeal of an administrative determination or decision in a timely manner, they may lose their rights to further review. POMS § DI 27501.005.A.  Reopening is not the same as appealing!  POMS § GN 04040.001A.  However, curiously, HALLEX I-2-9-1 states that if an Administrative Law Judge has jurisdiction to reopen and revise a determination or decision and the conditions for reopening are met, the Administrative Law Judge must reopen the determination or decision.

Reopening really comes into play when the time to appeal has lapsed or all appeals have been exhausted —and one is still seeking a different determination of or decision on those issues (including the effect of the same or a similar set of disabling conditions for the same time period as well as other issues in a claim).  Generally, a determination or decision will be reopened and revised only when that determination or decision was incorrect at the time it was made and both the time limits and conditions for reopening are met.  POMS § DI 27505.001A.  Additionally, only a Social Security Administration or Disability Determination Service component at the same or higher adjudicative level may reopen an administratively final determination or decision, when reopening is appropriate.  POMS § DI 27501.005.B.3; see also HALLEX I-2-9-10.  There seems to be no apparent authority to reopen a court decision.

The Social Security Administration may consider reopening a prior application when a party to the determination or decision requests (or impliedly requests) reopening by (1.) writing SSA or the DDS, (2.) writing a third party (e.g., a congressman), or (3.) filing a new claim (e.g., a denied claimant files a subsequent claim and alleges an onset of disability in the period adjudicated by the prior denial determination or decision).  POMS § DI 27501.005.B.1.a.  The Social Security Administration may also consider reopening a prior application when the Social Security Administration or the Disability Determination Service questions the correctness of a prior determination or decision as a result of new information or evidence or either a quality review or other review.  POMS § DI 27501.005.B.1.b.

Reopening is limited by various time limits depending on the rationale for reopening and what Title the prior application was that is being considered for purposes of reopening that prior application.  However, under Social Security ruling 61-40, time spent in military service (after a determination or decision is made) will not be counted when computing the time period for reopening (as a result of the application of the Soldier and Sailors Relief Act).

For both Title II and Title XVI claims, a claim may be reopened within one year of the notice of the initial determination for any reason, but there must be a specific reason to reopen and reopening is not automatic.  20 C.F.R. §§ 404.988(a), 416.1488(a); POMS § DI 27505.001A.1.

In the case of  both Title II and Title XVI claims, a claim may be reopened after a limited time has passed beyond the one year contemplated by 20 C.F.R. §§ 404.988(a), 416.1488(a), if good cause is shown. For Title II claims, that time limit is requesting reopening within 4 years of the notice of the initial determination.  20 C.F.R. § 404.988(b); SSR 91-5p; POMS § DI 27505.001A.3.  For Title XVI claims, that time limit is requesting reopening within 2 years of the notice of the initial determination.  20 C.F.R. § 416.1488(b); SSR 91-5p; POMS § DI 27505.001A.2.  For both Title II and Title XVI claims, the Social Security Administration “will find that there is good cause to reopen a determination or decision if … [n]ew and material evidence is furnished; … [a] clerical error was made; or … [t]he evidence that was considered in making the determination or decision clearly shows on its face that an error was made.”  20 C.F.R. §§ 404.989(a), 416.1489(a); SSR 91-5p; POMS § GN 04010.001A.1.

New and material evidence is any evidence that was not part of the Social Security Administration’s file regarding the claim when the final determination or decision was made, but relates back to the date of the original determination or decision, and shows facts that would result in a conclusion different from that originally reached had the new evidence been introduced or available at the time of the original determination.  POMS § GN 04010.030A.

The later two rationales that constitute good cause are limited by the time limits to reopen for good cause under Titles II and XVI only if the error is favorable to the claimant.  Clerical errors for purposes of 20 C.F.R. §§ 404.988(a), 416.1488(a) are errors that are subject to administrative finality.  These errors concern the computation of benefits or the misapplication of benefit tables, or other such errors that result in an incorrect payment favorable to the claimant.  POMS § GN 04010.010B.  Likewise, an error on the face of the evidence for purposes of 20 C.F.R. §§ 404.988(a), 416.1488(a) are prima facia errors favorable to the claimant where it is absolutely clear that the determination or decision was incorrect (such as when the determination or decision relies on the wrong person’s medical report or earnings record).  POMS § GN 04010.020.  Conversely, in Title II claims, clerical errors (termed in this instance “administrative errors”) and errors on the face of the evidence that result in a wholly or partially unfavorable determination can be reopened at any time.  20 C.F.R. § 404.988(c)(8); POMS §§ GN 04010.010B.1, GN 04010.020B, DI 27505.001A.4.b.

There are a variety of other reasons under which it is possible to reopen a given claim at any time.

A fully or partially favorable Title II claim determination or decision can be reopened at any time if the pronouncement was acquired by the claimant as a result of “fraud or similar fault.”  20 C.F.R. § 404.988(c)(1); POMS § DI 27505.001A.4.a.  Such a Title II claim can also be reopened at any time in order to exclude a felony-related impairment from consideration because the claimant has been convicted of a felony or such a felony conviction is overturned.  20 C.F.R. § 404.988(c)(11); POMS § DI 27505.001A.4.  A Title II claim may also be reopened at any time if the death of the person on whose earnings record a claimant is relying to draw benefits is demonstrated or presumed to have occurred or, conversely, the dead wage earner is demonstrated to, in fact, be living.  20 C.F.R. § 404.988(c)(3), (4).  Moreover, a Title II claim may also be reopened at any time if the benefits awarded are duplicative with the Railroad Retirement Board, if the earnings reported were gratuitous wage credits from the military because another Federal agency (other than the Department of Veterans Affairs) certifies it awarded benefits based upon service, or earnings that should have been credited were later credited.  20 C.F.R. § 404.988(c)(5), (6), (7).  A claimant who kills the wage earner upon who his claim for Title II benefits relies may be subject to having the favorable determination or decision reopening at any time if convicted of a felony (or the juvenile court equivalent) related to the killing of the wage earner.  20 C.F.R. § 404.988(c)(9).

The only reason under which a Title XVI claim can be reopened at any time is if the pronouncement was acquired by the claimant as a result of “fraud or similar fault.”  20 C.F.R. § 416.1488(c); POMS § DI 27505.001A.4.c.

What is Res Judicata and how can it be Avoided:

Res judicata is the name of the legal principle for claim preclusion.  The general idea is that once a legal proceeding is final under the law it cannot be relitigated.  Res judicata is a Latin phrase that means the thing (res) decided (judicata). What one might term “judicial” res judicata precludes the complaining/petitioning litigant from brining the same claim (i.e., involving the same parties and issues) before a judicial body more than once. [1]

The Social Security Administration does not observe “judicial” res judicata.  Instead, the Social Security Administration follows “administrative” res judicata (and uses this doctrine to dismiss claims).  HALLEX I-2-4-40.  The doctrine of res judicata applies where a previous determination or decision has been rendered on the same facts and issues as a more current claim and the determination or decision on the prior claim has become final.  20 C.F.R. §§ 404.957(c)(1), 416.1457(c)(1); SSR 91-5p; HALLEX I-2-4-40.  POMS § GN 04040.010 specifies that “res judicata applies to findings of fact made with respect to a claim under the same title of the Act.”

Additionally, if new and material evidence is submitted since the last adjudication on the prior claim (in connection, of course, with a more current claim), the facts are not the same and res judicata would not apply to the more current claim.  HALLEX I-2-4-40-J; POMS § GN 04040.010C.  It is important to note that if the insured status expired before the date of the prior determination or decision that is now final and no new and material evidence is presented regarding the period covered by the prior claim, res judicata applies to the issue of disability itself.  HALLEX I-2-4-40-J.

Moreover, if there is no hearing prior to the last pronouncement concluding a prior claim, Section 205(h) of the Social Security Act seems to suggest that applying the doctrine of res judicata to bar any subsequent application alleging the same on the same facts and issues as the prior claim is prohibited. [2]  42 U.S.C. § 405(h).  Section 205(h) of the Social Security Act specifically states that “[t]he findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such a hearing.” 42 U.S.C. § 405(h).  It is worth noting that this language only seems to appear in Title II of the Social Security Act.  More interestingly, Section 205(h) of the Social Security Act empowers the Social Security Administration to treat decisions as final and binding, but is silent with respect to determinations (which has been interpreted by some to suggest that determinations are not final and binding). [2]  However, the Regulations do not support this point of view.  Specifically, 20 C.F.R. §§ 404.905, 416.1405 indicates “[a]n initial determination is binding unless you request a reconsideration within the stated time period, or we revise the initial determination.”  Similarly, 20 C.F.R. §§ 404.921, 416.1421 indicates “[t]he reconsidered determination is binding” unless a hearing is requested, the expedited appeal process is used, or the reconsidered determination is revised.

In the 9th circuit, there is an exception to the administrative res judicata rules applicable elsewhere: Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988).  The Chavez court held (at page 693) that, in instances where administrative res judicata applied, “[t]he claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge’s findings of nondisability, must prove ‘changed circumstances’indicating a greater disability.”   Social Security Acquiescence Ruling 97-4(9) interprets Chavez v. Bowen and adds one critical rule to it: res judicata applies only to claims arising out of the same Title of the Act as to original final determination or decision.

In New York, there is an exception to the administrative res judicata rules applicable elsewhere: Stieberger v. Sullivan, 801 F.Supp. 1079 (S.D.N.Y. 1992), which prohibits the Social Security Administration from according res judicata effect to any disability decision rendered in New York between October 1, 1981, and July 2, 1992, as a basis for precluding a subsequent disability claim.

What is Collateral Estoppel and how can it be Avoided:

Collateral estoppel is the name of the legal principle for issue preclusion.  Collateral estoppel is a “doctrine barring a party from relitigating an issue determined against that party in an earlier action, even if the second action differs significantly from the first one.” [3]

POMS § GN 04040.010 specifies that, in a Social Security context, “collateral estoppel applies to findings of fact made with respect to a claim under a different title of the Act.”  See also, 20 C.F.R. §§ 404.950(f), 416.1450(f); HALLEX I-2-2-30.  For an Administrative Law Judge and the Appeals Council, res judicata is a basis for dismissal of a request for hearing in its entirety or as to one or more issues, whereas collateral estoppel is not a basis for dismissal.  HALLEX I-2-2-30.  Collateral estoppel can also bar an Administrative Law Judge (and probably other adjudicators) from considering claims resolved under the Federal Coal Mine Health and Safety Act.  20 C.F.R. §§ 404.950(f), 416.1450(f).  Collateral estoppel is not invoked in the Social Security context when “there is reason to believe the prior determination is wrong.”  POMS § DI 11011.001A; HALLEX I-2-2-30; see also, 20 C.F.R. § 404.950(f), 416.1450(f); POMS § GN 04040.020C.1.  Additionally, the claim in which collateral estoppel is being invoked must use the same criteria for pronouncing disability and be seek benefits for the same period of time.  POMS § GN 04040.020C.1.

Note that collateral estoppel differs from res judicata in that res judicata applies to a final determination or decision of a prior claim made under the same title as the current claim (and both claims are based upon the same facts and the same issues) whereas collateral estoppel applies to issues settled in a final determination or decision of a prior claim made under a different title as the current claim.  See, HALLEX I-2-2-30.

What is Stare Decisis and how do Unrelated Prior Claims Affect Current Claims:

Stare decisis is the name of the judicial policy of common law jurisdiction courts to stand by (binding) precedent.  Stare decisis is but an abbreviation of “stare decisis et non quieta movere,” which means “to stand by and adhere to decisions and not disturb what is settled.”  Stare decisis is the principle on which caselaw is based.  Caselaw for our purposes comes from district court, circuit court, and Supreme Court opinions.  It is also important that caselaw is very fact specific in the Social Security context: the facts of the case decided (which is now caselaw) should very closely resemble the facts of the case to which the caselaw is being applied otherwise the case (i.e., the caselaw) is distinguishable.

The holding of a decision (as opposed to the obiter dicta) is binding as precedent under the principle of stare decisis.  The holding of a case is the determination (and subsequent enunciation) of the law based upon the issues presented in a particular case.  Obiter dicta are remarks or commentary in a decision that is unnecessary to that decision, is not the subject of that decision, and does not constitute the rationale behind the enunciation and application of law to the particular facts of the case.  Obiter dicta is a form of judicial editorializing and explanation of related points of law (other than the law enounced as a result of the particular facts of a specific case).  The distinction between the holding of a case and the obiter dicta in the opinion can be rather blurry at times.

However, those who adjudicate claims for the Social Security Administration are bound by policy, not circuit court caselaw.  Social Security Ruling 96-1p makes clear that “SSA decision makers continue to be bound by SSA’s nationwide policy, rather than the court’s holding, in adjudicating other claims within that circuit court’s jurisdiction.”   SSR 96-1p and 20 CFR §§ 404.985(b), 416.1485(b) outlines the policy and law that Social Security has enunciated regarding issuing a Social Security Acquiescence Ruling (determining that a final circuit court holding conflicts with the Social Security’s interpretation of the Social Security Act or regulations and explaining how SSA will apply such a holding). Thus, the Social Security adjudicators (within the administrative levels of adjudication) are supposed to continue to apply the policy of the Social Security Administration that existed prior to the enunciation of caselaw by a judicial court (within a particular circuit) on an issue until the Social Security Administration issues a Social Security Acquiescence Ruling (for that specific circuit) addressing the new caselaw’s approach to that issue.  However, the caselaw of the circuit court will apply as soon as the claim is appealed to the judicial court levels of appeal (which brings the case outside the administrative levels of adjudication), which (if the claim is decided at the judicial levels according to the caselaw) makes the caselaw the “law of the case” for that claim.

In conclusion, stare decisis has a limited, though important, influence at the administrative levels of claim adjudication.

Footnotes:

1 See,Black’s Law Dictionary, 1425 (9th ed. 2009).

2 Kate Callery, Esq., and Louise Tarantino, Esq., (in their presentation in the Fall 2008 conference of the National Organization of Social Security Claimants’ Representatives entitled Res Judicata, Reopening and Revival: The 3 Rs for Keeping Social Security Cases Alive) cite 3 federal cases in support of this interpretation of Section 205(h) of the Social Security Act: Dealy v. Heckler, 616 F.Supp. 880 (W.D.Mo. 1984); Accord, Aversa v. Secretary of HHS, 672 F.Supp.. 775 (D.N.J. 1983); See also, Delamater v. Schweiker, 721 F.2d 50 (2d Cir. 1983).  Kate Callery and Louise Tarantino, Res Judicata, Reopening and Revival: The 3 Rs for Keeping Social Security Cases Alive, 1 Nat’l Soc. Sec. Disability  L. Conf.,  405 (Fall 2008).

3 Black’s Law Dictionary, 298 (9th ed. 2009).

There has been a lot of discussion of late on how easy it is to get disability benefits from Social Security’s disability insurance program (including the disability-related auxiliary benefits programs) and Supplemental Security Income program.  I would like to focus on the requirements for the adult programs only for a bit as the children’s programs have some interesting requirements that are unrelated to the adult programs. It is important to be clear about what the requirements are before generalizations about how “easy” or “hard” it is to get benefits are made.

In general, in order to obtain disability benefits, a claimant must prove that the claimant’s disability is expected, for a period of at least 12 months, to render the claimant unable to perform any job that exists in significant numbers in the national economy.  20 C.F.R. §§ 404.1505, 416.905.  In order to make the analysis of a given claimant’s case understandable and efficient, the Social Security Administration (through the regulatory power granted by 42 U.S.C. §§ 405(a), 1383(a)(1)) devised a 5-Step Evaluation Process (which is sort of misleading as there are really 7 recognized steps: 5 whole steps and 2 half steps).

In determining eligibility for benefits due to a disabling medical condition, the Social Security Administration considers (1.) whether a claimant is presently working and whether the work activity is significant enough to be considered substantial gainful activity (thereby precluding eligibility to benefits); (2.) are each of the medical conditions (considered separately or collectively) severe enough to cause a more than minimal limitation in the ability to perform basic work activities; (2.5.) are the conditions that cause more than minimal limitations expected to last at least 12 months minimum; (3.) whether the diagnostic clinical and laboratory findings (as well as any required general functional findings) made through examining the claimant meet the criteria listed for the medical condition in 20 C.F.R. Part 404, Subpart P, Appendix 1 (or a diagnosed medical condition that is equivalent in severity to a closely analogous listed medical condition); (3.5) if the criteria of a listed medical condition (or combination of listed medical conditions) are not met or medically equaled, what the claimant is still capable of doing despite the limitations imposed by the medical conditions from which the claimant suffers; (4.) whether the claimant can do any of the past relevant work which that claimant performed over the 15 years prior to the determination or decision being then made (or prior to the date when the claimant was last insured for Social Security Disability Insurance benefits, which ever is earlier in time); and (5.) whether there exists a significant number of jobs other than jobs the claimant performed in that aforementioned prior 15-year period.  20 C.F.R. §§ 404.1505(a), 404.1520(a)(4), 416.905(a), 416.920(a)(4).

If a claimant applies for Social Security Disability Insurance benefits (under Title II), there is an additional requirement beyond the 5-Step Evaluation Process that the claimant either be insured for disability benefits in the claimant’s own right or be an eligible auxiliary beneficiary of an insured individual who became disabled, has retired, or has died.  If a claimant applies for Supplement Security Income benefits (under Title XVI), as an additional requirement beyond the 5-Step Evaluation Process, there are asset, income, and resource limitations that restrict eligibility (as Supplement Security Income benefits are directed to helping only the very poor of those medically unable to work).

If a claimant satisfies the non-medical requirements of the program for which that claimant is applying and is not performing substantial gainful activity, whether the claimant satisfies the medical requirements to be eligible for disability benefits can be considered.  There are numerous factors that could potentially make a claimant not eligible for disability benefits that I will not discuss here (such as the intake of drugs or alcohol that causes limitations material to the finding of disability benefits eligibility, acquiring disabling limitations from a medical condition caused by the claimant’s commission of a felony, etc.).  For now, let’s confine the question of eligibility to the medical and medical-vocational factors that would be used to find (or not find) a person eligible for disability benefits under either Social Security’s disability insurance program (including the disability-related auxiliary benefits programs) and Supplemental Security Income program.

A claimant can be awarded benefits without considering the vocational factors of age, education, past work, and capability of performing various work functions, if the medical records indicate that the diagnostic clinical and laboratory findings (as well as any required general functional findings) made through examining the claimant meet the criteria listed for the medical condition in 20 C.F.R. Part 404, Subpart P, Appendix 1.  See also, 20 C.F.R. §§ 404.1525, 416.925.  A claimant can also be awarded benefits without considering the vocational factors of age, education, past work, and capability of performing various work functions, if the medical records show the claimant suffers from a condition that is equivalent in severity to a closely analogous listed medical condition.  20 C.F.R. §§ 404.1526(a), 416.926(a).

Under 20 C.F.R. §§ 404.1526(b), 416.926(b), there are 4 ways to medically equal one or more of the medical conditions (termed “impairments”) in severity to a closely analogous medical condition that is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (also referred to as the “Listing of Impairments”).  The first way is where a claimant has a medical condition described in the Listing of Impairments, but does not exhibit one or more of the required findings in that particular listing, but that claimant has other findings (not mentioned in the Listing of Impairments, but related to that claimant’s impairment) that are at least of equal medical significance to the required criteria specified in the entry of the Listing of Impairments considered.  The second way is where a claimant has an impairment described in the Listing of Impairments and exhibits all of the required findings, but one or more of the required findings is not a the specified severity level, but that claimant has other findings (not mentioned in the Listing of Impairments, but related to that claimant’s impairment) that are at least of equal medical significance to the required criteria specified in the entry of the Listing of Impairments considered.  The third way is where a claimant has an impairment that is not described in the Listing of Impairments, but the diagnostic and functional findings are of a severity level of at least an equal medical significance to a closely analogous listing.  The fourth way is where a claimant has a combination of impairments, not one of which meets an entry in the Listing of Impairments, but the diagnostic and functional findings (of the combination of impairments) are of a severity level of at least an equal medical significance to a closely analogous listing.

If the claimant’s medical condition is found to not meet or equal an impairment listing in the Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1), then the claimant must be found incapable of performing the work which that claimant performed over the 15 years prior to the determination or decision being then made (or prior to the date when the claimant was last insured for Social Security Disability Insurance benefits, which ever is earlier in time) as well as any other job that exists in significant numbers in the national economy.  What constitutes a significant number of jobs varies according to the claimant’s age, the presence of skills that are transferable from the claimant’s past work to other jobs, the claimant’s education level, and how recently the claimant obtained that level of education.

When a given claimant starts approaching what the Social Security Administration considers to be advanced age, such a claimant may be granted benefits by “gridding out.”  When a claimant is closely approaching advanced age (50+), found limited to sedentary work, can no longer perform vocationally relevant past work, and has no transferable skills, a finding of disability is warranted under 20 C.F.R. Part 404, Subpart P, Appendix 2 (which is otherwise known as the “Medical-Vocational Guidelines” or the “grids”).  Similarly, when a claimant is of advanced age (55+), found limited to light work, can no longer perform vocationally relevant past work, and has no transferable skills, a finding of disabled is warranted under 20 C.F.R. Part 404, Subpart P, Appendix 2.  What constitutes a transferable skill changes at age 55 (and older) with respect to skills transferable to sedentary occupations and 60 (and older) with respect to skills transferable to light occupations (according to Medical-Vocational Guidelines sections 201.00(f) and 202.00(f)) — namely: “there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.”  Also notable is that pursuant to Social Security ruling 83-10, the “age categories are not applied mechanically in borderline situations,” which is generally interpreted to mean that up to 6 months prior to a given age category change a claimant could be found to be within the given age category.

If a claimant does not “grid out” for some reason and neither meets nor medically equals a medical listing (or a combination thereof), there are 3 special medical-vocational profiles that, if the criteria of one of which is satisfied to the letter, may allow an individual to be found eligible for disability benefits. The Regulations at 20 C.F.R. §§ 404.1562, 416.962 provide for 2 of these profiles; the 3rd is derivable therefrom. The worn out worker rule provides that if a claimant has a sixth grade education level or less, has work experience of 35 years or more in only “arduous” unskilled physical labor, is no longer performing any work activities that would be considered substantial gainful activity, and is no longer able to do that claimant’s past “arduous” unskilled work due that claimant’s severe impairment(s), such a claimant is disabled and eligible for benefits. The house spouse rule provides that if a claimant is found to have at least one severe, medically determinable impairment (or a combination of medically determinable impairments that is severe), who is at least 55 years old, has no past relevant work, and neither has completed high school nor was awarded a general equivalency diploma (GED), such a claimant is disabled and eligible for benefits. The third profile may be found POMS § DI 25010.001.B.3, which is derived from the other 2 profiles, and is called the lifetime commitment rule, which provides that if a claimant (who is 60 years of age or older) has work experience of 30 years or more in a single field of work from which no transferable skills have been acquired, is no longer able to perform any of that claimant’s past relevant work due that claimant’s severe impairment(s), is no longer performing any work activities that would be considered substantial gainful activity, and neither has completed high school nor was awarded a general equivalency diploma (GED), such a claimant is disabled and eligible for benefits.

If a claimant is under the age of 50 (or really 49½ depending on how Social Security ruling 83-10 is applied) or can’t “grid out” for some other reason and neither satisfies the criteria for one of the special medical-vocational profiles nor meets or medically equals a medical listing (or equals a combination thereof), then the claimant must show that the claimant is medically precluding from performing even sedentary jobs such that there is an insignificant number of jobs in the national economy the claimant can perform.  Typically, if the limitations opined by a claimant’s treating healthcare practitioner are found to satisfy the criteria outlined in Social Security rulings 85-15, 96-8p, and 96-9p, the claimant may be found disabled within the framework of the Medical-Vocational Guidelines sections 201.00(h) and 204.00 (or a closely analogous grid rule).  Pursuant to Social Security ruling 85-15, “[t]he basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.”  Social Security ruling 85-15 further states that a “substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base,” which, “in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base.”  Social Security rulings 96-8p and 96-9p both provide that either a claimant must be able to perform at the assessed residual functional capacity on a sustained basis (i.e., an 8-hours-a-day, 5-days-a-week schedule or the equivalent) or a finding of disability is warranted.  Social Security ruling 96-9p states in pertinent part that a “complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply.”  Social Security ruling 96-9p also states in pertinent part that a “[a]ny significant manipulative limitation of an individual’s ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.”  Of course, if the vocational expert returns an answer of “no jobs” and the Administrative Law Judge finds the limitations used in the hypothetical question to the vocational expert accurately reflect the claimant’s limitations, then a finding of disabled will follow and the claimant will receive the granted benefits. However, Social Security Ruling 00-4p states that “SSA adjudicators may not rely on evidence provided by a [vocational expert] or other reliable source of occupational information if that evidence is based on underlying assumptions or definitions that are inconsistent with our regulatory policies or definitions” meaning that policy statements trump vocational expert testimony.

If a claimant has not yet attained a high school diploma or a general equivalency diploma (G.E.D.), it is important to consult the tables in the Medical-Vocational Guidelines to see if the claimant can be found disabled under an exception to the general trend in the Medical-Vocational Guidelines (as the claimant may not need to be as physically limited as a high school graduate would be in order to be found disabled under the Medical-Vocational Guidelines).  On the other hand, acquiring more education that one might learn in high school or completing either a vocational education program or an apprenticeship could represent the acquisition of skills applicable to other semi-skilled and skilled occupations in the national economy (and if earned “recently” enough may preclude a finding of disability).

As you can see, there is a significant variation in how one may qualify for disability benefits (even though you can simplify it to 5 particular ways to win benefits, of which 4 apply to adults and are outlined above). Notice how it can get easier for the physically impaired to be found disabled (if the physical impairment leads to exertional limitations) as such a person ages.  There are complications that would preclude receipt of disability benefits that I have omitted for simplicity (such as the impact of alcohol or unprescribed medication consumption).  I hope you found this informative. If you would like me to expand on any of the topics discussed here, please leave a comment. I am also happy to provide citations for anything discussed here. However, please keep the discussion general as I have no interest in discussing particular cases.


NOTE: This is intended for disability benefit advocacy practitioners, students of law and politics, or legal scholars and it is not intended to be legal advice. If you have a legal matter, please do your own research or consult with the appropriate professional (which, in the case of disability benefit claims before the Social Security Administration, includes me).