DANGER AT STEP 5 - MISS THIS CURVE AND YOU WILL LOSE YOUR BENEFITS!

Step 5 is the final step in considering whether a claimant meets the requirements to get disability benefits.  Step 5 is laden with danger. It's where most claims get denied.  Here's why.

Here is the question at Step 5:  Do there exist any jobs in the national economy that the claimant might be able to perform--based on his/her age, education, work experience and residual function capacity?  If the answer is "yes," you lose.

If you land at Step 5, you have already passed Step 4:  Can you perform any of your past relevant work?  If the answer had been "Yes," you would have been denied.  Since you are here at Step 5, the answer to Step 4 was "No, you cannot perform any of your past work."

The danger at Step 5 is in the phrase "any other work."  There are so many unskilled sedentary jobs in the national economy:

• silverware wrapper
• surveillance system monitor
• ticket taker
• parking garage attendant
• assembler or bench worker

The vocational expert will generally testify that these types of jobs can be performed from a sitting or standing position.  They require lifting no more than 10 pounds. They require the ability to stand or walk for no more than about 2 hours per 8-hour workday. It's easy for a judge to conclude that a claimant can perform one of these jobs, even with his medical impairment.  And if that is the case, the claim will be denied.

Let me say that Social Security has problems with trying to deny claims based on sedentary unskilled work at Step 5--IF the claimant knows how to defend against Step 5 assumptions.  If not, the claim may get denied and there will be no benefits.  

There may be perfectly good and legal reasons why the claimant cannot do the work of a silverware wrapper, ticket taker or bench assembler.  However, the following are NOT legal reasons and will not win your claim:

• I can't find one of those jobs in my area.
• I can't live on the minimum wage paid by those jobs. 
• I don't have transportation to get to work. 
• Nobody will hire me for one of those jobs 

These excuses are a waste of time legally.  What you must do is prove that you cannot perform those jobs--based strictly on a medical or mental impairment.  You must take your medical record and wrap it around the vocational expert so skillfully that the expert agrees that it would be impossible for you do be a silverware wrapper, a horse whisperer, or a ticket taker.   Then you can get your benefits.

If you don't know how to do this, take an advocate with you who can.  I recommend an advocate who has participated in at least 500 hearings like yours and has enough experience to know what is coming and how to deal with it.

Proving that you have a medical condition is not enough.  Proving that there are some jobs you can't do is not enough.  Proving that you can no longer perform any of your past jobs is not enough.  There is that dangerous, murky Step 5 lurking in the dark out there--and it will cause you to lose your benefits.  Be prepared to deal with it! 

Social Security Justice: The Forsythe Firm 

CALL US:  (256) 799-0297