Social Security always calls a vocational expert to testify at disability hearings when the claimant is an adult. This is because work--past, present and future--is a vital part of the disability decision making process.
The vocational witness has 3 major roles in the hearing, involving past work and future work.
PAST WORK
The judge will ask the vocational exert (VE) to describe and classify each job the claimant as held within the 15 year period prior to filing a disability claim. The VE will classify each job as to its skill level: skilled, semi-skilled or unskilled. He/she will also classify each past job as to its exertion: sedentary, light, medium, heavy or very heavy exertion.
The judge will set forth a series of hypothetical scenarios involving different levels of exertion and with a different set of work related restrictions. The VE will then be asked whether, based on these scenarios, the claimant is able to perform any of the past relevant work.
OTHER OR FUTURE WORK
If the claimant has been determined able to perform any of his/her past work, then the claim is denied. If the VE testifies that no past relevant work remains available, the case moves to Step 5, the final step in the hearing process. The question here is: "Based on this same set of restrictions and hypothetical scenarios, can the claimant perform ANY OTHER work which exists in the national economy?"
In more cases than not, the VE will testify that while the claimant cannot perform any past work, he or she can still perform certain other jobs. For instance, all the past work was performed at the medium exertion level, which required lifting up to 50 pounds occasionally. However, there are millions of jobs available in the Light exertion level, where the most weight that has to be lifted is 20 pounds occasionally. So, the VE might testify that claimant could perform such Light Exertion jobs as:
- Marker, DOT Code 788.584-014. SVP 2,* meaning that no formal training is needed (See footnote).
- Hand Packager, DOT Code 559.687-074, also SVP 2 (little or no training required).
- Carbonation Tester, DOT Code 522.587-010. SVP 2 (Little training needed)
Or, if the judge poses a hypothetical question which leaves the claimant only able to perform sedentary work (done from a seated position most of the time), the VE might offer the following sedentary jobs:
- Food and Beverage Order Clerk, DOT Code 209.567-014. SVP 2 (Little training needed).
- Cutter and Poster of Press Clippings, DOT Code 249-587-014. SVP 2, can be learned in a few minutes).
- Surveillance System Monistor, DOT Code 379.367-010. SVP 2.
Here is the trickiest part of the vocational expert's role. He or she will estimate how many of these jobs exist in the national economy. How these job numbers are arrived at is a closely guarded secret. Most of the time the vocational expert can't tell you in any detail how she arrived at the numbers. Often, they won't even try. But in most cases, the VE will claim that there are hundreds of thousands of each job in the economy.
The best hope the claimant has is to have a representative present who can question the VE and use the medical evidence to cast doubt on his or her testimony. Remember, if the judge believes the claimant can perform even 1 of his or her past jobs, the claim is denied. If the claimant is under age 50, and the judge believes that he or she can perform some other work that is being done in the national economy, the claim will be denied. So, the vocational testimony is critical to the outcome of the case.
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SVP stands for "Specific Vocational Preparation," and refers to the amount of training required to perform a certain type of job. The higher the number, the more skilled the job is and the more education and training are required. For example an SVP of 2 requires no more than a brief demonstration--something that you could learn in a few minutes or maybe a couple of hours. An SVP of 8 would require several years of college or post graduate education, such as a doctor, lawyer or engineer would require.
When you file for Social Security disability, you must choose the date you believe you first became disabled. This is the date you will ask for your payments to begin (for back pay). It's called the Alleged Onset Date or AOD.
How do you choose the correct date? Here are some guidelines:
Choose the day following the last day you worked IF you had no substantial gainful employment after that date.
Example: You stopped working on 6/27/16 because of your medical condition and have not worked since. 6/28/16 sounds like the correct AOD.
However, if you have worked after 6/27/16, some thought must be given to whether you can qualify for disability benefits that far back.
Another important consideration: is there medical evidence of a disabling condition on 6/28/16? If not, this date may not work. Decision makers will want to see medical evidence of symptoms so severe that you could not perform substantial gainful activity) on your alleged onset date. If the evidence is not there, the AOD won't hold up.
Sometimes the AOD is obvious: there was an accident, a heart attack, stroke, a serious surgery, or some other event that marked the beginning of disability. But in many cases, disability came on more gradually and the AOD is harder to pinpoint.
The alleged onset date may be amended during the life of a disability case. However, it's my opinion that it's always better to start with the correct date, one that we can make stick. When a Social Security decision maker, a judge or a federal court agrees with your alleged onset date, it becomes the established onset date and this is generally the date on which your Social Security disability payments will begin. This largely determines how your back pay will be calculated.
(256)799-0297 in Huntsville for a free disability consult. There are a thousand things to be considered in a Social Security claim to be certain you get the most money you're entitled to. Don't leave money on the table.
The 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. (SSR 85-15).
If a person has mental impairments that preclude the above functioning, they meet the definition of disabled.
Any number of psychological problems can cause problems with meeting the mental demands of work. Some common impairments would include anxiety, depression, panic disorder, PTSD,
adjustment disorder, schizophrenia, paranoia and others.
Sometimes a physical impairment can result in a failure to meet the mental demands of work. A good example would be pain. If an individual has severe pain from a physical ailment, that certainly could have an adverse impact on the ability to carry out the mental demands of work: 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.
SSR 85-15 states that a failure in the ability to meet the basic mental demands of work cannot be offset by younger age, a university education or work experience. In short, a young person with a college degree and a great resume is disabled when he or she cannot meet the specified mental demands of unskilled work.
How does one document the inability to meet mental demands of work? By examination and treatment with either a licensed psychologist or a psychiatrist. It will be most useful if the doctor will also provide a statement of the claimant's residual functional capacity that documents these limitations in mental function. Form HA-1152 is the form that Social Security prefers.
Under SSR 96-8p(1), Social Security defines work as "working on a regular and continuous basis, 8 hours per day, 5 days per week, or an equivalent schedule." Thus, anyone who cannot work on a regular and continuous basis may be considered disabled.
Here are examples of things that would demonstrate an inability to do "regular and continuous" work:
- The need to take extra breaks during an 8-hour workday. This could be due to pain, fatigue or the need to use the restroom frequently due to Chrone's Disease or ulcerative colitis, etc.
- Being off task an excessive amount of time because of pain, fatigue or mental disorders like depression or anxiety, for example.
- Missing an excessive number of days at work due to a medical condition. Most vocational experts consider absences greater than 1 day per month, on average, to be excessive, precluding employment.
- Requiring extra time to perform tasks; the inability to complete tasks in a timely manner.
- The inability to maintain concentration, persistence and pace for at least 2 hours at a time and to complete an 8-hour workday. (If a person becomes so fatigued or in so much pain that he can't complete an 8-hour shift regularly, he is disabled).
The uninformed public can be misled by observing individuals who don't look like they are disabled. Your neighbor may be seen mowing his lawn, for example. You may know someone who is able to do her own housework--and you conclude that she is not disabled. However, individuals don't have to be invalids or confined to bed to meet the legal definition of disability.
Your neighbor may cut grass for 1 hour, then have to rest 2 hours before he can continue. If he overdoes it one day, he may not be able to work anymore for 3 or 4 days. Perhaps there are 2 or 3 days out of the week he would not be able to cut the grass. The lady who does her own cooking and housework may take a break every 45 minutes, or even lie down 2 or 3 times during the day. She works at her own pace, working only when she feels like it. This would not be permitted, of course, at any competitive, remunerative job. An individual might be able to perform some tasks that make them look like they can work. What you don't know is that they may work very slowly, are off task much of the time, and require much longer to complete a task than they would be allowed on a job. Thus, they could not hold a job where work was required on a "regular and continuous basis: 8 hours a day, 5 days a week."
So, the question Social Security must answer is this: Is the claimant able to work on a regular and continuous basis, according to Social Security Rule 96-8p(1)?
Everyday I read how millions of people are abusing and defrauding Social Security. To hear the crusading "journalists" tell it, almost anyone who is too lazy to work can fill out a form, hire a lawyer, and get a disability check in the mailbox. According the these "journalists," it helps to have a crooked lawyer and a crooked doctor." It's just that easy, so they say.
To provide a more balanced picture, I want to tell you about "Eddie," whom I represented a while back. ("Eddie" is not is real name; I never use my client's real identities).
Eddie came to me after being diagnosed with two types of cancer. He had his bladder and prostate removed and was on chemotherapy, which was the kind they call "shake and bake," because of its severe side effects. Eddie was wearing a urostomy bag to collect urine and it required constant care.
The Disability Determination Service denied Eddie's claim after about 4 months, stating that while he couldn't perform his past work, there was certainly other work he could still perform. We promptly appealed and asked for a hearing. We waited 18 months to get a hearing.
Near the end of the 18 months, Eddie's cancer spread to his lymphatic system and doctors tried more aggressive chemotherapy. It didn't work. The doctors gave Eddie less than 6 months to live.
I had applied for an on-the-record decision (without a hearing), which the administrative law judge denied. We continued waiting for a hearing. Long before the hearing could be scheduled Eddie died. Neither he nor his surviving family members ever collected a cent in benefits (other than the $255 one-time death benefit).
This is not an isolated incident. People die all the time waiting on Social Security to give them a hearing.
So, when I read about some egg-headed journalist writing about how it's just too easy to get Social Security benefits, and how millions of able bodied people are ripping off "the taxpayers," I want to tell them about Eddie. He was forced to pay into the Social Security Trust Fund all of his working life. When he was dying and needed a little income, Social Security let him down.
One final bone to pick: Social Security disability benefits are not financed by "the taxpayers." It is a self-financing program, funded by money that workers pay into their accounts through deductions from their paychecks. These contributions are provided for by the Federal Insurance Contributions Act or FICA. Look at your paycheck stub. Notice the deduction for FICA. That's Social Security deductions. Your employer matches it dollar-for-dollar. When you file a Social Security claim, you are merely trying to collect benefits on an insurance plan mandated by the US government and financed by your own mandatory contributions to the Social Security Trust Fund. No "taxpayers" involved, except the person filing the claim.
Being unemployed, unable to find a job, nobody will hire you, lacking the education or skills to get a job....these do not qualify for disability benefits. They are EMPLOYMENT problems, not DISABILITY PROBLEMS.
To get disability benefits, you must focus on why you are not able to work, not why you can't get a job.
The regulations say that if you are able to work you are not disabled, regardless of whether you can get a job or not.
You must have a medical impairment that prevents working.
One of the first questions a judge will ask at your disability hearing is: "Why did you stop working in 2016?" I hold my breath, because the answer to this question can kill a disability claim in its tracks. Here are some actual answers to the question, "Why did you stop working?"
- I moved and didn't have transportation so I coudn't get to my job. (Not a medical disability).
- The plant closed down and I was just never able to find another job, even though I looked for a year. (Not a medical disability).
- There was a big layoff and about 75 people lost their jobs. I was one of them. (Not a medical disability).
- About that time my wife got really sick and there was nobody to take care of her, so I quit work to care for her until she got better. (Not a medical disability on the part of the claimant).
- I got sick and had to have my gallbladder taken out. While I was recovering, my employer hired somebody to take my job. When I got well, my job was gone." (Not a qualifying medical disability because gallbladder surgery doesn't keep a person out of work for 12 consecutive months, which is required for Social Security disability; also, Social Security would say, "Find another job.").
- I quit because I needed a job with flexible hours so I could be at home when my kids got home from school. I only have a 9th grade education and everywhere I applied told me I needed a high school diploma to work there." (Again, not even close to a medical disability).
One of the things I hear a lot is this one: "My job involved driving using heavy equipment and driving commercial vehicles. My diabetes got so had that I couldn't pass the medical exam for my commercial driver's license. On top of that, my boss told me that I was a liability to the company and he just couldn't afford to keep me on. In fact, several places where I applied for work have told me the same thing. I'm too much of a liability and they won't hire me."
This is getting closer to a medical disability, but it isn't quite there yet. Being a liability or failing to get a license is not, in and of itself, a disabling condition. There are other jobs that don't require operating heavy equipment or driving. If the claimant is able to perform one of the other jobs (with any employer) he is not disabled. Notwithstanding, severe diabetes may be disabling. However, we will need to prove that with medical records. Again, the standard will be that the symptoms of diabetes are so severe that the claimant can't do any work that exists in the national economy. This generally will include not being able to do simple, unskilled sedentary work like parking garage attendant, small products assembler, or hand packager.
There are many individuals who are not working for one reason or another. They are not covered by Social Security unless there is a severe medical impairments which prevents their ability to work. Further, Social Security will require objective medical evidence in black and white to prove this.
If you are considering a Social Security disability claim, think in terms of
Why I'm medically unable to work
vs.
Why I can't get a job
Of all the reasons claimants get denied for Social Security disability benefits, one reason stands out above all others.
It is because Social Security determines that there is some work in the national economy that the claimant can still perform, in spit of his/her impairments.
The regulations require that a person who is able to work (at any job) cannot receive Social Security disability benefits. Therefore, if Social Security determines that you can perform some simple, unskilled repetitive job--you will be denied. Whether or not you can find one of those jobs makes absolutely no difference.
This assumption that you can work comes from something called the "Residual Functional Capacity" or RFC, which is engineered by the Social Security decision maker. At the hearing level, the administrative law judge will come up with your RFC. RFC is the maximum you are able to do in terms of work related activities, such as sitting, standing, walking, bending, lifting, reaching, kneeling, etc. If the RFC permits even sedentary unskilled work, benefits are usually denied.
Here is the key: Don't let the judge have the sole input in what your RFC is. Prior to the hearing, get your doctor to fill out a residual functional capacity form. These forms are often called "medical source statements" or "treating source statements." These forms give the judge less leeway in saying that you can perform the work of a pickle pusher, or a food and beverage order clerk, or a sack mender, etc. The judge doesn't have to accept your doctor's RFC, but he or she must consider it. And if the medical evidence supports it, it will likely be adopted.
The path to Social Security disability benefits goes through your doctor's office. When possible, get your doctor to help your case by providing a residual functional capacity form or medical source statement form.
