The 5 Step Sequential Evaluation Process

     As you may have heard or read in the news lately, getting Social Security Disability benefits can be a long and arduous process – and the burden of proof is on the applicant. To evaluate and make a determination of disability, the Social Security Administration uses a "5 Step Sequential Evaluation Process". Although the 5 step process may look simple at first glance, there can be enormous complexity at each step of the evaluation.

Step 1: Is the Claimant engaged in "Substantial Gainful Activity"?

     I always tell clients, "It doesn't matter what physical or mental condition[s] you have. If you are making money at a certain level per month [Substantial Gainful Activity], you are not disabled by Social Security standards."

     Currently, employee earnings over $1,040 per month are considered Substantial Gainful Activity and, if made on a consistent basis, will lead to an automatic determination that you are not disabled.  Keep in mind that under Social Security regulations your condition must have lasted, or be likely to last, for more than one year. This means that you cannot have consistent earnings above the level of Substantial Gainful Activity for a least one year to initially be considered for disability benefits.[1]

Step 2:  Does the Claimant have a “severe, medically determinable impairment"?

     Having a severe, medically determinable impairment means having more than just a series of complaints.  Saying, "I have back pain", "I don't feel good", "I'm depressed", or "I'm tired all the time" are complaints – not conditions established by a treating physician.

     "Medically determinable" means that your condition has been recognized and diagnosed by a doctor. 

     "Severe" means that your condition results in some form of functional limitations, either from a physical or psychological perspective (or combination of both), which would affect your ability to work. The degree and severity of your functional limitations are most relevant at Steps 3, 4, and 5.

Step 3:  Is the Claimant’s impairment so severe that it “meets or equals a Listing”?

     The Social Security Administration has put together a series of medical "Listings" which are used to determine whether your condition is so severe that you are automatically disabled.  The Listings have some flexibility so that even if you don't meet the Listing exactly, you may be found to equal it, resulting in a finding of disability.  Listings can be very detailed and always require strong, "objective medical evidence"[2] in order to be satisfied.

     Overall, the number of individuals found disabled because they meet or equal a Listing is very small. Hence, most individuals fall into what is called a “Step 4 and Step 5” analysis. Of all the steps involved in the process of proving one's claim for disability, numbers 4 and 5 can be the most complicated.

Step 4:  Is the Claimant capable of performing his/her "Past Relevant Work"?

     "Past Relevant Work" consists of any work you have performed in the past 15 years at the level of "Substantial Gainful Activity". Whether you can still perform any of that work may be determined by a Social Security judge or a "vocational expert" – an expert on jobs and how they are performed in the local and national economy.

     By analyzing the requirements of how your past relevant work is generally performed, and taking into consideration any functional limitations resulting from your physical and/or psychological condition, the vocational expert will determine whether you can still perform any of that work.

     If the expert determines that you can perform any of your past work, you will be found not disabled. If the expert determines that you cannot perform any of your past work, we move Step 5.

Step 5:  Is the Claimant capable of performing “any other jobs”?

     A determination of whether you can perform "any other jobs" means looking at other available jobs in the local and national economy, no matter how unskilled, menial, or uninteresting. "Available" for purposes of this step does not mean that an employer is hiring; it means that any given occupation is still being performed in significant numbers in the United States nationally, regionally, and locally.

     Using a similar analysis of how other jobs are performed, combined with any functional limitations resulting from your physical and/or psychological condition, the vocational expert will once again render an opinion if there are a significant number of jobs that you can perform.

     To be successful in your claim for disability, you must generally prove that there is no full-time employment that you can still do[3], either because of a physical or mental condition, or a combination of both.

Eric J. Patrick, Esq.

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[1] Exceptions to this rule, called Unsuccessful Work Attempts, are narrow and require specific evidence to prove.

[2] "Objective medical evidence" can be radiographic or laboratory test results. Clinical evidence consists of the observations and conclusions of the treating physician. Your personal complaints about physical and/or psychological symptoms and limitations are subjective evidence, and are insufficient to meet or equal a Listing on their own.

[3] Exceptions to this rule based on age, education, and category of past work may begin at age 50.

Mental Impairments and Social Security Disability

A severe mental disorder can affect an individual’s ability to work in many ways.  However, having a definitive diagnosis of a mental disorder is not automatically grounds for receiving Social Security Disability benefits.  As with all claims for disability benefits through the Social Security Administration (SSA), the burden of proving disability is on the applicant, and proof requires strong objective and/or clinical medical evidence.

In assessing one’s ability to work an 8 hour day (40 hour a week) job for individuals with a severe mental disorder, the SSA is interested not only in a diagnosis (e.g. depression, anxiety, bi-polar disorder, or PTSD etc.), but in how the condition affects your ability to function overall.  Some of the areas the SSA considers are how the condition affects (1) your understanding and memory, (2) your ability to sustain concentration, (3) your ability to socially interact with co-workers, supervisors, and the public, and (4) your ability to adapt within the workplace structure.

Most importantly, objective clinical evidence and functional assessments regarding limitations must come from an acceptable treating source, such as a psychiatrist (M.D.) or a psychologist (Ph.D/Psy.D).  They must be consistent beginning with when the individual claims to have become disabled.  Specifically, evidence could consist of assessments, prescription history, neuropsychological, IQ, and personality testing, and/or the treating provider’s notes from therapy sessions.

The SSA will also consider additional evidence regarding functional limitations from a non-physician or non-psychologist (e.g. a social worker or Physician’s Assistant) once it determines an impairment to be “severe”.  Vital evidence may also include third party statements, as well as testimony from the Claimant, and any witnesses at the Claimant’s hearing in front of an Administrative Law Judge (ALJ). 

Eric J. Patrick, Esq. 

A Successful Disability Claim – More than Just a Diagnosis

The Social Security Administration’s Five-Step Sequential Evaluation Process

            One of the things I hear most often from a client whose claim for disability is rejected is, “I can’t believe Social Security turned me down for benefits, I told them I have [insert ailment/disease/injury].” 

What surprises clients even more is when I tell them that two people of the exact same age, with the exact same medical diagnosis, may not both be eligible for Social Security Disability benefits.  In other words, a successful disability claim requires more than just a medical diagnosis.

            In the Social Security Administration's (SSA’s) Five-Step disability analysis, the diagnosis of a severe, medically determinable impairment is required at Step Two.  But having a severe, medically determinable impairment, in and of itself, does not prove that an individual cannot work.

Once a severe, medically determinable impairment is established at Step Two, SSA is interested in how this impairment affects an individual’s Residual Functional Capacity (RFC).  RFC is defined by the SSA as "the most you can still do despite your limitations.”  Because the limiting effects of injuries and/or diseases can be different for different people, individuals with identical diagnoses may have vastly different RFC’s. 

The RFC assessment is most important at Steps Four and Five of the disability analysis.  At Step Four, the SSA asks whether an individual can do any of his/her past jobs.  If it determines that the answer to this question is “No”, the SSA moves to Step 5 and asks whether an individual can do any other work.  An RFC assessment can be for a physical and/or a mental condition. 

For severe physical conditions, an RFC consists of an assessment of the individual’s ability to engage in a variety of physical activities during an 8-hour workday, including the length of time you can sit/stand/ and walk, how much weight you can lift and how often you can lift it, the functionality of your upper and lower extremities, and several other categories.

For severe psychological and psychiatric conditions, an RFC will consist of assessing an individual’s capacities to understand and remember, stay focused on tasks, interact with other people, and adapt to changes in the workplace.

For an individual to be successful in his/her claim for disability, that person must generally prove that there is no full-time employment that he/she can still do[1] on either a physical or mental basis, or a combination of the two.  This is a difficult requirement, which means that securing experienced, competent legal representation for your claim is essential.

- Eric J. Patrick, Esq.

           

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[1] Exceptions to this rule based on age, education, and category of past work begin at age 50.   

Social Security Disability & U.S. Veterans

            One of the most rewarding parts of my practice is working with United States military veterans.  Veterans make incredible sacrifices during their service years, including not only being apart from their families, but also facing the constant threat of serious physical and psychological injury.  While physical injuries are often readily apparent and undeniable, the serious psychological effects of military service on veterans are not always as easy to identify. 

What cannot go overlooked are recent reports that 2012 saw a record 349 suicides by military personnel, a number which “far [exceeded the number of] American combat deaths in Afghanistan” the same year.[1]  The article went on to note that “Iraq and Afghanistan war veterans suffering from depression, post-traumatic stress or substance abuse” appeared to be one of the main groups facing significant risks.  (Id.)

            Compounding the negative and predictable psychological effects of having experienced combat is what some have described as the stigma in the military of seeking out help for one’s psychological problems.[2]  During “the course of a soldier or officer’s training, we inculcate in them a vicious and emotional resistance to weakness”, and “teach them to bear their own load as well as their buddies’.”  (Id.)  One vet remarked that during service “[m]y mind was my saving grace, and to hear that it was now my biggest burden when I returned from a tour with post-traumatic stress sounded like a joke.”  (Id.)

            Unfortunately, the increasing number of military suicides is quite alarming, and suggests that returning veterans are increasingly coming to terms with the intense psychological stressors they experienced during their service. 

            Fortunately, one resource available to mentally stressed, unemployed veterans is Social Security Disability.  I have personally helped numerous veterans through the process of obtaining their benefits for diagnoses including Post-Traumatic Stress Disorder (PTSD), Depression, Anxiety, and Intermittent Explosive Disorder – not to mention for numerous debilitating physical diagnoses as well.

            For veterans interested in applying for Social Security Disability benefits, the most important thing they can do is consistently get treatment for their condition(s).  Doing so serves two purposes:  (1) Treatment is helpful to the individual who seeks it out because therapy is about confronting and dealing with psychological pain, not hiding from it; and (2) The burden of proof for receiving disability benefits is on the individual claiming disability, meaning that success depends on the kind of clinical medical evidence that is best obtained from consistent treatment.

            Remember, it takes a great deal of courage to seek out help, and asking is not a sign of weakness, it is a sign of strength.  Secondly, you’ve served your country and earned your right to benefits if you are no longer able to work because of either a physical or mental disability (or combination of both).  Contacting an experienced attorney who specializes in getting individuals their Social Security Disability benefits is the first step in getting the help you need.

- Eric J. Patrick, Esq.

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[1] http://www.sfgate.com/news/article/2012-military-suicides-hit-a-record-high-of-349-4192489.php

[2] http://ideas.time.com/2012/07/12/soldier-suicide-the-stigma-to-seeking-help/

NOSSCR Conference Review (2012)

 The Importance of the Social Security Disability Program

            Welcome to the first installment of my blog, Social Security Disability News, for the Law Office of Richard A. Gutstadt, P.C.  As you know, our firm is dedicated to representing Social Security Disability Claimants in their fight to obtain disability benefits.  You can visit our website here.  It has now been 16 months since I began working for Mr. Gutstadt in July of 2011, and I have become deeply entrenched in the practice of disability law.

Recently, Mr. Gutstadt and I attended the 2012 (fall) National Organization of Social Security Claimant’s Representatives (NOSSCR) conference.  NOSSCR, established in 1979, is a professional organization of over 4,000 attorneys and other advocates committed to representing individuals trying to obtain their disability benefits.  You can read more about this amazing organization here. 

This year’s gathering took place in Seattle (WA), and Mr. Gutstadt and I were fortunate enough to attend together, being able to take full advantage of the extensive number of presentations on a wide array of topics.  For those attorneys and advocates who specialize in practicing Social Security disability law, these conferences provide information and insight not only into the “nuts and bolts” of practice, but also on emerging political and legal issues at the forefront of disability law. 

One of this year’s most interesting presentations was called “Defending Disability Insurance” by Ms. Kathy Ruffing, Senior Fellow at the Center on Budget and Policy Priorities.  Ms. Ruffing’s presentation addressed and dispelled many of the myths and misconceptions put forth by critics of the Social Security Disability program.  A summary of some of the more important points of Ms. Ruffing’s presentation are as follows:

1.      Myth: Americans are increasingly dependent on Social Security Disability benefits.

Fact:   Although there has been some increase in the percentage of Americans receiving disability benefits, there are main 3 reasons for this:  (1) Baby boomers (born

           1946-1964) have aged in to their high-disability years; (2) during this same time   

           more women entered the workforce and have begun to qualify for disability

benefits; and (3) the Social Security retirement age rose from 65 to 66.  When these reasons are taken into account, the rise in disability benefits appears far less dramatic.

2.      Myth:  The Social Security Disability (DI) program is going bankrupt and will not be

able to pay benefits to those in need.

Fact:     Bankruptcy is a loaded term.  The DI program is financed chiefly through FICA taxes.  Under current policies, the DI program faces sustained deficits and faces insolvency as early as 2016 when its portion of the Social Security trust fund will be depleted.  At this point, if policy makers refuse to take action, benefits would be cut to whatever level could be recovered by incoming tax receipts.  Current cuts in benefits would likely be around 21% and could increase to 25% in later years.  Policy makers have options at their disposal, as they have utilized in the past, to ensure that recipients’ full benefits will be paid.

3.      Myth:   Disability benefits are easy to obtain.

Fact:     To qualify for DI benefits, an individual must meet several criteria.  First, the

 individual must be both fully insured and disability insured.  Being fully insured means having worked one-quarter of one’s adult life, and being disability insured means having worked 5 out of the last 10 years.  An individual must also have a “severe, medical determinable physical or mental impairment that is expected to last 12 months or result in death.”  The individual must also have the inability to perform “substantial gainful activity” – i.e. be unable to work a full-time job.  There are also additional criteria based on an individual’s age, educational level, and ability to perform physically and/or mentally that the Social Security Administration must take into account before an individual may receive DI benefits[1].

           

The DI portion of the Social Security program provides modest benefits to individuals who have become unable to work due to a debilitating physical and/or psychological condition(s).  It is not intended to replace a salary earned from full or part-time employment.  Rather, it is an important safety net for individuals in our society who have ceased to be able to support themselves through working.

            All in all, this year’s NOSSCR conference provided a wealth of information on many areas of Social Security Disability practice – a large, complex, and continuously evolving area of administrative law.  Please check back in the near future for new posts which will provide resources and insight into the many facets of the Social Security Disability program.

Eric J. Patrick, Esq.

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[1] Discussion of myths/facts no.’s 1-3 are based on the following:  Defending Disability Insurance, Kathy Ruffing, Senior Fellow at the Center on Budget and Policy Priorities, Electronic NOSSCR Materials, Seattle, WA, October 2010, p. 279 – 314.

Welcome!

Welcome to my blog - Social Security Disability News.  My name is Eric J. Patrick and I'm an Associate Attorney at the Law Office of Richard A. Gutstadt in Oakland, California.  You can visit our website at www.richardgutstadt.com.  Please check back frequently as I will be adding new content on a regular basis.

Eric J. Patrick, Esq.