Frequently Asked Questions

1. What is the most common mistake made by disability claimants?

Most denials of claims for disability benefits can be reversed if knowledgeable Social Security lawyers are retained to handle the appeals. But patience and perseverance are required. As you will see from the award rates below, most disability claimants give up too soon.

1. Application level. Initial applicants for Social Security disability will wait on average 120 days to receive an answer, and for 35% it will be yes. Out of those rejected at this initial level, 52% will abandon their claims and 48% will appeal.

2. Reconsideration level. Claimants who timely filed their appeals within 60 days of receipt will wait 90 days for a decision. Only 15% will receive good news. Out of those who don’t, 30% will give up and 70% will appeal.

3. Hearing level. This is where patience and good representation pay off. National claimants will wait 15.5 months for a hearing and decision, but 55% will be awarded benefits. Of the remainder, 55% will quit and 45% will appeal.

4. Appeals Council. Another 220 days are required. Only 2% of claimants will be rewarded with benefits; about 23% of claimants will have their claims sent back for another hearing. Most of the rest will give up. Only a few appeal to federal court.

5. Federal court. Claimants wait another 540 days for a federal court decision. About half of them will have their claims sent back for another hearing before an administrative law judge. Only a small percentage are awarded benefits by the federal court.

The lesson from these national averages is to pursue your Social Security disability claim through the first three levels — application, reconsideration, and hearing. Most of those who don’t give up before the Social Security disability hearing will be awarded benefits.

2. What does a disability lawyer do?

The big-picture answer is: analyze what needs to be proven to win benefits, figure out how to prove it, and gather the necessary evidence. Some of the specific tasks are:

• Obtain reports from treating doctors that are consistent with Social Security regulations
• Refer claimants to specialists for additional reports that answer questions raised by Social Security regulations
• Obtain a vocational expert’s evaluation of the claimant’s ability to work
• Ask that a prior application for benefits be reopened
• Seek a waiver of a time limit
• Request subpoenas to insure the presence of crucial witnesses or documents
• Advise the claimant on how best to prepare for and testify at the hearing
• Object to improper evidence or procedures at the hearing
• Cross-examine adverse witnesses
• Present a closing statement
• Submit a written summary of the evidence and argument
• If the claimant wins, make sure the SSA correctly calculates benefits
• If the claimant loses, request review of the hearing decision by the Appeals Council

3. What should I know and do before I go see a disability attorney?

• Gather all of your social security papers, especially the denial letters and appeal forms. Include any papers related to earlier applications
• If you have any hospital records or medical reports in your possession, bring them too.
• If you received unemployment compensation during any time you claim to be disabled, bring any unemployment records you have.
• If you have been involved in any other disability cases, such as short or long term disability or workers’ compensation, bring any papers you have that are related to those cases.
• Be careful about appeal deadlines (65 days after the date on your denial letter). If the deadline is near, file the appeal before seeing your attorney.

4. How can I tell if I am disabled enough to apply for social security disability benefits?

Social Security regulations make it easier to be found disabled as you get older. It becomes easier for a few people at age 45 (those unable to read English), for more people at age 50, for most people at age 55, and even more people at age 60.

If you are over age 55 and you cannot do any job you have done in the past 15 years, you should definitely apply. If you are over age 50 and have a severe impairment that keeps you from doing all but the easiest jobs, you ought to apply.

But even if you are a younger person, you do not have to be bedridden in order to be found disabled. If you are under age 45 or 50 and you cannot do your past jobs and you cannot work full time at any regular job, that ought to be enough.

Nevertheless, being unable to work and being found disabled by the Social Security Administration (SSA) are two different things. It is often difficult to convince SSA that someone is disabled even when he or she genuinely cannot work. But it is not impossible.

If you really cannot work, apply for disability benefits from SSA.

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Advice for Testifying at Your Social Security Disability Hearing

Most applicants for Social Security disability benefits will have to testify at a hearing before an administrative law judge. While the idea of a legal hearing before a judge may be intimidating, there is no need to worry. Think of the Social Security disability benefits hearing as an opportunity. This is your chance to meet the person who will be deciding your claim, look him or her in the eye, and tell your story in your own words. To make the most of this opportunity, follow these three guidelines when speaking at your disability hearing:

1. Tell the truth, without exaggerating or minimizing your symptoms. The first rule of testifying at the hearing is the simplest: Tell the truth. As you testify, the judge will be assessing your credibility – that is, making a determination about whether you and your claims of impairment are believable and trustworthy. If you lose your credibility with the judge, you will lose your case. Testify truthfully. Do not exaggerate your symptoms and pretend to cry or to be in more pain than you are. Likewise, do not minimize your symptoms and suffer through your testimony. If you are in pain, or if you need to take a break, say so.

2. Describe your daily activities in detail, using examples and anecdotes. At some point during the disability hearing, the judge will ask you the following question or some variation of this question: What do you do on a typical day? This question presents you with a golden opportunity to persuade the judge that your condition prevents you from working. To make the most of this opportunity, tell the judge about your day, hour-by-hour. Use specific examples to paint a picture of what a typical day was like before you started having health problems and what a typical day is like now. For example, you might give the judge details about the following:

• What time do you get up in the morning? Are you rising later now because you have trouble sleeping through the night?
• Do you need help getting dressed? If you dress yourself, how long does that take? Have you stopped wearing clothing with buttons and zippers?
• Do you do any household chores or run errands during the day? Do you need help to accomplish these basic tasks you used to do alone?
• Do you need to rest during the day? How often?
• Do you spend most days watching TV? Did you ever watch TV in the middle of the day before you were disabled?
• Do you cook dinner for your family? Are you cooking the large family meals you used to cook or are you opening a can of soup?
• How well do you sleep at night?

Remember, your goal is to describe in vivid detail how your disability has affected your daily life and limits your ability to work.

3. Describe your pain and other symptoms precisely and honestly. To make the most of your testimony at your disability benefits hearing, describe your pain and other symptoms as precisely as you can. Do not exaggerate or minimize your symptoms; try to give specific examples of the following:

• What is the nature of your symptoms? Does fatigue keep you in bed all day? Does the back pain stop you in your tracks?
• How intense are your symptoms? If you suffer from pain, don’t tell the judge, “It hurts.” Be specific. Rate your pain on a scale of “1” (no pain) to “10” (the worst pain you’ve ever experienced). What aggravates the pain? What helps to alleviate the pain?
• Where does it hurt? Where is the pain concentrated in your body? Does it radiate from one point to another, for example from your neck down to your shoulder?
• How long do your symptoms last? Again, the more specific your answer, the better. For example, do not say, “Sometimes it lasts for days.” Instead, say something like “Usually, the pain lasts several hours. In the past year, though, I have had half a dozen episodes where the pain lasted for almost 24 hours, and twice it was so bad that I couldn’t get out of bed for over a week.”
• How often do you experience these symptoms? Do not tell the judge that you are “always” short of breath or that the pain “comes and goes.” Be specific. On a typical day, how many times do you feel dizzy? Do you struggle to catch your breath after walking from one end of the house to the other? How often do you have pain in a typical week?

An Experienced Disability Lawyer Can Help You Prepare

Good preparation makes good testimony. If you are not currently represented by a disability lawyer and you would like to talk with me about your hearing or about other aspects of your case, please click here, then complete the form to the right.

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Does My Age Affect My Claim?

Yes.  It is easier to be found disabled by the Social Security Administration as you get older. Social Security law makes it easier to qualify for Social Security benefits for a few people at age 45, for more people at age 50, for most people at age 55, and even more people at age 60.

When and How Does My Age Come Into Play?

The Social Security Administration follows a five-step sequential evaluation process to determine whether you are disabled for purposes of its two disability programs — Social Security disability or Supplemental Security Income, which is referred to as SSI. If it finds that you are disabled or not disabled at a step then the determination is over and it does not go on to the next step.

Those five steps are:

• Step 1. You are not engaging in “substantial gainful activity” (work that pays you $1,000 per month or more and involves more than minimum duties); and
• Step 2. You have a “severe” medically determinable impairment (an impairment or combination of impairments is generally considered severe by the Social Security Administration if it significantly limits your physical or mental ability to do basic work activities); and
• Step 3. Your impairment meets or “equals” one of the impairments described in the Social Security regulations known as the “Listing of Impairments;” or
• Step 4. Considering your “residual functional capacity,” you are unable to do your “past relevant work” (any substantial gainful activity you did during the past 15 years for a long enough time to learn the job); and
• Step 5. You cannot make an adjustment to other work that exists in significant numbers, considering your residual functional capacity, age, education, and work experience.

Note that the words in quotes have precise meanings in Social Security law.

In addition, to be found disabled you must meet the “duration requirement.” That is, your disability must last for 12 full months.

In summary, there are two main routes to a finding of disability on an SSI or Social Security disability application:

• Your impairment must meet or equal an impairment described in the Listing of Impairments — the sequential evaluation process culminates at Step 3; or
• You must meet all the other requirements of the sequential evaluation process culminating at step 5.

Therefore, your age comes into play if the second route is taken. This route is taken when your impairment does not must meet or equal an impairment described in the Listing of Impairments.

Age as a Factor in Step 5 of the Social Security Disability Evaluation Process

Disability claimants who do not meet the step 3 requirements of a severe mental or physical impairment must meet the requirements of steps 4 and 5. At step 5, as discussed above, the Social Security Administration will determine whether you can make an adjustment to other work that exists in significant numbers in the national economy. This step considers your age in addition to your remaining work capacity, education and work experience. This is the most complicated step in the sequential evaluation process.

The Social Security Administration has provided an important tool for determining whether or not you are disabled because of medical impairments and vocational factors: the Medical-Vocational Guidelines. The Medical-Vocational Guidelines, popularly known as the “grids” or “grid system,” provide that the older you are, the easier it is to be found disabled.

Age and the Social Security Administration’s Grid System

The Social Security Administration’s grid system can be complicated, but generally it results in making it easier for people over age 50 and especially those over age 55 to meet the definition of disability. This is because if you are older than age 50 (or age 45 in some cases) and no longer do the sort of work you have done in the past, the Social Security Administration must take your age into account when considering whether or not you can do other work.

• Under age 50 – If you are under age 50, the Social Security Administration generally does not consider that your age will seriously affect your ability to adjust to other work. However, in some circumstances (particularly, if you are illiterate and/or cannot communicate in English) the Social Security Administration considers that persons aged 45-49 are more limited in their ability to adjust to other work than persons who are under age 45.
• Age 50-54 – If you are closely approaching age 50-54, the Social Security Administration will consider that your age, along with a severe impairment and limited work experience, may seriously affect your ability to adjust to other work.
• Age 55 or older – If you are age 55 or older, the Social Security Administration believes that your age significantly affects your ability to adjust to other work. It has special rules for persons in this category who are closely approaching retirement age (age 60 and above).

If there are two disability claimants with nearly identical disabilities and backgrounds and only one of them is older than 50, the older claimant is more likely to receive disability benefits than the younger disability claimant.

You should definitely apply for Social Security disability benefits if: (i) you are over age 50 and have a severe impairment that keeps you from doing all but the easiest jobs or (ii) you are over age 55 and you cannot do any job you have done in the past 15 years.

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Building a Social Security Disability Case for a Claimant Under 50

To qualify for Social Security disability benefits, most claimants under age 50 will need to show they cannot do a wide range of sedentary work.

Sedentary work is defined as work involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Sedentary jobs may require occasional walking and standing. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions. Periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday.

To build a strong Social Security disability case, I will look for functional limitations that whittle away the range of sedentary work that you are capable of doing to arrive at the point where jobs you can do don’t exist in significant numbers.

I will explore the following possibilities with you.

Do You Have Manipulative Limitations?

Most unskilled sedentary jobs require good use of both hands and the fingers; i.e., bilateral manual dexterity. Fine movements of small objects require use of the fingers; e.g., to pick or pinch. Any 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.

Reaching, handling, fingering, and feeling require progressively finer usage of the upper extremities to perform work-related activities. Reaching (extending the hands and arms in any direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could otherwise do.

Do You Have Sitting Limitations?

In order to do a full range of sedentary work, a person must have the capacity for prolonged sitting. Sitting should generally total approximately six hours of an eight-hour workday.

An individual may need to alternate the required sitting of sedentary work by standing (and, possibly, walking) periodically. Where this need cannot be accommodated by scheduled breaks and a lunch period, the occupational base for a full range of unskilled sedentary work will be eroded.

Do You Have Standing and Walking Limitations?

A person is expected to be capable of standing and walking intermittently for a total of about two hours out of an eight hour workday. Any significant reduction of standing and walking capacity below this limited amount will reduce the sedentary occupational base. A Social Security Ruling says that the occupational base of a person who can stand and walk for only a few minutes out of the workday would be significantly eroded.

Must You Use a Cane?

Because sedentary work requires a person to be able to obtain and return objects, and stand and walking for approximately two hours out of an eight hour working day, it follows that use of a cane would limit capacity for a full range of sedentary work. A person sometimes needs two free hands to carry some objects encountered on sedentary jobs.

Do You Need to Walk Around?

The need to periodically walk around (often necessary for those with back problems) is likely a disabling limitation, depending on the frequency and duration of the need to walk around, because this takes a claimant away from the work station.

Do You Need to Elevate Your Legs?

The need to elevate one or both legs when sitting may significantly limit the full range of sedentary work depending on how high and for how long during a working day the legs must be elevated.

Are You Unable to Stoop?

Stooping is defined as bending “the body downward and forward by bending the spine at the waist.” A Social Security Ruling notes 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.” But since most unskilled sedentary jobs require only occasional stooping, a reduction to occasional stooping would only minimally erode the sedentary occupational base.

Do You Need to Lie Down During the Day?

Obviously a need to lie down during the day will be accommodated in few unskilled sedentary jobs.

Are You Visually Impaired?

Most sedentary unskilled occupations require working with small objects. If a visual limitation prevents an individual from seeing the small objects involved in most sedentary unskilled work, or if an individual is not able to avoid ordinary hazards in the workplace, such as boxes on the floor, doors ajar, or approaching people or vehicles, there will be a significant erosion of the sedentary occupational base.

Do You Have Environmental Restrictions?

Certain types of environmental restrictions, such as restrictions on exposure to noise, dust and other respiratory irritants, and odors, if extreme, may significantly limit the ability to do a full range of sedentary work.

Do You Have Mental Impairments?

A substantial loss of ability to meet any one of several basic work-related activities on a sustained basis (i.e., 8 hours a day, 5 days a week, or an equivalent work schedule), will substantially erode the unskilled sedentary occupational base and would justify a finding of disability. These mental activities are generally required by competitive, remunerative, unskilled work:

• Understanding, remembering, and carrying out simple instructions.
• Making judgments that are commensurate with the functions of unskilled work—e.g., simple work-related decisions.
• Responding appropriately to supervision, co-workers and usual work situations.
• Dealing with changes in a routine work setting.

Do You Suffer From Any of the Following?

These conditions may interfere with the ability to perform sedentary work.

• The effects of treatment including frequency of treatment, duration, and disruption to routine.
• Side effects of medication.
• Dizziness.
• Bladder or bowel problems that require frequent rest room use.
• Need to maintain a colostomy or ileostomy.
• Skin impairment.
• Headaches.
• Pain.
• Seizures.
• Inability to hold the head in flexed forward position.

I Can Help With These Social Security Disability Claims

Social Security disability cases for literate claimants under 50 are tough, but not impossible to win. Skilled assistance is essential.

If you have such a case, are not already represented by a Social Security disability attorney, and want my evaluation, click here, then give me a brief description of your claim using the form to the right.

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Gathering Persuasive Medical Evidence

The first step in preparing for a hearing is gathering persuasive medical evidence.

This medical evidence should come from a source that the Social Security Administration (SSA) recognizes, so hopefully you have been receiving treatment from a licensed physician, osteopath, podiatrist, optometrist, or psychologist.

Frequently the medical evidence which is readily available does not directly address the questions most important to a disability determination:

• How has your impairment been confirmed?
• Will your impairment last 12 months?
• What are your functional limitations?
• Are these limitations consistent with your symptoms?

Conclusions by your treating doctor are not enough, especially if the issue is whether your impairment meets a Listing. SSA wants to see the medical test results themselves.

Your attorney will make sure SSA’s case file contains the actual test results for all significant positive tests, and that they are consistent with the Listing of Impairments’ specific requirements for particular kinds of medical evidence.  Two examples: (1) In cardiac cases SSA requires copies of the electrocardiogram tracings as well as the cardiologist’s interpretation of them.  (2) In pulmonary impairment cases SSA requires copies of the spirometric tracings.

Your attorney will not withhold relevant negative records, but instead will submit them and refine the case presentation to account for their existence.

Hospital Records

At a minimum, your attorney will gather the emergency room records, admission histories and physicals, all reports by medical consultants, physical therapy evaluations and reports, surgical/operative reports, pathologist’s reports, discharge summaries, and test results pertaining to your impairment, such as laboratory reports, radiologist reports, nerve condition/EMG reports, nuclear medicine reports, etc.

What is ultimately assembled depends on your attorney’s theory of your case. In many cases, hospital records concerning an acute illness are less important than the records generated by your doctor or therapist after you have stabilized. After all, there is no controversy over whether you can work when hospitalized with an acute illness.  The issue in most cases is whether you can work after recovering from the acute phase.

On the other hand, your case might be one where you have been hospitalized so often that the frequency of hospitalization is part of your case. At a minimum, your attorney will obtain copies of all the discharge summaries and perhaps also a list of all admissions that is maintained by most hospitals and available only by special request.  The summary sheet can make a dramatic exhibit.

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Examples of Who Is and Is Not Disabled

Social Security disability law defines “disability” as an inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”

An individual is not “disabled” if drug addiction or alcoholism would “be a contributing factor material to the Commissioner’s determination that the individual is disabled.”

However, you cannot always rely on common sense to tell you who is and who is not disabled under Social Security law. Here are some examples:

Example: Lawyer

• He is 35 years old with 10 years of trial experience.
• He is not working, but he is looking for a job.
• He lost his left foot in a car accident a year ago.

Because of stump complications, he is unable to use a prosthetic device to walk one block at a reasonable pace, though he uses it to walk shorter distances, e.g., around an office or around his apartment. When he goes longer distances, he rides a motorized scooter.

He is disabled based on Step 3 of the Sequential Evaluation Process.

Example: Bookkeeper

• He has a college education.
• He is a quadriplegic with only limited use of his right hand and arm and no use whatsoever of his legs and left arm.
• He uses an arm brace to write.
• He works a few hours per day as a bookkeeper and earns, after deductions for expenses related to his impairment, about $1,050 per month on average.

Because of his earnings he is not disabled.

Example: Construction Worker

• He is 48 years old.
• He has done heavy unskilled construction work since age 16.
• He has a fourth grade education and is capable of reading only rudimentary things like inventory lists and simple instructions.
• He has a “low normal” I.Q.
• He is limited to sedentary work because of a heart condition.

He is not disabled unless he has some additional limitations.

Example: Machine Operator

• He is 38 years old.
• He has done medium exertion level unskilled factory work, operating a machine since he graduated from high school.
• A cardiovascular impairment limits him to sedentary work, and a permanent injury of the right hand limits him to such work not requiring bimanual dexterity.

He is probably disabled.

Example: Truck Driver

• He is 61 years old.
• He worked as a truck driver all his life except that 10 years ago during a downturn in the trucking industry, he worked for 1-1/2 years at a sedentary office job which he got with the help of his brother-in-law.
• He is limited to sedentary work because of a pulmonary impairment.

He is not disabled because he is still capable of doing the office job.

Example: Packer

• He is 50 years old.
• He has a high school education.
• He has done unskilled light exertion factory work as a packer for the past 30 years.
• He had a heart attack on January 1 and, after being off work for eight months, he recovered after an angioplasty. His cardiologist gave him a clean bill of health and was ready to send him back to work when he broke his leg in a fall unrelated to his heart condition. In a cast and unable to stand and walk as required by his job, he could not return to work until February. He was off work a total of 13 months.

He is not disabled for the time he was off work based on Step 3 of the Sequential Evaluation Process. A regulation provides that unrelated impairments may not be combined to meet the requirement that a claimant be unable to work for 12 months.

Example: Housewife

• She is 55 years old.
• She has an eleventh grade education.
• She has not worked in the past 15 years. Before that she was a secretary.
• She has a back problem diagnosed as status post laminectomy.
• She is limited to maximum lifting of 50 lbs. with frequent lifting of 25 lbs., is capable of frequent bending, stooping, etc., and has no limitation for standing or walking.

She is disabled for the SSI program as long as she meets the income and asset limitations for that program. She is not eligible for Social Security disability benefits because she has not worked for so long.

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How Does the SSA Evaluate Mental Impairments?

Our clients often cite mental disorders in Social Security disability cases. And many of their physical impairments include hidden psychological issues. Chronic physical problems take a psychological toll. A number of these cases are denied and ultimately go to hearings.

For the Social Security Administration to evaluate your mental disorder, it requires documentation of a medically determinable impairment (discussed further below), consideration of the degree to which your mental disorder impairs your ability to work, and consideration of whether such limitation on your ability to work has lasted or is expected last for a continuous period of at least 12 months.

The Social Security Administration’s rules for assessing whether an applicant for disability benefits qualifies due to a mental disorder are complex. Here is an overview.

What Different Types of Mental Disorders Are Recognized by the Social Security Administration in Social Security Disability Cases?

The Social Security Administration’s listings for mental disorders are arranged in nine diagnostic categories, which are as follows:

• 12.02 Organic Mental Disorders. Psychological or behavioral abnormalities associated with a dysfunction of the brain. History and physical examination or laboratory tests demonstrate the presence of a specific organic factor judged to be etiologically related to the abnormal mental state and loss of previously acquired functional abilities.
• 12.03 Schizophrenic, Paranoid and Other Psychotic Disorders. Characterized by the onset of psychotic features with deterioration from a previous level of functioning.
• 12.04 Affective Disorders. Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation.
• 12.05 Mental Retardation. Refers to significantly sub-average general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period (i.e., the evidence demonstrates or supports onset of the impairment before age 22).
• 12.06 Anxiety-Related Disorders. For these disorders, anxiety is either the predominant disturbance or it is experienced if the individual attempts to master symptoms. For example, confronting the dreaded object or situation in a phobic disorder or resisting the obsessions or compulsions in obsessive compulsive disorders.
• 12.07 Somatoform Disorders. Physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms.
• 12.08 Personality Disorders. Exist when personality traits are inflexible and maladaptive and cause either significant impairment in social or occupational functioning or subjective distress. Characteristic features are typical of the individual’s long-term functioning and are not limited to discrete episodes of illness.
• 12.09 Substance Addiction Disorders. Behavioral changes or physical changes associated with the regular use of substances that affect the central nervous system.
• 12.10 Autistic Disorder and Other Pervasive Developmental Disorders. Characterized by qualitative deficits in the development of reciprocal social interaction, in the development of verbal and nonverbal communication skills, and in imaginative activity. Often, there is a markedly restricted repertoire of activities and interests, which frequently are stereotyped and repetitive.

Do You Have a Medically Determinable Mental Impairment?

The A criteria

The first step the Social Security Administration takes in evaluating your mental impairment is to determine that you, in fact, have a medically determinable mental impairment. This is done by deciding whether diagnostic criteria in the Listings of Mental Impairments, known as the A criteria, are met. Each of the nine Listings of Mental Impairments has its own separate A criteria. The A criteria substantiate medically the presence of a certain mental disorder.

Is Your Mental Impairment Severe?

The B Criteria

If the A criteria are met, the Social Security Administration moves on to the B and, in some cases, the C criteria, which are used to assess the degree of your impairment.

The B and C criteria describe impairment-related functional limitations that are incompatible with the ability to do any gainful activity. The functional limitations set forth in the B and C criteria must be the result of the mental disorder (described in the diagnostic description as set forth above), and as manifested by the A criteria’s medical findings.

Under the B criteria, your functional limitations are evaluated in four areas:
1. Activities of daily living – Examples include shopping, cooking, taking public transportation, paying bills, maintaining a residence, and caring appropriately for your grooming and hygiene.
2. Social functioning – Your capacity to interact independently, appropriately, effectively, and on a sustained basis with other individuals.
3. Concentration, persistence, or pace – Your ability to sustain focused attention and concentration long enough to permit the timely and appropriate completion of tasks commonly found in work settings.
4. Episodes of decompensation – Exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace.

Your functional limitations in each of the first three areas are rated as “none,” “slight,” “moderate,” “marked,” and “extreme.” The scale is “never,” “one or two,” “three,” and “four or more” for the fourth area (episodes of decompensation).

A rating of “none” or “mild” indicates a degree of limitation that is generally not considered severe by the Social Security Administration, unless the evidence otherwise indicates there is more than a minimal limitation of your ability to do basic work activities.

Are You Disabled Under the B Criteria Listing?

If you meet the A criteria, you will meet the listing for a mental disorder and be considered disabled if:

• Two of the B criteria are rated “marked” and, in the case of episodes of decompensation, three episodes of decompensation have occurred; or
• Any one of the B criteria is rated “extreme” (a degree of limitation that is incompatible with the ability to do any gainful activity).

A rating of “moderate” indicates a severe impairment, but one that does not meet or equal a listed impairment and therefore requires a “residual functional capacity” assessment. For more information regarding residual functional capacity, see below.

Establishing That You Meet the B Criteria for Social Security Disability Benefits

We tell our disability clients that the best sources of information and testimony about the “B criteria” are usually your family, friends, and neighbors. Sometimes you may be able to provide useful information, but often in mental impairment cases, claimants have insufficient insight into their limitations. Your views of your mental disorder and those of people who know you well may diverge widely. This problem in itself can turn out to be a major issue in a mental impairment case.

Sometimes denial decisions in mental impairment cases are based on little more than the Social Security Administration’s uncritical acceptance of a claimant’s statements about daily activities, social functioning, and ability to get things done on time. Mental disorders frequently rob claimants of the ability to realistically assess their limitations. In these cases, it is extremely important to have a competent disability attorney who can look beyond what the claimant says about level of functioning.

If You Do Not Meet the B Criteria, Move on to the C Criteria

If you do not meet the B criteria, the Social Security Administration moves on to evaluate the C criteria when your impairment is one of the following:

• An organic mental disorder,
• A schizophrenic, paranoid, or other psychotic disorder,
• An affective disorder, or
• An anxiety-related disorder.

The C criteria for organic disorders, psychotic disorders, and affective disorders are identical. They require a two-year history of a chronic mental impairment with more than minimal limitation in the ability to do basic work activities. In addition, the criteria require at least one of the following:

• A current history of one or more years’ inability to function outside a highly supportive living arrangement, with an indication of continued need for such an arrangement.
• Repeated episodes of decompensation, each of extended duration.
• A residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate.

The single C criterion for anxiety-related disorders is an anxiety disorder resulting in complete inability to function independently outside the area of one’s home.

As a rule, the C criteria must be assessed when you appear to function too well to meet the B criteria.

Establishing That Your Impairment Meets the C Criteria

More than the B criteria, deciding whether your impairment meets the C criteria may depend on expert opinion, particularly from your treating doctors. A single mental status examination may be insufficient. Claimants with long histories of repeated hospitalizations or prolonged outpatient care with supportive therapy and medication often have structured their lives to minimize stress and reduce symptoms. These claimants may be much more impaired for work than their symptoms and signs would indicate.

If You Meet the B or C Criteria, But Not the A Criteria

According to the Social Security Administration, the A criteria of the mental disorders listings “are only examples of common mental disorders that are considered severe enough to prevent an individual from doing any gainful activity. When [a claimant has] a medically determinable severe mental impairment that does not satisfy the diagnostic description or the requirements of the paragraph A criteria of the relevant listing, the assessment of the paragraph B and C criteria is critical to a determination of equivalence.” This means that a claimant who meets the B or C criteria, but not the A criteria may nonetheless be considered disabled.

Residual Functional Capacity Assessment

If your mental disorder causes only moderate functional limitations (i.e., the B or C criteria are not met), you may or may not have the residual functional capacity to do substantial gainful activity. The Social Security Administration must do a residual functional capacity assessment – it will determine whether you can do skilled, semiskilled, or unskilled work in spite of impairments, or whether you cannot even do unskilled work. Claimants with a marked impairment in any of the abilities required for unskilled work will be awarded disability benefits even in the absence of any physical impairment.

This assessment of mental residual functional capacity is crucial when your impairment does not meet the B or C criteria, but is nevertheless severe.

The Social Security Administration requires a lot of information to make an accurate residual functional capacity assessment. This is another important area in which information from others about how you behave at home, work, and in social situations can help.

Assistance Available for Mental Disorder Disability Claims

Cases involving mental disorders can be challenging. I am experienced in helping Social Security disability claimants through this process.

If you have such a case and are not already represented by a Social Security disability attorney and want my evaluation, click here, then give me a brief description of your claim using the form to the right.

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How the Social Security Administration Evaluates Heart Disease and Heart Failure

Ischemic heart disease and chronic heart failure are the two cardiac impairments most often seen in Social Security disability cases.

The Social Security Administration depends heavily upon exercise testing in evaluating ischemic heart disease and chronic heart failure. To meet the chronic heart failure Listing or the ischemic heart disease Listing, a state agency doctor must first determine that exercise testing would present a significant risk to the individual.

For ischemic heart disease, three “ischemic episodes” in one year, each requiring revascularization, defined as an angioplasty or bypass surgery, will meet the ischemic heart disease Listing.

The Social Security Administration is looking for an extreme limitation, “that is, an impairment that very seriously limits your ability to independently initiate, sustain, or complete activities of daily living.”

Exercise Tolerance Test Results

If you have ischemic heart disease, and state agency doctors found that your impairment did not meet the requirements of Social Security Administration’s Listing for ischemic heart disease, it is probably because the Social Security Administration found a negative exercise test result in the medical records they gathered.

Many times such exercise tests can be properly placed in context and are not inconsistent with you being found disabled. Such exercise tolerance tests, abbreviated ETT, have limitations that have been acknowledged by the Social Security Administration:

• 4. Do ETTs have limitations? An ETT provides an estimate of aerobic capacity for walking on a grade, bicycling, or moving one’s arms in an environmentally controlled setting. Therefore, ETT results do not correlate with the ability to perform other types of exertional activities, such as lifting and carrying heavy loads, and do not provide an estimate of the ability to perform activities required for work in all possible work environments or throughout a workday. Also, certain medications (such as beta blockers) and conduction disorders (such as left or right bundle branch blocks) can cause false-negative or false-positive results. Therefore, we must consider the results of an ETT together with all the other relevant evidence in your case record.

The Social Security Administration has also acknowledged that a negative test is not necessarily decisive:

• 11. How do we evaluate ETT results? We evaluate ETT results on the basis of the work level at which the test becomes abnormal, as documented by onset of signs or symptoms and any ECG or imaging abnormalities. The absence of an ischemic response on an ETT alone does not exclude the diagnosis of ischemic heart disease. We must consider the results of an ETT in the context of all of the other evidence in your case record.

And the Social Security Administration says that if your impairment does not meet or equal an impairment found in the Listings, you “may or may not have the residual functional capacity to engage in substantial gainful activity.” Thus, you can be disabled despite a negative exercise tolerance test.

The Social Security Administration also states that the results of an exercise test are timely only for 12 months after the date performed “provided there has been no change in your clinical status that may alter the severity of your cardiovascular impairment.” When the Social Security Administration evaluates a test that is more than 12 months old, it “must consider the results in the context of all the relevant evidence, including why the test was performed and whether there has been an intervening event or improvement or worsening of your impairment.” We always explore the possibility that your condition worsened after the date of a negative exercise tolerance test.

Detailed Investigation

When I take on a cardiac impairment case, I obtain a detailed description of your functional capacity from your treating cardiologist. At the hearing level there is always more room for argument, and more opportunities for a treating cardiologist to explain why in the claimant’s case an exercise tolerance test is not dispositive.

I fully explore all opportunities like this when I take on a Social Security disability case, whether it is a cardiac impairment or other health problem.

If you would like me to evaluate your Social Security disability claim, you may contact me by clicking here, then using the form to the right.

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Can I Qualify for Social Security Disability Benefits If I Am Working?

A Social Security applicant who is working can still be found to be disabled under certain circumstances. Whether a working claimant qualifies for benefits depends on several factors, including the type of work, the amount the claimant is earning, and the amounts, if any, of the claimant’s impairment-related work expenses and subsidies.

Type of Work

If you are currently working, I will need to determine if that work makes it impossible for you to be found disabled.

If you are working and performing “substantial gainful activity” (SGA), no matter how impaired you are, you cannot be found disabled. Work, however, must be both “substantial” and “gainful.”

Substantial work activity involves doing significant physical or mental activities. Under the Social Security regulations, work may not be substantial if you are unable “to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work” or if you are doing work “that involves minimal duties that make little or no demands” on you and that are of “little or no use” to the employer or to the operation of a self-employed business.

Gainful work activity “is the kind of work usually done for pay or profit, whether or not a profit is realized.” Nevertheless, when a claimant is an employee of someone else, whether work is “gainful” is usually determined by looking only at the claimant’s earnings.

Sometimes, even when work is not considered substantial gainful activity, it may still prevent you from receiving Social Security benefits. For example, if you must prove your inability to do a wide range of sedentary work in order to be found disabled, but you are working part-time at a heavy job, that part-time work may be so inconsistent with a claim for disability benefits that you will likely be denied benefits. The issue you face is: How do you have the capacity to do a heavy job part-time but cannot do a sedentary job full-time? In the view of the Social Security Administration, the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.

Earning Less Than the “Substantial Gainful Activity” Level

If you are working for someone else, meaning you are not self-employed, proof that the work is at less than SGA level is usually a mathematical process. In most cases, the Social Security Administration simply compares your earnings from work (after applying appropriate deductions and averaging income) with the SGA earnings guidelines stated in the Social Security regulations.

Information and Materials a Disability Lawyer Will Review

In evaluating your claim for Social Security disability benefits, I will need to establish exactly how much you are earning. To do this, I will ask you for copies of your check stubs. If check stubs are not available, I can ask your employer for a month-by-month breakdown of your earnings.

During our initial interview with you, we will inquire about your hourly wage and the number of hours you have worked per week. Then we will do an initial calculation of your earnings. (If you would like to calculate your earnings yourself, avoid the mistake that claimants sometimes make when they simply multiply weekly earnings by four to determine monthly earnings. There are 4.3 weeks in a month.)

If an occasional month exceeds the SGA level, don’t worry. Earnings are generally averaged over the time worked. The Social Security rulings and regulations include detailed guidelines for averaging earnings to determine if work is substantial gainful activity.

Subtract Any “Impairment-Related Work Expenses” (IRWE)

If your earnings still appear to be above the SGA level, I will ask you about out-of-pocket payments for medical expenses to treat your disabling impairment. Items and services that an impaired person needs in order to work (such as certain attendant care services or transportation costs or work-related equipment) are called impairment-related work expenses (IRWE). When determining if your work constitutes substantial gainful activity, the cost of certain IRWE may be deducted from your monthly earnings even though such items and services are also necessary for normal daily activities. Routine drugs, however, are not deductible unless they are necessary to control the disabling condition so as to enable the individual to work. Deduction may be made only if the cost is actually paid by the individual. Thus, if the cost is paid by insurance, it is not deductible; and neither is the cost of the medical insurance. Insurance co-pays, however, are deductible.

Subtract Any Subsidy

Sometimes, even after deducting sick pay, vacation pay and IRWEs and averaging earnings, you may still be earning more than the SGA level. But your work situation may be unusual, so we will consider whether there is a “marked discrepancy between the amount of pay and the value of the services.” If there is, your work may include what the social security rules call a “subsidy.”

There are several circumstances indicating a subsidy. For example, consider the situation where a claimant is working for a relative. The claimant may be doing very little work but the claimant is being paid more than the claimant’s work is actually worth. This is not substantial work. This work involves a subsidy. One way we might prove a subsidy in such a case is to obtain from the claimant’s employer an estimate of the true value of the claimant’s work. If the true value of the claimant’s work is less than the SGA level, the claimant will be found not to be performing gainful activity.

Other situations in which work may not be “substantial” include work done under special conditions, such as:

• In a sheltered workshop where a claimant might receive special assistance from others;
• Where the claimant is allowed to work irregular hours or take frequent rest breaks;
• Where the claimant is provided special equipment or was assigned work especially suited to the claimant’s impairment;
• Where the claimant was able to work because someone helped the claimant prepare for or get to and from work;
• Where the claimant is allowed to work at a lower standard of productivity; or
• Where the claimant was given the opportunity to work because of a family relationship, past association with the employer or the employer’s concern with the claimant’s welfare.

Usually such insubstantial work done under special conditions is not an impediment to the claimant being found disabled. When we represent a client working under such special conditions, we will typically ask the employer to compare the client’s work with similar work in the regular work force and to establish the “reasonable worth of the work.” When your earnings exceed the reasonable value of the work you perform, the Social Security Administration considers only that part of your pay which you actually earn.

Advice for Prospective Claimants Who Are Working

If you are working despite a disability, and you wonder whether you might still qualify for Social Security benefits, consider obtaining a professional evaluation. Click here, then provide a brief description of your claim using the form to the right, and I will respond promptly.

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Social Security Disability vs. Supplemental Security Income

Disability claimants frequently ask: “What’s the difference between Social Security disability and Supplemental Security Income (SSI)?” “Will I qualify for benefits under both programs?” “Should I apply for both?”

The Social Security Administration pays disabled people benefits through two programs: the Social Security disability insurance program and the SSI program. You may apply for benefits under both programs. Social Security disability is a program for people who become disabled and who have “paid into the system” while SSI is for people who become disabled, have not paid into the system, and meet certain income and resource requirements.

Generally, you only receive both Social Security disability and SSI benefits if the amount of your Social Security disability benefits is small enough. However, even if high Social Security disability benefits disqualify you from receiving SSI benefits, you may get SSI during the five-month waiting period after becoming disabled when no Social Security disability benefits are paid, assuming assets and any other income are small enough.

An Insurance Plan vs. a Welfare Program

Social Security Disability – An Insurance Plan

Social Security disability acts like an insurance plan. You must be “insured” to be eligible to receive Social Security disability benefits. To have this insurance, you must have paid Social Security taxes over a long enough period of time and paid such taxes recently enough. Social Security disability payments are paid out of the Social Security trust fund.

The U.S. Social Security system is based on a theory of pooled risk. It serves both as a retirement system and as a disability insurance system. When you have Social Security withheld from your wages or you pay self-employment taxes, you are paying for this security. Most people, hopefully, will reach retirement age without becoming legally disabled. However, some people are not so lucky. If you have paid into the system adequately and become disabled, you can receive Social Security disability benefits prior to reaching retirement age.

Most people who are wage earners receive a yearly Social Security statement showing how much money they would receive upon retiring and how much they would receive per month if they were to become disabled. Normally, if you have not paid into the system to qualify for Social Security disability benefits, the statement will indicate how many more credit hours of work you would need to qualify for disability benefits.

After you stop working (and stop paying Social Security taxes), your insured status will lapse at a certain time, just like a private insurance plan. Generally speaking, you have about five years of insurance after you stop working if you have paid Social Security taxes long enough to be “insured.” This does not mean that you have to apply within five years of stopping work. It just means that you would have to prove that you became disabled during that five-year period.

SSI – A Welfare Program

Some people have not paid enough into the system to receive Social Security disability benefits. They either have limited work experience or stopped working a long time ago and became disabled later on. These individuals may qualify for SSI benefits through the SSI program, which is a welfare program for the blind, disabled, and those over 65. SSI benefits are paid out of the U.S. Government’s general revenues.

The SSI program makes monthly payments to people who have few assets and low income. The SSI monthly payments are often lower than the Social Security disability payments. The SSI program is intended for people who are indigent, and to qualify you must meet certain low income and asset requirements.

The SSI program uses the same criteria for disability as the Social Security disability program. Many states add money to the basic federal SSI benefit. The state benefit amount varies state-to-state.

Important Differences Between the Social Security Disability and SSI Programs

The Social Security disability and SSI programs are both managed by the Social Security Administration and have many of the same terms and ideas. However, there are important differences between the two programs that should be considered.

The following sections lay out some important differences between the two programs:

Qualification Requirements

Social Security Disability

You must meet the Social Security Administration’s criteria for being “disabled.” The Social Security Administration has its own definition of “disabled,” which differs from the requirements of other government programs. You are disabled only if your medically determinable physical or mental impairment or combination of impairments is so severe that you are unable to do your previous work and you cannot, considering your age, education, and work experience, do any other substantial gainful work that exists in the national or local economy.

You must also be “insured” (you must have paid Social Security taxes over a long enough period of time and have paid such taxes recently enough).

Supplemental Security Income (SSI)

You must be found to be “disabled” using the same definition as is used for the Social Security disability program.

There is no “insured” or earnings requirement. However, your income and assets must not exceed the SSI program’s income and asset limitations. See below for more information.

Asset Limitations

Social Security Disability

None. However, workers’ compensation and/or other federal or state or insurance payments may affect Social Security disability benefits.

Supplemental Security Income (SSI)

There is an asset limitation of $3,000 per couple and $2,000 per individual. This does not include a home of any value and one car of any value, if it is used for work or to obtain medical care.

Income Limitations

Social Security Disability

If you make more than $1,000 per month at a job involving more than minimal duties you will be ineligible for Social Security disability benefits.

Supplemental Security Income (SSI)

This is a needs-based program. Its income limit is based on the monthly SSI benefit amount after several different kinds and amounts of unearned and earned income are not counted; this income is referred to as “countable income.” If your monthly countable income is over the SSI benefit amount, you cannot receive benefits. And the more countable income you have, the less your benefit will be.

Benefit Payment Amount

Social Security Disability

The benefit amount you receive is based on your earnings record. This amount may be reduced based on worker’s compensation payments and/or public disability benefits (for example, certain state and civil disability benefits). Your other income or assets do not affect this payment amount. Your monthly payment may be adjusted each year to account for changes in cost-of-living.

Supplemental Security Income (SSI)

The benefit amount you receive is a federal amount set by Congress plus a state supplement, if any, set by your state. The SSI federal amount is adjusted each year based on cost-of-living changes.

Waiting Period

Social Security Disability

You must wait a full five months from the date of the onset of your disability.

Supplemental Security Income (SSI)

There is no waiting period. Your SSI payment will begin with the first month after all the SSI requirements are met or when the definition of disability is met, whichever is later.

Retroactivity

Social Security Disability

You may be eligible for payment of up to 12 months of benefits prior to your application, if you were disabled during that time and all other requirements are met.

Supplemental Security Income (SSI)

There is no retroactivity period – you will never receive benefits for any time before the date of your SSI application.

Health Insurance Coverage

Social Security Disability

Medicare coverage begins after receipt of 24 months of benefits.

Supplemental Security Income (SSI)

In most states, Medicaid coverage begins with entitlement to SSI (sometimes three months before).

Time Limit for Reopening Earlier Application

Social Security Disability

Four years from the date of the notice of the initial determination. Good cause is required.

Supplemental Security Income (SSI)

Two years from the date of the notice of the initial determination. Good cause is required.

Source of Benefit

Social Security Disability

Social Security trust fund.

Supplemental Security Income (SSI)

U.S. Government’s general revenues.

State Supplements

Social Security Disability

None.

Supplemental Security Income (SSI)

Many states pay an additional state supplement. The amounts and qualifications vary state-to-state. You may be eligible for disability benefits under both Social Security insurance disability and SSI

You may be eligible for either Social Security disability benefits or SSI, or some combination of the two. If you qualify for both, you may lose SSI benefits or received a reduced SSI amount, depending on the amount of your Social Security disability benefits.

Or you may now only be eligible for SSI benefits, but you could later become eligible for Social Security disability benefits once you’ve paid enough Social Security taxes.

Although two applications are required (one for each program), the Social Security Administration will determine when you apply for disability benefits which program you are eligible for or if you are eligible for both.

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