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Intro to Social Security: "The Sequential Evaluation Process"

“DISABILITY”

Congress has defined the term “disability” for the both the Title II and Title XVI (SSI) disability programs 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.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A).

“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).

Social security Regulations, 20 CFR Subpart P, Sec. 404.1501 et seq. provide a five-step sequential evaluation process for determining disability.

Step 1: Is the claimant working?

Step 2: Does the claimant have a severe impairment?

Step 3: Does the claimant’s impairment(s) meet or equal a listed impairment?

Step 4: Can the claimant return to past work?

Step 5: Can the claimant perform any other job that exists in significant numbers

            in the national economy?

As it is a sequential process, each step must be met in order to reach a finding of “disabled” Consequently an individual who is working, regardless of the severity of their impairments, is “not disabled”

Regulation 20 CFR 404.1504- Determinations by other agencies or organizations- “ a determination made by another agency that you are disabled or blind is not binding on us”

Disability Decision and

Sequential Evaluation Process

NOT

DISABLED

<

Yes

Step 1.

Engaging in

“substantial gainful”

work activity

No>

 

<

       No

Step 2

“Severe Impairment”

and

“Impairment(s) lasted for a period in excess of 12 months or end in death”

Yes>

 

Step 3

“Impairment(s) meet Listings of Impairments as set forth in:

20 CFR 404, Subpart P,

Appendix 1

No<

Yes

“Disabled due to Listings of Impairments”

<

Yes

Step 4

Able to perform

“past relevant work”

No>

 

<

Yes

“Able to perform any other work”

No>

   

 

 “Disabled due to Medical Vocational Guidelines”

Step 1- “Is the Claimant Working”

20 CFR 404.1510- Meaning of Substantial Gainful Activity

Substantial gainful activity means work that-

  1. Involves doing significant and productive physical or mental duties; and
  2. Is done (or intended) for pay or profit

         20 CFR 404.1572- What we mean by substantial gainful activity

         Substantial gainful activity is work activity that is both substantial and gainful:

(a) Substantial work activity. Substantial work activity is work activity that involves doing significant physical or mental activities. Your work may be substantial even if it is done on a part-time basis or if you do less, get paid less, or have less responsibility than when you worked before.

(b) Gainful work activity. Gainful work activity is work activity that you do for pay or profit. Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.

(c) Some other activities. Generally, we do not consider activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs to be substantial gainful activity.

  1. $300 per month is not generally SGA
  2. Over $1000 is considered SGA in 2010
  3. “Unsuccessful Work Attempts” (UWA) are not considered SGA if individual has worked less than 6 months and left work due to health reasons
  4. 404.1574 –Evaluation guides if you are an employee;

                                                 404.1574 andSSR 83-34, which provide evaluation guides

                                    for the self-employed.

  1. 404.1576- Work related expenses
  2. Work is evaluated “without regard to legality.” 20 C.F.R. §404.1572, 42 U.S.C. §§423(d)(4)(B) and 1382c(a)(3)(E). Illegal activity may be substantial gainful activity. (SSR 94-1c)

                                    

Step 2: “Does the claimant have a severe impairment?”

           

20 CFR 404-1521- What we mean by an impairment(s) that is not severe

(a) Non-severe impairment(s). An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.

(b) Basic work activities. When we talk about basic work activities, we mean the abilities and aptitudes necessary to do most jobs. Examples of these include:

1. Physical functions such as walking, standing. sitting, lifting, pushing, pulling, reaching, carrying, or handling.

2. Capacities for seeing, hearing, and speaking

3. Understanding, carrying out and remembering simple instructions

4. Use of judgment

5. Responding appropriately to supervision, co-workers and usual work situations and

6. Dealing with changes in a routine work setting

Therefore, any reduction in residual functional capacity (RFC-what a claimant can still do even with impairments), satisfies the severe medically determinable impairment requirement. 20 C.F.R. § 404.1520(c), § 404.1521, SSR 85-28 and SSR 96-3p. However, “[n]o symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual’s complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment.” SSR 96-4p. But, even subjective symptoms, as long as they arise from a medically determinable impairment, must be considered in assessing whether an impairment, or group of impairments, reduces a claimant’s ability to do basic work activity. SSR 96-3p.

Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months (20 CFR 1509)

See also:

20 CFR 404.1506- Exclusion of felony related impairments

20 CFR 404.1522- Two or more unrelated impairments, non-combination

20 CFR 404.1523- Combined affect of multiple impairments

“Closed Period” - After the twelve-month duration requirement is met, a finding of a closed period of disability may be requested where a claimant’s condition has improved to the extent that he or she is able or has returned to work.

Step 3:   “Does the claimant’s impairment(s) meet or equal a listed impairment?”

           The claimant’s medical signs, findings, and symptoms must exactly meet or “medically equal” one of the set of medical signs, findings and symptoms found in the Listing of Impairments, a set of medical criteria found at 20 C.F.R. Part 404, Subpart P, Appendix 1, Part A. The Listings contain 14 separate medical categories for adults and under Part B, categories for children.

           An ALJ or the Appeals Council may only find that a claimant’s impairment medically equals a Listed impairment by the opinion of a medical expert (ME) hired by SSA. (SSR 96-6p).

Step 4: “Can the claimant return to past work?”

     The claimant must be incapable of doing any work that he or she has performed in the last the 15 years from the date of onset of disability. Any work which is at the substantial gainful activity level and has lasted for over 3 months is part of the past relevant work. (PRW)

     If a claimant retains the capacity to do a “job as it is ordinarily done”, the claimant is not disabled even though the claimant’s actual past job required greater exertion and the claimant is unable to do that particular job. In addition, even if the past job was done only part-time, as long as it was substantial gainful activity, it is considered PRW. SSR 96-8p.

Step 5: “Can the claimant perform any other job that exists in significant numbers in the national economy?”

The claimant cannot, “considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” To achieve more consistency in decision-making, SSA promulgated regulations, effective in 1979, known as the Medical-Vocational Guidelines, which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2. The Medical-Vocational Guidelines contain three matrices, commonly called “the grid”. Each matrix is based on a maximum RFC of sedentary, light or medium work and applies the factors of age, education and prior work experience. The grids govern the outcome of cases where the factors exactly describe a claimant. A claimant may have a combination of exertional and non-exertional impairments; the Medical-Vocational Guidelines may be used as “an overall structure for evaluation” and a “framework for consideration” of disability. (Rules 200.00(d) and (e)).

Table No. 1—Residual Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work as a Result of Severe Medically Determinable Impairment(s)

Rule

Age

Education

Previous work experience

Decision

201.01

Advanced age

Limited or less

Unskilled or none

Disabled

201.02

......do

......do

Skilled or semiskilled—skills not transferable[1]

Do.

201.03

......do

......do

Skilled or semiskilled—skills transferable[1]

Not disabled

201.04

......do

High school graduate or more—does not provide for direct entry into skilled work[2]

Unskilled or none

Disabled

201.05

......do

High school graduate or more—provides for direct entry into skilled work[2]

......do

Not disabled

201.06

......do

High school graduate or more—does not provide for direct entry into skilled work[2]

Skilled or semiskilled—skills not transferable[1]

Disabled

201.07

......do

......do

Skilled or semiskilled—skills transferable[1]

Not disabled

201.08

......do

High school graduate or more—provides for direct entry into skilled work[2]

Skilled or semiskilled—skills not transferable[1]

Do.

201.09

Closely approaching advanced age

Limited or less

Unskilled or none

Disabled

201.10

......do

......do

Skilled or semiskilled—skills not transferable

Do.

201.11

......do

......do

Skilled or semiskilled—skills transferable

Not disabled

201.12

......do

High school graduate or more—does not provide for direct entry into skilled work[3]

Unskilled or none

Disabled

201.13

......do

High school graduate or more—provides for direct entry into skilled work[3]

......do

Not disabled

201.14

......do

High school graduate or more—does not provide for direct entry into skilled work[3]

Skilled or semiskilled—skills not transferable

Disabled

201.15

......do

......do

Skilled or semiskilled—skills transferable

Not disabled

201.16

......do

High school graduate or more—provides for direct entry into skilled work[3]

Skilled or semiskilled—skills not transferable

Do.

201.17

Younger individual age 45-49

Illiterate or unable to communicate in English

Unskilled or none

Disabled

201.18

......do

Limited or less—at least literate and able to communicate in English

......do

Not disabled

201.19

......do

Limited or less

Skilled or semiskilled—skills not transferable

Do.

201.20

......do

......do

Skilled or semiskilled—skills transferable

Do.

201.21

......do

High school graduate or more

Skilled or semiskilled—skills not transferable

Do.

201.22

......do

......do

Skilled or semiskilled—skills transferable

Do.

201.23-201.29 All factors result in “not disabled”

[1]See 201.00(f). “very little, if any, vocational adjustment required in terms of tools, work settings, or the industry.”
[2]See 201.00(d).
[3]See 201.00(g).
[4]See 201.00(h).

Grid “Work” Definitions (20 CFR 404.1567, SSR 83-10)

Medium Work

“lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 CFR 404.1567(c). “A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds.” “The considerable lifting required for the full range of medium work usually requires frequent bending-stooping. SSR 83-10

Light Work

“lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing or when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls” 20 CFR 404.1567(b)

Sedentary Work

“lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although sitting is involved, a certain amount of walking and standing often is necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met”. 20 CFR 1567(a)

To apply a rule from one of the grids in the Medical-Vocational Guidelines, the claimant must be capable of doing a “full or wide range” of work at the exertional level applicable to that grid. SSR 83-10 and 83-11.

A claimant who has no more than a marginal education and 35 years of doing arduous unskilled labor and who is unable to do that kind of work will be found disabled. 20 C.F.R. 404.1562(a), SSR 82-63

Grid “Age” Definition (20 CFR 404.1563)

60-64

“Closely approaching retirement age”

55-59

“Advanced age”

50-54

“Closely approaching advanced age”

Under 50

“Younger Person”

…age categories will not be applied “mechanically in a borderline situation.” 20 C.F.R. 404.1563(b) and SSR 86-8.

Grid “Education” Definition (20 CFR 404.1564)

Illiteracy

Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.

Marginal Education

Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.

Limited

Education

Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.

High School Education

High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.

Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.

Grid “Skill Level” Definition (20 CFR 404.1568)

Unskilled Work

Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

Semi-skilled

Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

Skilled

Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.

Skills that can be used in other work (transferability) (20 CFR 404.1568(d))

(1) What we mean by transferable skills. We consider you to have skills that can be used in other jobs, when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs.

Dictionary of Occupational Titles (DOT)

2) How we determine skills that can be transferred to other jobs. Transferability is most probable and meaningful among jobs in which—(i) The same or a lesser degree of skill is required;(ii) The same or similar tools and machines are used; and(iii) The same or similar raw materials, products, processes, or services are involved.

Vocational Expert (VE)

(3) Degrees of transferability. There are degrees of transferability of skills ranging from very close similarities to remote and incidental similarities among jobs. A complete similarity of all three factors is not necessary for transferability. However, when skills are so specialized or have been acquired in such an isolated vocational setting (like many jobs in mining, agriculture, or fishing) that they are not readily usable in other industries, jobs, and work settings, we consider that they are not transferable.

Vocational Expert (VE)- Alternate Sit/Stand Option SSR 83-12

“There are some jobs in the national economy—typically professional and managerial ones—in which a person can sit or stand with a degree of choice. If an individual had such a job and is still capable of performing it, or is capable of transferring work skills to such jobs, he or she would not be found disabled. However, most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task. Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will. In cases of unusual limitation of ability to sit or stand, a V[ocational] S[pecialist] should be consulted to clarify the implications for the occupational base.”

“RFC for less than a full range of Sedentary work” SSR 83-10, 83-12, 96-9p    

Rule exceptions for Blindness- 20 CFR 404.1581-1587

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