By Thomas E. Bush
Excerpted from Social Security Disability Practice
- Step 1: Substantial Gainful Activity
- Step 2: The Severity Step
- Duration Requirement
- Step 3: Listing of Impairments
- Step 4: Past Relevant Work
- Step 5: Other Work
- Summary and Exceptions
Under the five-step sequential disability evaluation process described in 20 C.F.R. §404.1520 the following must be proved by a claimant in order to be found disabled:
- The claimant is not engaging in “substantial gainful activity” (SGA); and
- The claimant has a “severe” impairment; and
- The impairment meets or “equals” one of the impairments described in the social security regulations known as the “Listing of Impairments”; or
- Considering the claimant’s “residual functional capacity” (RFC), that is, what the claimant can still do even with his or her impairments, the claimant is unable to do “past relevant work” (PRW); and
- Other work within the claimant’s RFC, considering age, education and work experience, does not exist in the national economy in significant numbers.
Watch out for the terms identified by quotation marks above and the initials that go with some of them. They have precise meanings in the regulations and rulings that are not necessarily the meanings one would expect. It will be necessary for you to learn these terms if you want to make sense out of social security regulations.
Because it is a sequential process, if the proof fails at any step other than step 3, the process is terminated and the claimant is found not disabled. Thus, if a claimant is working, that is, performing “substantial gainful activity” (SGA), no matter how impaired that claimant is, the claimant cannot be found disabled. This is the reason that our hypothetical bookkeeper in §100 is not disabled.
This work, however, must be both “substantial” and “gainful.” “Substantial work activity . . . involves doing significant physical or mental activities.” 20 C.F.R. §404.1572(a). Work may not be substantial when a claimant is unable “to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work” or when a claimant is doing work “that involves minimal duties that make little or no demands” on the claimant and that are of “little or no use” to the employer or to the operation of a self-employed business. 20 C.F.R. §404.1573(b). But even sheltered work may be substantial. 20 C.F.R. §404.1573(c).
As a rule, whether work is “gainful” is determined by looking at the claimant’s earnings. But, because SSA did not want to let self-employed claimants slip past this step if they happened to be working at a loss (as so many unimpaired self-employed people do from time to time), SSA defined gainful activity broadly: “Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.” 20 C.F.R. §404.1572(b). See also, 20 C.F.R. §404.1575 and SSR 83-34, which provide evaluation guides for the self-employed.
Beginning with the year 2001, the amount of earnings that qualifies as “gainful activity” is adjusted for growth in national wages. 20 C.F.R. §404.1574(b)(2)(ii). You can find the amount for the current year on the Internet at www.ssa.gov/cola/. Because the regulations contain SGA dollar amounts only for years through 2000 (and only a formula for years after that), Appendix 11 of this book provides the SGA amounts (and several other amounts that are based on annual cost-of-living increases) for years beginning with the year 2000. Historical SGA amounts can also be found at POMS DI 10501.015.
The SGA level, which was $500 per month from 1990 until July 1999 when it was raised to $700, is becoming considerably more generous than it used to be because of cost-of-living increases. For the year 2007, average earnings of more than $900 per month, after appropriate deductions for impairment–related work expenses and medical expenses (see 20 C.F.R. §1576, SSR 84-26 and §274 of this book), show that work was substantial gainful activity. From January 1, 1990 through June 30, 1999, average earnings of more than $500 per month showed that a claimant was engaged in substantial gainful activity. During all of the 1980s, average earnings of more than $300 per month demonstrated that work was substantial gainful activity. 20 C.F.R. §404.1574(b)(2). See also SSRs 83-33 and 83-35.
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). Thus, illegal activity may be substantial gainful activity. See also, SSR 94-1c, which adopted Dotson v. Shalala, 1 F.3d 571 (7th Cir. 1993), as a social security ruling.
At step two of the sequential evaluation process, it is necessary to determine if a claimant’s impairments are “severe,” a misleading word that encouraged erroneous decisions and spawned much litigation in the past. This step, which incorporates two different concepts, was intended to weed out frivolous cases involving either 1) no medically determinable impairments or 2) slight medically determinable impairments that impose only minor limitations on ability to work. Virtually any reduction in residual functional capacity (what the claimant can still do even with his or her impairments) satisfies the requirement that there be a severe medically determinable impairment. See 20 C.F.R. §404.1520(c), §404.1521, SSR 85-28 and SSR 96-3p. As such, medically determinable impairments are divided into two categories:
- slight impairments that are referred to in SSA’s peculiar lingo as “nonsevere” impairments and
- all other impairments that are, therefore, “severe.”
As a practical matter, when you prove a reduction of the claimant’s residual functional capacity at step 4, you have effectively proven that the claimant has a severe medically determinable impairment. No separate proof is required to show a significant limitation of ability to do “basic work activities.” See 20 C.F.R. §404.1521. SSA is supposed to consider the combined effect of all impairments, including multiple non-severe impairments, in determining if a claimant’s overall condition meets the requirement of being “severe.” 20 C.F.R. §404.1523. Note that 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. If an adjudicator is “unable to determine clearly” the effect of an impairment on a claimant’s ability to do basic work activities, the adjudicator is directed by SSR 96-3p to proceed with the next steps of the sequential evaluation process. Thus, close cases are to be decided in favor of finding an impairment to be severe.
On the other hand, “[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. When there is no “medically determinable impairment,” an individual may be found not disabled at step 2 of the sequential evaluation process. Nevertheless, as a rule, if a doctor has enough information to make a legitimate diagnosis, a claimant has a medically determinable impairment. When there is a controversy over which diagnosis is correct, if medical signs or laboratory findings show any abnormality, the claimant has a medically determinable impairment even if the doctors do not agree on which diagnosis is best.
Step 2 denials are usually hogwash. Do not be intimidated by a step 2 denial if your own eyes tell you that the claimant is significantly impaired and you believe the claimant. Indeed, you should not be intimidated by step 2 denials even after a hearing in a non-frivolous case. Even though the U.S. Supreme Court upheld the facial validity of the step 2 regulation in Bowen v. Yuckert, 482 U.S. 137 (1987), federal courts have not treated SSA kindly in step 2 cases. Federal courts usually send step 2 cases back to SSA for completion of the sequential evaluation process. Indeed, after the Supreme Court upheld the facial validity of step 2 in Bowen v. Yuckert, supra, it remanded the case to the Ninth Circuit which, in turn, remanded Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 1988), refusing to affirm a step 2 denial in that case.
Unless an impairment is expected to result in death, it must have lasted or be expected to last for a continuous period of 12 months. 20 C.F.R. §404.1505(a). See also, 20 C.F.R. §404.1522(b).
The regulation implies that the impairment must be continuously “severe.” This interpretation is a concern for those impairments that wax and wane or have short periods of remission but have active periods sufficient to preclude engaging in substantial gainful activity on a sustained basis. The regulation, properly interpreted, does not require a denial of disability benefits for failure to meet the duration requirement under such circumstances. Cf. Moore v. Sullivan, 895 F.2d 1065, 1069 (5th Cir. 1990).
The regulation specifically prohibits tacking together unrelated severe impairments to meet the duration requirement. 20 C.F.R. §404.1522(a). This is the reason that our hypothetical packer in §100, is not disabled. This regulation appears to be the unintended consequence of the wording of the definition of disability. 42 U.S.C. §423(d)(2)(A). It is hard to find a public policy reason for this harsh result.
Denials based on the duration requirement usually occur in those cases where, at the time of the decision, the duration requirement is not met and the impairment is the sort that is likely to improve within 12 months. For those impairments that may or may not improve before the duration requirement is met, sometimes a state agency decision-maker will delay a case just to see if the claimant continues to be disabled. Because of the slow progress of the administrative process, the 12 months usually have passed by the time a claimant actually attends a hearing, thus permitting an accurate retrospective evaluation.
Once the twelve-month duration requirement is met, you may ask for a finding of a closed period of disability in the situation where a claimant’s condition has improved to the degree that he or she is able to return to work.
In order to be found disabled at step 3 of the sequential evaluation process, a claimant’s medical signs, findings, and symptoms must meet or “medically equal” one of the set of medical signs, findings and symptoms found in the Listing of Impairments. The Listing of Impairments is a set of medical criteria for disability found at Appendix 1 of the social security disability regulations, officially cited as 20 C.F.R. Part 404, Subpart P, Appendix 1.
If a claimant can be found disabled at step 3, there is no inquiry into ability to do past work or other work. This is the reason that our hypothetical lawyer in §100 is disabled despite the fact that he retains the ability to practice law. His impairment meets §1.05B of the Listings, which deals with amputation of one or both feet.
Although you should look at the issue in every case, you will want to take an especially hard look at the Listings when your client can still perform past relevant work. If your client’s impairment meets or equals one of the impairments in the Listings, the ability to perform past work is irrelevant.
It is possible to argue that your client’s impairments are medically equivalent to an impairment in the Listing of Impairments. 20 C.F.R. §404.1526(a). This comes up in four situations: (1) your client does not have one of the essential findings stated in the Listings for your client’s particular impairment but your client has other findings; (2) your client has all the essential findings but one or more of the findings is not quite severe enough and your client has other findings; (3) your client’s impairment is not described in the Listings but it may be as severe as an analogous impairment that appears in the Listings; or (4) your client has a combination of impairments, none of which meet the Listings but the cumulative total of your client’s impairments could still equal the Listings. 20 C.F.R. §404.1526(b). It is possible to compare medical findings, symptoms and limitations in functioning to see if one claimant, whose impairment does not appear in the Listings, is as disabled as another claimant whose impairment meets a particular Listing. See §336. However, before an ALJ or the Appeals Council can find that a claimant’s impairment medically equals a Listed Impairment, the decision maker must receive the opinion of a medical expert hired by SSA. See SSR 96-6p.
In regular social security disability and SSI cases involving adults, if a claimant cannot be found disabled at step 3, the inquiry proceeds to step 4. For a discussion of widow(er)’s disability under pre-1991 standards and disabled children’s eligibility for SSI, see §§142 and 145.
In the usual case, attention will focus on steps 4 and 5 of the sequential evaluation process. You must prove that your client is incapable of doing any work that he or she has performed in the last 15 years (or in the 15 years before the claimant’s disability insured status requirement was last met, if that date is earlier – see §131, on insured status), if that work was done at the “substantial gainful activity” level and lasted long enough for your client to learn how to do it. Thus, you have to identify the claimant’s easiest job and then figure out why the claimant cannot still do that kind of work. If the claimant had an easy job in the past 15 years that he or she can still do, the claimant will be found not disabled like our hypothetical truck driver in §100, unless you can put together an argument that the impairments meet or medically equal one of the impairments in the Listing of Impairments.
SSA takes the position that 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. The “job as it is ordinarily done” rule will not be applied to a claimant’s benefit, however. If a claimant’s own past work was easier than the way the job is ordinarily done, SSA will examine the actual job requirements as the claimant performed them in determining whether the claimant can return to past relevant work. See Social Security Ruling 82-61. This rule applies even if the past job was done only part-time, as long as it was substantial gainful activity. SSR 96-8p, footnote 2.
For more about past relevant work, see §347.
Once you have proven that the claimant cannot perform past relevant work, you move on to the most complicated step: proving inability to do other work that exists in significant numbers in the national economy, considering a claimant’s remaining work capacity, age, education and work experience. SSA has provided an important tool for determining whether a claimant is or is not disabled because of medical-impairments and vocational factors: the Medical-Vocational Guidelines, discussed in detail beginning at §120. The Medical-Vocational Guidelines, popularly known as the “grids,” provide that the older a claimant is, the easier it is to be found disabled. Thus, our hypothetical housewife in §100, is found disabled despite the remaining physical capacity to do most jobs in the economy (sedentary, light and medium work) because of the adversity of age (55), education (less than a high school graduate), and work experience (none in the past 15 years). See Rule 203.10 of the Medical-Vocational Guidelines. Indeed, this rule may still be applied if “the work activity performed within this 15-year period does not (on the basis of job content, recency, or duration) enhance present work capability.” SSR 82-63.
As you can see, determining disability involves a multi-step reasoning process. The one-step “he can’t work” sort of argument won’t get you very far. Common sense can be applied only where there isn’t a regulation or Social Security Ruling to the contrary.
The sequential evaluation process provides two main routes for a finding of disability. One route involves a purely medical determination that the claimant’s impairment meets or medically equals an impairment described in the Listing of Impairments. The other route to a disability finding involves assessing a combination of medical and vocational factors that culminates at step 5 of the sequential evaluation process and, to one degree or another, uses the Medical-Vocational Guidelines.
In addition, there are three other ways to be found disabled without completing the standard five-step sequential evaluation process. If a claimant fits one of three special vocational profiles, the claimant is found disabled without proceeding to step five and without consulting the Medical-Vocational Guidelines. Indeed, for one of the three profiles, it is not even necessary to assess residual functional capacity. A claimant who fits this profile is found disabled by simply showing that he or she has a severe impairment. This profile, which is described at 20 C.F.R. §404.1562(b), provides that a claimant is disabled who:
- Has a severe, medically determinable impairment;
- Is age 55 or older;
- Has an 11th grade education or less; and
- Has no past relevant work experience.
Another profile, known as the “worn-out worker,” describes a claimant who has no more than a sixth grade education and 35 years of doing arduous unskilled labor. For this claimant to be found disabled, it must be shown only that the claimant is unable to do the arduous unskilled labor done in the past. 20 C.F.R. §§404.1520(g)(2) and 404.1562(a). See also SSR 82-63 and Walston v. Sullivan, 956 F.2d 768 (8th Cir. 1992). In effect, the worn-out worker is found disabled at step four with proof that he or she is incapable of performing past relevant work. An article by ALJ Peter J. Lemoine, “The Worn-Out Worker Rule Revisited,” 49 West’s Social Security Reporting Service 883, presents a well-reasoned analysis that demonstrates that the worn-out worker rule may be more useful than it may appear at first glance.
A claimant may have more formal education than sixth grade and still be considered to have marginal education if he or she functions at the marginal educational level. Even light work “if it demands a great deal of stamina or activity such as repetitive bending and lifting at a very fast pace” (SSR 82-63), may qualify as arduous. The 35 years of qualified work activity need not be continuous and may be interspersed with work activity that does not satisfy the “arduous unskilled labor” requirement. Not all prior work need be unskilled if work at higher skill level is isolated, brief or remote or if skills are not transferable. ALJ Lemoine points out that as long as there are 35 years of qualified employment that the claimant can no longer perform, the existence of an arduous unskilled job in the past which the claimant retains the capacity to perform will not make the worn-out worker rule inapplicable.
The third profile does not appear in 20 C.F.R. §404.1562. Instead, it appears only in the POMS (along with the other two adverse profiles discussed above), but it is consistent with the principles stated in SSRs 82-63 and 85-15. POMS DI 25010.001B.3 provides:
A finding of ‘disabled’ will be made for persons who:
- are not working at SGA level, and
- have a lifetime commitment (30 years or more) to a field of work that is unskilled, or is skilled or semi-skilled but with no transferable skills, and
- can no longer perform this past work because of a severe impairment(s), and
- are closely approaching retirement age (age 60 or older), and
- have no more than a limited education.
(See DI 25001.001 for the definitions of “limited education” and DI 24505.000 for a discussion of severe impairment.)
NOTE: To satisfy the requirement for this profile, the 30 years of lifetime commitment work does not have to be at one job or for one employer but rather work in one field of a very similar nature. If the person has a history of working 30 years or more in one field of work, the use of this profile will not be precluded by the fact that the person also has work experience in other fields, so long as that work experience in other fields is not past relevant work which the person is still able to perform.
The regulations provide six possibilities for a finding of not disabled: a claimant might:
- Be working at the SGA level;
- Not have a medically determinable impairment;
- Have an impairment that does not significantly limit the physical or mental ability to do basic work activities;
- Fail to meet the duration requirement;
- Be capable of past relevant work;
- Be capable of other work.
And, as we shall see, there are other requirements, which have nothing to do with whether a claimant is disabled—SSA calls these “non-disability requirements,” that may be used by SSA to deny benefits. See §§130 et seq.
Thomas E. Bush has devoted his practice to Social Security disability issues since 1977. He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term. He is the author of Social Security Disability Practice, from which this article is excerpted.