Examples of who is disabled under Social Security law, and advice on dealing with SSA.
By Thomas E. Bush
Excerpted from Social Security Disability Practice
- SSA: A Bureaucracy
You cannot always rely on common sense to tell you who is and who is not disabled under social security law.
- 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. See C.F.R. Part 404, Subpart P, Appendix 1, §1.05B.
- 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 $900 per month on average.
Because of his earnings he is not disabled. See 20 C.F.R. §§404.1520(b) and 404.1574(b)(2).
- 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. See 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201.18.
- 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. See Social Security Rulings 83-10 and 96-9p.
- 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. See 20 C.F.R. §§404.1520(f) and 404.1560(b).
- 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. 20 C.F.R. §404.1522(a) provides that unrelated impairments may not be combined to meet the requirement that a claimant be unable to work for 12 months.
- 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. See 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 203.10. See also 20 C.F.R. §404.1562(b). (She is not eligible for social security disability benefits because she has not worked for so long.)
For the most part, attorneys deal with SSA’s Office of Disability Adjudication and Review (ODAR), which includes the more than 140 hearing offices scattered around the country, and, until it is transformed into the Disability Review Board under the DSI program (see §150.1), the next level of appeal, the Appeals Council, which is located in a suburb of Washington, D.C. In all, ODAR has about 8,000 employees, including about 1,150 administrative law judges and 27 administrative appeals judges. Dealing with hearing offices is generally a pleasant experience. Although dealing with the Appeals Council can be frustrating for attorneys, it is nothing compared to dealing with SSA outside of ODAR.
There is a rigidity of rule-following, whether or not application of the rule makes any sense, which characterizes the approach of low-level bureaucrats. This problem exists in all bureaucracies and is present at SSA, for the most part outside of ODAR. It is something that has been known to cause both claimants and lawyers to tear out their hair. To deal with this, you will find that it is best to be firm and persistent but never obnoxious.
For example, do not let anyone at SSA tell you that they cannot speak with you about your client’s case because they do not have proof that you are the claimant’s attorney. Pub.L. 101-239, Title X, §10307(a)(1), (3), Dec. 19, 1989, 103 Stat. 2485, effective June 1, 1991, requires SSA to keep the name of a claimant’s representative in its computer system. If SSA fails to put your name into the computer as the claimant’s representative and an SSA employee refuses to speak with you, you may fax a copy of your Appointment of Representative form to the local office. Insist that the SSA computer system be updated with your name as the claimant’s representative.
A fundamental problem in dealing with SSA outside of ODAR is, of course, the sheer size of the agency, which has more than 57,000 employees in addition to those employed by ODAR. Also, there are more than 14,000 state agency employees nation-wide involved in making determinations of disability below the ALJ hearing level. It is difficult for a lawyer first to figure out whom to contact about a claimant’s particular problem and then to determine how to contact them, whether by phone, fax, mail or, in some limited circumstances, e-mail. Once you figure it out in a particular case, be sure to keep good notes for that particular case; and also start keeping a master list of telephone and fax numbers and addresses for use in future cases. You will discover that there are knowledgeable and helpful people at all levels of SSA. You will do well to cultivate a relationship with them. Treasure their phone numbers.
The problem of SSA’s size is compounded by the complexity of its programs, the most complicated of which are the two disability programs, social security disability and SSI. When there are program changes, it is a huge task to ensure that everyone within SSA who needs to know gets the information, and often they do not. Sometimes it will be up to you to tell SSA employees about policy changes.
To take just one example of problems created by complexity, consider the Social Security Administration’s nationwide toll-free telephone number, 1-800-772-1213 (which SSA likes to write as 1-800-SSA-1213). In theory, the toll-free number is staffed by knowledgeable SSA employees capable of answering a wide variety of questions, including questions about entitlement to disability benefits. However, this is not the reality. One test showed 25 percent wrong answers to questions involving SSI, by far the most complicated of SSA’s programs. The toll-free number, if you can get past the busy signals and the recorded messages, is most useful for information about the retirement program, not for questions that a lawyer might have about disability benefit entitlement.
SSA, like all bureaucracies, attempts to routinize complex decisions; however, the more complicated the decision, the less effective this is. It does not work well at all for disability determinations below the administrative law judge hearing level because the medical-vocational issues tend to be complicated and because state agencies are not equipped to assess the actual impact of a medical impairment on a particular claimant, which often involves a credibility determination. State agency disability determinations tend to be inadequate, and many people within SSA remain almost blissfully unaware of state agency decision shortcomings. For example, studies using SSA’s own peculiar methodology repeatedly conclude that state agency determinations are correct more than 93% of the time. Such studies are unable to explain why ALJs have always found disabled more than half the claimants who come before them. These studies have led many state agency employees to believe that ALJs issue mostly wrong decisions, and there is a component within SSA (outside of the Office of Disability Adjudication & Review) that thinks so, too.
It is a mistake to view SSA as being of one mind. For example, there are those within SSA who think that disability determination would be improved by getting rid of lawyers, administrative law judges, due process hearings, and appeals. Thus, there is a component of SSA that is opposed to the very existence of the Office of Disability Adjudication and Review. This tension between different components of SSA tends to produce turf wars and, whenever restructuring of SSA is going on as it has been for the past several years, a search for hidden agendas is made to see if this or that bureaucratic change will ultimately be a benefit or detriment to the future of a particular component of SSA.
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.