Gravina Law - Social Security Disability

You have worked hard for a number of years and contributions were made by way of the FICA tax to the Social Security Trust Fund. Now you are unable to work and have applied for Social Security Disability benefits. Most people have heard about Social Security Disability benefits and assume that when they are out of work or can't work at their previous job, they are disabled. This may and may not be true. You will not necessarily be granted Social Security benefits.

The primary questions you must answer in applying for Social Security benefits is how has your impairment affected your ability to work? Put another way, why can't you work?

Social Security benefits are designed to be awarded to those who cannot work because of a physical or mental impairment. This booklet should help you understand some of the standards Social Security uses in determining your eligibility for benefits.

As you read this booklet, additional questions not covered may occur to you. Use page 28 to jot down these questions and take them with you to your meeting with your attorney.

1. GLOSSARY

Substantial gainful activity means work that involves significant physical or mental duties done for pay or profit. (see 2.3)

Residual functional capacity is your remaining physical and/or mental capacity to perform work. (see 5.1)

Disability means any physical or mental condition that is severe enough to limit a worker's performance of work.

Impairment is a mental or physical condition that lessens or prevents your ability to work.

Listing of Impairments means specific symptoms, signs, laboratory findings that are presumed to be severe enough to prevent you from working a year or longer. (see 4.3)

2. DEFINITION OF DISABILITY

Question: What is the definition of disability under the Social Security Administration rules?

The law defines disability as the inability to do any substantial gainful activity (SGA) by reason of a medically determinable or mental impairment
A. Which can be expected to result in death;
B. Which has lasted or can be expected to last for a period of not less than twelve months

2.1 REQUIREMENTS

Question: Are there other parts to this definition I have to meet?

Yes. You must have a severe impairment, which makes you:
A. Unable to do your previous job; or,
B. Any other substantial gainful activity which exists in the national economy. To determine if you can do any other work, the Social Security Administration will consider your residual function capacity, age, education, and work experience.

Question: But what if I have been found disabled by my company or Worker's Compensation or any other insurance company, etc.?

A decision by any non-governmental or governmental agency about whether you are disabled is based on that agency's rules. Social Security’s decision about your disability is made in accordance with Social Security law.

Question: How does the Social Security Administration decide if I'm disabled or not?

If your impairment is so severe you can't perform your previous work or any other work that exists in the national economy for which you have the residual functional capacity based on your age, education and work experience. This definition is used if you are applying for a period of disability, disability insurance benefits as a disabled worker or child insurance benefits based on disability before age twenty-two. There are different rules for determining disability for the statutorily blind, widows, widowers and surviving divorced wives.

Question: How is blindness defined under the Social Security law?

You have central vision acuity of 20/200 or less in the better eye with the use of correcting lens. Central vision acuity of 20/200 or less is determined by limitation in field of vision so that the widest diameter in the field of vision subtends an angle no greater than twenty degrees. Your blindness must have lasted twelve continuous months or be expected to last for a continuous period of at least twelve months or end in death.

Question: Whose responsibility is it to prove I am disabled or blind?

The applicant. As a result, you should try to bring to the attention of the Social Security Administration everything that you think shows you are disabled. The Social Security Administration will consider all information they get from you. If it's not in your file, they can't consider it.

Question: What is the Social Security law with regard to widows, widowers and divorced wives?

If you are a widow, widower, or surviving divorced wife, you must have a medical determinable physical or mental impairment which can be expected to result in death or has lasted, or can be expected to last, for a continuous period of not less than twelve months. The impairment must be so severe as to prevent you from doing any substantial gainful activity. Also considered are physical and mental impairments, your age, education and work experience.

Question: Under Title II of the Social Security act there are three categories of people who can
qualify for benefits on the basis of disability. What are these three categories?

A. Disabled workers under sixty-five who have been employed or self-employed long enough and recently enough under Social Security;
B. A person who has been disabled since childhood (before twenty-two) if one of the parents who is covered by Social Security retires, becomes disabled or dies;
C. A disabled widow or widower between the age of fifty to sixty if the deceased spouse was covered under Social Security.

2.2 SSD v. SSI

Question: The Social Security Administration has national responsibility of the administration of both Social Security disability insurance program (Title II) and the Supplemental Security Income (SSI) program (Title XVI). What is the difference between these two programs?

A. Title II provides coverage for cash benefits for those disabled workers and their dependents who have contributed to the Social Security trust fund through the FICA tax on their earnings.
B. Title XVI (SSI) provides for a minimum income level for the needy, aged, blind, and disabled. A person qualifies for SSI because of financial need.
Under both programs the definitions of disability and blindness are the same.

2.3 SUBSTANTIAL CAINFUL ACTIVITY

Question: What is "substantial gainful activity”: (SGA)?

That is any significant and productive physical or mental work activity which is done or intended for pay or profit that averaged more than $500 or more per month starting 1990 and $700 per month starting July 1, 1999.

Question: How is substantial gainful activity different from trial work?

A trial work period allows you to receive benefits for up to nine months while you try to work. At the end of the nine months, SSA decides whether you are able to do substantial work. If so, your benefits will stop after a three month adjustment period. If you are unable to work, your payments will continue.

3. WHAT IS NEEDED TO SHOW IMPAIRMENT?

Question: What is needed to show you have an impairment?

If you are not performing work, Social Security will first look at your physical or mental impairments to determine if you are disabled or blind. The impairment must be a medical, anatomical, physiological, or psychological abnormality that can be shown by a medically acceptable clinical and laboratory diagnostic technique. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms and laboratory findings, not only by your symptoms.

Question: What are symptoms, signs and laboratory findings?

A. Symptoms are your own description of your physical or mental impairments. Your statements alone are not enough to establish that there is a physical or mental impairment.
B. Signs are anatomical, physiological, or psychological abnormalities which can be observed apart form your statements (symptoms). Signs must be shown by medically acceptable clinical diagnostic techniques. Psychiatric signs are medically demonstrable phenomena which indicate specific abnormalities of behavior, affect thought, memory, orientation and contact with reality. They must also be shown to be observable facts that can be medically described and evaluated.
C. Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown through the use of medically acceptable laboratory diagnostic techniques. Some of the techniques include chemical tests, electrophysiological studies, electrocardiogram, electroencephalogram and psychological tests.

3.1 EVIDENCE

Question: What kind of evidence do I need to supply to Social Security?

You must supply medical evidence showing you have an impairment and how severe it is during the time you say you are disabled. Remember, the Social Security Administration will only consider your for which they receive evidence. They can help you get medical evidence and reports when you give them permission to request these from your doctors.

Question: If Social Security asks me questions, what must I provide them?

A. Your age;
B. Your education and training;
C. Your work experience;
D. Your daily activities both before and after the date you say you became disabled;
E. Your efforts to work; and
F. Any other evidence showing how your impairment(s) affects your ability to work.

3.2 MEDICAL REPORTS

Question: The Social Security Administration needs evidence regarding your reports from acceptable medical sources. Which medical sources are acceptable?

A. Licensed physicians;
B. Licensed osteopaths;
C. Licensed or certified psychologists
D. Licensed optometrists for the measurement of visual acuity and visual fields (they may need a report from a physician to determine other aspects of eye disease); and
E. Persons authorized to send them a copy or summary of the medical records of a hospital, clinic, sanitarium, medical institution, or health-care facility.

Question: What should a medical report contain?

A. Your medical history;
B. Clinical findings such as the results of physical or mental status examination about you;
C. Laboratory findings such as blood pressure, x-rays, etc.;
D. Diagnosis (statements regarding disease or injury based on its signs and symptoms);
E. Treatment prescribed with response and prognosis; and
F. Medical assessment (except in statutory blindness claims and disability claims for widows, widowers & surviving divorced wives).

Question: What is "medical assessment"?

Medical assessment describes:
A. Your medical ability to do work-related activities such as sitting, standing, moving about, lifting, carrying, handling objects, hearing, speaking and traveling.
B. If you are claiming a mental impairment, the medical assessment will include your ability to reason or make occupational, personal or social adjustments.

Question: How complete does the medical evidence have to be?

It must be complete enough to allow the Social Security Administration to determine:
A. The nature and limiting effects of your impairment(s) for any period in question;
B. The probable duration of your impairment(s);
C. Your residual functional capacity to do work-related physical or mental activities.

Question: If my family medical doctor writes a letter that I am permanently disabled, will that get me Social Security benefits?

No, it won't. The report must contain all of the items covered under what a medical report should include (i.e., history, clinical findings, laboratory findings, diagnosis, treatment, medical assessment). It must be complete. It is then up to the Social Security Administration to determine if you are disabled, not your physician. They will use the doctor's reports to make their determination.

Question: Will Social Security pay for getting all the medical evidence they need to decide my case?

Generally not. You are responsible for submitting evidence to support your claim for disability. However, Social Security will help by asking your sources questions on your behalf. The Social Security Administration will generally not pay for this information. There are rare situations when Social Security will pay for this information.

Question: What are these rare situations when Social Security will pay for the medical evidence?

A. If the evidence in the file shows that you may be disabled but it does not contain the medical findings to make a disability determination and Social Security must have this additional information.
B. If Social Security finds one or more of your medical sources has the information but they will not give Social Security the information until they are paid for it, Social Security may pay for the report.
C. Generally, Social Security may pay when a hospital or clinic charges a small fee to cover its copying and mailing costs and the only other way to get the information would be to have you take a special examination at Social Security's expense.

3.3 OTHER EVIDENCE

Question: Will information from other sources help me get Social Security benefits?

Yes, It may help Social Security to understand how your impairment affects your ability to work.

Question: What are some other sources that may help?

A. Public and private social welfare agencies;
B. Observations by non-medical sources, friends and family; and
C. Other practitioners such as naturopaths, chiropractors, audiologists, etc.

Question: Where and how do you submit this evidence?

You may give it to any Social Security Office or to the office of any State Social Agency, or to one of Social Security's employees authorized to accept evidence at another place such as an Administrative Law Judge. Remember to keep a copy for your records.

Question: What if I do not provide Social Security with the medical and other evidence they need and request?

Social Security will make its decision about your case based on the information provided in your file.

3.4 CONSULTIVE EVALUATIONS

Question: If your medical sources can't give Social Security sufficient medical evidence about your impairment for them to determine whether you are disabled, they may ask you to take part in physical or mental examinations or tests. These are called consultative examinations. Who pays for the consultative examinations?

Social Security does. They can even pay for your transportation to get you from your home to the place of examination if you so request.

Question: Why would Social Security want a consultative examination?

A. To obtain more detailed medical findings about your impairment(s);
B. To obtain technical or specialized medical information; or
C. To resolve conflicts or differences in medical findings or assessments in the evidence Social Security already has.

Question: Do I have to go to the consultative examination?

Yes, you do. It's for your case. If you don't go for the examination, your case will be considered without the results of that examination. They may find you not disabled if you refuse or fail to go to your consultative examination.

Question: Are there any good and valid reasons that a person might not appear for a consultative examination?

Yes. Some valid reasons are:
A. Illness on the date of the scheduled examination or test;
B. Not receiving timely notice of the scheduled examination or test, or not receiving any notice at all;
C. Being furnished incorrect or incomplete information or being given incorrect information about the physician involved or the time or place of the examination or tests;
D. Having had death or serious illness occur in the immediate family.

Question: Is a religious or personal reason not to take a medical examination, test, or treatment requested by Social Security a valid excuse not to have it?

No, it is not.

Question: What should I do if my treating physician tells me I should not take the consultative examination or test Social Security schedules for me?

Call Social Security at once. They may be able to get the information another way. Your treating physician may agree to another type of examination for the same purpose.

Question: Is a medical report by my family doctor given more weight than a medical report by a consulting examiner?

Generally, it is because your family doctor has seen and treated you over a longer period of time whereas the consultative doctor rarely if ever treats you and generally has only examined you once. As a result, you should try to get your treating physician to write a medical report for you.

Question: What is a designated physician?

A designated physician is a physician designated by the Secretary of Health and Human Services and includes any physician employed or engaged to make medical judgments by the Social Security Administration, Railroad Retirement Board or state agency authorized to make disability determination.

Question: Can Social Security send me for a consultative examination?

Yes. Typically you would see the consultative examiner one time and Social Security would pay for the process. Social security will not pay for any of your witness. Only those examinations requested by Social Security will be of no cost to you.

Question: What weight is given to my treating physician's testimony if he/she disagrees with the consultative examiner?

The law states that your treating physician's report be given greater weight than those of the government's paid consultants.

4. EVALUATION OF DISABILITY

Question: Is there a method used in evaluating disability under the Social Security rules?

Yes, there is. Generally, all material facts are considered in a specific order to determine if you are disabled.

Question: How is disability evaluated under the Social Security rules?

Social Security uses a five-step process in determining initial disability. The first step is to determine if you are presently working. If it is determined that you are, then you are not disabled. As of July 1, 1999, substantial gainful activity (work) generally means wages that average more than $700.00 a month. Therefore, if you perform any activity which results in your earning more than $700.00 per month you will generally be denied Social Security benefits regardless of your medical condition, age, education, or work experience. Step two occurs if you are not performing work that earns more than $700 per month. In that case, your physical or mental impairment will be considered first. Your impairment must be severe and meet the duration requirement of twelve months. If you do not have any impairments which significantly limit your physical or mental ability to perform basic work activities you will be found to not have a sever impairment and therefore, not be disabled. However, if you have a number of impairments, each of which is not severe, the Administrative Law Judge must evaluate the total effect of all of the impairments to determine if the overall condition is severe. Step three involves whether your impairment meets or equals the Listing of Impairments. Step four involves determining if you can perform your past relevant work. Step five involves determining if you can perform any other work.

Question: Must my impairment be so severe as to prevent me from performing my past relevant work?

Yes. In fact, if Social Security cannot make a decision based on your present work activity alone and you have a severe impairment, then they review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you still can do that kind of work they will find you not disabled.

Question: Medical findings consist of what?

Medical findings consist of symptoms, signs and laboratory findings. See page 2 for definitions.

Question: How does Social Security evaluate my symptoms including pain?

If you have a physical or mental impairment you must have symptoms, for example, pain, shortness of breath, weakness, nervousness. Social Security considers all your symptoms including pain and the extent to which signs and laboratory findings confirm these symptoms. The effect of all symptoms including severe and prolonged pain, must be evaluated on a medically determinable impairment which can be shown to be the cause of the symptoms. Social Security may find that you are disabled based on your symptoms including pain in some cases if there are medical signs or findings that show there is medical condition which could be reasonably expected to produce such symptoms and the condition limits your ability to work.

4.1 SEVERITY

Question: When is an impairment not severe?

An impairment is not severe if it does not significantly limit your physical or mental abilities to do basic work activities such as walking, standing, pushing, pulling, reaching, carrying, handling; capacities for seeing, hearing and speaking, understanding, carrying out and remembering simple instructions, use of judgment; responding appropriately to supervision, coworkers and usual work situations; and dealing with changes in routine work setting.

Question: Are all of my impairments considered together?

Yes. Once established by credible medical evidence that you have impairment(s), Social Security must consider the disabling effect of your impairment(s).

4.2 CLOSED PERIOD OF DISABILITY

Question: Is it possible to have a period of disability for a time in the past even though you do not have a severe impairment now?

Yes. An example might be when an individual has had a severe injury requiring three or four surgeries over a one and one-half year period (i.e. bone grafts, skin grafts), but now is fully recovered. If his condition was a severe impairment and lasted twelve months or longer he could qualify for a closed period of disability benefits and at some point be recovered enough to no longer have a severe impairment and hence no longer be disabled.

Question: May I be considered for a "closed period of disability?"

Yes. Your disability must have been for a continuous period of no less than 12 months and what ever months you were determined to be disabled after the first 12 consecutive months of disability.

Question: How does Social Security determine if my disability has ended?

There is a medical review process under the law that requires that there is a periodical review of all cases of those previously found "disabled." Generally, your disability ends when medical improvement has occurred and it is related to your ability to work or if you are already able to work.

4.3 LISTINGS

Question: What if I have a severe impairment that meets or equals a listed impairment that is listed in Appendix I, Parts A or B?

If you have an impairment which meets the duration requirement and is listed in Appendix I or it is determined by Social Security that your impairment is equal to one of the listed impairments, you will be found disabled without considering your age, education and work experience.

Question: What is the purpose of having a Listing of Impairments?

The Listing of Impairments describes for each of the major body systems impairments which are considered severe enough to prevent a person from performing any substantial gainful activity. Most of these impairments are permanent or are expected to end in death. Again, the evidence must show the impairment has lasted or will be expected to last for a continuous period of twelve months.

Question: The Listing consist of how many parts?

Two. Part A, contains medical criteria that apply to adult persons age eighteen and over. The medical criteria in Part A may also be applied in evaluating persons under age eighteen if the disease processes have a similar effect on adults and younger persons. Part B, contains additional medical criteria that apply only to the evaluation of impairments of persons under age eighteen. Certain criteria in Part A do not give appropriate consideration to the particular effects of the disease processes in childhood, (i.e., when the disease process is generally found only in children or when the disease process differs in its effect on children than on adults.)

Question: How are the Listing of Impairments used?

Each section of the Listing of Impairments has a general introduction containing definitions of key concepts. Certain specific medical findings, some of which are required in establishing a diagnosis or in confirming the existence of an impairment, are also given in the narrative introduction. The diagnosis must be established on the basis of medically acceptable clinical and laboratory diagnostic techniques following the introduction in each section. The required level of severity of impairment is shown under "Category of Impairments" by one or more sets of medical findings. The medical findings consist of symptoms, signs and laboratory findings

Question: If I have a diagnosis of an impairment listed in Appendix I, will I get my Social Security benefits?

No, unless you also have the appropriate findings to support this Listing as outlined in the Listing of Impairments. The diagnosis without one or more sets of medical findings is an unsupported diagnosis and therefore of little value.

4.4 EQUIVALENCY

Question: What is "medical equivalence"?

Medical equivalence is a term used by the Social Security Administration to mean that your impairment is equivalent to a listed impairment in Appendix I, Parts A and B if the medical findings are at least equal in severity and duration to the listed findings.

Question: If my impairment is not one of those listed in Appendix I, Parts A and B, then how is my impairment determined?

Social Security will consider the listed impairment most like your impairment to decide if your impairment is medically equal.

Question: How does the Social security Administration make the determination of medical equivalency?

They compare symptoms, signs and laboratory findings about your impairment(s) as shown in the medical evidence they have about your claim with the medical criteria shown with the listed impairment.

Question: What is medical equivalence based upon?

It is based on medical findings (i.e., whether your impairment(s) is medically equal to a listed impairment on medical evidence only). Again, any medical findings in the evidence must be supported by medically acceptable clinical and laboratory diagnostic techniques. Social Security will also consider the medical opinions given by one or more physicians designated by the Secretary of Health and Human Services in deciding medical equivalence.

Question: What if I have more than one impairment but none of them meet or equal a listed impairment? Am I found disabled?

No, not necessarily. Social Security will review the symptoms, signs and laboratory findings about your impairments to determine if the combination of your impairments is medically equal to any listed impairment. If it is, you will be found disabled.

4.5 ALCOHOL / DRUG USE

Question: If I have a diagnosis of addiction to drugs or alcohol as my impairment, will I get my Social Security Benefits?

No. Social Security no longer gives disability benefits for addiction to drugs or alcohol alone. You must be unable to work for another medically determinable impairment.

Question: Can SSA deny my claim because of my addiction to alcohol or drugs.

Yes, you myst be able to prove that your addiction does not contribute to your disability, i.e that you would be disabled with out your addiction.

4.6 PRESCRIBED TREATMENT

Question: If my physician prescribes treatment for my impairment, must I follow his prescription for treatment?

In order to get benefits you must follow the treatment prescribed by your physician if this treatment can restore your ability to work.

Question: What happens if I do not follow my physician's prescribed treatment?

If you don't follow the prescribed treatment without a good reason Social Security will find you not disabled. If you are already receiving benefits, they will stop paying you these benefits.

Question: Are there acceptable reasons for not following prescribed treatment?

Yes, there are. Examples would be as follows:
A. The specific treatment is contrary to the established teaching and tenets of your religion.
B. The prescribed treatment would be cataract surgery for one eye when there is an impairment of the other eye resulting in a severe loss of vision and is not subject to improvement through treatment.
C. Surgery was previously performed with unsuccessful results and the same surgery is again being recommended for the same impairment.
D. The treatment because of its magnitude (e.g., open-heart surgery of unusual nature; organ transplant; or other reason) is very risky to you.
E. The treatment involves amputation of an extremity or a major part of an extremity.

4.7 OTHER WORK

Question: How does Social Security decide the particular types of work I can perform despite my impairment?

Guidelines 404.1560-404.1569 which are a portion of the Social Security regulations and something with which your attorney is quite familiar, your vocational background and your residual functional capacity are used to arrive at a disability decision.

Question: Would I be found disabled if Social Security determines that I have residual functional capacity ( see definition below) and vocational ability to do work that exists in the national economy, but I'm unemployed because of the following?

1. Inability to get work;
2. Lack of work in my local area;
3. The hiring practices of employers;
4. Technological changes in the industry in which I have worked;
5. Cyclical economic conditions;
6. No job openings for me;
7. I would actually be hired to do work I could otherwise do; or
8. I do not wish to do a particular type of work.
No. Social Security would find you not disabled. None of the above conditions are considered cause for granting disability.

Question: Does Social Security take administrative notice of job data?

Yes. They use such sources as:
A. Dictionary of Occupational Titles, published by the Department of Labor; and,
B. The Social Security Administration also uses vocational experts and other specialists in determining whether your work skills can be used in other work. The specific occupations in which they can be used and whether you are disabled.

5. ABILITY TO PERFORM WORK

Question: Must my impairment be so severe as to prevent me from performing my former work and any other work?

Yes, it must. If you cannot perform the work you have done in the past because you have a severe impairment, Social Security will consider your residual functional capacity, your age, education and past work experience to see if you can do other work. If you can't you will be found disabled. If you have a sixth-grade education or less and have a long work experience (i.e., 35 years or more) where you only performed arduous unskilled physical labor and can no longer do that work, then you will be found disabled.

5.1 RESIDUAL FUNCTIONAL CAPACITY (RFC)

Question: What is "residual functional capacity" (RFC)?

Your impairments may cause physical and mental limitations that effect what you can do in a work setting. Your residual functional capacity is a medical assessment of what you can still do despite your limitations. If you have more than one impairment, the way in which all these impairments affect you will be considered. Again, remember it is your responsibility to call these impairments to the attention of the Social Security Administration and get the medical evidence to support them.

Question: What capacities for various functions are considered in determining residual functional capacity (RFC)?

A. Physical limitations.
B. Mental limitations.
C. Other limitations.

Question: May residual functional capacity (RFC) include anything that goes beyond the symptoms that are important in the diagnosis and treatment of my medical condition?

Yes. In fact, RFC may include descriptions (even your own) of limitations that go beyond symptoms that are important in the diagnosis and treatment of your medical condition. Observations of your work limitations in addition to those usually made during formal medical examination may also be used.

Question: Is the assessment of my remaining capacity to perform work the decision whether I'm disabled or not?

No. It is used as the basis for determining the particular type of work you may be able to do despite your impairment.

Question: What are the physical abilities considered by Social Security in determining residual functional capacity (RFC)?

Generally, a limited ability to do the following things may reduce your ability to do work:
A. Strength;
B. Functional capacity for work on a regular or continuing basis;
C. Ability to walk, stand, sit lift, carry, push, pull, reach and handle.
PLEASE SEE ATTATCHED FORM, Medical Assessment of Ability to do Work Related Activities.

Question: What are the mental impairments considered by Social Security in determining residual functional capacity (RFC)?

Ability to:
A. Understand;
B. Carry out and remember instructions;
C. Respond appropriately to supervision, co-workers and work pressures in a work setting.
PLEASE SEE ATTATCHED FORM, Medical Assessment of Ability to do Work Related Activities

Question: Who is responsible for determining and assessing residual functional capacity (RFC)?

Your treating physician, the state agency staff physicians, or other physicians designated by the Secretary of Health and Human Services for cases at the Hearing or Appeals Council level. The responsibility for deciding your RFC rests with the Administrative Law Judge or Appeals Council.

6. VOCATIONAL FACTORS

Question: There are some conditions about work in the national economy which Social Security cannot consider. What are they?

A. Whether work exists in the immediate area in which you live;
B. A specific job vacancy exists for you; or
C. You would be hired if you applied for work.

Question: How does Social Security determine the existence of work?

Social Security states that work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical and mental abilities as well as having the proper vocational qualifications. Isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where you live are not considered "work which exists in the national economy.” However, if work that you can do does exist in the national economy, Social Security will determine that you are not disabled.

6.1 AGE

Question: What does it mean when the Social Security rules say they consider age as a vocational factor?

Age refers to your chronological age (i.e., how old you are). The extent to which your age affects your ability to adapt to a new work situation and perform work in competition with others. Social Security divides age into the following categories.
A. A younger person is a person under 50. Generally, Social Security will not consider that your age will seriously affect your ability to adapt to a new situation, if you are under 50 years old.
B. If you are between 50-54 you are closely approaching advanced age. Social Security will consider that your age, along with a severe impairment and limited work experience, may seriously affect your ability to adjust to a significant number of jobs in the national economy.
C. If you are between 55-59 you are in advanced age. Social Security considers that at age 55 or over the point is reached where age significantly affects a person's ability to perform substantial gainful activity (SGA). If you are severely impaired and of advanced age and cannot perform medium work, you may not be able to work unless you have skills that can be used (transferred to) less demanding jobs which exist in significant numbers in the national economy.
D. When you are between 60-64 you are close to retirement age. If you have a severe impairment, Social Security will not consider you able to adjust to sedentary or light work unless you have skills which are highly marketable.

Question: If I am unemployed because of my age and can still perform a significant number of jobs that exist in the national economy, will I be found disabled?

No, you will not be found disabled.

Question: Will Social Security ask me to prove my age?

No, not generally. However, if they need to know your exact age to determine whether you get disability benefits or if the amount of your benefits will be affected, they will ask for evidence of your age.

6.2 EDUCATION

Question: How is the term "education" used as a vocational factor by the Social Security Administration?

"Education" is primarily used to mean formal schooling or other training which contributes to your ability to meet vocational requirements. Some examples would be reasoning ability, communication skills or arithmetical ability. However, if you do not have formal schooling, this does not necessarily mean that you are uneducated or lack these abilities. Past work experience and the kinds of responsibilities you had when you were working may show that you have intellectual abilities, although you may have a little formal education. Your daily activities, hobbies, or the results of testing may also show that you have intellectual ability that can render you employable.

Question: How is your educational background evaluated by Social Security?

The importance of your educational background may depend on how long it has been between the completion of your formal education and the beginning of your physical or mental impairment(s) and by what you have done with your education in a work or other setting. Formal education that you completed many years before your impairment began, or unused skills and knowledge that were a part of your formal education, may no longer be useful or meaningful in terms of your ability to work. Therefore, the numerical grade that you completed in school may not represent your actual educational abilities. These may be higher or lower. However, if there is no other evidence to contradict it, Social Security will use your numerical grade level to determine your educational abilities. The term "education" as Social Security uses it also means how well you are able to communicate in English since this ability is often acquired or improved by education. Social Security has several categories that use in judging a person's education.

Question: What are these categories?

A. Illiteracy. Illiteracy means the inability to read or write Social Security considers 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.
B. Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. Social Security considers formal schooling at a 6th grade level or less as a marginal education.
C. 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 complex job duties needed in a semi-skilled or skilled jobs. Generally, Social Security considers formal schooling from the 7th through the 11th grade level to be a limited education.
D. High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th-grade level or above. Social Security generally considers that someone with these educational abilities can do semi-skilled through skilled work.
E. Inability to communicate in English. Since the ability to speak, read and understand English is generally
learned or increased at school, Social Security may consider this an educational factor. Because English is the dominant language of this 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, Social Security considers a person's ability to communicate in English when they evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.

Question: Will Social Security ask for information about my education?

Yes. Social Security will ask how long you attended school and whether you are able to speak, understand, read and write in English and do at least simple calculations in arithmetic. Social Security will also consider other information about how much formal or informal education you may have had through your previous work, community projects, hobbies, and other activities which might help you to work.

6.3 PAST WORK EXPERIENCE

Question: Will Social Security consider my past work as a vocational factor?

Yes, they will.

Question: What of my past work experience might be considered by Social Security as a vocational factor?

"Work experience" means skills and abilities you have acquired through work you have done which show the type of work you may be expected to do. Work you have already been able to do shows Social Security the kind of work that you may be expected to do. Social Security considers that your work experience applies when it was done within the last fifteen years, lasted long enough for you to learn to do it (at least 3 months), and was substantial gainful activity. When determining your disability status, work you performed more than 15 years ago will not be considered (or when the disability insured status requirement was last met, if it was earlier).

Question: Why does Social Security only count work experience as the past fifteen years?

A gradual change occurs in most jobs so that after fifteen years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply. The fifteen-year guide is intended to insure that remote work experience is not currently applied. If you have no work experience or worked only "off-and-on" or for brief periods of time during the fifteen year period, Social Security considers that these do not apply.

Question: What if I don't have any work experience?

If you don't have any work experience, Social Security will consider that you are able to do unskilled work because it requires little or no judgment and can be learned in a short period of time.

7. WORK CATEGORIES

7.1 PHYSICAL EXERTION

Question: What are the categories that the Social Security Administration uses to determine the physical exertion requirements of work in the national economy?

They consider physical exertion and skill level.

Question: What are the physical exertion categories?

The categories are "sedentary," "light," "medium," "heavy" and "very heavy."

A. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledger, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

B. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 20 pounds. Even though the weight lifted 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 with some pushing and pulling of arm and leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, Social Security determines that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

C. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. I f someone can do medium work, Social Security determines that he or she can also do sedentary and light work.

D. Very heavy work involves lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. If someone can do very heavy work, Social Security determines that he or can also do heavy, medium, light and sedentary work.

7.2 SKILL LEVEL

Question: In order to evaluate your skills and to help determine the existence in the national economy of work you are able to do, occupations are classified as unskilled, semi-skilled, and skilled.

A. 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, Social Security considers jobs unskilled if the primary work duties are handling, feeding and off bearing (i.e., placing or removing materials from machines which are automatic or operated by other), or machine tending; a person can usually learn to do the job in 30 days; little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

B. Semi-skilled work is work which need 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; inspecting, testing or otherwise looking of irregularities; tending or guarding equipment, property, materials, or persons against loss, damage or injury; 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.

C. 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 need 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, figures or abstract ideas at a high level of complexity. one who had completed an apprenticeship would be classified as a skilled craftsman.

7.2.1 TRANSFERABILITY OF SKILLS

Question: What is meant by the transferability of skills?

Skills that can be used in other jobs; when the skilled or semi-skilled work activities you did in the past 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.

Question: How does Social Security determine if skills can be transferred to other jobs?

Transferability is most probable and meaningful among jobs in which
A. The same or a lesser degree of skill is required;
B. The same or similar tools and machines are used; and
C. The same or similar raw materials, products, processes, or services are involved.

Question: Are degrees of transferability considered by Social Security?

Yes. 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 that they are not readily usable in other industries, jobs, and work settings (i.e., many jobs in mining, agriculture, or fishing), Social Security considers that they are not transferable.

8. IF YOU HAVE BEEN DENIED

8.1 RECONSIDERATION

Question: Can I be reconsidered for Social Security Disability benefits when I have been turned down the first time?

Yes. You can ask for reconsideration of your application through a Social Security office within 60 days of the date you were denied benefits. You could state your reasons for reconsideration and present any additional credible evidence to support your claim (i.e. documentation of test results and statements from certified physicians, other professionals and/or anyone who has observed your limitations.

8.2 ADMINISTRATIVE LAW JUDGE

Question: If denied benefits at the reconsideration level, do I have continuing rights to have my claim of disability considered?

Yes. You may ask for a hearing before an Administrative Law Judge (ALJ) after having been denied on your original application and reconsideration.

Question: Will the Administrative Law Judge know I have been denied twice and be predisposed to turn me down again?

Yes, he will know of the denial. No, he is not bound by previous decisions. He is required by law to give you a new and independent hearing and must make a new decision for or against granting benefits.

Question: Do ALJs often reverse the decision of the State Agency that denied the benefits?

Yes. The reversal rate of State agency decisions has consistently been more than 25%; in some jurisdictions as high as 50%. More than half of those applicants taking their cases to the hearing level have their previous denial of benefits reversed and subsequently receive benefits.

Question: Is the hearing open to the public or recorded?

No, the hearing is not open to the public. There will be a hearing monitor present; your witness, if the Judge permits; and usually a Vocational Expert who evaluates the job market, or other expert witnesses. The hearing is recorded. It is informal but your testimony will be under oath. Usual rules of evidence are relaxed and the Judge lets you "tell your story" and he/ she may ask you questions as will your own attorney.

Question: What is the Judge's role?

The Judge is the finder of fact, who swears in and questions witnesses, rules on the admission of evidence, and provides a full and fair hearing.

Question: How is this hearing different from my previous applications for disability?

It will give you the opportunity to state your side of the application directly to the person making the decision as to whether or not you are disabled. At the end of the hearing you may also state anything you think is important for him to know in deciding your case.

Question: What is the ultimate issue in determining if I am disabled?

Whether you are unable to perform any work due to a medically determinable physical or mental Impairment that can be expected to result in death or that has lasted, or can be expected to last, for a continuous period of not less than 12 months. For a Continuing Disability Review the issue is whether there has been a medical improvement related to the ability to work.

Question: How long will it take for me to have the Judge's decision in my case?

Approximately 30 to 60 days from the time of the hearing unless the Judge asks for further evaluation or evidence. Then the waiting period may be longer.

8.3 ATTORNEY REPRESENTATION

Question: Do I need a lawyer to take my case before an ALJ at the hearing, or can someone other than a lawyer represent me?

No, you do not need a lawyer as any persons can act as your representative. However, you are engaging in a legal proceeding and generally would not go to "Court" with a representative other than a lawyer.

Question: Why should I have an attorney?

An attorney will prepare and gather evidence you need to help you best present your case. He/she will prepare you and be there with you during the hearing. Sometimes an attorney will send you for further examination(s) to aid you in getting a favorable result. An attorney represents your interests and will be your advocate. The Judge (ALJ) cannot be your advocate.

Question: How can I afford to pay an attorney if I can’t work?

An attorney will charge a contingency fee (he will only be paid upon success.) SSA limits this to 25% of your past-due benefits, plus any costs the attorney has spent pursuing your case.

8.4 FURTHER APPEALS

Question: Is the ALJ decision the final decision on my case?

A. No, you can appeal an unfavorable ALJ decision to the Appeals Council within sixty days of the decision. The ALJ decision will be reviewed and overturned if the ALJ has done any of the following:

1. There appears to be an abuse of discretion by the Administrative Law Judge;
2. There is an error in law;
3. The ALJ’s action, finding, or conclusions are not supported by substantial evidence.
4. There is a broad policy or procedural issue which may effect the general public interest.

B. You can also file a second application. This application may be accepted before the Appeals Council has a chance to review the ALJ decision.

Question: If the Appeals Council upholds the ALJ decision what can I do?

You can file a lawsuit against the Social Security Administration in Federal District Court. As with any other lawsuit you can do this on your own, but it is better to have an attorney who is familiar with the deadlines, procedures and laws.

8.5 APPEAL DELAYS

Question: It seems like my appeal is taking a long time. How long can I expect to wait for my appeal?

A. Initial Determination 3-6 months *
B. Reconsideration 3-6 months*
C. ALJ
Before Hearing 6-9 months*
After Hearing 30-60 days*
D. Appeals Council 18-24 months*
E. Federal District Court (Consult your attorney)

*These are approximate times based on our practice and experience. Sometimes due to case load Social Security has longer delays.

Question: Should I be concerned if I have not received anything from Social Security and it has been longer than the time listed above?

Yes, call Social Security or visit your local office. Sometimes your case has been accepted or denied without sending you a copy. If this happens Social Security should allow you an extension to file any necessary appeal.

SECTION IX -- PERSONAL MEMORANDUM

Use this section to list additional questions you wish to ask your lawyer.

________________________________________________________________________________

John A. Gravina

Mailing Address:
P.O.Box 65253, Tucson, AZ 85728 p. 520-795-4330

Office Address:
1670 East River Road, suite 124,Tucson, AZ 85718 f. 520-881-7689

email:john@gravinalaw.com