SOCIAL SECURITY 5-STEP DISABILITY PROCESS: STEP 1

Social Security uses a sequential 5-step consideration process to determine who can get disability benefits.  The steps must be taken in order; you cannot consider Step 2 until you pass Step 1, etc.  

In this post, we want to discuss Step 1 in the process:

STEP 1

The question under consideration in Step 1 is:  Is the claimant now engaging in Substantial Gainful Activity (SGA)?"

If the answer is "Yes," the claim is denied here at Step 1 and nothing further is considered.

Step 1 is designed to prohibit individuals who are working from applying for Social Security disability or SSI benefits.  If you are working at a certain level, you cannot apply for benefits, no matter how sick or injured you are.  The work will deny you at Step 1.

We used a term that's very important and must be explained.  What is Substantial Gainful Activty (SGA)?

This term refers to a level of work that rises to the point of being substantial enough to deny a disability claim.  It tries to answer the question, "How much work is too much?"

So, some work is permitted (up to a point) but too much work will deny the claim at Step 1 and make you ineligible for any SSDI or SSI benefit right from the start.

So, what exactly is Substantial Gainful Activity (SGA):

In 2019, the dollar amount of wages, tips, commissions or self-employment income that rises to SGA level is $1,240 per month (gross).

If you earn at least $1,220 per month in 2019 (in salary, wages, tips, commissions or self-employment income), you are not eligible for Social Security disability or SSI benefits.  You are working and you cannot work and apply for a disability benefit.

This number increases slightly each year.  In 2020, the SGA amount will be $1,260 per month (gross).  Back in 2018, the SGA amount was $1,170.  But the 2019 amount is $1,240.  If you earn that much by working, you are not eligible for a disability benefit.

This rule is part of regulatory law and is not subject to appeal.  You cannot file an appeal and say, "I disagree that earning at least $1,240 a month should disqualify me for an SSDI benefit."  That's the law and it doesn't matter if we agree.

Here are some other arguments that won't fly:

• Well, yes, I am working at SGA level, but I'm really not able to work.  I'm really disabled but force myself to work, anyway. My doctor says that I need to quit.

• I'm really not able to work but will lose my home if I stop working before I get on disability.  The minute I get approved for disability, I plan to stop working.

• I am disabled but still working.  If I stop working I will lose my medical insurance and won't be able to go to the doctor or buy my medications.  So, I need to get on disability before I can stop working.

These all sound reasonable.  But the truth is:  If you are now working at Substantial Gainful Activity, you are not disabled according to Social Security law.

There are no exceptions, loopholes or exclusions to this rule.  It is black-and-white.  It doesn't matter why you are working or what will happen if you stop working.  Social Security doesn't care.  If you are working enough to earn $1,240 in 2019 (or $1,260 in 2020), you are not disabled according to Social Security law and cannot get a benefit, regardless of how sick or injured you are.

I want to say that the $1,240 rule is for WORK.  It is not an income or resource restriction.  The limit only applies to work that brings in at least $1,240 per month.  Other types of income which are not work related do not count.

For example, for purposes of SGA, Social Security will not count investments, child support, alimony, rent, debts collected, stock dividends, or money in the bank.  The restriction to earning less than $1,240 applied only to wages, salary, commissions, or self-employment--that is, income from the labor of your hands or mind.  It is a work or earnings limit, not an income limit.

The problem is that you are working, not that you have income.  SSDI is not income restricted.  It is WORK restricted.  Work is the problem, not the income.

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"Across from Bridge Street"
Huntsville, AL 35806
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SOCIAL SECURITY'S 5-STEP DISABILITY PROCESS: STEP 2

Social Security uses a sequential 5-step consideration process to decide disability claims.  These steps must be taken in order, starting at Step 1 and ending at Step 5.  A case may be approved, however, before the 5th step in certain cases.

In this post, we want to discuss Step 2.

STEP 2

So, you have got past Step 1 and now arrive at Step 2.

In Step 2, here is the question:  "Does the claimant have at least one severe medical impairment that has lasted or is expected to last for at least 12 straight months OR is expected to end in death?"

Note that the impairment must be severe and must have (a) already lasted for at least 12 straight months, OR is medically expected to last at least 12 straight months, OR is medically expected to end in death.

If this condition is not met, your claim ends here at Step 2 and is denied without further consideration.

Let's talk about some common things that cause Step 2 denials:

• There is no medical record of a severe impairment.  The claimant says he is very sick but has not been to a doctor, hospital or other professional to create a record. It doesn't matter why.  There is no evidence, so no favorable decision is possible.  It's a Step 2 denial.

• The claimant does have medical records to show a medical impairment, but the impairment doesn't seem to have lasted at least 12 straight months and isn't expected to last 12 straight months.  Since short term disability is not covered, the "duration requirement" of one year is not met, and the claim is denied here at Step 2.

• The claimant has a combination of several different impairments, but no one of them alone has lasted or is expected to last for 12 consecutive months.  For example, Donna had a car accident 12 months ago which disabled her for 6 months.  Immediately after that, she had gallbladder surgery, which kept her off work 2 more months.  Then, she immediately had a heart attack which disabled her for 8 months.  In all, Donna was disabled for 16 months. However, no single impairment lasted for 12 months. Donna was disabled by 3 different impairments that were in no way connected to each other. Donna cannot combine different impairments to meet the Duration Requirement.  Therefore, her claim is denied at Step 2.

There must be at least one single disabling impairment which last lasted for 12 consecutive months OR is expected to last for 12 consecutive months, OR is expected to end in death.

If this is not the case, you have a Step 2 denial.

__________________

THE FORSYTHE FIRM

7027 Old Madison Pike NW, Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US:  (256) 799-0297

E-mail us:  forsythefirm@gmail.com

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SOCIAL SECURITY DISABIILTY 5-STEP PROCESS: STEP 3

There are 5 sequential steps in the Social Security decision making process for disability.  Steps must be considered in order.  In this post, we want to discuss Step 3:

STEP 3

Step 3 of the process considers two questions:  

(1)  Does the claimant meet a Listing?  A Listing is a list of impairments which also gives certain severity criteria that must be met.  If the claimant's symptoms are as severe as those described in the Listing, a finding of disability is automatic here at Step 3.  I must add that most claimants do not meet a listing; therefore, they will go on to Step 4 without a decision being made here at Step 3.

(2)  If no Listing is met, what is the claimant's Residual Functional Capacity or RFC?  Let's define that term:  Residual Functional Capacity means "What is the maximum in work-like activity that the claimant is now able to sustain?"  In simple terms:  How long can the claimant sit, stand and walk?  How much can he/she lift?  How often can she reach, kneel, crouch, crawl and stoop?  What is the most he or she can do in a job setting?  What are the limits?

Most claimants do not get approved at Step 3 (by meeting or equaling a Listing).  In my years of practice, I would say that one out of forty claimants may meet a Listing.  You must be very severely sick or impaired to meet a Listing.  If you have terminal cancer, are on long-term kidney dialysis, or have a catastrophic illness, you may meet a Listing.  If you are legally blind in your best eye, you may meet a Listing.  Most people, however, will not meet a Listing.

Individuals who do not meet a Listing (most of them), will move on to Step 4, which is discussed at the next post in our series.
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THE FORSYTHE FIRM
7027 Old Madison Pike NW, Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US:  (256) 799-0297

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SOCIAL SECURITY DISABILITY 5-STEP PROCESS: STEP 4

There are 5 sequential steps in the Social Security decision making process.  These steps must be considered in order and each step must be favorable to the claimant. 

Here, we are going to examine Step 4 in the process.

STEP 4

The issue at Step 4 is:  Can the claimant perform any of his/her "past relevant work (PRW)"?

Let's define that term Past Relevant Work:  It means any of the full-time jobs you held within the last 15 years prior to applying for disability.  So, in 2019, we look back to 2004.

If you are able to perform any full-time job that you held since 2004, you are not disabled according to SSA rules.

For claimants who are age 50 and over, the decision-making process may end here at Step 4.  

If Social Security finds that a 55-year old claimant cannot perform any of his or her past work and if there are no skills transferable to easier work, the claimant is usually found to be disabled and awarded benefits.

On the other hand, if a claimant can perform at least one of his or her past relevant jobs, the process stops here at Step 4 and the claim is denied.

Let's use a typical case for an example:  Donna worked as a material handler in an automobile plant for 18 years.  This was her only past relevant job.  Donna is 55 years old.  She applied for disability due to back and leg pain from two herniated discs in her lower back.  She has an MRI and the orthopedic surgeon says she has significant narrowing of the nerve canal with radiculopathy into her right leg.  Donna's job required her to lift up to 50 pounds at times, and to be on her feet 8 hours per day.  She says she cannot do this much lifting or standing due to back pain.

The judge decides that Donna is no longer able to lift 50 pounds or to be on her feet at least 6 to 8 hours per day.  Therefore, he asks the vocational expert (present at the hearing) whether Donna can perform past relevant work if she is restricted to lifting no more than 25 pounds and standing/walking no more than 4 hours per day.  The vocational expert says, no, those limitations prohibit the past work.

We expect the judge will approve Donna's claim because there are no past jobs that she can still perform due to her medical condition.  Because of her age, the judge will not consider whether there are easier or lighter jobs that Donna can do.  

However, if Donna had been under 50 years of age, the judge probably would have taken her on to Step 5 before making a decision.  Step 5 is discussed in our next blog post.
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THE FORSYTHE FIRM
7027 Old Madison Pike NW, Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US:  (256) 799-0297

E-mail us:  forsythefirm@gmail.com

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SOCIAL SECURITY 5-STEP DISABILITY PROCESS: STEP 5

There are 5 sequential steps in the decision making process for Social Security disability.  Each step must be considered in order.  Here, we are going to discuss Step 5 in the process, which is the last step.

STEP 5

The question at Step 5 is this:  Does there exist any job in the U.S. economy that the claimant can still perform?

If the answer is yes, and the claimant is under 50 years of age, the claim will be denied.

Step 5 usually applies only to younger individuals who are under the age of 50, certainly younger than 55.

So, let's assume that a claimant age 45 has been unable to perform his past relevant work at Step 4.  Perhaps all of the past work required a lot of lifting, bending, standing or walking, which the claimant can no longer do.  So, the judge finds that past work is not possible now.  But, there is Step 5 yet to be considered.

So, are there other jobs that this claimant would be able to perform?  For example, could he do the work of a ticket taker, a photo copier operator or an order taker?  If so, his benefit will be denied.  Even though he cannot perform any of his past work, there are still some jobs that he is able to perform.  So, it is a denied case.

An individual age 50 or older often will not get to step 5, because his or her case will be decided back at Step 4.  An older age category can be very favorable to the claimant in Social Security cases.

But if you are younger than 50 and your case gets down to Step 5, you must be unable to perform any work which exists in the U.S. economy in significant numbers.

The only thing considered at Step 5 is:  Is the claimant able to perform any full-time job?  The following things cannot be considered:

• I can't find a job like that around my town.
• No one will hire me for that kind of job.
• I don't want to do that kind of work.
• Those jobs don't pay enough to live on.
• I don't have transportation to get to and from work.
• The economy is so poor that those jobs are not hiring.

So, Step 5 is perhaps the most difficult of all the steps in the disability process.  Claimants who wind up here are usually under age 55 (often under 50) and may have some restrictions, yet they are able to do certain kinds of full-time work available in the national economy.

So, who wins their cases at Step 5?  The winners are individuals with very severe and very limiting medical conditions that prevent performance of even the easiest jobs.  Think of the easiest job you can imagine.  Think of the job with the least amount of lifting, standing, walking, pushing, or pulling.  If you can perform that job, or one like it, you are not disabled according to Social Security's rules.

It's always best to go to a Social Security hearing with your lawyer or advocate to represent you.  Hearings are so complex and technical that it takes an experienced representative to make sense of them and protect your rights.  Your attorney will always make a better case for approval than you will.  
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THE FORSYTHE FIRM
7027 Old Madison Pike NW, Suite 108
"Across from Bridge Street"
Huntsville, AL 35806
CALL US:  (256) 799-0297

E-mail us:  forsythefirm@gmail.com

CHECK OUT OUR WEB PAGE

"INSURED STATUS" WITH SOCIAL SECURITY

Claimants are required to have "insured status" before they can file an SSDI claim for Social Security disability benefits.  

What does this mean?

It simply means that the claimant has worked enough, and has worked recently enough, to be insured by Social Security.

A worker can earn up to 4 calendar quarters of coverage per year.  January - March counts as one quarter, etc.  To earn one quarter of coverage, a worker must earn at least $1,360 in the quarter.

So, a worker who only works part time can earn 4 quarters of coverage per year, as long as he or she earns a minimum of $1,360 in each quarter.

How many quarters of coverage are required for disability coverage?  It depends on the claimant's age, but most adult claimants need to have at least 20 quarters of coverage out of a possible 40 quarters.

Here's an easier way to look at it:  You need to have worked at least 5 years out of the past 10 year period.  The rule for very young workers is different.  (And you only earn a quarter of coverage for each quarter in which you earned at least $1,360).

An individual may have insured status at some point but lose it if they stop working for a long period of time.  This causes problems for individuals who stop working and wait a few years before applying for Social Security disability benefits.  

Each individual's Social Security coverage has a Date Last Insured (DLI).  This is the date on which the individual stops being insured for NEW disability claims.  For example, if your DLI is 12/31/19, you are not insured for any new disability which begins after that date.

How to Find Out When Your DLI is

Finding out when your Date Last Insured is (or was) is easy.  Simply call the local Social Security office and ask.  

Knowing your DLI is important before filing a new SSDI claim.  

 

CONGRESS HELPS VETERANS GET SOCIAL SECURITY BENEFITS QUICKER

Wounded warriors can now get Social Security disability benefits faster than ever.  To qualify for faster decision maker and quicker awards, the veteran should

• Have a service connected disability that began on or after October 1, 2001;
• Have a permanent, total service connected disability rating of 100 percent by the Veterans Administration, and
• File a Social Security disability application packet requesting expedited service.

It's important to know that a 100 percent VA rating does not guarantee a favorable decision by Social Security.  Their rules are different from VA rules and many disabled veterans get denied for SSDI benefits.

One major difference is that Social Security requires total disability; they don't offer any partial disability benefits.  And they are not required to recognized the 100 percent VA rating, except in respect to making a faster decision.

While it may take a civilian claimant a year or longer to get a decision, disabled veterans may get a decision in a fraction of that time.  If an appeal is required, it can also be handled much faster.

The Forsythe Firm is expertly knowledgeable about helping wounded warriors and will be happy to provide a free consultation to help get the claim started, or to file an appeal on a denied claim.

 

 
 

AN IDEAL CANDIDATE FOR SOCIAL SECURITY DISABIILTY

People from all walks of life, all different ages, and with different medical impairments may get Social Security Disability (SSDI) benefits.  Some have stronger claims than others.

If I could choose the "perfect" mythical candidate for SSDI benefits, this is what the case would look like:

• The claimant has worked at one job (or a couple of jobs) for many years--a strong, steady work history.
•  
• He/she has worked at least 5 years out of the past 10-year period.  (Necessary to be "covered" for SSDI).

• He or she has recently stopped working because of a severe medical condition. (Cannot be working now).

• The medical condition has lasted, or is expected to last, for at least 12 straight months. 

•  There is adequate medical treatment, and recent, that shows the onset, duration and severity of the illness or impairment.  In short, there are good medical records that are up to date.

•  The claimant does not have a history of sedentary work (jobs performed mostly from a seated position).

•  An added bonus:  The claimant is at least 50 years old.  (Many people under 50 do get SSDI, though).  

Let me point out that very few claimants will meet ALL of the above factors.  But these are the things we look at when evaluating an SSDI case to determine how strong the case is.

Winning the case is like putting together a jig-saw puzzle.  There are lots of pieces and you have to short out each one and put it into it's proper place.  

The good news is that our firm will provide a free case evaluation at no cost, no obligation.  We will sit down with you (or do a phone consult) to look at the case and point out the strengths and weaknesses.  If we feel your case has merit, we will offer to represent you in your quest for benefits.
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The Forsythe Firm
7027 Old Madison Pike, Suite 108
Huntsville, AL 35806

CALL US:  (256) 799-0297    The call is free.

Email us:   forsythefirm@gmail.com

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