Starting at age 50, and then again at age 55 and 60, Social Security lowers the requirements for proving disability. The rationale is that the older you are, the harder it is to work in a job that you have never done before.

• After age 50, Social Security can approve you for disability benefits even though you are able to do some type of work.
• The older you are, the more physically demanding the work can be and still allow you qualify for disability benefits.

However, this is not a free pass and do not leave this article before you read the “gotchas” at the bottom.

Medical-Vocational Guidelines

The reduced requirements for proving Social Security disability cases are contained in the “Medical-Vocational Guidelines” also known as the “Grid Rules.” It is important to understand where the Grid Rules fit in with Social Security’s disability evaluation process.

Take a moment to review the 5 step sequential evaluation process. These are the 5 steps that Social Security uses to decide disability cases for adults.

1. Are you working (at an SGA level)?
2. Is your impairment severe?
3. Do your impairments “meet or equal” one of Social Security’s Listing of Impairments?
4. Can you do past work -  any of the jobs you performed (at a SGA level)  over the last 15 years.
5. Can you do other work – any other type of work that exists in substantial numbers in the national economy?

Note: I am simplifying and abbreviating each step — check out the link above for a more thorough review.

Here is how Social Security goes through these steps:

• To qualify for disability, you have to show that you are not working at SGA (step 1) and that your conditions are severe (step 2).
• Step 3 – meeting a listing, is the first step at which an individual can be approved. However, only a small number of cases are approved here.
• If you not approved at step 3, you have to get over both steps 4 and 5. You have to show that you cannot perform any work done 15 years prior to the onset date AND that you cannot perform any other type of work (that exists in substantial numbers in the national economy).

The Grid Rules apply at step five of the sequential evaluation process. That means that before the Grids come into play, you have to already shown that, (Step 1) you are not working an SGA job, (Step 2) your condition is severe, (Step 3), you did not meet or equal a listing, and (Step 4) you cannot perform the duties of any job done at a SGA level 15 years before the disability began.

Step 4 can be tricky. Step asks if you can still physically and/or mentally perform the duties of any job which:

1. You performed in the 15 years before your alleged onset date; and
2. You performed long enough to learn how to do the job; and
3. The job was performed at a substantial gainful activity level .

In short, if you can still perform the duties of a past job, you do not get to use the Grid Rules and you may be denied.

However, if you cannot do any past relevant work, here is how the Grid Rules may help you:

Ages 50 to 54

You can be approved for Social Security disability benefits even if you are still able to perform sedentary work so long as your past work was not skilled or semi-skilled, or if you do not have transferable skills to to other work.

If you are illiterate, or unable to communicate in English, and have no past relevant work or only unskilled work, you can be approved even if you are able to perform light work.

Ages 55 to 59

If you are between 55 and 59 years old, you can be approved for Social Security disability benefits even if you are able to perform light work.

However, if you have a 11th grade or lower education and no past relevant work, you can be disabled even if you are able to perform medium work.

Ages 60 to 64

Here is where the rules get tricky. If you are between 60 years old and 64 years old, you can be approved for Social Security disability benefits even though you can perform:

• Light work,
  • If you have a high school degree or higher level of education.
  • Or, if you have an 11th grade education, your past work was skilled semi-skilled but the skills are not transferable.
  • Or, you have a 7th to 11th grade education and your past work was unskilled.
• Medium work,
  • If you have an 11th grade education or lower and no prior work experience.
  • Or, if you have a sixth-grade education and your past work was unskilled.

Yes, things get complicated in the 60 to 64 age bracket.

Here are the GOTCHAS!

As mentioned above: you have to show that you are not able to perform your past work. If you are still capable of performing the duties of any of the past jobs you have done (at a SGA level) in the 15 years before your disability began, then the Grid Rules do not apply. These exceptions only apply if you can first prove that you cannot perform any past relevant work (PRW).

The other gotcha is that you cannot actually be working at a SGA level. These rules deal with having a “residual functional capacity” (what you are still able to do) that still allows some kind of work. In other words, you can still have an “ability to work,” but you cannot actually be working at a substantial gainful activity level (unless one of these exceptions apply).

Examples:

Here are some examples:

Over the last 15 years, you performed construction or labor jobs (medium to heavy occupations). Due to a back injury, you can no longer lift over 10 pounds and you can not stand for more than 2 hours out of an 8 hour day. This puts you in the sedentary exertional category.

This means you can still work but only at a sit-down job. In reality, you would probably need a job that has a sit/stand option, but that is not relevant for this discussion.

• If you are between 18 and 49 years old, there is a good chance you will be denied because you are still able to do sedentary work.
• However, if you are 50 years old, you will probably be approved because of the Grid Rules.

Lets shake things up. If in the last 15 years you worked for 6 months as a telemarketer (a sedentary job), you will probably be denied even at age 50 because you can still do a past job. This would be a step 4 denial.

Finally, if you are working at a SGA level at any exertional level, you are not disabled because you are able to work. A step 1 denial.

The Grid Rules are technical, but they can really be a short-cut in a Social Security disability case.

However, if you do not qualify under one of these rules, it is not the end of your case. The Grid Rules only consider a very small group of limitations (lifting/carrying, sitting, standing and walking). They do not consider bending, kneeling, using fingers and hands, working around others, or any other limitations. If you do not meet a grid rule (and most of my clients do not), all of your other limitations still need to be considered and may let you win your case.

A version of this article was first published on Bob Kraft’s site.

Social Security frequently has single decision makers (SDMs) complete forms describing what an individual can and cannot do in the workplace. These are very important case since the ultimate issue in a Social Security disability is whether an individual can still perform some type of work.

§404.906 describes the SDM process:

(2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see §404.1615). However, before an initial determination is made that a claimant is not disabled in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see §404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met.

The problem with a SDM deciding an individual’s limitations is that SDMs are not doctors, nor nurses, nor any type of medical professional. The SDM is often the Social Security case manager working in the Disability Determination Services (DDS) office.

The SDM often works with a medical expert to evaluate the extent of a claimant’s impairments and the resulting limitations. However, it is the SDM, not the medical professional, who often completes the limitations forms and decides whether an individual is disabled.

In cases with physical disabilities, the medical consultant does not need to sign the disability determination forms (typically a Physical RFC Form SSA-4374-BK). In cases with psychological impairments, the regulations a bit stricter requiring the SDM, “every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.” So, even in mental impairment cases, it is not an iron clad requirement that the medical consultant sign off on the claimant’s limitations.

I don’t want to go too far off on a tangent. The main point is that during the initial evaluation of disability claims under the SDM system, technicians and not doctors are deciding individual’s abilities and limitations. If you are still saying, “so what,” keep in mind that if the situation were reversed, a claimant’s representative providing the same form filled out by someone with no medical credentials in support of the claimant’s disability, would be laughable. It would neither be an “acceptable medical source,” nor an “other acceptable source.” See SSR 06-03p.

Ok. This simply means the situation is not equal. Social Security has to trust someone to decide an individual’s limitation and the issue of disability at the initial determination level. And, instead of a medical consultant, it can be a Social Security case manager with no medical credentials.

Question: Are these SMD determinations of abilities and limitations still valid as opinions at the hearing level?

Answer: NO!

Maine and New Hampshire Social Security disability attorney Gordon Gates has great posts (post 1, post 2) about the how much weight a SDMs Residual Functional Capacity can be given at the hearing level:

A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.

At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the “A” exhibits in the disability claim file, rather than with the medical evidence in the “F” exhibits.

For “prototype” states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

The basis for this are two memoranda from the Chief Administrative Law Judge’s office at Social Security. On May 19, 2010, then Chief Administrative Law Judge Frank Cristuado issued a Memorandum stating the following:

SDMs often complete the Physical RFC Form, SSA-4374-BK, which is commonly completed by State agency medical consultants. Some ALJs and AAs treat the SDM RFC assessments as non-medical opinions and weigh them accordingly. However, this approach is inconsistent with agency policy clarified by POMS instruction DI 24510.050C, which states SDM form are not opinion evidence at the appeal levels. Thus, agency policy requires ALJs and AAs to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level. Emphasis added.

Not only was Chief Judge Christuado stating that SDM residual functional capacity statements were not medical opinions, he indicated that they were not opinion evidence at all. Therefore, NO EVIDENTIARY WEIGHT was to be given to SDM RFC forms!

Then on September 14, 2010, Acting Chief Administrative Law Judge John Costello issued a revised memo which strengthening this position:

Agency policy is that findings made by SDMs are not opinion evidence that Administrative Law Judge, (ALJ) or Attorney Adjudicator, (AA) should consider and address in their decisions. See, for example POMS DI 24510.050C, which states that SDM-completed forms are not opinion evidence at the appeal levels. SDM finding, are not “medical opinion” evidence since they do not come from medical source. However, agency policy is, that they are also not the opinions of non-medical sources, as described in SSR 06-3p.

Therefore, ALJs and Aas must not consider SDM RFC assessment forms and other findings as opinion evidence and must not evaluate them in their decisions.

…

When a case that contains a copy of an SDM’s SSA-4734-BK is appealed to the hearing level, the form will be located in the “F” section (Medical Records). At case workup SDMs form should be moved to the “A” section (Payment Documents/Decision,); any forms signed by MCs or PCs should be left in the “F” section.

If you worked your way to the end of this post, you may be wondering what does this mean for you?

If you have a RFC form in the file signed by a SDM (and there will be “SDM” after the signer’s name), the SDM’s findings as to the residual functional capacity (RFC) — what the individual can and cannot do — cannot be used as evidence at the hearing level. One way to bring this to the judge’s attention is to request that the SDM RFC form be moved to A section of the file, and provide a copy of the September 14, 2010 memo along with the request.

Many thanks to New York disability attorney Jeff Delott and Maine and New Hampshire Social Security disability attorney Gordon Gates.

I was recently asked if you need a functional capacity evaluation (FCE) in a Social Security disability case. No, but it really helps if you can get one.

As I previously wrote, it is vital to get a statement from your doctor about your abilities and limitations in the workplace. This is sometimes called a medical source statement, medical opinion, or a statement of your residual functional capacity.

Normally, this medical opinion is just your doctor’s “best guess” of what you can and cannot do.  I don’t want to put this down. A doctor who knows your condition, and who knows you, can make a very good guess about how the conditions affects you and how it would affect you in the workplace.

However, a functional capacity evaluation objectively tests what you can and cannot do. A typical FCE will take 4 to 6 hours to test what you can do. You will be tired and quite possibly sore after it is done. However, this is often the very best evidence of your abilities and limitations.

Social Security already sent me to a doctor who had me bend and stretch. Is that the same thing?

No. You may have been sent for a consultative examination. However, that is a much shorter test. The consultative examiner may watch you walk and have you bend this way and that. From this minimal information, the consultative examiner extrapolates (makes a best guess) of your abilities and limitations.

If that leaves you furrowing your brow wondering how that tells what you can and can’t do? You’re right, it doesn’t (at least not very well). Unfortunately, Social Security will not send you for a functional capacity evaluation. If you want one, you will have to obtain it on your own (or with the help of your lawyer).

Why aren’t FCE’s performed in every Social Security disability case?

The problem is cost. A functional capacity evaluation will cost anywhere between $350 and $900 (depending on the therapist performing the evaluation and your location). In Pueblo Colorado, I see FCE’s running about $500. In Denver, the cost is closer to $850.

If you can have an FCE performed, that is great. I encourage you to do it. However, if you cannot afford an FCE, don’t give up hope! The majority of my clients cannot afford an FCE. I still find ways of building their cases.

Update 08/17/11: Another issue is that a FCE is often not performed by a doctor. That means the FCE report is often signed of by a therapist, who in Social Security’s eyes is not an “acceptable medical source.” However, Social Security Ruling  SSR 06-03p will allow Social Security to consider a therapists report as “other medical evidence.”

However, evidence from “other medical sources” is still not as good (all things being equal) as evidence from “acceptable medical sources.” ”Acceptable medical sources medical sources” are higher on the evidentiary totem pole than “other medical sources.” So, what can you do if you have a FCE completed by a therapist? Ask you doctor (likely to be an “acceptable medical source”) to review the FCE report and write a statement adopting the findings (with any changes if necessary) of the FCE.

The Social Security Disability Blog got me thinking about some of the questions I have heard Judges ask at hearings.

It is fairly common to be asked the following questions during a Social Security hearing:

• How long can you sit?
• How long can you stand?
• How far can you walk?
• How much can you carry?

Be careful, your answers might get you into hot water.

People want to answer by telling the Judge the most they can do:

Well, I can walk for about half a mile.

The problem is that the Judge is trying to determine your “residual functional capacity” (RFC): what you can still do despite your impairments in a work like environment. That is, what you are still able to do during an 8 hour day, five days a week (or a similar schedule).

While you may be telling the Judge that you can walk half a mile on a really good day (which only happens once or twice a week), the Judge may think you are saying that you can walk half a mile, several times a day, every day!

Even if an answer does not go completely right, it is not the end of the world. Your attorney can help you walk it back and get the correct information in front of the Judge.

Q: You told the Judge you can walk about half a mile?

A: Yes, that’s right.

Q: Would you be able to walk half a mile several times a day.

A: No.

Q: Would you be able to walk half a mile once a day, every day, Monday through Friday?

A: No, I can maybe walk half a mile on my good days — maybe twice a week.

Q: How far can you walk on your bad days?

A: Maybe from the bedroom to my couch.

Whether you are going to your hearing with an attorney or on your own, keep in mind that the unspoken part of the Judge’s “how long can you…” question, is “on a regular basis, day in and day out.”