1. Is Getting SSDI or SSI just a matter of luck or is there a framework that the judge must use in determining whether or not a claimant is disabled?
Yes, it can be a matter of luck. Judges are drawn at random essentially. You may not even know who your judge will be until the day of your hearing some ALJ’s give statistically higher percentages of Awards than others. However, there is a legal framework for the ALJ to use in deciding if you are disabled or not. The following sets forth that framework.
2. What is the Statutory or Legal Framework for Considering a Social Security Disability Claim?
The framework that the Social Security Administration will follow is found below. It is a five-step process that consists of the following steps.
Step 1. Does the claimant presently or did her/she during period of disability earn wages of $1040 or more?
At step one the ALJ must determine whether the claimant is engaging in substantial gainful activity (20CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is defined as work activity that is both substantial and gainful. If an individual engages in SGA, that individual is not disabled regardless of how severe that individual’s physical or mental impairments are and regardless of age, education, and work experience. If an individual is not engaging in SGA, the analysis proceeds to the second step.
Step 2. Is there anything medically wrong with the claimant that interferes with his/her ability to work?
At step two, the ALJ must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is “severe” (20CFR 404.1520I and 416.920I). An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits the individual’s ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, the claimant is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.
Step 3. Does any or do several of the impairments meet a listing?
At step three, the ALJ must determine whether the claimant’s impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526(d), 416.925, and 416.909). If the claimant’s impairment or combination of impairments meets or medically equals the criteria of a listing and meets the duration requirement (20 CFR Part 404, Subpart P. Appendix 1 (20 CFR 404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.
Step 4. What is the claimant able and not able to do, given his/her mental and physical limitations?
Can he/she do his/her past jobs? Past jobs go back 15 years from the onset date and only jobs that the claimant did long enough to be able to master them. A simple job generally does not take long to master (a few months), while a complex one does.
Before considering step four of the sequential evaluation process, the ALJ must first determine the claimant’s residual functional capacity (20 CFR 404.1520(e) and 416.920(e)). An individual’s residual functional capacity is the individual’s ability to do physical and mental work activities on a substantial basis despite limitations from the individual’s impairments. In making this finding, the ALJ must consider all of the claimant’s impairments, including impairments that are not severe. (20 CFR 404.1520(e), 404.1545, 416.920(e), and 416.945; SSR 96-8p)
Next, the ALJ must determine at step four whether the claimant has the residual functional capacity to perform the requirements of the claimant’s past relevant work (20 CFR 404.1520(f) and 416.920(f)). If the claimant has the residual functional capacity to do the claimant’s past relevant work, the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.
Step 5. In light of the residual functional capacity described above, since the claimant cannot do his/her past work the ALJ must consider, what jobs can the claimant perform?
This area concerns vocational expertise. If a claimant has past relevant work in a given extertional category, then to get disability benefits, the claimant must not be capable of performing work in that extertional category given his/her age, education and work experience. There are definitions for physical exertional categories and they apply whenever the claimant has a physical impairment. The code of federal regulations (CFR) 20 CFR §416.967 describes these physical exertion requirements as follows:
Physical exertion requirements:
To determine the physical exertion requirements of work in the national economy, the SSA classifies jobs as sedentary, light, medium, heavy, and very heavy. These terms have the same meaning as they have in the Dictionary of Occupational Titles, published by the Department of Labor. In making disability determinations under this subpart, we use the following definitions:
- Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one that 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.
- Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 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 or 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, we determine 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.
- Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.
- Heavy work. Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.
- Very heavy work. 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, we determine that he or she can also do heavy, medium, light, and sedentary work.
Generally, but not always, in order to get disability a person, whose condition does not meet a listing must show that he/she is not capable of performing a sedentary work on a full time basis. Older people, those 50 and over, may be able to get benefits with the ability to work at light levels, depending on age, education, and work history and whether they learned any skills that could be used in other jobs (referred to as transferability of job skills).
Mental impairments limitations:
These impairments consider a completely different set of circumstances. The CFR describes the limitations generally as follows: “A limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting, may reduce your ability to do past work and other work.” 20 C.F.R. §404.1545I. The various limitations described in the mental residual functional capacity questionnaires address these limitations. The ability to function in the following categories is weighed: 1) activities of daily living (grooming, getting to and from work, ability to shop for food, maintain a household); 2) social functioning (ability to get along and interact with people) 3) concentration, persistence and pace (ability to pay attention to work instructions and requirements); 4) episode of decompensation (hospitalizations, times when person is unable to leave home due to mental illness). An important factor for many claimants is the ability to maintain concentration, persistence and pace, but all factors should be considered.
At the last step of the sequential evaluation process (20 CRF 404.1520(g) and 416.920(g)), the ALJ must determine whether the claimant is able to do any other work considering the claimant’s residual functional capacity, age, education and work experience. If the claimant is able to do other work, the claimant is not disabled. If the claimant is able to do other work and meets the duration requirement, the claimant is not disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience (20 CFR 404.1512(g), 404.156I, 416.912(g), and 416.960I).
3. Will the ALJ give me a decision immediately after my hearing?
Rarely. Some decisions called “Bench Decisions” are issued by the ALJ while he or she is still sitting on the bench before you. This occurs in fewer than ten percent of cases heard before an ALJ. One must have a particularly convincing case or advocate to help make this happen.
4. So, typically, what happens after the hearing, and how will the decision be rendered?
After your case is heard, the judge will make his or her decision and enter a written Order either granting or denying your benefits.
5. Does the ALJ’s decision have to be in writing?
Yes. A judge’s decision is not final until written notice is sent. Without a written “Order” or “Decision” there is nothing to appeal.
6. Can I talk with anyone at the judge’s office while the decision is pending?
Probably not. Unless you are trying to provide additional evidence, you should not contact the ALJ’s office. The ALJ and the ALJ’s office will not speak with you over the telephone prior to a claimant’s receipt of a written decision.
7. How long will I usually have to wait to receive a written Order from the ALJ?
The ALJ will usually make his or her decision shortly after the hearing, providing that there is no additional evidence or Consultative Evaluations that have been requested. The judge’s decision is then written, typed, corrected and finally signed by the ALJ. This process usually takes between two and six weeks. You will probably receive written notice during that time.
7a. What is a Consultative Evaluation?
Even before or after your hearing the SSA (before) or the ALJ (after) your hearing may send you to a medical or psychological expert to evaluate your symptoms and limitations to give the ALJ an updated or more exact idea of where you stand medically or psychologically. Do not be offended to have to go to one or more, you are required to go as both the SSA and the ALJ have the burden of gathering evidence in your case.
8. What if, after my case is heard by an ALJ, I receive a “Notice of Decision-Unfavorable”?
That is notice that you have lost at your hearing. If you lose at your hearing either, in full or in part, and do not agree with the ALJ’s decision, you must file a timely appeal with the “Appeals Council”
9. How many days after I receive my unfavorable or partially favorable NOTICE OF DECISION do I have to file my appeal?
Within 60 days of the date you get your NOTICE OF DECISION, you must file your appeal. The Appeals Council assumes you received the NOTICE OF DECISION 5 days after the date shown on that notice unless you can show that you did not get it within the 5-day period. The Appeals Council will dismiss a late request unless you show good cause for not filing it on time.
A copy of the form HA-520 used to file your appeal of an unfavorable decision or partially favorable decision below.
10. What is a “Partially Favorable Decision”?
In some cases an ALJ may agree that you are disabled but in not in agreement on the dates of your disability. This often results in a “Partially Favorable” decision. Often the ALJ may find that the medical record of employment history does not substantiate the date a claimant has alleged. Or an ALJ may find that your disability condition has substantially improved so that you can go to work and are no longer disabled. Procedurally any partially favorable determination may be appealed. Substantially, there should be competent evidence of record on which a claimant should base any farther appeal.