Theories for winning your Social Security disability hearing

At each of our New Jersey Social Security disability hearings, we present the administrative law judge with a theory and supporting evidence that explains why our client is entitled to disability benefits.

Every case needs a theory. There are two main theories that will result in a finding of disability. Depending on the facts, your case may fit into one or both of them.

• You are disabled because your impairments are so severe that they meet or equal the Listing of Impairments.
• You are disabled because you cannot do “past relevant work” and you cannot do other jobs that exist in significant numbers considering your age, education. This theory involves application of the Medical-Vocational Guidelines.

Proving your impairment meets or equals the listings

The Listing of Impairments is a set of medical criteria for disability for many common and some uncommon physical and mental impairments. For example, there are listings for various types of heart and lung disease, diabetes, back problems, and mental disorders to name just a few. The Listings are available on the Internet at http://www.socialsecurity.gov/disability/professionals/bluebook/index.htm. To learn how the Social Security Administration evaluates particular impairments under the Listings and obtain valuable medical opinion forms, go to our Library and see Applying for Disability Benefits When… (LINK NEEDED)

The Listing medical criteria specify a degree of severity at which a person is presumed to be so limited that he or she cannot perform any substantial work. When a claimant’s impairment meets the criteria set forth in the Listing of Impairments, the claimant is said to “meet the Listings” and is found disabled.

A claimant may also be found disabled because his or her impairment does not meet the criteria, but is as severe as a listed impairment. The claimant’s impairment is then said to “equal the Listings.” This comes up in four situations: (1) you do not have one of the required medical findings stated in the Listings for your particular impairment but you have other findings; (2) you have all the findings but they are not quite severe enough and you have other findings; (3) there is no listing for your impairment, but it is as severe as a similar impairment that appears in the Listings; or (4) you have a combination of impairments, none of which meet the Listings alone, but all together they are sufficiently severe.

Whether your impairment meets or equals a listing involves a technical analysis of your medical records and test results. Nevertheless, disability under the Listings is an important theory to be able to argue when you can still do your past work. If your impairment meets or equals one of the impairments in the Listings, your ability to perform past work is irrelevant.

If your impairment does not meet or equal a Listing, to win disability benefits you will need to show that you cannot do past relevant work and that you cannot do other jobs that exist in substantial numbers considering your age, education, and experience. Most cases involve this theory.

Proving you cannot do “past relevant work”

For a job to qualify as past relevant work, you must have performed it within the past 15 years and the job must have been “substantial gainful activity” (SGA). That is, the job must have involved doing significant physical or mental activities; and you must have earned a minimum monthly amount for doing it. The amount is set by the Social Security Administration and goes up each year. Finally, you must have held the job long enough to learn to do it.

A job qualifies as past relevant work even if you did it only part-time, as long as it was substantial gainful activity.

You must prove that you cannot do a past relevant job even if that job no longer exists in the economy. In addition, if you can do a past relevant job as it is ordinarily done, you will be found not disabled even though your actual past job required greater exertion and you are unable to do that particular job.

Thus, you and your disability attorney have to identify your easiest full or part time past relevant job and then figure out why you cannot still do it. If you had an easy job in the past 15 years that you can still do, you will be found not disabled, unless your impairment meets or medically equals one of the impairments in the Listing of Impairments.

Proving you are disabled under the Medical Vocational Guidelines

The Medical-Vocational Guidelines consist of three charts, called grids, which answer the question whether a claimant is or is not disabled for different combinations of maximum physical residual functional capacity (RFC), age, education and work experience. RFC is the level of work you can still do despite your impairments. For physical impairments, it is expressed in terms of whether you can do medium, light, or sedentary work. If your profile matches one of the rules in the Medical-Vocational Guidelines, the rules direct the outcome of your case. Even if your profile does not exactly match, the Guidelines must be used as a framework for the disability decision.

Under the Medical-Vocational Guidelines, the older you are, the less education you have, and the fewer job skills you have that can be transferred to other jobs, the more jobs you can still do and still be found disabled.

This fundamental principle of the Guidelines is based on the concept of vocational adaptability. Younger, better-educated people with work experience are more adaptable to job changes despite a decline in RFC caused by a medical impairment.

Here is a very simplified summary of the Medical-Vocational rules.

• Claimants 55 or older. As a general rule, you have to prove that you cannot do “medium” work–frequently lifting 25 pounds, and occasionally lifting up to 50 pounds and standing or walking for most of the day. But you can be capable of doing light work and still be found disabled.
• Claimants 50 through 54. As a general rule, you have to prove that you cannot do “light” work–lifting up to 20 pounds and standing or walking most of the day. Even though you might still be able to do a sedentary job, you can still be found disabled.
• Claimants under 50. As a general rule, you have to prove that you can’t do an easy sit-down job or even a job where you’re allowed to alternate between sitting and standing during the workday.

Assistance is available

Presenting a winning case at a disability hearing can be complicated and technical. As you can see, just because employers won’t hire you because of your medical problems, doesn’t mean you are disabled. The Social Security Administration looks only at whether you are capable of doing jobs, not whether anyone would actually hire you. To win at your hearing, we may have to prove that you are unable to do jobs that you would never be hired for.

On the other hand, although you have to be unable to perform jobs existing in significant numbers in the economy, this doesn’t mean that you have to be unable to do any job. Very few people, including people who qualify for Social Security disability benefits, are unable to do anything.

If you are not already represented by a Social Security disability attorney, in need of NJ divorce forms or any other law services and want evaluation of your case, give us a brief description of your claim using the form to the right. Or you may e-mail or call our office at 732-747-3700.

Zager Fuchs, PC
New Jersey Social Security disability attorneys

E-mail
Phone: 732-747-3700
Fax: 732-747-2533

P.O. Box 489
268 Broad Street
Red Bank, New Jersey 07701