Disability and Related Issues

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Disability and Related Issues
Anthony J. DeLellis 1565 Hotel Circle South, Ste
370 San Diego, CA 92108 619-278-0900 ajd_at_delellis.
com
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SOCIAL SECURITY DISABILITY

• Disability The inability to engage in any
  substantial gainful activity by reason of any
  medically determinable physical or mental
  impairment which can be expected to result in
  death or which has lasted or can be expected to
  last for a continuous period of not less than 12
  months. 42 U.S.C. 423(d)(1)(A)

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Physical or Mental Impairment An
impairment that results from anatomical,
physiological or psychological abnormalities
which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.
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The Social Security Act sets a Hypothetical
Tone for disability determinations.

• The SSA will not consider the availability of
  work in the area where the claimant lives, job
  vacancies or whether the individual claimant
  would be hired.

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Five Step Sequential Evaluation

• 1. The Claimant is not engaging in substantial
  gainful activity (SGA) and
• 2. The Claimant has a Severe impairment and
• 3. The impairment meets or equals one of the
  impairments in the regulations known as the
  Listing of Impairments or
• 4. Considering the Claimants residual
  functional capacity (RFC), the Claimant is
  unable to do past relevant work and
• 5. Other work with the claimants RFC,
  considering age, education and work experience,
  does not exist in the national economy in
  significant numbers.

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1. Substantial Gainful Activity

• Work must be both substantial and gainful.
• Gainful work for 2006 was 870 per month and 900
  per month for 2007. Self Employed work is
  gainful if it is the kind of work usually done
  for profit, regardless if there is a profit or
  loss.
• Substantial work means that the claimant is able
  to do the ordinary tasks of the job without
  special assistance or the claimant is of little
  or no use to the employer. This is referred to
  as a sheltered work environment.

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2. Severe Impairment

• This step is designed to weed out frivolous
  claims involving no medically determinable
  impairment or only a slight impairment that
  results in a minor limitation on the ability to
  work.
• Medically determinable impairments are divided
  into two categories
• 1) slight impairments that are referred to as
  non-severe impairments and
• 2) all other impairments that are, therefore,
  severe.

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1. The regulations require that the impairment
must be continuously severe. This precludes
conditions that wax and wane or have periods of
remission followed by active periods. However if
the remission is for short periods followed by
active periods which preclude SGA then the
duration requirement is met. 2. A claimant is
not permitted to tack together unrelated severe
impairments to get to the 12 month requirement.
42 U.S.C. 423(d)(2)(a).
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3. Listings of Impairments

• A Claimant will be found disabled if the medical
  signs, findings and symptoms meet or medically
  equal one of the disabilities found in the
  Listing of Impairments.
• If meet or equals a listing, the Claimant will be
  found disabled even if he/she is able to do past
  work or hypothetically retains ability to do
  substantial gainful activity.

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• Musculoskeletal System.
• Special Senses and Speech
• 3. Respiratory System 5. Cardiovascular System
• Cardiovascular
• Digestive System
• 6. Genitourinary Impairments
• 7. Hematological Disorders
• 8. Skin Disorders
• 9. Endocrine System
• 10. Impairments That Affect Multiple Body Systems
  
• 11. Neurological
• 12. Mental Disorders
• 13. Malignant Neoplastic Diseases
• 14. Immune System

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4. Past Relevant Work

1. The Claimant has the burden of proving that
   he/she cannot perform any of the work he/she
   performed in the past 15 years.
2. If can perform PRW, not disabled. The case may
   be a winner at Step 5 but cant get there if lose
   at Step 4.
3. The Past Work must have been Substantial Gainful
   Activity.
4. Must have been performed long enough to learn
   that work. Each job is defined in the Dictionary
   of Occupational Titles and is given a specific
   SVP number from 1 to 8. Unskilled jobs have an
   SVP of 1-2 and takes 30 days to learn. Semi
   Skilled jobs have an SVP of 3-4 and takes 30 to
   90 days to learn. Skilled jobs have an SVP of
   5-9 and require 6 months up to 10 years to learn.

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5. In evaluating a claim, I look through the
claimants work history and determine which is
the easiest job that they performed. The burden
is to show what medically determinable
impairments preclude him or her from performing
this work now.
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5. Other Work Does Not Exist
If cant do PRW, the issue at Step 5 is whether
there are jobs that exist in significant numbers
that the Claimant has the Residual Functional
Capacity to perform. There are Guidelines known
as GRIDS which are used at this step. The GRIDS
take into consideration the claimants
exertional limitations. These are categorized
as Sedentary, Light, Medium or Heavy. They are
then combined with the claimants age, education
and past work experience to see if there are jobs
that exist in significant numbers that the
Claimant can perform. Plugging this information
into the Grids will direct a finding of disabled
or not disabled.
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• Often there are Non Exertional Limitations. If
  so, the grids do not work and a vocational expert
  is needed who can testify how the impairments
  either preclude employment or erode the
  occupational base of jobs which exist. Non
  Exertional limitations include
• Postural (e.g. alternate sit/stand, elevate legs,
  balance problems, difficulty bending, stooping,
  squatting)
• Manipulative (e.g. reaching, grasping, handling,
  fingering)
• Environmental (e.g. fumes, dust, noise, heights,
  humidity, moving machinery)
• Mental (e.g. difficulty relating to others
  remembering or carrying out simple instructions
  inability to maintain attention or concentration
  poor stress tolerance)

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Disability Programs

• Social Security Disability Insurance
• Supplemental Security Income
• Widows Benefits

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SSDI Requirements

• Medical Disability. Use the 5 step sequential
  evaluation.
• Must have worked for 20 Quarters out of the last
  40 Quarters. Must earn 900 to get credit for a
  quarter.
• Earnings Requirement. Must have worked a minimum
  number of Quarters throughout their lifetime.
  This is usually a number less than 40 Quarters.

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SSI

• Medical Requirements. Use the 5 step sequential
  evaluation.
• Financial Requirements. Cannot have more than
  2,000 in assets. 3,000 if married. Excludes a
  vehicle used to transport to and from medical
  visits and principal residence.
• Must be a citizen. If non citizen, must be here
  legally since prior to August of 1996 unless here
  as a political refugee.
• Income limits apply.

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Widows Benefits

• Medical Requirements. Use the 5 step sequential
  evaluation.
• Must be unmarried
• Must be between the ages of 50 and 60
• Disability must begin before 7 years after the
  wage earners death.
• If divorced from the decedent, must have been
  married for 10 years.

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Retroactive Benefits

• SSDI The successful claimant is entitled to
  receive benefits back to the onset date of the
  disability up to a maximum of one year before the
  Application is filed.
• SSI The successful claimant is only entitled to
  receive retroactive benefits from the date of the
  Application.

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Attorney Fees

• Set by Statute. 42U.S.C. 406(a)(2)(A)
• 25 of Retroactive Award up to a maximum of
  6000.
• Social Security will automatically deduct the 25
  and pay the attorney directly.
• Costs associated with the claim are separate and
  a matter of agreement with the client.

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The Hearing and Appeal Process

• Initial Application 800-772-1213
• Request for Reconsideration 60 days from first
  denial.
• Hearing with an Administrative Law Judge Must be
  requested within 60 days of Reconsideration
  denial.
• Appeals Council review Must be requested within
  60 days of ALJ denial.
• U.S. District Court Must be requested within 60
  days of Appeals Council Denial.

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