THE SOCIAL SECURITY DISABILITY MYSTERY: HOW DOES SOCIAL SECURITY DECIDE DISABILITY CLAIMS?

I. HOW ARE SOCIAL SECURITY DISABILITY CLAIMS DECIDED?

Filing for Social Security disability (“SSDI”) or Supplemental Security Income (“SSI”) benefits can be intimidating.  This article is an overview of how claims are evaluated.  However, it is not an exhaustive guide and there are nuances and rules that go beyond the scope of this article.  This article is not a substitute for the advice of a qualified attorney and it should not be used as a self-help manual.  Any use or reproduction of this article without the written consent of the author is prohibited.

II. DISABILITY: A Medical and Vocational Decision

A. The Medical Component

The Social Security Act (“the Act”) provides that certain individuals who are “under a disability” shall receive disability benefits.  42 U.S.C. § 423(a)(1)(D).  The statutory concept of “disability” is comprised both of a medical and a vocational element.  The Social Security Act defines the term disability as 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).  This is the medical component of the statutory definition of disability.

B. The Vocational Component

The Act also provides that a claimant will be found disabled only if his impairment or impairments “are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 423(d)(2)(A).  This is the vocational component of the definition of disability.

Since 1978, the Social Security Administration (SSA) has implemented the foregoing definition of disability by applying the five-step sequential evaluation in deciding whether a claimant is “disabled” and, therefore, entitled to benefits under Title II (Social Security Disability Insurance) or Title XVI (Supplemental Security Income) of the Social Security Act.  20 C.F.R. §§ 404.1520 and 416.920.  The process, commonly referred to as the “Sequential Evaluation,” addresses both the medical and vocational requirements of the definition of disability.  It consists of a 5-step inquiry, with questions asked in a specific order, until a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is either disabled or not disabled. 20 C.F.R. §§ 404.1520(b)-(f) and 416.920(b)-(f).

III. BUILDING THE CASE

A. Claimant’s Burden to Prove Disability: Steps 1-4

SSA views the disability claim process as a non-adversarial proceeding.  You may agree or disagree with this given your own experiences.  However, we know it’s the claimant’s burden to prove that he or she has an impairment that will last continuously for twelve months and that the disabling condition is supported by medical evidence. Copeland v. Colvin, 771 F.3d 920, 923 (5^th Cir. 2014)(claimant has burden of proof on first four steps of the analysis). The claimant must show preclusion from engaging in any substantial gainful employment. Ferguson v. Secretary of HHS, 919 F. Supp. 1012, 1018 (E.D. Tex. 1996). This burden is “‘a heavy one, so stringent that it has been described as bordering on the unrealistic.’” Id., quoting Oldham v. Schweiker, 660 F.2d 1078, 1083 (5^th Cir. 1981).

B. Evidence Considered in Determining Disability

The factfinder should consider the following four elements of proof when determining if there is substantial evidence to support a disability decision: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) claimant’s subjective evidence of pain; and (4) claimant’s educational background, age, and work history. Kneeland v. Berryhill, 850 F.3d 749, 759-60 (5^th Cir. 2017);  Ferguson v. Secretary of HHS, 919 F. Supp. 1012, 1017 (E.D. Tex. 1996), citing Owens v. Heckler, 770 F.2d 1276, 1279 (5^th Cir. 1985).

IV. STEP ONE: SUBSTANTIAL GAINFUL ACTIVITY (“SGA”)

A. Definition of Substantial Gainful Activity

Substantial Gainful Activity (“SGA”) is defined as work which involves significant physical or mental activities and that is typically done for pay or profit, whether or not a profit is actually realized. Tucker v. Astrue, 337 Fed. Appx. 392, 394-95 (5^th Cir. 2009).   A claimant earning more than a certain monthly amount is presumed to be performing SGA.  The Act carries a higher SGA amount for blind claimants over non-blind claimants.  As of 2023, the monthly SGA amount for statutorily blind individuals is $2,460 while for non-blind individuals it’s $1,470.  This information is often known as reported wages show whether a claimant is above or below SGA during the relevant time period.  However, reported wages are not the only source of income that counts toward SGA; even income from illegal activity counts.  Less time is spent in adjudicating claims on step one than on the following steps, most often because the claimant is either engaged in SGA or she is not.    If a claimant “…was engaged in substantial gainful activity, she is not disabled and the inquiry ends…But where the claimant is not so engaged, the analysis goes on to step two.” Britt v. Saul, 860 Fed. Appx. 256, 257 (4^th Cir. 2021).  If engaged in SGA during the relevant time period, the claim is referred to as “step one barred.”

V. STEP TWO:  A SEVERE IMPAIRMENT

A. Definition of Severity

Chances are you would not be reading this article if you believed your disabling condition was not severe.  Understand, though, that the Act has a specific definition for this concept.  An impairment may be found to be “not severe” if it is merely a “slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.” Stone v. Heckler, 752 F.2d 1099, 1101 (5^th Cir. 1985).  The Stone standard is applied to determine if the claimed impairment is “severe” by determining if the impairment is anything more than a “slight abnormality” that “would not be expected to interfere with a claimant’s ability to work.”  Like step one, step two is not where most cases (in our practice) have the most difficulty in demonstrating “disability” as defined in the Act.  This is not to say that claimants haven’t been denied at step two where the record supported a finding of a “severe” impairment.  

For instance, it’s important to note that the factfinder must consider how the combination of the claimant’s impairments impacts her ability to do basic work activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9^th Cir. 1996)(finding that the combination of the claimant’s impairments constituted more than a slight abnormality and that she met her burden of showing severity at step two).   Likewise, subjective complaints of pain should be considered when analyzing whether an impairment is “severe” under step two. Id. If a finding of a “severe” impairment, or combination of impairments, is found, then the inquiry proceeds to step three.  

VI. STEP THREE: LISTED IMPAIRMENTS

A. Meeting or Equaling a Listing

The Act contains detailed listed impairments for various physical and mental conditions.  At step three, the factfinder looks to these “listings” to determine if the claimant’s “severe” impairment (recall, the claimant had to get through step two above first) meets or equals all of the medical criteria found under the listing.  A claimant is eligible for benefits if she has an impairment, or combination of impairments, that meet or equal the conditions found in the listing of impairments; this is because the “listings” carry a presumption of disability. Selders v. Sullivan, 914 F.2d 614, 619 (5^th Cir. 1990).  Again, the claimant bears the burden of proof on the first four steps of the sequential evaluation, including step three to meet or equal a listing.  Pope v. Shalala, 998 F.2d 473, 480 (7^th Cir. 1993).

B. How do you Meet a Listing?

The medical records and healthcare provider opinions are crucial at this step.  An attorney in litigation is always on the lookout for evidence to support his client’s case.  Here, the medical records and physician opinions are in the spotlight.  Social Security is entitled to rely on the opinions of reviewing physicians when considering whether a claimant meets the requirements of a listing. Ostronski v. Chater, 94 F.3d 413, 417 (8^th Cir. 1996).  Previously, regulations required Social Security to give significant (controlling) weight to the opinions of treating physicians.  Called the “treating physician rule”, attorneys would often argue that the opinion of the claimant’s treating doctor should be taken over that of a non-treating physician.  Regulations effective as of 2017 allow Social Security to evaluate all “Acceptable Medical Sources” equally for “persuasiveness.”  Thus, the treating physician rule was abandoned.  

Meeting a listing essentially requires the medical evidence to match-up with the listed criteria under a specific listing.  For instance, Listing 1.15 provides, in part:

• “1.01 Category of Impairments, Musculoskeletal Disorders
• 1.15 Disorders of the skeletal spine resulting in compromise of a nerve root(s) (see 1.00F), documented by A, B, C, and D:
• A. Neuro-anatomic (radicular) distribution of one or more of the following symptoms consistent with compromise of the affected nerve root(s):
• 1. Pain; or
• 2. Paresthesia; or
• 3. Muscle fatigue.
  AND
• B. Radicular distribution of neurological signs present during physical examination (see 1.00C2) or on a diagnostic test (see 1.00C3) and evidenced by 1, 2, and either 3 or 4:
• 1. Muscle weakness; and
• 2. Sign(s) of nerve root irritation, tension, or compression, consistent with compromise of the affected nerve root (see 1.00F2)
• 3. Sensory changes evidenced by:
• a. Decreased sensation; or
• b. Sensory nerve deficit (abnormal sensory nerve latency) on electrodiagnostic testing; or
• 4. Decreased deep tendon reflexes.
  AND
• C. Findings on imaging (see 1.00C3) consistent with compromise of a nerve root(s) in the cervical or lumbosacral spine.
  AND
• D. Impairment-related physical limitation of musculoskeletal functioning that has lasted, or is expected to last, for a continuous period of at least 12 months, and medical documentation of at least one of the following:
• 1. A documented medical need (see 1.00C6) for a walker, bilateral canes, or bilateral crutches (see 1.00C6d) or a wheeled and seated mobility device involving the use of both hands (see 1.00C6e(i)); or
• 2. An inability to use one upper extremity to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 1.00E4), and a documented medical need (see 1.00C6a) for a one-handed, hand-held assistive device (see 1.00C6d) that requires the use of the other upper extremity or a wheeled and seated mobility device involving the use of one hand (see 1.00C6e(ii)); or
• 3. An inability to use both upper extremities to the extent that neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements (see 1.00E4).”

C. How do you Equal a Listing?

Medical findings that are found to be at least equal in severity and duration to a listed impairment are considered medically equivalent to the listing. 20 C.F.R. § 416.926(a).  Further, if the claimant’s listed impairment: (1) does not exhibit one or more of the medical findings specified in the particular listing, or (2) exhibits all of the medical findings, but one or more of the findings is not as severe as specified in the listing, the Commissioner will nevertheless find the applicant’s impairment medically equivalent to the listing if he or she has other medical findings related to the impairment that are at least of equal medical significance to the required criteria. 20 C.F.R. § 416.926(a)(1)(i)-(ii).

Thus, the inquiry should be into all of the claimant’s impairments and their combined effects.  Listed impairments are found in categories, to include: 

1. Musculoskeletal System
2. Special Senses and Speech
3. Respiratory Disorders
4. Cardiovascular System
5. Digestive System
6. Genitourinary Disorders
7. Hematological Disorders
8. Skin Disorders
9. Endocrine Disorders
10. Congenital Disorders that Affect Multiple Body Systems
11. Neurological Disorders
12. Mental Disorders
13. Cancer (Malignant Neoplastic Disease)
14. Immune System Disorders

VII. STEP FOUR:  CAN THE CLAIMANT PERFORM PAST RELEVANT WORK?

A. What is “Past Relevant Work?”

The inquiry ends at step three with a finding of “disabled” if the claimant meets or equals a listing.  If not, then the claim proceeds to step four where Social Security evaluates the claimant’s ability to perform past relevant work.  Generally, past relevant work is: (1) work the claimant performed in the prior 15 years; (2) that lasted long enough for the claimant to learn to do it; and (3) the work was substantial gainful activity. 20 C.F.R. § 416.965(a).

B. The Claimant’s Burden to Establish an Inability to Perform Past Relevant Work

The claimant bears the burden of proof for the first four steps; the burden shifts to the Commissioner at step five to show that the claimant can perform other work. McQueen v. Apfel, 168 F.3d 152, 154 (5^th Cir. 1999). “A claimant has the initial burden of proving disability by establishing a physical or mental impairment lasting at least twelve months that prevents him from engaging in any [SGA].” Richardson v. Apfel, 9 F. Supp.2d 666, 672 (N.D. Tex. 1998), citing Cook v. Heckler, 750 F.2d 391, 393 (N.D. Tex. 1985).

C. Residual Functional Capacity (“RFC”) and the Physical and Mental Demands of Past Relevant Work

“Your impairment(s), and any related symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting.  Your residual functional capacity is the most you can still do despite your limitations.” 20 C.F.R. § 416.945.  “Before going from step three to step four, the Commissioner assesses the claimant’s RFC.” Perez v. Barnhart, 415 F.3d 457, 461 (5^th Cir. 2005).  Step four involves comparing the claimant’s current RFC with the physical and mental requirements of the claimant’s past jobs (past relevant work). Id. at 461-62. “When the [claimant’s] impairment is a mental one, special care must be taken to obtain a precise description of the particular job duties which are likely to produce tension and anxiety . . . In order to determine if the claimant’s mental impairment is compatible with the performance of such work.” Schaal v. Callahan, 993 F. Supp. 85, 94 (D. Conn. 1997).  

D. Need for Past Relevant Work to be Substantial Gainful Activity

Prior work must rise to the level of SGA in order to be considered “past relevant work” in accordance with SSR 82-62 which states ‘“[c]apacity to do past work may be indicative of the capacity to engage in SGA when that work experience constituted SGA.”

E. How is RFC Determined?

1. Exertional Activities

If RFC is a claimant’s capacity to work, then it must be thought of in the context of work’s “exertional” and “non-exertional” requirements.  There are seven (7) primary strength, or exertional, activities of work.  These consist of three work positions and four worker movements of objects, as follows:

• Three work positions:
  • Sitting
  • Standing
  • Walking
• Four worker movements of objects:
  • Lifting
  • Carrying
  • Pushing
  • Pulling

2. Definition of Residual Functional Capacity (“RFC”)

RFC is “…a determination of the most the claimant can still do despite his physical and mental limitations and is based on all relevant evidence in the claimant’s record.” Perez, 415 F.3d at 461-62 (5^th Cir. 2005).  Notice the 5^th Circuit’s mentioning of “all of the evidence in the claimant’s record.” Id. (emphasis added).  Medical records (and sometimes other forms of evidence) are critical when arguing a claimant’s RFC. 

F. RFC Levels

Each of the five exertional RFC levels—sedentary, light, medium, heavy, and very heavy—is defined in terms of the degree to which the seven primary strength demands of jobs are required.  To illustrate this, the degree to which the seven primary strength demands are required in sedentary, light, medium, heavy, and very heavy work is set out below:

SEDENTARY WORK

• Sitting should generally total approximately 6 hours of an 8-hour workday.
• Periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday.
• Lifting no more than 10 pounds at a time.
• Occasionally lifting or carrying articles like docket files, ledgers, and small tools.
• (The term “occasionally” means “occurring from very little up to one-third of the time.” SSR 83-10.)

LIGHT WORK

• Requires  standing or walking off and on, for a total of approximately 6 hours in an 8-hour workday.
• May involve sitting most of the time, but with some pushing and pulling of arm-hand or leg-foot controls which require greater exertion than in sedentary work.
• Lifting no more than 20 pounds at a time.
• Frequent lifting or carrying of objects weighing up to 10 pounds.
• (The term “frequent” means “occurring from one-third to two-thirds of the time.” SSR 83-10.)

If someone can do light work, SSA will also determine that she can do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods. 20 C.F.R. §§ 404.1567(b) and 416.967(b).

MEDIUM WORK

• Requires standing or walking off and on, for a total of approximately 6 hours in an 8-hour workday.
• As in light work, sitting may occur intermittently during the remaining time.
• Lifting no more than 50 pounds at a time.
• Frequent lifting or carrying of objects weighing up to 25 pounds.
• (The term “frequent” means “occurring from one-third to two-thirds of the time.” SSR 83-10.)

If someone can do medium work, SSA will also determine that she can also do light and sedentary work. 20 C.F.R. §§ 404.1567(c) and 416.967(c).

HEAVY WORK

• Requires  standing or walking off and on, for a total of approximately 6 hours in an 8-hour workday.
• Lifting objects weighing no more than 100 pounds at a time.
• Frequent lifting or carrying of objects weighing up to 50 pounds.

If someone can do heavy work, SSA will also determine that she can also do medium, light, and sedentary work. 20 C.F.R. §§ 404.1567(d) and 416.967(d).

VERY HEAVY WORK

• Requires  standing or walking off and on, for a total of approximately 6 hours in an 8-hour workday.
• Lifting objects weighing more than 100 pounds at a time.
• Frequent lifting or carrying of objects weighing 50 pounds or more.

If someone can do very heavy work, SSA will also determine that she can also do heavy, medium, light, and sedentary work. 20 C.F.R. §§ 404.1567(e) and 416.967(e).G.

G. RFC: Requirement to Consider ALL Physical and Mental Impairments

In determining a claimant’s RFC, the factfinder has a duty to establish, by competent medical evidence, after considering all the claimant’s impairments, the physical and mental activities that the claimant can perform in a work setting. Ostronski v. Chater, 94 F.3d 413, 418 (8^th Cir. 1996).  When mental impairments are alleged, SSA must determine whether these impairments “further limit the exertional tasks the claimant is deemed capable of handling.” Mapes v. Chater, 82 F.3d 259, 264 (8^th Cir. 1996).  The evaluation of RFC in claimants with mental disorders “‘includes consideration of the ability to understand, to carry out and remember instructions, and to respond appropriately to supervision, coworkers, and customary work pressures in a work setting.’” Schaal, 993 F. Supp. 85, 93 (D. Conn. 1997), quoting SSR 85-16.  

Some cases involve assessment of non-medical evidence as well.  For example, testimony from friends and relatives regarding a claimant’s activities of daily living may be heard.  Both exertional and non-exertional limitations impact RFC.  By definition, there are no jobs for claimants with a less-than-sedentary RFC.  Thus, SSA will find a claimant is “disabled” if she is found to have a less-than-sedentary RFC at step four.   Otherwise, if a claimant is found to have an RFC that allows for the performance of past relevant work, then she will be found “not disabled.”  If she is found to have an RFC that falls below her past relevant work, then SSA continues on to step five below. 

VIII. STEP FIVE: ABILITY TO PERFORM “OTHER WORK”

A. SSA’s Burden to Establish Ability to Perform Other Work

The burden shifts to SSA at step five to show that the claimant can perform other work (meaning jobs other than ones that count as past relevant work). McQueen v. Apfel, 168 F.3d 152, 154 (5^th Cir. 1999).  The opinions of the Vocational Expert (“VE”) are then in the spotlight.    

As expressed by the Ninth Circuit in Garrison v. Colvin, 759 F.3d 995, 1011 (9^th Cir. 2014)(internal citations omitted):

“‘[a]t step five the ALJ can call upon a [VE] to testify as to: (1) what jobs the claimant, given his or her [RFC], would be able to do; and (2) the availability of such jobs in the national economy.’ The ALJ may pose hypothetical questions to the expert that ‘set out all of the claimant’s impairments’ for the VE’s consideration. ‘The ALJ’s depiction of the claimant’s disability must be accurate, detailed, and supported by the medical record.’ ‘The testimony of a [VE] is valuable only to the extent that it is supported by medical evidence’ and has “no evidentiary value if the assumptions in the hypothetical are not supported by the record.’ The [VE] then ‘translates [these] factual scenarios into realistic job market probabilities” by testifying on the record to what kinds of jobs the claimant still can perform’ and whether there is a sufficient number of those jobs available in the claimant’s region or in several other regions of the economy to support a finding of ‘not disabled.’

“Grid Rules” found in the Code of Federal Regulations may also apply at step five. A claimant may receive a favorable decision at step five if he “grids out” by meeting a grid rule (see below) or if SSA cannot show that he may perform the requirements of “other work” on a continuing basis.

B. Use of the Medical-Vocational Guidelines, or “Grids”

If a claimant’s impairments are found to be solely exertional, then use of the Grids is warranted. Bolton v. Callahan, 984 F. Supp. 510, 513 (N.D. Tex. 1997).  The Commissioner “may rely exclusively” on the Grids when determining whether there is other work the claimant can perform, when the claimant “suffers only from exertional impairments or the nonexertional impairments do not sufficiently affect the [RFC].” Id. at 513-14, citing Fraga v. Bowen, 810 F.2d 1296 (5^th Cir. 1987).

C. Using the Grid Rules to Direct a Finding of “Disabled” or “Not Disabled”

The “grid rules” are regulations that direct a finding of “disabled” for claimants over a certain age and who meet other background and RFC criteria.  After the adjudicator has made a finding of fact as to each of the foregoing medical-vocational factors of which the grid rules are comprised—RFC, age, education, and previous work experience—it must determine whether the grids will be used to direct a finding of “disabled” or “not disabled,” or whether they will be used as a framework for decision making.  Assuming the individual claimant’s vocational profile corresponds with that of a grid rule, this determination is made solely on the basis of exertional RFC, i.e., it is made by determining whether the individual claimant retains an exertional RFC for the “full range” of sedentary, light, medium, heavy, or very heavy work and by determining that the claimant does not have any significant nonexertional  limitation of function.

A complicating factor when using the Grids to determine disability is the issue of transferrable work skills.  The Medical-Vocational Guidelines, or  “grids”, indicate that a claimant is never disabled if the claimant has skills transferable to jobs within his or her RFC that exist in significant numbers. A finding of no transferable work skills may lead to a finding of “disabled” in cases where a claimant otherwise meets the grid listing.  Since an unskilled work background produces no transferable skills, the rules about transferability apply only to claimants with histories of semi- skilled or skilled work.  A claimant may benefit from a vocational expert to help  manage the complex problem of transferability of work skills.

D. Effect of Age on the Application of the Grids

The regulations provide that older age is an increasingly adverse vocational factor for persons with severe impairments. The chronological ages 45, 50, 55 and 60 may be critical to a decision. However, the regulations also provide that age categories are not applied mechanically in borderline situations. For example, a rule for an individual of advanced age (55 or older) could be found applicable, in some circumstances, to an individual whose chronological age is 54 years and 11 months (closely approaching advanced age). No fixed guidelines as to when a borderline situation exists are provided since such guidelines would themselves reflect a mechanical approach. See SSR 83-10. These sources and materials reflect employment problems developing at age 45 and significantly intensifying at age 55.

E. Requirement of Vocational Expert Testimony when Grids not Utilized

When utilization of the Grids in decision making is not warranted “the Commissioner may only sustain her burden of proof by producing expert vocational testimony concerning the existence and availability of jobs in the national economy which the Plaintiff can perform.” Bolton v. Callahan, 984 F. Supp. 510, 514 (N.D. Tex. 1997).  To find that a claimant can perform other work, the work must exist in significant numbers in the national economy. Mericle v. Secretary of HHS, 892 F. Supp. 843 (E.D. Tex. 1995)(concluding that 870 jobs in the entire state of Texas, the second most populous state in the country, is not a significant number).  If the claimant cannot perform “other work” at step five, then a favorable decision of “disabled” is rendered.

CONCLUSION

The foregoing provides a basic explanation regarding the five step sequential evaluation employed to make a decision on a SSDI or SSI claim.  Federal courts have spent decades interpreting and clarifying the law in this area.  If you or a loved one are dealing with a SSDI or SSI claim and have any questions, you should contact a lawyer with experience and knowledge in Social Security disability law for further information and assistance.

TABLE OF AUTHORITIES

A portion of this article originates from Nuts and Bolts of Social Security Disability Law by Marc Whitehead and Luke Radney, Originally Published by the National Business Institute™.