How Social Security really evaluates disability cases?
The secret sauce in Social Security’s disability review is the five-step sequential evaluation process.
Here are the 5 questions that decide if you are disabled:
- Does your impairment keep you from being able to perform a substantial gainful activity (SGA)?
- Is your impairment severe AND expected to remain severe for at least 12 months?
- Does your impairment “meet or equal” one of Social Security’s “Listing of Impairments”?
- Does your impairment prevent you from being able to perform any job you performed over the last 15 years (which was also a substantial gainful activity)?
- Does your impairment prevent you from being able to perform any other type of work (which exists in substantial numbers of the national economy)?
5 questions with a lot of legalese.
Let’s unpack them one at a time:
Step 1: Engaging in a Substantial Gainful Activity (SGA)
A.k.a.: Are you working?
Even if you have a clearly disabling condition, if you are able to work at a substantial gainful activity level (SGA), you are not disabled.
Example: You may be limited to crutches or a wheelchair, but you force yourself to work a full-time, competitive, job.
Because you are able to work, you would generally not qualify for Social Security disability benefits.
There are some limited exceptions which allow a person to work and still qualify for Social Security:
- If you are working full time, but your medical expenses, which let you work, are so high that your pre-tax income is still below the SGA threshold, then your Impairment Related Work Expenses (IRWEs) make your work not SGA. So, you case should not be denied at step 1.
- If you are working at an SGA level, but the work is not competitive: you either got a job through a friend or family member and you are not held to the same standards as another worker in the same position, or if you are being paid a “subsidy” — e.g. the value of your work is $600 a week, but you are being paid $800 a week. In either instance, the work could be considered not a SGA and might not preclude Social Security eligibility.
This is only a summary, check out this post for more exceptions.
Step 2: Severity and Durational Requirement
Social Security disability requires more than just a diagnosed condition. The condition has to be severe. This means that it causes more than a minimal effect on your ability to perform daily activities.
Example: many people have asthma. However, asthma is not always disabling. It is often well controlled with medications. When it is not well controlled, it may be a severe impairment.
As a Colorado lawyer, I do not see Social Security deny a lot of cases because they do not believe an impairment is severe. However, every once in a while, this comes up. Having a “severe” condition is a pretty low standard and it is usually fairly easy to show that a condition has more than a minimal effect on daily activities.
The second part of this step is more difficult. The condition has to be expected to remain severe for 12 months or longer (or result in death). This 12 month requirement is call the “durational requirement” of disability.
If you are denied because Social Security does not think your condition will be disabling for at least 12 months, it is called a “durational denial.”
I often see a durational denial, where there has been a traumatic accident (such as a car accident), or in cases of disability during the recovery period following serious surgery (such as a back fusion). Social Security accepts that there will be a healing period where you may not be able to work. However, unless you can convince Social Security that your condition will remain disabling for 12 months, you may be denied.
Step 3: Listing Level Impairment
Social Security maintains a “Listing of Impairments” — a list of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling. There are separate listings for adults and children.
If you have a condition which is contained in the Social Security Listing of Impairments AND the medical findings match the requirements for your listing, you may be found disabled without Social Security considering the last two steps. This is called “meeting a listing.”
You can also be found disabled at this step if your condition “equals a listing.” Equaling a listing means that while your condition may not be mentioned in the Listing of Impairments, it is just a severe AND has the same findings as a listed impairment.
In my experience with individuals who have already been denied once, the chance of meeting or equaling a listing level impairment is small. But, it is always worth considering.
Step 4: Ability to Perform Prior Work
If you are able to perform any of the past work you have done at a substantial gainful activity level over the last 15 years before your disability began, Social Security can deny you.
There are several parts to this:
- Social Security only looks at the work you have done over the past 15 years. Note: the 15 years are from the date you allege your disability began, NOT 15 years from when Social Security reviews your case.
- You had to have performed the job long enough to have learned it. If you attempted a job, but “washed out” or didn’t complete training, or a probationary period, then that work might not be considered as past work.
- The work has to have been performed at a SGA level. If you worked part-time or the earnings were too low, that job does not count.
Once Social Security has a list of the jobs that meet these three requirements, it will look at the duties of the job and compare those to your current abilities. This is like testing to see if a jigsaw puzzle piece fits into a space. If your current abilities fit into the requirements of a past job, Social Security decides you can still do that job and you can be denied.
Example: If you previously performed very physical work (construction work or nursing), but you also worked as a telemarketer for a few months.
You may be denied based on your ability to still be able to perform the telemarketing job.
This may apply even though it is not your most recent work, the employer is no longer in business, or if you cannot get hired for that type of work any more.
Step 5: Ability to Perform Other Work
Even if you are unable to perform any of your past jobs, you can still be denied if there are other jobs you can still perform which exist in substantial numbers in the national economy.
This is a very complicated area where many cases are won or lost. The rules at this step change depending on your age group (18-49, 50-54, and 55-60).
- If you are under 50, the rule of thumb is that you have to prove that there is no work in the national economy that you can still perform.
- If you are over 50 years old, the rules get a bit easier, but you still have to eliminate most kinds of jobs to win your case.
That’s a lot to take in at one time!
And, this is just a quick rundown of the five-step sequential evaluation process. There are exceptions and corollaries to all of these.
Social Security disability is a legal system with myriad rules and regulations. It is almost never a matter that Social Security can simply see that you are disabled.
My advice: don’t try to prove your Social Security disability case on your own. Get help!