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Social Security Disability Blog

Gap In Medical Treatment And Effects On Social Security Disability Benefits

Thursday, June 30, 2016

Medical records are the focus of every social security disability case. The Social Security Administration (SSA) will thoroughly comb through your medical records to assess the extent of your treatment in order to determine the severity of your disability.

In many instances in a social security disability case, a claimant will stop treating with a doctor. The reasons for the gap in treatment are important. If the medical records are devoid of the reason that treatment stopped, SSA may assume that the symptoms have improved and that you are no longer disabled. It is imperative that, whatever the reason, you have discussed the reason with your doctor so that it appears in your records.

Maximum Medical Improvement

If you stop treatment because you have exhausted the many different treatments recommended by your treating physician and there is no improvement in your symptoms, it can be argued that you have reached medical maximum improvement and there is nothing else your doctor can do for you. In this instance, SSA will use all of the relevant medical records to access your eligibility for benefits.

Financial Problems

Another reason for ceasing treatment is a claimant may not be able to afford treatment. This is true for many claimants and SSA understands that you are not working and your financial situation may not allow for you to treat. Thus, SSA cannot make a negative inference from your lack of treatment due to inability to access low-cost medical care or not having sufficient health insurance.

Reluctance to Have Surgery

You may have been recommended for surgery by a doctor but you refuse to go through with the surgery. Your refusal to treat in this situation, can be seen as a refusal to comply with medical treatment. However, your medical history and treatment can support your refusal to comply with treatment. For instance, if you have already had 3 surgeries without improvement it may be reasonable to decide not to have a 4th surgery.

Mental Impairments

For individuals with a mental disability it is understood by SSA that there may be periods of failing to seek treatment. This could be a symptom of your mental disability so failing to seek treatment in this scenario would not, in and of itself, be a deciding factor as to your eligibility for benefits.

Any claimant who has a situation where they have or intend to stop treatment must ensure their reasoning is a valid reason for which SSA will accept and not hold against you. After all, your medical records are the source of accessing your credibility, as well as the nature and extent of your disability. Without this information SSA can infer that your symptoms are not severe enough to warrant you seeking medical help, thus it is not severe enough to prevent you from working.

By Patricia Zeleznik

How To Find Out Your Monthly Social Security Disability Benefit Amount

Friday, June 22, 2012

Each year the Social Security Administration (SSA) used to send out statements to each taxpayer. These statements would indicate what earnings had been reported to the SSA, whether the taxpayer had contributed enough to qualify for benefits, and what the monthly benefit would be for both disability and retirement benefits. As a cost saving measure in March 2011, SSA stopped sending out those statements to anyone under the age of 60. This was frustrating for younger individuals who were deciding whether to apply for Social Security Disability as they had no idea what their monthly disability benefit would be.The good news is that as of May 2012, the statements are once again available – but now in an online version. Visit the “my statement” page on the Social Security website, create a user ID, and you will know precisely the amount of your monthly disability benefits if you are found to be disabled.

By David Galinis

How Do I Calculate My Past Due Benefits For Social Security Disability?

Thursday, March 29, 2012

The primary benefit to being awarded either Social Security Disability (SSD) or Supplemental Security Income (SSI) is a monthly check from the United States Treasury. Besides those monthly checks, most people also get a bigger (sometimes much bigger) first check which represents their “past due benefits.” This post attempts to shed some light on exactly how the amount of past due benefits is determined.

Amount Per Month

So “past due benefits” are your monthly benefit amount, multiplied by the number of months you have been entitled to benefits when the decision is made. As a mathematical formula:

past due benefits = monthly benefit amount * number of months entitled to benefits before the decision.

To determine the monthly benefit amount, you first have to determine if your disability claim is for SSD, SSI or both. (See Have I Worked Long Enough to Qualify for Social Security Disability Benefits for a description of the difference between the programs). For those eligible for SSD, the amount per month varies per individual. This is because the SSD system pays out monthly benefits based upon the amount of contributions made into the SSA system. Every year SSA used to send out statements to everyone estimating their monthly retirement and disability benefit amounts. Unfortunately, they no longer send them out to individuals younger than 60. On SSA’s website, you can use their Retirement Estimator to estimate your monthly benefit amount.

The amount per month for SSI benefits is not based upon any contributions into the SSA system. It is based upon whether the individual meets certain income and resource criteria. Many disabled people do not qualify for SSI benefits at all. Because SSA considers the “household” income and resources when determining eligibility, often a working spouse will result in SSI ineligibility. If eligible, each state has established a maximum amount of benefits per month. In Maryland in 2012 the maximum SSI monthly benefit is $678 per month.

Number of Months of Past Due Benefits: SSD

Once you have figured out your benefit amount, you then have to determine when you first became entitled to benefits to calculate the past due benefits. The date your disability began, or onset date, is not the date when your benefits begin. In SSD cases, you are first entitled to benefits starting the sixth month after the onset date. This is sometimes referred to as the “5 month waiting period.” Besides the waiting period, the other limitation is that you can get past due benefits for at most 1 year before the initial application for benefits. The interplay between these two limitations can best be seen by example.

In each of the following examples we are going to change the date on which the SSA has determined that the Claimant became disabled, the “onset date.” While the onset date will change, the following will not:

  • Claimant’s monthly SSD benefit is $1000,
  • Claimant applied for SSD benefits on April 1, 2011, and
  • Claimant received a favorable decision on April 1, 2012.
  1. Claimant is determined to be disabled on April 1, 2000

    In this example, the SSA determined that the Claimant was disabled 10 years before their application. Using just the 5 month waiting period, the Claimant theoretically could be entitled to benefits beginning on October 1, 2000 (six months after the onset of disability). However, because of the 1 year limit on past due benefits, the first month of entitlement is actually April 1, 2010 (1 year before the application for benefits). The past due benefits would be from April 1, 2010 through April 1, 2012. This is 24 months which multiplied by $1000 per month amounts to past due benefits of $24,000.

  2. Claimant is determined to be disabled on April 1, 2010

    Here, the Claimant is determined to be disabled exactly 1 year before his application. Consequently, the 1 year limit on past due benefits has no affect. The 5 month waiting period does limit the past due benefits. The first month of entitlement is not until October 1, 2010. The past due benefits run from October 1, 2010 through April 1, 2012. This amounts to 18 months of past due benefits, or $18,000.

  3. Claimant is determined to be disabled on March 1, 2012

    In this final example, the SSA has determined that the Claimant is disabled after the actual application for benefits. This can happen if the Claimant reaches an age, after applying for benefits, that precipitates a determination in their favor. (See Age: A Crucial Factor in your Social Security Disability Case). In this example the 1 year limit has no effect as the benefits do not begin until after the application. Applying the 5 month waiting period, though, means that benefits are not payable until September 1, 2012. Thus although there is a favorable decision, there are no past due benefits and the monthly benefits do not even begin for another 5 months!

Number of Months of Past Due Benefits: SSI

SSI cases have only one limitation on past due benefits: no money before the application for benefits. There are no past due benefits beyond the date of the application. There is also no five month waiting period. Thus the first month of eligibility for benefits is the onset date, so long as it is not before the date of the application.

Potential Deductions

The first check you receive, however, may still be less than the amount you calculated using the above analysis. There are a few deductions that may be taken from past due benefits before your check is issued. First, if you had representation, SSA will typically hold out an attorney’s fee equal to 25% of the past due benefits up to $6,000. This money will usually be sent directly to your attorney. Second, if you received state or local cash assistance while waiting for the SSA decision, you may have to pay back the local or state agencies. SSA will pay those local or state agencies directly out of your past due benefits. Finally, if you were receiving workers’ compensation benefits, there may be a reduction in the monthly benefit amount, which would reduce the amount of past due benefits. This workers’ compensation offset will be the topic of a future post.

By David Galinis

Social Security Benefits For Stay-At-Home Parents

Friday, September 02, 2011

Stay-at-home parents face a serious problem obtaining social security benefits. To qualify for benefits, they had to have paid into the social security system. For disability benefits, the disabled person must have worked 20 of the last 40 quarters (5 of the last 10 years) before their disability began. (See Have I Worked Enough to Qualify for Social Security Disability Benefits?) By definition, the stay-at-home parent does not pay into the social security system while raising the children. As a result, they often do not have enough (or any) work credits to be insured for disability benefits.

This unfortunate fact has not been missed by the lawmakers. Although far from perfect, there are situations in which the stay-at-home parent is eligible for social security benefits. The law provides that, in certain circumstances, the stay-at-home parent can use their spouse’s earnings record as the basis for benefits. In this post I describe those circumstances.

Divorce

This story is all too common. One spouse stays at home and raises the children only to see the marriage end once the children are grown. At this point the stay-at-home spouse probably does not have the necessary work credits to qualify for disability benefits. The law was written to afford some measure of protection to the stay-at-home spouse by allowing them to access the ex-husband’s (or ex-wife’s) work credits. Interestingly, the requirements vary depending upon whether the ex-spouse is living or deceased. If the ex-spouse is still living the requirements to access their work credits are:

  • The marriage had to have lasted at least 10 years,
  • The stay-at-home spouse has not remarried,
  • The stay-at-home spouse is 62 or older, and
  • The ex-spouse is entitled to retirement or social security disability benefits.

If the ex-spouse is deceased:

  • The marriage had to have lasted at least 10 years, and
  • The stay-at-home spouse is age 60, or
  • The stay-at-home spouse is 50 and disabled.

(I make no comment on the wisdom of making it easier to obtain the benefits if your ex has deceased!)

Widows or Widowers

If their spouse dies, a stay-at-home spouse may be entitled to widows or widowers benefits. These benefits are based on the work credits of the deceased spouse – not of the stay-at-home spouse. Widows or widowers can access their deceased spouse’s earning records in a couple of ways. First, if the surviving spouse is over 60 and did not remarry they can claim widow’s benefits. Second, they can claim benefits if they are at least age 50, disabled, and have not remarried. Third, if the stay-at-home parent is still caring for the deceased spouse’s child who is either under age 16 or disabled.

Caregiver

So what about those who are still married to living and breathing spouses? For those under age 62, the law provides only a single method of accessing the spouse’s work record. If the spouse is receiving retirement or disability benefits from the SSA, the stay-at-home spouse can receive social security benefits based on the spouse’s work credits if they are caring for the spouse’s child who is either under 16 or disabled. For those stay-at-home spouses 62 and over, if the spouse (with a sufficient earnings record) is disabled or has retired, they can access their earnings records. In other words, there is no requirement to be a caregiver if the stay-at-home spouse is at least 62. (Thanks Joanne.)

By David Galinis

Have I Worked Enough To Qualify For Social Security Disability Benefits?

Tuesday, August 09, 2011

The Social Security Administration (SSA) implements two separate programs that provide cash benefits to disabled individuals. The primary focus of this blog is on Disability Benefits (aka “Disability Insurance,” “DI,” “RSDI,” and “Title II benefits”). The other type of benefit is called Supplemental Security Income, “SSI” or “Title XVI benefits.”

Both programs use the same definition of disability and identical rules and regulations to determine disability. (See 5 Step Disability Evaluation Process) SSI benefits are less money per month and, most importantly, means tested. Thus a claimant must meet certain income and resource qualifications tobe eligible for these benefits — besidesproving disability. Disability benefits, on the other hand, have no means testing. Your current income or resourceshave no bearing on your eligibility. In addition to the absence of means testing, disability benefits are more desirable as they are typically more money per month and include health insurance coverage through Medicare.

Insured Status

Disability benefits, however, are only paid to those who become disabled while they are “insured.” The social security disability system is designed to function like insurance. To be covered, premiums must be paid. For social security disability, the premiums are the social security taxes taken out of your paycheck while working. To be insured under the disability benefits program, the disabled individual must have worked 20 of the last 40 quarters (i.e., payed premiums for 20 of the last 40 quarters). For those who worked consistently (without gaps) this means that they must prove disability within 5 years from when they stopped working.

In every claim for social security disability benefits, SSA calculates the “date last insured” or DLI. This is the last date that the claimant met the insured status based upon their quarters of work. The claimant must prove disability before that date.

Application Date versus Onset Date

Please note that there is no requirement that the application for benefits be filed before the DLI. The application can be filed well after the DLI. However, the claimant will need to prove that the disability began before the DLI. In the application, the claimant is asked for the date when they became unable to work. This is called the “onset date.” So long as the onset date is before the DLI, the claimant is insured and thus eligible for disability benefits.

Applications filed well after the DLI are notoriously difficult to win, however, as the evidence to support the disability is often hard to find. Medical providers routinely destroy older records. Doctors who treated the claimant before the DLI have retired or died. Finally, current medical providers may not be able (or willing) to provide evidence to support an onset date at some point in the past before they began treating the claimant.

By David Galinis

Can I Work While Receiving Social Security Disability Benefits?

Thursday, June 02, 2011

Unfortunately, many of my clients find the monthly check they receive from the United States Treasury is too small to live on. I am always receiving calls from former clients asking if they can return to work part time and still receive their Social Security Disability benefits? The answer is not simple. And, in classic lawyer fashion, it depends.

Substantial Gainful Activity

Social Security Disability benefits are only eligible for those that are not able to engage in substantial gainful activity (SGA). Thus if you return to work that is SGA, then the Social Security Administration (SSA) will most likely conclude that you are no longer entitled to benefits.

What work would be considered SGA? Whether a particular work activity is SGA is up to debate. However, SSA has provided guidelines on the amount of wages that it presumes to be SGA. In 2013, if you make more than $1,040 in a month, that is presumed to be SGA. This amount changes from year to year and can be found on the SSA website. (SGAAmounts).

Thus if you are making $800 per month, SSA presumes that you are not engaged in SGA. However, the analysis does not end there. As it turns out, earning $800 per month for a long enough period of time could ultimately terminate your benefits.

Trial Work Period

The SSA encourages disabled individuals to go back to work. One of their methods is the Trial Work Period (TWP). This is a period of time when you are allowed to go back to work and still receive your Social Security Disability benefits. The TWP lasts for 9 months. The TWP is designed to give the disabled individual the opportunity to try to work without the fear that their entitlement to benefits will be immediately terminated.

So when does the TWP begin?In 2013, it begins in any month that you earn more than $750. The amount that triggers the TWP changes every year and can be found on the SSA website. (TWPAmounts). The months also do not have to be consecutive. Thus if you make $800 in January of 2011 and $800 in May 2012, you are 2 months into your 9 month TWP.

What happens when the TWP is used up? After the 9th month, SSA will send you a letter that you are no longer considered disabled. However, for the next three years they will continue to pay you Social Security Disability Benefits for any month in which you make less than the SGA amount. This is called the Extended Period of Entitlement. Any work above SGA after the 3 years has expired will terminate your entitlement to benefits altogether. At this point you must re-apply for disability benefits. The only good news is that this process should theoretically be quicker as you can file for expedited reinstatement of your entitlement to disability benefits.

Recall the individual above who has returned to work part time making $800 a month, which is below SGA and theoretically “safe.” If that individual continues to make $800 per month for the next 9 months they would continue to receive their disability checks but would exhaust their TWP. If they then continued to make $800 a month for the next 36 months they would continue receiving their disability benefits because $800 is not SGA. Moreover, if they continued to make that amount even beyond the 36 months they would still continue to receive benefits. However, if they worked just one month above SGA after the 36 month period had expired, the checks would stop.

My Advice

If all of the SGAs and TWPs sound confusing, it’s because they are! Trying to calculate the precise amount of money you can earn every month to continue your disability benefits is a daunting task.

I advise my clients that any work, at any income level, can be used as evidence that you are able to work. While your work may be at amounts that are below SGA and TWP, it is conceivable that the work activity itself could be used as a basis for determining that you are no longer disabled. SSA regulations indicate that even if your earnings are less than SGA:

“[i]f there is evidence, however, showing that an individual may be engaging in SGA, or appears to be in a position to defer compensation, or by special arrangement is able to suppress earnings, develop fully the facts concerning the comparability of the employee’s work to that of unimpaired individuals, and the worth of the employee’s work . . . .”

While the above may lead you to the conclusion that I encourage my clients not to attempt to return to work, nothing could be further from the truth. In my observations, working people are happier people. I always encourage my clients to return to work if they believe that they can.

Update

Well the good news is that this blog post has been my most successful blog post ever. I receive comments, emails and telephone calls daily about this post. I truly appreciate the enormous interest. The bad news is that I do not physically have the time to respond to all the inquiries and also represent my current clients. Please understand that the information I provide in this post is really the extent of the advice I can offer on this subject. It is a very gray area with little authoritative guidance available.

By David Galinis

Crohn’s Disease And Ulcerative Colitis As Basis For Social Security Disability

Friday, May 13, 2011

Crohn’s disease and ulcerative colitis are both included in a larger set of conditions known collectively as Inflammatory Bowel Disease (IBD). Over the years I have assisted many clients obtain social security disability benefits on the basis of their IBD alone. In this post, I discuss these conditions as well as how the conditions can support a finding of disability.

What is IBD?

Simply put, IBD is a chronic inflammation of the gastrointestinal tract. This chronic inflammation causes symptoms such as:

  • Abdominal pain and cramping,
  • Persistent urgent diarrhea,
  • Bloody stools,
  • Weight loss,
  • Fatigue, and
  • Fever.

The diagnosis of IBD is usually confirmed by colonoscopy, sometimes including a biopsy. There is no known cure for IBD. Treatments include dietary changes, medications, and sometimes hospitalization including surgery to remove part of the bowel.

Disability Evaluation

IBD is one of the Listed Impairments. Thus if the severity of the Claimant’s IBD meets the description in the regulation, the Claimant is entitled to disability benefits at the third step in the evaluation process. (See 5 Step Disability Evaluation Process). In my years of experience I have yet to have a single Claimant meet the required severity of the listing. For those who enjoy reading government regulations I have provided the actual listing below:

5.06 Inflammatory bowel disease (IBD) documented by endoscopy, biopsy, appropriate medically acceptable imaging, or operative findings with:

  1. Obstruction of stenotic areas (not adhesions) in the small intestine or colon with proximal dilatation, confirmed by appropriate medically acceptable imaging or in surgery, requiring hospitalization for intestinal decompression or for surgery, and occurring on at least two occasions at least 60 days apart within a consecutive 6-month period.

    OR

  2. Two of the following despite continuing treatment as prescribed and occurring within the same consecutive 6-month period:
    • Anemia with hemoglobin of less than 10.0 g/dL, present on at least two evaluations at least 60 days apart; or
    • Serum albumin of 3.0 g/dL or less, present on at least two evaluations at least 60 days apart; or
    • Clinically documented tender abdominal mass palpable on physical examination with abdominal pain or cramping that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or
    • Perineal disease with a draining abscess or fistula, with pain that is not completely controlled by prescribed narcotic medication, present on at least two evaluations at least 60 days apart; or
    • Involuntary weight loss of at least 10 percent from baseline, as computed in pounds, kilograms, or BMI, present on at least two evaluations at least 60 days apart; or
    • Need for supplemental daily enteral nutrition via a gastrostomy or daily parenteral nutrition via a central venous catheter. (See Listing of Impairments).

Remember that all is not lost simply because the Claimant’s impairments do not meet those described in the regulation. The more frequent rationale for a finding of disability is not that the Claimant meets the Listed Impairment but that the Claimant’s condition prevents them from being able to return to any type of work at step five of the evaluation (See 5 Step Disability Evaluation Process).

In my practice, I focus on the following three symptoms in IBD cases: abdominal pain and cramping, excessive fatigue, and persistent urgent diarrhea. The abdominal pain and cramping interfere with the ability to focus and concentrate at work. Anyone who has ever attempted to work through pain understands this all too well. It is difficult to stay on task and to complete tasks in a timely manner when in excruciating pain. Excessive fatigue interferes with completion of tasks in a timely manner as well. It also has the tendency to cause excessive absences, which can preclude work.

The persistent urgent diarrhea is one of the few IBD symptoms that have a demonstrable, quantifiable affect on the ability to work. In order for the Claimant to be able to work in any capacity they are going to need immediate access to a restroom. So all jobs without immediate access to a restroom are out. In addition, the Claimant must have a job such that will permit them to take breaks at will and often urgently. A job, for instance, that would require the Claimant to occupy a post for an hour without backup would be precluded. Finally, there is the number of trips to the restroom. A Claimant who must make 8-10 urgent trips to the restroom during an 8-hour day, each visit taking 10-15 minutes, will be unable to hold down any sort of employment.

The evidentiary proof needed in these cases involves both the Claimant’s testimony and the medical records. It is important that the Claimant be able to quantify for the Administrative Law Judge at the hearing a) the urgent nature of the trips to the restroom, b) the number of such trips during a typical day, and c) how long would be spent not working during each trip. The medical records from the treating physician also have to support the Claimant’s testimony as to these urgent trips and, hopefully, the number of trips as well. It is also very helpful if the medical records revealed persistent weight loss and surgery for IBD.

By David Galinis

Back Problems: The Most Common Source Of Disability Claims

Tuesday, February 22, 2011

If your back has ever “went out,” you understand just how devastating back problems can be. In my practice, impairments involving the spine are the single most common disabling condition. What follows below is my legal (as opposed to medical) understanding of back problems and my strategies to obtain disability benefits as a result of them.

1. What Types of Back Injuries May Qualify for Benefits

Most significant back problems involve disc injuries. The discs are the cushions between the bones in your back, the vertebra. You can think of them as jelly donuts as they have a jelly-like substance in the middle. They sit in between the vertebra and allow for the range of motion you have in your spine. The most significant disc injury occurs when one of these discs ruptures and the jelly-like substance in the middle is pushed out – just like smashing a jelly donut. When the substance comes out, it can come into contact with the spinal cord causing nerve damage. This is commonly referred to as a herniated disc and can certainly be a source of disability.

Bulging discs, however, are usually not a source of disability. Bulging discs are relatively common findings on an MRI. People with absolutely no back pain can have an MRI with bulging discs. As we all get older we tend to get more bulging as the process of aging compresses the spine. This compression of the discs (jelly donuts) causes them to bulge. Typically a bulging disc (or discs) by itself does not correspond to a disabling impairment.

2. Back Problems as a Listed Impairment

In my previous post, 5 Step Disability Evaluation Process, I described the disability evaluation process. The third step was to determine if the Claimant had a Listed Impairment. If the Claimant has a Listed Impairment, disability is granted without a consideration of whether the Claimant could return to work. A back condition has to be very severe to meet the requirements for a Listed Impairment.

As a threshold matter, there must be some nerve root compromise to qualify for the Listed Impairment for spinal disorders. From a symptom perspective, the pain and other symptoms cannot be localized in the back but need to radiate into the legs (or arms). As discussed above, something (most commonly that jelly-like material) is coming into contact with the spinal cord or nerve roots coming from the spinal cord. This needs to be demonstrated with an objective diagnostic test – like an MRI or EMG.

If that preliminary test has been met, the Claimant can meet the listing one of three ways. First, he or she could show that there is ongoing nerve root compression. This is demonstrated byallthe following:

  • limited range of motion,
  • atrophy (muscle loss),
  • sensory or reflex loss, and,
  • if it’s a low back problem, a positive straight leg raising test (e.g. a test the doctor does by raising the Claimant’s leg while he or she is lying on the examination table).

If the Claimant cannot show ongoing nerve root compression, the Claimant could show spinal arachnoiditis. This is a very rare condition involving inflammation of the membranes that protect the spinal cord. The diagnosis would have to be confirmed through an operative note or pathology results.

Failing nerve root compression and arachnoiditis, the Claimant’s final way to meet the listing is showing lumbar spinal stenosis resulting in pseudoclaudication resulting in an inability to walk effectively. Stenosis is a narrowing of the spinal canal causing a compression of the spinal cord. Pseudoclaudication typically involves severe leg pain with walking or standing. It is often accompanied by numbness and weakness in the legs.

3. What if the Back Condition Is Not Severe Enough to Meet a Listing?

Most Claimants do not meet the technical requirements for the listed impairment. Many have some of the elements, but very few have all the requirements to meet the listing. In those situations, the Claimant must prove that his or her residual abilities would preclude returning to work.

As a direct result of the back impairment, Claimants often have difficulty doing the following types of activities:

  • lifting,
  • prolonged standing,
  • prolonged sitting, and
  • walking.

Back problems indirectly – either because of pain or the effects of pain medication – also can cause difficulties:

  • concentrating,
  • staying on task,
  • being punctual, and
  • missing work due to flare-ups.

For Claimants under age 50, these impairments must not only prevent a return to the Claimant’s past work but also prevent any other type of work. When I ask my clients with back problems why they cannot work, they often indicate to me that they cannot sit or stand for very long. Unfortunately, these restrictions usually are not sufficient to prove disability. SSA has determined that there are jobs that allow for a sit/stand option. In other words, there are jobs that can be performed either sitting or standing. Additionally, SSA has found that these jobs will also allow for the employee to change positions frequently. Thus, the inability to sit or stand for prolonged periods of time rarely is sufficient to prove disability.

The more typical rationale for granting disability for Claimants under the age of 50 is that the effect of his or her pain, pain medications, and frequent flare-ups would so decrease his or her productivity, that the Claimant would be unable to sustain work. The argument is that while at work the Claimant would be unproductive because of pain and/or pain medication. Additionally, the Claimant might also miss a lot of work due to flare-ups of his or her condition. If the Claimant cannot sustain full time work, he or she would be found to be disabled.

For Claimant’s over age 50, the road is a little easier. Such a Claimant will be granted benefits if the Claimant:

  • cannot do his or her past work,
  • has a restriction to only sedentary work (i.e. desk work), and
  • does not have transferable skills to sedentary work.

For example, a 50 year old Claimant who has worked construction his entire life and now can only lift 10 pounds because of a back impairment would be found disabled. The Claimant could not return to construction work with a 10 pound lifting restriction. A 10 pound lifting restriction would only allow the Claimant to do sedentary work. Finally, during the Claimant’s years in construction, it is doubtful that the Claimant acquired skills that would transfer to a sedentary work setting (e.g., like an office).

By David Galinis

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