WHY PAST RELEVANT WORK (PRW) IS SO IMPORTANT

Definition.  Past Relevant Work (PRW) is the work the claimant has performed during the 15 year period prior to the application for benefits or hearing.  All work may not be PRW.  Past Relevant Work is work which the claimant performed.....

• at substantial gainful activity (SGA) level - essentially full time
• performed long enough to be competent in the job.
• and worked in a normal, competitive work environment, as opposed to a sheltered workshop.

Importance.  PRW is important for several reasons.  At Step 4 of the required sequential evaluation process, the decision maker must determine whether the claimant can perform any of his or her PRW.  If PRW is possible, then the claim must be denied at Step 4.  Also, 20 CFR §404, Section P, Appendix II will direct the decision maker to a finding of disability in certain circumstances where past relevant work was unskilled.  Therefore, a proper classification of PRW is essential to use regulatory advantages that may be applicable.

Specifics.  The vocational expert called to testify at your case will need to know some particulars about past work. (There is always a vocational expert).  Here are some specifics that are essential:

• What kind of work did you perform, machines or tools you used...work process, etc.?
• How long did you perform each job?
• Was the work skilled, semi-skilled or unskilled (based on kind of work, process, etc.)?
•  How much lifting (in pounds) was frequently and routinely performed in each job?
• What is the maximum lifting (in pounds) you performed, even if only occasionally?
• How many hours per day did you sit, stand and/or walk?
• Were there any unusual requirements of your jobs?  For example, your job title may have been "Cashier," but you had to stock shelves and unload trucks at times, too.  Or, your job title may have been "Engineering Assistant" but what you really did most of the time was carry heavy tools or equipment around for your boss.  That changes the job from semi-skilled to unskilled, which the adjudicator needs to know.

On the Initial Application, details about past relevant work is obtained on a form called the "Work History Report," which is filed with the application.  Don't skimp on this form.  Fill it out completely, accurately and give all the details asked for.  This will help properly classify all of your Past Relevant Work.  This form follows you through the appeal process.

At the Hearing Level, your representative should take time to be certain that the vocational expert giving testimony will understand the details of each past relevant job.  Eventually, the judge is probably going to ask the vocational expert this question:  "Based on the claimants, age, education  and residual functional capacity I have outlined, can the claimant perform any of his/her past relevant work?"  A Yes answer will mean you are not disabled.  A No answer at least gets you past Step 4 and to the final step, Step 5.  In some cases, especially with older claimants, a No answer at Step 4 can end the hearing with a favorable decision if the claimant meets a medical-vocational guidelines or "grid rule."

If you take away only one simple thought from this post, it would be this.  Give enough detail about your past work that the vocational expert can properly understand and classify all of your past jobs (during the most recent 15 year period).  Don't skimp on the details.

PERSISTENCE: JUST KEEP TRYING

Getting approved for Social Security disability benefits is a unique combination of skill, luck and persistence.

Skill in that someone has to prepare the case for appeal before an administrative law judge.  The person preparing the case must understand, at minimum, the five sequential steps in the evaluation process.  The case won't go to step 2 until it passes step 1, etc. Legally admissible evidence has to be presented and that evidence should be compelling.  Social Security will, honestly, be looking at ways to deny the claim or appeal.  So, skill is required to develop and present a potentially winning case.

Luck, in that there are things you cannot control.  One example, you cannot control which judge hears your case.  Award rates vary widely from judge to judge.

Persistence, because most claims get denied at least once along the way.  Don't give up when this happens.  A denial early in the process is not the end, just the beginning.  Appeal and keep going.

What appeals are available to an ordinary Social Security disability claim, once it has been initially denied?  They are as follows:

1.  Reconsideration (used in 40 states, but not used in Alabama--go to # 2).
2.  Hearing before an administrative law judge.
3.  Review by the Appeals Council.
4.  File a suit in Federal District Court against the Commissioner of Social Security.
5.  File an appeal in the U.S. Circuit Court of Appeals

The appeals shown above must be taken in order.  You cannot, for example, file a suit in a Federal District Court until you have been refused by the Appeals Council.  For practical purposes, most claims end after the Appeals Council.  Only about 1 percent of all claims end up in Federal District or Circuit Courts.  At any point along the way, the claimant may choose to dismiss the appeal and file a new claim (which does not necessarily protect all of his/her interests in the original claim or appeal).  This should be done with caution and after vigorous consideration of the pros and cons.  Should you continue your appeal or file a new claim?  Get some professional advice before making that decision.

THE SUCCESSFUL DISABILITY CLAIM

A successful Social Security disability claim must meet, at a minimum, the following checklist:

1. There is a severe Medical impairment (either physical and/or mental) which has lasted, or is expected to last, a minimum of 12 consecutive months.
2. There is objective medical evidence to prove the impairment, its severity and its duration.  Medical evidence must include evidence from what Social Security acknowledges to be "accepted medical sources," in most cases medical doctors or clinical psychologists.  Certain other providers are acceptable in some cases.  For examples, a podiatrist may give evidence about foot disorders and an optician may provide evidence about vision disorders.  
3. Severity of the claimant's impairments must be such that he/she cannot perform any past relevant work.
4. Depending on the claimant's age and other factors it if often necessary to show that the claimant cannot perform ANY other work that exists in significant numbers in the national, regional or state economy. 

Add bonus points to your claim for any of the following:

• Support from one or more of your treating doctors in the form of a Medical Source Statement
• A long stable history of employment
• Failed attempts to return to work; you tried it and just weren't able to work
• You are age 55 or over (You may meet a medical-vocational guideline) 

Contact the Forsythe Firm for a free consultation (256) 799-0297 

BACK PAY

A high percentage of claimants who are approved for Social Security disability (SSDI) also qualify for back pay.  Back pay depends on two important factors:

1. The date disability began, and
2. The date the application was filed.

In SSDI or Title 2 cases, recovery of retroactive pay is limited to a maximum 17 months:  this is 12 months plus the 5 months comprising the waiting period.  

Thus, if you filed your application on June 1, 2015, but you had actually become disabled years ago, you would be able to recover 17 months of retroactive pay.

In addition, you would be able to cover any months AFTER the filing of the application--while you waited on Social Security to make a decision.  For example, if you file an application on June 1, 2015 but the decision on your case is not made until December 30, 2015, you could recover 7 months of back pay between June 1 and December 30--in addition to the retroactive pay.

There is technically a difference between "retroactive pay" and "back pay."

RETROACTIVE PAY - Covers months of disability BEFORE the filing of your application.

BACK PAY - Covers months of disability AFTER the filing of your application but before benefits are paid.

Also, it is possible to have a "protected filing date" that is earlier than the date of your application.  An example would be, you are in the hospital and are unable to file an application but you notify Social Security in writing that you intend to file as soon as you are able.  If you file a timely application after your release from the hospital, you may be able to use the date you notified Social Security of your intention to file as your protected filing date.  This could get more retroactive pay.

WHY IS "SGA" SO IMPORTANT?

"SGA" stands for "substantial gainful employment."  A person who is engaged in SGA is not eligible for any Social Security disability or SSI benefit.  In short, a person cannot be working at SGA level.  The definition of SGA changes slightly each year. In 2015, you are working at substantial gainful activity if you have gross earnings of at least $1,090 per month.  (Earnings include wages, commissions, bonuses, tips, etc.).

Only the earnings of the claimant are considered for SSDI eligibility, not the earnings of a spouse or other household member.  However, for Supplemental Insurance Income (SSI), the income of other members of the household may be counted.

If you are working part-time and earning less than the SGA threshold (above), you may still technically qualify for benefits.  However, it is my opinion that any work by the claimant can be problematic because it sometimes leads to credibility issues. For example, a judge may take the attitude that if the claimant is earning $1,040 per month, he or she is demonstrating that earning at least $1,090 would not be all that unreasonable from a health point of view.  In other words, if you are now working 30 hours a week, why are you unable to work 40?



 

YOU MAY WIN DISABILITY BENEFITS IF.....

In order to win federal disability benefits (Social Security, SSDI), you must prove at least the following key issues:

1. You have accumulated enough quarters of coverage to be insured under the Social Security Act, also called Title Two.
2. You are not now working at substantial gainful activity, SGA, (defined in 2015 as gross earnings of $1,090 per month or more).
3. You have a serious and medically determinable impairment.
4. This impairment has lasted, or can reasonably be expected to last for at least 12 consecutive months, or to end in death.
5.  The symptoms and limitations caused by your impairment(s) are severe enough to prevent you from perform any of your past relevant work.
6. The symptoms and limitations caused by your impairments are severe enough to prevent you from performing any other work which exists in the local, regional or national economy.
7. There is sufficient objective medical evidence to prove the severity of your impairment(s) and symptoms.

QUESTIONS

• What do you mean by "objective medical evidence"?  This usually refers to things like X-rays, laboratory tests, MRI or CAT Scan evidence, etc.
• Will Social Security take my word for how severe my symptoms are?  No.  They will require objective medical evidence to reasonably explain severity of symptoms.
•  How many quarters of coverage do I need to be covered by Title 2 or SSDI?  That depends on your age.  Most people need to have worked 20 out of the most recent 40 quarters, or about 5 years out of the most recent 10 year period.  Young persons may be covered with fewer quarters of work.
• If I am not covered by Title 2, may I file a new claim?  Not for SSDI.  You might file under Title XIV, or SSI, but that is an entirely different program.
•  Who obtains medical evidence for my claim?  In the initial application process, Social Security will attempt to obtain your medical records.  In any subsequent appeal, it up to the claimant or representative to find and submit medical evidence.

1.  

YOUR HEARING: WHAT TO EXPECT

Social Security disability hearings are fact-finding expeditions presided over by an administrative law judge.  A hearing generally lasts 45 minutes to 1 hour. You will meet in a large conference room atmosphere with 5 persons typically present:  the claimant, the representative, the judge, a clerk and a vocational witness called by Social Security.  The claimant and vocational expert/witness will be placed under oath. The major components of the hearing are (and I am giving the typical order):

1. Judge's direct questioning of the claimant.  
2. Representative's direct questioning of the claimant.
3. Vocational witness testimony
4. Representative's examination of the vocational witness.

At issue is whether you are disabled according to Social Security regulations. The medical evidence reigns supreme.  Most judges take the attitude that "if it isn't in your medical record, it did not happen."  You may claim pain, limited movement, inability to sit, stand or walk for prolonged periods, etc.  However, this must be supported by objective medical evidence.  The same is true of any psychological or mental limitations.  A claimant's testimony alone is never enough to win the claim.

The vocational expert's function is twofold:  to testify concerning your past relevant work, and to testify about any other work you might still be able to perform--in response to one or more hypothetical questions posed by the administrative law judge.  To help you understand how a hypothetical question is framed, I will offer one example:

"Assume an individual the same age, educational level and with the same past relevant work as the claimant.  Further assume a limitation to light work.  Add to that, the individual should avoid concentrated exposure to hot or cold temperatures and  any exposure to dust, fumes or gases.  

1. Would such an individual be able to perform any of his/her past relevant work?
2. If not, would such an individual be able top perform any other work which exists in significant numbers in the national, regional or local economy?"

 If the vocational witness testifies that the claimant would be able to perform any job under 1 or 2 above, and if the judge finds this testimony to be credible, the claim will probably be denied.
  
 
 



 

SOCIAL SECURITY'S NEW TOP PRIORITY: ANTI-FRAUD

Fraud prevention seems to be Social Security's new top priority.  In November 2014, the Social Security Administration opened a new division called the Office of Anti-Fraud Programs (OAFP).  The OAFP works closely with the Inspector General (the investigative and prosecution office) to "combat fraud and waste."  Congress has allocated billions of dollars to the anti-fraud campaign.

Acting Commissioner of Social Security, Calvin Colvin, said her office will take a stern stand against anyone found to be trying to abuse or defraud the system.  Ms. Colvin said:

   “We will find you; we will prosecute you; we will seek the maximum punishment allowable under the law; and we will fight to restore to the American public the money you’ve stolen from the American people.” 

Acting Commissioner Colvin did not address the backlog of more than 1 million disability cases waiting their turn for a hearing.  She did not address the fact that Social Security offices are closing each day at 3:00 PM or that they have been previously closed to the public each Wednesday at noon.  Neither did she address the fact that there are hundreds of thousands of claimants who have been waiting over 3 years to get a decision on their claims.

We can only hope that the heavy emphasis on fraud prevention will eventually result in making it easier for legitimate claimants to receive their benefits in a timely manner.  Unfortunately, at this moment, I see no reason for optimism.

WHAT IS A 'QUARTER OF COVERAGE'?

The Social Security disability program is really a government-sponsored disability insurance program.  You get it by working and having FICA taxes deducted from your pay.  However, you are not immediately insured when you begin working and you may stop being insured if you stop working.

A "quarter of coverage" is the basic unit used to determine whether a worker is insured under the Social Security disability program, or Title II. 

So, what is a "quarter of coverage"?  You will hear these informally called "Social Security credits," too. 

Until 1978, a "quarter of coverage" was awarded to workers who earned $50 or more in a calendar quarter.  After 1978, the amount of wages required to earn one quarter of coverage changed automatically each year based on the National Average Wage Index.

In 2015 you must earn at least $1,220 in a quarter to receive one quarter of coverage.  However, you cannot earn more than four quarters of coverage per year, no matter how much you earn.

To be insured, most workers need at least 20 quarters of coverage during the last 10 years.  Sometimes we use the rule of thumb that says, "You should have worked at least 5 out of the previous 10 years." That can vary based on your age.

Generally, if a person stops working prior to becoming "fully insured," disabled or retired, he or she will lose insured status after about 4 years of stopping work.

Usually when a person receives 40 quarters of coverage he or she becomes "fully insured" and permanently insured.  This means they will not lose Social Security disability insurance if they stop working after they have become fully insured.

In 2014, there were 151,092,000 workers covered by Social Security disability insurance (Title II).

FOCUS: WHY I AM DISABLED; NOT WHY I CAN'T GET A JOB

The Social Security Act provides benefits for long term disability.  It does not provide benefits for unemployment or the inability to get a job.  

Here are some examples of employment problems which have nothing to do with disability or Social Security:

•  Nobody will hire me.
• My job skills are ancient.
• The economy has tanked.
• The jobs I used to do have now moved to Mexico or overseas.
• The jobs I could once do are now done by machines.
• There are no jobs in my field (or in my hometown, etc.)

The above statements have nothing to do with Social Security and will never result in a Social Security benefit.  They are not disability issues, they are unemployment issues.

We need to focus on why you are disabled, not why you can't get a job.

We have to focus on specific limitations in the ability to perform work related activity.  These limitations, for example, could include a restriction in the ability to:

• sit for prolonged periods
• stand/walk for prolonged periods
• lift or carry
• remember, understand or carry out instructions
• concentrate or stay focused
• respond appropriately to co-workers or supervisors

The above items are examples of restricted functional capacity which may be a disability.  
Social Security is like any other court in the land,  in that, you must prove a certain allegation using admissible evidence according to the governing regulations.  In the case of Social Security disability, you must prove your inability to perform full time work activity using medical evidence from an accepted medical source (doctor, psychiatrist, clinical psychologist, etc.).  

See more information about Social Security disabiity.

"I must focus on why I am disabled, not why I can't get a job."

DISABILITY CLAIMS - NOT LIKE RETIRMENT CLAIMS

Many people are lured into a false sense of security by their experience with Social Security retirement claims.  With a retirement claim, it is very straight forward.  You apply for benefits and if you are old enough a check begins arriving each month.

Social Security disability benefits are not nearly as simple.  That is because the eligibility rules are much more complex with the disability program.  Before you can receive a disability benefit you must prove that you are disabled using objective medical evidence provided by acceptable medical sources.  Therein lies the challenge.

You must prove that you have a physical and/or mental impairment which produces symptoms so severe that you cannot perform any of your past relevant work or any other work which exists in significant numbers in the national economy.  This is not at all cut and dried but is open to a great deal of interpretation by Social Security decision makers.

What typically happens?  Very often, decision makers will conclude that you are unable to perform your past work but that you can perform other, easier work.  Under the regulations, you are not legally disabled and will be denied.

If it weren't so serious, it would be amusing to hear the kinds of work that Social Security says individuals can still perform.  Probably my two least favorite jobs in this category are parking garage attendant and surveillance system monitors.  Another one that crops up a lot is a theater ticket taker.  Or how about a silverware wrapper? 

Claimants often come away frustrated and confused because a decision maker told them they are not disabled because they can be a silverware wrapper.  Overcoming this type of scenario probably requires professional help.  

The bottom line is:  Social Security retirement benefits are cut and dried.  Social Security disability benefits are not.  They are much more difficult and require more legal wrangling.

 

DO YOU JUST KEEP APPLYING?

It's a well known fact that around 75 percent of disability claims are initially denied by Social Security.  So, what do you do?  Do you just keep reapplying again and again?

No.  That is not the best way to approach winning disability.  Once you have been denied,  it is probable that you will be denied over and over.  The same decision makers will look at the same evidence and make the same decision.

Usually, it is much better to appeal the denial and kick the case on up the chain of command to a higher level.  In Alabama, that means asking for a hearing before an administrative law judge (ALJ).  The ALJ is not bound by any previous decisions and can give you a totally new decision if the evidence justifies it.

Appeals (also called "request for hearing") must be filed in writing and they must be filed with 60 days of the initial denial.  After that, your lose the right to appeal.

An experienced advocate or representative may help you win your claim by directing the appeal process, gather new evidence, developing a legal theory of the case, attending your hearing with you and ensuring that you are paid the correct benefits.  The typical fee arrangement is a percentage of the back pay you recover and you cannot be charged a representative's fee unless you recover back pay.

YOUR DOCTORS PROGRESS NOTES

Your doctor's progress notes will be the most important piece of evidence examined by Social Security decision makers.  Be careful what you say to your doctor.  Doctors often take very short, cryptic notes and may misinterpret or misunderstand what you tell them.  This can hurt your Social Security disability claim.

We once had a claimant who told the doctor that he was helping a friend remodel a house.  The doctor noted this in the progress report.  It caused a lot of confusion with Social Security decision makers.

When I asked the claimant about the remark, he explained that he was once a carpenter and knew quite a bit about building.  He would walk over to his neighbor's house each afternoon, look at the work being done and give advice.  He never drove a nail, lifted a board or picked up a tool.  This, however, is not what the doctor recorded.

Decision makers at Social Security are required to make a judgment about the credibility of the claimant.  When you tell them your symptoms are so severe that you cannot work, they must decide whether to believe it.  Statements like the one above in the doctor's progress report can damage a claimant's credibility.  It can be explained but credibility issues may still remain.  

DO YOU HAVE A DISABILITY OR AN UNEMPLOYMENT PROBLEM?

Many people who can't find work do not meet the legal definitions of disabled.  There are two primary reasons for not being able to work:
  
One reason is employment problems, which can be caused by any number of factors.  The economy is cyclical--it may be growing, stagnant or in recession.  A stagnant economy may offer relatively few jobs.  A recession is worse and may make it very difficult to find a job.  A person could be having problems finding work because he or she has no skills that are in demand, or because there are few jobs in the neighborhood.  These employment problems are not addressed by the Social Security Act and, unfortunately, no benefits are available for these type of problems.  It could be that a vocational rehabilitation counselor could suggest ways of overcoming these issues and helping the person find work.

A different type of problems occurs when a person is physically or mentally unable to hold a full-time job, even if there were jobs available.  This person likely meets the requirements set forth in the Social Security Act and may be entitled to monthly disability benefits.  The challenge here is proving that the person does meet the legal requirements for disability under the Act.  

Keep in mind that Social Security decision makers are legally required to ask and answer two very important questions before deciding whether you are disabled.  Those two questions are:

1. Are you able to perform any of your past relevant work?  This is work you have done during the 15 year period prior to filing your application for benefits?  If you can, you do not meet the legal definition of disabled.  The question is, "Are you able to work...," not "Can you get the work?"
2. Are you able to perform any other work that exists in the national, regional or local economy?  If you can, you are not legally disabled.  Perhaps this question is better understood if it is asked this way:  Could you perform any other work if you were able to find it?  Not being able to find work, or getting hired, comes under 'employment problems,' not disability, as discussed above.

An experienced disability specialist is best qualified to analyze your situation and determine your odds of getting disability benefits under the Social Security Act.  In short, he or she can determine if you meet the legal definition for disability and if you have enough medical evidence to prove it.  To discuss your situation with the Forsythe Firm, please contact us at (256) 799-0297 here in Huntsville.  (We serve all of North Alabama, and our Nashville office serves the state of Tennessee).

You may also contact us via the Internet.

CAN YOU GET SOCIAL SECURITY AT AGE 50?

If you are age 50 or over, you may qualify for Social Security benefits for any physical or mental condition which prevents you from full-time work.

Yes, younger individuals may also qualify.  However, Social Security uses Medical-Vocational Guidelines which relax the requirements somewhat for persons age 50 and over.

In addition to your age, other factors include your past work experience and education.  But being age 50 or more is the greatest single advantage a claimant has in being approved for Social Security benefits.

The Forsythe Firm will provide you with a free case evaluation and local consultation.  If we represent you, you will never pay a fee until you get benefits with back payments.  If you do not win benefits you will never pay us a fee for any service we perform.

Contact us at (256) 799-0297.  We're located across from Bridge Street.

GET A MEDICAL SOURCE STATEMENT FROM YOUR DOCTOR

Your doctor cannot approve you or sign you up for Social Security disability.  However, your doctor can and should play an important role in providing evidence for a full and fair evaluation of your disability claim.

You should ask your doctor to provide a Medical Source Statement for you, such as form HA-1151 for physical impairments or HA-1152 for mental impairments.  Why is this form so important to a successful Social Security disability claim.

It's important because it goes to the heart of what Social Security needs to approve your claim.  That is, your limitations in the ability to perform work related activity.  Your medical records alone do not show these limitations.  In short, a Medical Source Statement gives your doctor's opinion as to how much you can lift and carry, how long you can sit, walk and stand; and may evaluate your ability to concentrate or react appropriately to other people.

Let's say Sara goes to her doctor with a complaint of chronic back pain.  The doctor examines her and prescribes a muscle relaxer and a light duty pain pill with instructions to return in 30 days if the pain is not a lot better.  Here is what the doctor's medical record will probably say:

Ms. Jones is a pleasant 51 year-old female who presents today for some pain in her lower back, which she has experienced for about 3 months.  She is a well nourished lady in no apparent distress.  Respiration is clear.  Reflexes in all lower extremities (LE) are normal.  I am going to prescribe some Flexeril and Naproxen to try.  She will return in 4 weeks if not improved.

The above notation is virtually useless in a Social Security disability claim.  It presents no severity of symptoms, no limits for lifting, standing, walking, sitting, bending, etc.  In short, it gives Social Security no reason to believe that the patient cannot work every day in just about any capacity.  It says that she has some back pain.  That's all.  And that is not nearly enough.

Ask your doctor to provide you with a Medical Source Statement that gives the specifics of your functional limitations.  Not all doctors will do so, but this form can make the difference between an award an a denial of your claim.   

Note that Social Security will NOT ask your doctor for a Medical Source Statement.  They will only ask for records and, as explained, the records are woefully inadequate.  It is up to the claimant or her representative to obtain the Medical Source Statement (form).