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.