Social Security Disability, SSI and the Manner in Which Disability Evaluations Are Processed
Congress has defined disability under both the Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) programs 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 twelve months."1 The Social Security Act further provides that an individual shall be determined to be under a disability only if his or her physical or mental impairment or impairments are of such severity that the individual is not only unable to do his or her previous work but cannot, considering 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 the claimant lives, or whether a specific job vacancy exists, or whether the claimant would be hired if applied for work.2
The Social Security Administration has developed a five-step "sequential
evaluation process" for evaluating disability claims under this statutory
standard.3 The first step determines whether a claimant
is engaged in "substantial gainful activity" (SGA).4
If engaged in SGA, the claim is denied.5 If not engaged
in SGA, the second step in the sequence is a determination of whether the
claimant has a medically severe impairment.6 If the
claimant does not have an impairment or combination of impairments that
exceeds this medical-severity threshold, the claim is denied.7
If the claimant does have a medically severe condition, the evaluation proceeds
to the third step to determine whether the claimant has an impairment that
meets, or is equivalent in severity to8 one of the
presumptively disabling medical conditions defined in the SSA's "Listing
of Impairments."9 A claimant who has a condition
in this catalog or list of impairments "is conclusively presumed to
be disabled and entitled to benefits."10 If the
claimant does not have such an impairment, the evaluation proceeds to the
fourth step to determine whether the impairment prevents the claimant from
performing past relevant work.11 Past relevant work
denotes work that amounted to SGA that lasted long enough for the claimant
to learn it, and that was performed in the last 15 years.12
If former work can be performed, the claim is denied.13
If former work cannot be performed, the fifth and final step of the sequence
is a determination of whether the claimant can perform other work, taking
into consideration age, education, and prior work experience.14
At the fifth step of the process, if the claimant is unable to perform other
work, the claimant will be found eligible for benefits.15
Under settled precedent in all twelve courts of appeals, the claimant has
the burden of proof in the first four steps of this process.16
Upon the claimant's proof of inability to perform past relevant work, the
burden shifts to the Social Security Administration to demonstrate the availability
of other work that exists in substantial numbers in the national economy.
The agency meets its burden of proof at step five of the sequence in one
of two ways. One way is through the testimony of a vocational expert on
specific jobs available in the economy that are within the claimant's capabilities.
However, the Social Security Administration has developed medical-vocational
guidelines that "relieve the Secretary of the need to rely on vocational
experts" and authorize administrative notice of the availability of
other work for claimants with certain medical-vocational profiles. Because
parts are displayable as a simple chart or tables, the medical-vocational
guidelines are commonly called 'the grid'. The Supreme Court has upheld
the grid's validity.
The disability application process begins with the filing of an application
for SSDI or SSI at one of the SSA's district offices (DO).17
The file is then sent to a state Disability Determination Service (DDS)
under contract to the SSA to make the disability determination.18
The DDS obtains available medical evidence from the claimant/s hospital
records and treating physicians19 and sometimes orders
a consultative evaluation by a private physician. A DDS medical consultant
and disability examiner jointly make the disability decision.
If the DDS denies the claim, the claimant may pursue a "three-stage
administrative review process."20 First, the application
is reviewed de novo by the DDS in a process known as "reconsideration."21 Second, if the reconsideration is denied, the claimant
is then entitled to a hearing before an Administrative Law Judge (ALJ) of
the SSA's Office of Hearings and Appeals (OHA).22 Third,
if the ALJ's decision is unfavorable, the claimant may seek review by the
Appeals Council (AC) of the OHA.23 If the AC denies
the request for review, the claimant may then seek judicial review in federal
district court.24
The statutory standard of federal court review of SSA disability decisions
is the "substantial evidence" standard.25
Recent Changes and What the Future Holds With The Re-engineering of Government
Substance Abuse: The Social Security Reform Act of 199426 required that all beneficiaries be in treatment that is appropriate and available. Benefits would be suspended for failure to comply. In addition, all benefits payable to an individual under the SSI program where drug and alcohol addiction was a contributing factor the benefits would be paid to a representative payee (preferably an organization rather than an individual). There was a 36 month limit on payment of Social Security and SSI benefits of alcohol or drug addiction.
With the Social Security Reform Act of 1994 Social Security beneficiaries
became subject to same restrictions to which SSI recipients had always been.27
On March 29, 1996 benefit entitlement based on substance abuse (drug addiction
and/or alcoholism) was eliminated for both SSDI and SSI programs.28
This amendment constituted a blanket exclusion of all claims that relied
in whole or in part upon drug related or alcohol addiction/condition(s).
Henceforth, the claimant must rely on some other condition, entirely unrelated
to any type of substance abuse, in order to establish disability.
Beneficiaries benefits were terminated with the December 1996 payment of
SSI and/or the January 1997 payment of social security.29
Notices were sent to current beneficiaries coded as D&AA who were found
eligible for benefits before the date of enactment, March 29, 1996. Claimants
were given the opportunity to request a hearing to show that substance abuse
was not a material factor contributing to the individual's finding of disability.
On new claims filed after this date the claimant had the burden of proving
that if there had been substance abuse it was in remission, that the claimant
was under treatment, and that another impairment rendered the individual
to be disabled.
Legal Alien Benefits for SSI: Throughout its history SSI was available to U.S. citizens and aliens legally admitted to the United States or otherwise residing aliens under color of law.30 The Personal Responsibility and Work Opportunity Act of 1996 ["PR&WOA96"], signed into law on August 22, 1996, severely limited eligibility for non-citizens. Under this act any SSI claim filed on or after, or pending as of, the date of enactment will be denied unless an individual qualifies under certain statutory exceptions.31 Under the statute only the following categories of aliens continue to be SSI eligible: 1. refugees but only within 5 years of arrival in the U.S.; 2. asylees but only within 5 years after the date asylum status is granted; 3. a noncitizen who has had deportation withheld under INA § 243(h) but only within 5 years of the date deportation was withheld;32 4. a noncitizen on active duty in the U.S. armed forces or an honorably discharged veteran or their spouse and dependent children;33 5. lawful permanent residents who have earned, in combination with their spouse and/or parent, 40 quarters [10 years] of coverage for Social Security purposes, or the spouse or minor child of a worker with 40 quarters of coverage.34 Generally this cut off almost all legal aliens from SSI benefits. The administration continued to pay benefits until August, 1997 when letters began to go out to those beneficiaries who had not been able to become citizens. Later the President and congress reached an agreement whereby benefits could be restored to non-citizens until August 1998. The law still prohibits the payment of SSI benefits to those who enter the U.S. after August 26, 1996. A peculiar part of the law provides that the legal alien must still prove disability. Prior to this law upon reaching age 65 all persons, including legal aliens, irrespective of disability were entitled to SSI benefits. It is not yet known how this class will be determined to be eligible for benefits.
Children's Benefits: Children were given SSI benefits according to the standards set out in Zebley.35 The sequential evaluation for children in 20 C.F.R. § 416.924 has now been modified by eliminating the prior final step and now requires an individualized functional assessment with the final step requiring the meeting or equalling of a medically or functionally impaired listing. The regulation retains guidance that SSA will consider all relevant evidence in a child's case record, consider all impairments with their combined effects and evaluate any limitations in a child's functioning which results from the child's symptoms including pain. Thousands of children were receiving SSI benefits under the impairment known as Attention Deficit Disorder which has now been written out of the law. Other impairments must be considered such as severe depression or the child must meet or equal a listing. It can be shown that the Attention Deficit Disorder does functionally equal one of the children's listings.
New Rulings: In 1996 the Social Security Administration issued six new rulings. One of the most important rulings requires the Administrative Law Judge to consider the non-examining physician's determinations or findings at the level of the various state disability determinations services which, prior to this, were ignored. Now an Administrative Law Judge must specifically take notice of the non-examining physician's findings, to specifically state why (if ignored), and if denying a claimant must either adopt these findings or exclude them.
The Future: Because of the growing number of claims and the length
of time it takes to fully adjudicate a claim (more than a full year from
the time of filing), the Social Security Administration in 1994 announced
a program of re-engineering the entire manner by which persons would be
found disabled and proposed this to be completed by the year 2000. The re-engineering
process has not been codified, and few regulations have been issued for
comment. The administration has instigated a program that is presently being
tested in several areas throughout the United States using trial procedures
to see what procedures will most effectively work.
The goal is to have one person (an adjudication officer), along with the
SSA, attempting to gather all medical records and make a medical determination
before the case goes to an Administrative Law Judge. This generally will
cut off new evidence from going to the Judge after the determination is
made. Few regulations have been issued for comment, but without changing
the statutory definition for disability, four methods or reviews are being
studied. They are functional assessment instruments, occupational classification
systems, other disability programs systems and methods, and vocational factors
research.36
The administration's proposal to abolish judicial review by the Appeals
Council whereby all cases will go directly to the Federal District Court
system is currently being tested in numerous places in the United States.
The Appeals Council was adopted by rules and regulations and, therefore,
can be abolished without the approval of congress. The overall disability
system must be approved and passed by the United States congress.
The creation of a Social Security court is a consideration that appears
to be the best solution because it would create a unified body of decisions
... unlike the present system where the SSA must acquiesce to certain court
decisions in the various circuits. Congress has recently criticized the
SSA severely for their non-acquiescence role of not applying the law of
an 8th Circuit case in a 5th Circuit case. Early in 1990 the Veteran's Court
of Appeals was implemented and has proven to be a highly successful program.
This author believes that this will be the ultimate decision of the administration.
To throw hundreds of thousands of cases into an already overloaded and understaffed
Federal Court system could create chaos and injustice for claimants.
State agencies, the Office of Hearings and Appeals, and the SSA's central
office are at odds against each other in all of these testing programs.
At stake is the elimination of the state DDS involvement in medical decisions
along with the job loss for many state employees. Adjudication officers
most likely will be new federal employees that will come under the federal
civil service program at a time when there has been a hiring freeze in various
district offices on new Social Security employees.
Keep in mind that the SSA makes no medical decision at the present time
until the case reaches the Administrative Law Judge. The decisions made
at the initial and reconsideration levels are determined by the state agency.
One part of the process that most surely will be eliminated (probably within
the next year) is the reconsideration stage before the state agency. This
will shorten the time that the claimant receives benefits.
A program that is currently being tested from the Albuquerque OHA to El
Paso, are hearings by video. This program would eliminate the time and cost
associated with an ALJ having to travel to various parts of the jurisdictional
bounds of that office. Claimants and their representatives have the right
to refuse having the case heard by video. The video system denies claimants
the right to a "face to face" confrontation with the person who
is empowered to determine their benefit eligibility.
This author has done many video hearings. However, they have not proved
acceptable or very satisfactory. The video does not fully reveal many injuries
or the claimant's demeanor with the presently used equipment.
In conclusion, the days when a representative would walk a claimant to a
hearing before an ALJ, put on evidence of the claimant's limited ability
to sit, stand, walk and lift (along with a significant amount of pain) is
no longer a manner in which this practice is conducted. The practice of
Social Security disability law is a highly specialized area containing medical
terms, and volumes of rules and regulations which are learned through a
great deal of experience. It would not be advisable for a representative
to take only two or three cases a year and expect to competently represent
a claimant.
R. Don Thorne is an Attorney at Law with the firm of Thorne & Perry in El Paso, Texas, and Las Cruces, New Mexico. He is a graduate of the University of Texas School of Law in 1963. He has been practicing Social Security Disability law in Texas and New Mexico since 1970. His practice is exclusively limited to matters in Social Security Disability. Mr. Thorne is Board Certified by the Texas Board of Legal Specialization in personal injury trial law (Social Security Disability falls under this area of board certification).
1 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (1988).
2 42 U.S.C. §§ 423(d)(2)(A) (Supp. III 1991). Children's evaluation under SSI cases was explained in Sullivan v. Zebley, 493 U.S. 521, 529 (1990); 20 C.F.R. § 416.924 (1993), however the law has recently been changed to nullify the Zebley case and is further expanded within the context of this paper.
3 20 C.F.R. §§ 404.1520, 416.920 (1993). This process has governed disability determinations since February 26, 1979, 43 Fed. Reg. 55,349, 55,362 (1978).
4 20 C.F.R. §§ 404.1520(b), 416.920(b) (1993). Generally, work providing compensation in excess of $500 per month is presumed to be "substantial gainful activity." See 20 C.F.R. §§ 404.1574(b)(2)(vii), 416.974(b)(2)(vii) (1993).
5 20 C.F.R. §§ 404.1520(b), 416.920(b) (1993).
6 20 C.F.R. §§ 404/1520(c), 416.920(c) (1993).
7 Id.
8 See 20 C.F.R. §§ 404.1526, 416.926 (1993) (explaining determination of medical equivalence).
9 20 C.F.R. §§ 404.1520(d) (1993); 20 C.F.R., pt. 404, subpt. P., app.1 (1993)
10 Bowen v. City of New York, 476 U.S. 467,471 (1986). See id. The listing is not a complete or exclusive catalog of disabling impairments, but only of the more common impairments. See 42 Fed. Reg. 14,706 (1977).
11 20 C.F.R. §§ 404.1520(e), 416.920(e) (1993).
12 20 C.F.R. §§ 404.1565(a), 416.965(a) (1993)
13 20 C.F.R. §§ 404.1520(e), 416920(e) (1993)
14 20 C.F.R. §§ 404.1520(f), 416.920(f) (1993).
15 Id.
16 See Johnson v. Heckler, 769 F.2d 1202, 1210 (7th Cir. 1985) (citing cases in all 12 U.S. courts of appeals).vacates sub nom. on other grounds, Bowen v. Johnson, 482 U.S. 922 (1987).
17 20 C.F.R. §§ 404.611,416.325 (1993).
18 See 42 U.S.C. §§ 421a, 1383b(a) (1988); 20 C.F.R. §§ 404.1503,416.903 (1993).
19 20 C.F.R. §§ 404.1512(d), 416.912(d) (1993).
20 Bowen v. Yuckert, 482 U.W. 137, 142 (1987).
21 Id.; 20 C.F.R. §§ 404.907, 416.1407 (1987).
22 42 U.S.C. §§ 405(b)(1)(A) (1988); Yuckert, 482 U.S. at 142; 20 C.F.R. §§ 404.929, 416.1429 (1993).
23 20 C.F.R. §§ 404.967, 416.1467 (1993).
24 42 U.S.C. §§ 405(g), 1383(c)(3) (1988).
25 42 U.S.C. §405(g) (1998).
26 HR4277, §201, signed into law August 15, 1994; Pub L 103-296.
27 HR 4277, §202,(a)(7)(A) [SSD],(b)(3)(v)(I) [SSI].
28 Pub L 104-121, § 105 (enacted March 29, 1996).
29 Pub L 104-121, § 105(e)(5)(A), (b)(5)(A).
30 USCA § 1382c(a)(1)(B)(i). The PR&WOA96 specifically eliminates the concept of PRUCOL, HR 3734, § 402(a)(2)(B)(i).
31 Pub L104-193: H.R. 3734, § 402(a).
32 Pub L 104-193; H.R. 3734, §402(a)(2)(A).
33 Pub L 104-193; H.R. 3734, §402(a)(2)(C), § 435.
34 Pub L 104-193; H.R. 3734, § 402(a)(2)(B) § 435 NOTE: No quarter is creditable for any period after December 31, 1996 in which the individual received any Federal means-tested public benefit during any such period, including any SSI.
35 Sullivan v. Zebley, 493 U.S. 521, 529 (1990); 20 C.F.R. § 416.924 (1993).
36 61FR 45542.