Last updated: 12/12/2018
Peter W.
Martin
Cornell Law School
In a year's time, well over two million Americans apply for Social Security Disability Insurance (DI) benefits. One-third that number are awarded them. Close to nine million individuals currently receive such benefits. Over five million receive need-tested Supplemental Security Income (SSI) benefits on the basis of the same threshold test of "disability." In some cases the DI benefits are so low that the two programs, administered by the Social Security Administration, overlap. Widows and widowers who qualify as disabled are entitled to claim survivors benefits before the normal age of eligibility. Disabled children continue to be eligible for dependents or survivors benefits on a parent's account past the normal cut off age of 18. Finally, a "disability freeze" will remove periods of disability from insured status and benefit amount calculations.
Because monthly retirement benefits and benefits to surviving spouses are reduced when begun before the individual's "full retirement age" and that benchmark age has increased for successive cohorts, a claim based on disability holds advantages even for individuals who qualify for Social Security on the basis of age. Roughly one in ten of those awarded DI fall in this category.
The core statutory provision begins by defining "disability" as an "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 12 months." It then elaborates, stating that individual's impairments must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Finally, it requires the impairments result "from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d).
Ever since determinations of disability were appended to Social Security in 1954, the Agency has endeavored to achieve greater consistency in the application of the statutory definition through disability-specific procedures and more detailed standards. Despite those efforts, of all the issues raised by Social Security benefit claims "disability" remains the most troublesome. Establishing age, death, marital status, or income (past or current) is, in most cases, a reasonably straightforward matter. Not so "disability." For that reason disability cases dominate the administrative appeals process, Social Security litigation in the federal courts, and the caseload of attorneys who practice Social Security law.
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Short term disabilities, no matter how severe, do not give rise to Social Security disability benefits entitlement. To qualify for benefits the individual's impairment must be expected to last for a continuous period of at least 12 months or to result in death. This test can be difficult to apply to conditions that recur in periodic episodes between which the individual is able to function reasonably.
In Barnhart v. Walton, 535 U.S. 212 (2002), the Supreme Court upheld the Agency's interpretation of the Act, which is that not only must the impairment meet the 12-month test, but it must, in fact, prevent substantial gainful activity for that period. Walton rejected the position taken by several U.S. Court of Appeals circuits that so long as an impairment was "expected to last" for 12 months, work at the "substantial gainful activity" level within that period would not preclude entitlement, because it could qualify as "trial work."
Distinct from the duration requirement is a five-month waiting period. 42 U.S.C. § 423(c)(2). Even in a case meeting the duration test (for example, a claimant with a disabling impairment expected to result in death) benefits are not available for the first five months following the impairment's onset.
The Act places the burden of establishing entitlement on the disability benefit claimant. The program does provide, however, for consultative medical examinations that may furnish needed medical evidence of an impairment. 20 C.F.R. § 404.1517. Furthermore, when a claimant has established that he or she has a serious impairment that prevents return to past relevant work, courts hold that the burden shifts to the Agency to establish that there is other work that a person with such impairments and the claimant's vocational characteristics can perform. 20 C.F.R. § 404.1512. Social Security Ruling SSR 17-4p elaborates on the responsibility of a claimant (and claimant's representative) to furnish all available written evidence bearing on eligibility.
These burden of proof rules are structured by a sequential evaluation process that lays out five distinct stages in the eligibility determination. 20 C.F.R. § 404.1520. Stages one through four lie in the zone where the burden is on the claimant. They include: (1) the preliminary question whether, despite impairments, the claimant is, in fact, engaged in "substantial gainful activity," (2) the determination whether the claimant has an impairment of sufficient severity to interfere with the ability to perform work activities, (3) a comparison of the claimant's medical impairments with a listing of numerous conditions that warrant a conclusion of disability, and (4) a determination whether the claimant has the ability to perform past relevant work. In stage five where the issue is whether there is other work that a person with the claimant's characteristics can do, the burden is on the Agency, but in any case covered by the Medical-Vocation Guidelines, the guidelines themselves may meet that burden. In cases not governed by the guidelines, there must be other evidence.
These five stages operate in sequence. Evidence that would be relevant or even dispositive at a later stage will not prevent a contrary decision at an earlier one. The regulations lay out this process in great detail. Social Security Ruling SSR 86-8 provides explanation.
Courts employing the substantial evidence standard have developed other more specific burden of proof or evidentiary rules, such as those according special weight to medical testimony or reports coming from the claimant's treating physician.
Agency procedures provide a fast track for a list of conditions and diseases that meet the disability standard and from which an individual is not likely to recover. The grounds for such "Compassionate Allowance" treatment include certain severe heart diseases and cancers, adult brain disorders, and a number of conditions specific to children.
No matter how severe an individual's physical and mental impairments, disability benefits are not available if the individual continues to engage in substantial gainful activity, that is, continues to work for significant compensation. Earnings above an amount set by regulation and adjusted annually can establish an ability to engage in substantial gainful activity. 20 CFR § 404.1574. Short periods of work (6 months or less) at or above that rate can, however, be disregarded as "unsuccessful work attempts." Social Security Ruling SSR 84-25 sets out a framework for determining when that should occur. Moreover, "subsidies" and "impairment-related work expenses" are deducted from gross earnings before the threshold test is applied. Social Security Ruling SSR 83-33 provides details.
Applying the concept of engaging in substantial gainful activity to illegal income has proven particularly difficult. A 1994 amendment removed any doubt about whether illegal earnings count. 42 U.S.C. § 423(d)(4)(B).
Individuals who meet the Act's definition of blindness have their earnings treated differently. Their monthly earnings are measured against a higher amount in determining whether or not they retain the ability to engage in substantial gainful activity. Furthermore, blind claimants who are 55 or older can still qualify as disabled despite larger earnings if they are no longer able to engage in their regular work. 20 CFR § 404.1584.
Once benefits have begun, earnings above the substantial gainful activity level can cause their loss, but termination does not occur abruptly because of the recipient's right to a period of trial work. 20 C.F.R. § 404.1592. In addition, a short period of work that does not continue can qualify as an "unsuccessful work attempt." 20 CFR § 404.1574.
Only amounts paid for productive work are counted in determining whether earnings from work establish that a claimant is not disabled. If the employment is being subsidized, the amount of the subsidy is not treated as earnings. This determination is made on an individual basis; the mere fact that a person is working in a sheltered workshop run by a charitable organization does not compel a finding that that person's pay is subsidized. 20 CFR § 404.1574(a)(3).
Income from self-employment does not establish the capacity to do substantial gainful activity without consideration of the individual's actual work activity. Income that a person receives as a share of profits or as a return on investment has no bearing on disability. The individual's work activity is considered in comparison with that of unimpaired individuals. The compensation is compared to the salary that would have to be paid an employee for the same work, and the level of services rendered is weighed in determining whether the self-employment constitutes substantial gainful activity. 20 CFR § 404.1575.
Social Security Ruling SSR 12-1p provides particular guidance on the treatment of self-employment income received by those who are eligible for Disability Insurance by virtue of blindness, including income they receive from vending machines on government property authorized under the Randolph-Sheppard Act and similar state programs.
Work expenses that are the result of the individual's impairment are subtracted from any earnings before those earnings are compared to the earnings levels used to determine whether or not the individual is engaged in substantial gainful activity. To be offset, the expenses must actually be borne by the individual and not paid by some other source. Deductible impairment expenses include equipment, drugs and medical supplies, and attendant care services. 20 CFR § 404.1576.
The regulations provide for a determination that a claimant is not disabled on the threshold ground that the individual does not have impairments that place a significant limit on the individual's physical or mental ability to do basic work activities. 20 CFR § 404.1522. In Bowen v. Yuckert, 482 U.S. 137 (1987), the Supreme Court upheld the validity of the regulation imposing this "de minimis" test of severity. It had been attacked on the ground that it violated the Act's requirement that the Agency consider a claimant's age, education, and work experience. The Court found authority in the Act to place the burden on the claimant to establish the existence of a limiting impairment.
Social Security Ruling SSR 85-28 frames the test in terms of whether the claimant has a medical condition that interferes with the ability to perform basic work activities, listing examples of those activities. When an ALJ fails to apply the correct legal standard at this stage of the sequential disability determination process but continues on to subsequent stages, some courts have held the error to be harmless.
The regulations include a Listing of Medical Impairments, organized by body system, that provide a basis for determinations that many individuals are disabled without further evidence of their inability to work or consideration of their age, education, and work experience. Anyone with impairments that equal the type and level specified in that listing (20 CFR § 404.1525) or possessing impairments that are their equivalent (20 CFR § 404.1526) is determined to be disabled. Several different tests or listings may apply to a particular body system or condition. Where they are set up as alternatives all that the claimant need establish is that one of them is met.
For some medical conditions, Social Security Rulings augment the listings and elaborate on how such complaints should be evaluated throughout the sequential evaluation process. See, for example, Social Security Ruling SSR 03-1p dealing with the treatment of polio residuals, Social Security Ruling SSR 15-1p dealing with Interstitial Cystitis, Social Security Ruling SSR 12-2p dealing with Fibromyalgia, and Social Security Ruling SSR 14-1p dealing with Chronic Fatigue Syndrome. Obesity, for which there once was a listing, is now covered by Social Security Ruling SSR 02-1p.
Social Security Ruling SSR 17-2p sets forth evidentiary requirements for ALJ or Appeals Council determinations of disability based on medical equivalence.
Individuals who are not found to be disabled on the basis of the listed impairments must next establish that their residual functional capacity does not allow them to meet the physical and mental demands of work they have done in the past. 20 CFR § 404.1560(b). How recent and of what duration that past work activity must be to provide a relevant baseline can sometimes be a difficult issue. How broadly or narrowly the prior work is characterized can also prove critical.
Social Security Ruling SSR 82-62 notes that for past work to be considered the individual should have been engaged in it for sufficient time to learn how to perform work of that type. The Agency takes the view, reflected in Social Security Ruling SSR 82-61, that the past work need not be shown to exist in significant numbers in the national economy. In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court upheld this interpretation of the Act.
When there is insufficient evidence for a finding about the claimant's past relevant work, a regulation issued in 2012 allows the Agency's adjudicator to go directly from Step 3 to Step 5, skipping over Step 4. 20 CFR § 404.1520(h).
For disability benefit claimants who do not have listed impairments or their equivalent but who also lack the residual functional capacity to do their past relevant work, a determination on disability requires consideration of age, education, and past work experience. The fundamental question is whether the claimant's impairments combined with these other factors leave the individual unable to do work that exists in the national economy.
The regulations contain a set of Medical-Vocational Guidelines. These guidelines provide a matrix in which claimants are located according to residual functional capacity, age, education, and past work experience.
For any given combination of those factors, the guidelines specify a determination of "disabled" or "not disabled." According to the regulations these determinations rest on analysis of vocational information and therefore eliminate the need for vocational expert testimony in cases to which the guidelines apply. Cases that do not fall within the guidelines, either because they involve impairments not reflected in their residual functional capacity categories or because they fall between the categories into which the other factors are broken down, require an ad hoc consideration of the claimants' ability to do work in the national economy.
In Heckler v. Campbell, 461 U.S. 458 (1983), the Supreme Court upheld the Medical-Vocational Guidelines against the challenge that they violated the Act. The Act, the Court held, does not bar the Agency from relying on rulemaking to deal with certain classes of issues. In particular, the factual issue of whether there are jobs available in the national economy that a claimant with certain impairments and a set of vocational qualifications can perform is not unique to each claimant. It can therefore be resolved fairly through guidelines.
Application of Medical-Vocational Guidelines (Grid) - Age
Age is one of the vocational factors listed in the Act's definition of disability. It is incorporated in the Medical-Vocational Guidelines through three age categories: younger person (under 50); person approaching advanced age (50-54); and person of advanced age (55 or over). A subgroup of the latter category is: person closely approaching retirement age (60 or over). The purpose of including age is its assumed connection to a person's ability to adapt to new work situations. The regulations do say that these age categories should not be applied mechanically in borderline situations.
Since moving from one age category to another can change the guidelines' directed decision from "not disabled" to "disabled," the mere delay in processing an appeal can, in theory, change its outcome.
Because of the phased increase in "full retirement age" from 65 to 67, increasing numbers of individuals older than 65 are becoming eligible for disability benefits and finding it advantageous to claim them instead of old-age insurance. (Claiming old-age insurance benefits prior to the worker's "full retirement age" produces a reduction in the monthly amount.) Social Security Ruling No. 03-3p addresses treatment of initial disability claims brought by individuals in this age range.
Application of Medical-Vocational Guidelines (Grid) - Education
Education is one of the vocational factors listed in the Act's definition of disability. It is incorporated in the Medical-Vocational Guidelines through four categories: illiteracy, marginal education (6th grade or less), limited education (7th grade through 11th grade), high school and above (at least through 12th grade). In addition, the regulations specify that an inability to communicate in English should be taken account of in considering what work a person with the claimant's residual functional capacity can do.
While the educational categories are expressed in terms of formal education, they are also defined in terms of skills. The regulations state that a claimant's formal education level need not be determinative. A person with a lack of formal education can be shown to have a high level of education. The reverse is also true.
Application of Medical-Vocational Guidelines (Grid) - Work Experience
Work experience is one of the vocational factors listed in the Act's definition of disability. It is incorporated in the Medical-Vocational Guidelines through several categories. First, there is a special provision for those whose long-term work experience has been hard unskilled physical labor. The guidelines themselves employ three experience categories: skilled, semi-skilled, and unskilled. In addition, the guidelines provide for individuals with no work experience. In connection with the skilled and semi-skilled work categories, the degree of transferability of the skills involved can also be a factor.
In determining how to categorize a claimant's work experience the focus is on work of reasonable duration within the past 15 years.
Application of Medical-Vocational Guidelines (Grid) - Work Level (Light, Sedentary, etc.)
The Medical-Vocational Guidelines divide the exertional requirements of work into five categories, defined in terms of such activities as lifting (frequency and types of items), carrying, standing, sitting, and walking. The five levels are: sedentary work, light work, medium work, heavy work, and very heavy work. The categories are largely cumulative so that if a person can do heavy work, the guidelines assume an ability to do medium, light, and sedentary work.
Social Security Ruling SSR 83-10 fills in important details of the exertional requirements of the five categories. For example, it explains that an individual able to perform the "full range" of sedentary work must be able to sit approximately six hours out of an eight-hour day and stand or walk the remaining two hours. It also explains that most unskilled sedentary jobs require good use of both hands in repetitive hand-finger activity. Comparable details are provided for the other categories. Social Security Ruling SSR 83-12 notes that unskilled jobs are not ordinarily structured so that the worker can sit or stand at will. If medical evidence indicates that the only way the individual can get through a full workday is by alternating between sitting and standing at will, it follows that the individual cannot perform the "full range" of sedentary work.
Application of Medical-Vocational Guidelines (Grid) - Transferable or Marketable Skills
Semi-skilled or skilled work experience may or may not produce skills that can be used in other types of work. Whether the skills are transferable depends on the similarity of work activities involved. Some jobs involve such a specialized setting (mining, agriculture, fishing) that their skills are not viewed as transferable. 20 C.F.R. § 404.1568(d).
Social Security Ruling SSR 82-41 adds detail to the definition of transferability found in the regulations.
Throughout, the Medical-Vocational Guidelines define residual functional capacity in terms of such physical abilities as lifting, standing, and moving about. Consequently, their application to individuals with mental impairments or pain or sensitivity to environmental factors would fail to account for the full extent of impairment. If a claimant suffers from a significant non-exertional impairment, a decision based on the guidelines that he or she is not disabled is not normally justified. In such a case, the Agency must have vocational expert testimony or similar evidence that there are jobs in the national economy which a person with the full range of the claimant's impairments, including the non-exertional ones, can perform. Social Security Ruling SSR 87-19c allows the use of the guidelines as a framework in cases of non-exertional impairments when there is also vocational expert testimony.
Whether or not an individual's non-exertional impairments force a decision outside the guidelines depends on the extent to which the level of those impairments would affect the claimant's ability to perform the range of jobs in the otherwise relevant category (sedentary work, light work, etc.). When non-exertional impairments reduce the individual's capacity for work only marginally, the guidelines can still form the basis of a determination and testimony of a vocational expert may not be necessary.
Social Security Ruling SSR 85-15 draws attention to the demands of unskilled work, including the ability to understand, carry out, and remember simple instructions; to respond appropriately to supervision, co-workers, and normal work situations; to deal with changes in routine. When a mental or other non-exertional impairment causes a substantial loss in any of these dimensions, it justifies a finding of disability despite a contrary indication based simply on the claimant's age, education, and work experience.
Because evidence of significant non-exertional impairments can provide a means of avoiding a "not disabled" determination otherwise directed by the guidelines, when the Agency has ruled against a claimant with such impairments, improper use of the guidelines is frequently argued on appeal.
A claimant's "residual functional capacity" is a full summary of the ability to work the claimant has left after taking account of his or her impairments. It rests on a consideration of all impairments, physical and mental, exertional and non-exertional. As disability decisions are divided into medical and vocational elements, residual functional capacity falls on the medical side. Medical evidence and even medical judgments bear on an individual's residual functional capacity. But, in addition, the claimant's own testimony and that of others about the claimant's remaining physical and mental abilities must be considered. Social Security Ruling SSR 96-8p lays out how the Agency assesses an individual's residual functional capacity. It states that what is at issue is the individual's "ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis" and defines "regular and continuing basis" as meaning "8 hours a day, for 5 days a week, or an equivalent work schedule".
Once determined, the claimant's residual functional capacity is compared to his or her past relevant work or other work in the national economy. Social Security Ruling SSR 96-9p deals with that stage of the disability determination, addressing cases where the claimant is limited by residual functional capacity to less than the full range of sedentary work.
The Act's disability standard includes both physical and mental impairments. Mental impairments include not only psychological conditions but limited intellectual functioning. The extent of intellectual impairment can also provide evidence of other categories of mental impairment.
Cases involving mental impairments are, as a class, more difficult to evaluate. The regulations set out a procedure or approach for evaluating mental impairments. 20 C.F.R. § 404.1520a. In addition, the Listing of Medical Impairments includes numerous categories of mental impairment. Social Security Ruling SSR 85-16 provides guidelines for determining residual functional capacity in cases where the claimant's mental impairment(s) do not meet or equal the listing. Social Security Ruling SSR 85-15 treats the relationship between such impairments and the Medical-Vocational Guidelines. It also contains a discussion of the impact of workplace stress, noting that individuals with mental impairments may function successfully in a restricted environment but fail to deal effectively with the demands of getting to work regularly and receiving supervision.
Cases in which mental impairments pose special difficulty include: cases in which the claimant is seeking to establish onset of disability before insured status was lost but no contemporary mental health evaluations are available, cases in which the claimant's mental impairments interfere with presenting the disability claim to the Agency, cases in which the manifestation of mental illness is episodic, and cases in which a degree of mental impairment is but one of a complex of impairments.
Pain and such other subjective impairments as dizziness and drowsiness create great difficulty for disability claimants and the Agency. The Act requires that a disability be medically determinable. That does not mean that the particular manifestation of a medical condition be measurable by medical tests. It does, however, exclude problems that have no evident basis in a medical condition. Determining whether a person's complaints of pain have a sufficient medical connection is one of the most frequently litigated Social Security issues. Since judgments about the claimant's credibility go to the core of a disability claim of this type, the issue is often framed in those terms. Where there is medical evidence of a condition that is consistent with the subjective complaints and their severity, some courts require the Agency to explain its grounds for rejecting the claimant's testimony about pain or similar impairments. On the other hand, when the stated grounds include one resting on a factual error but the reviewing court concludes there is still substantial evidence to support the credibility determination it may conclude that the error was harmless.
The different circuits of the U.S. Court of Appeals have all addressed the problem. Their formulations vary but they are similar in recognizing that a disability determination can rest heavily on the claimant's own testimony about subjective complaints, but that some medical evidence is necessary.
In November 1991 the Agency issued revised and expanded regulations dealing with this subject. It followed those regulations with a succession of Social Security Rulings. The most recent is Social Security Ruling SSR 16-3p. The conditions of Fibromyalgia and Chronic Fatigue Syndrome are the subject of specific rulings. Social Security Ruling SSR 12-2p addresses the former, and Social Security Ruling SSR 14-1p, the latter.
Alcoholism and other substance addictions pose distinct disability problems. Prior to a 1996 amendment, however, they were assessed like other sources of disability. Both could qualify as disabilities apart from any other physical or mental impairment, and they could also be a major contributing element in cases involving other impairments. The 1996 amendment radically changed the law on this point. Under its provisions, neither alcoholism nor drug addiction can be an independent basis for a disability determination. Further, neither can be a major contributing factor ("material") to such a determination.
SSI recipients who suffer alcoholism or drug addiction have been subject to specific requirements of participation in treatment programs as a condition of eligibility. Amendments to the Act in 1994 extended these requirements to Title II disability recipients and added a number of other provisions focused on cases where alcoholism or drug addiction is a contributing factor to disability benefit entitlement. As a result of the 1996 change in eligibility there are far fewer beneficiaries with alcoholism or drug addiction, but those with such a condition must be referred for treatment and, if incapable of managing benefits, receive them through a representative payee.
Social Security Ruling SSR 13-2p, issued in February 2013, sets out Agency policy on evaluation of disability claims in which drug addiction or alcoholism is a factor. The ruling explains what disorders the Agency considers covered by the exclusion (importantly, not nicotine or caffeine dependence) and how it makes the "materiality" determination. New POMS sections followed in 2014. See DI 90070.000.
When a claimant has several medical problems none of which is by itself disabling, he or she may still qualify for disability benefits. Multiple impairments, including combined physical and mental impairments, must be considered in terms of their cumulative effect on the individual's ability to work. A determination which simply deals with medical problems one-by-one may be defective on this ground. This cumulative approach toward multiple impairments applies not only to the threshold question of whether the individual has impairments of sufficient severity to warrant consideration of vocational factors but also to all subsequent stages of the evaluation.
The regulations do, however, distinguish the case in which two unrelated medical problems follow one another in time. In such a case the Agency will not combine the impairments for purposes of applying the 12-month duration test. 20 C.F.R. § 404.1523
The Act provides a detailed definition of blindness. Its test is central visual acuity of 20/200 or less in the better eye with glasses or a field of vision limited to 20 degrees or less. Those who meet its terms are treated somewhat differently than those who qualify as disabled on other grounds. Importantly, they are subject to a higher "substantial gainful activity" earned income test. The Listing of Medical Impairments includes additional forms and measures of visual impairment.
Under the Act the Agency has the ultimate responsibility for determining disability. It is not bound by the judgments of other bodies administering related benefit programs nor by the testimony of a physician who characterizes the claimant as "disabled" or "unable to work."
It is generally stated that an administrative law judge (ALJ) hearing a disability benefit appeal has the responsibility for weighing all the medical evidence and that the claimant has the burden of proof in establishing the existence and degree of his or her physical and mental impairments. It is also generally stated that an ALJ cannot substitute his or her own medical opinion for those of medical professionals or interpret raw medical data without expert assistance. Issues of proper treatment of medical evidence arise when an Agency decision is appealed to federal district court and it is argued that the ALJ's decision is not supported by the record. In that setting courts have established some more detailed guidelines on proper treatment and weight for certain types of medical evidence in relation to others. Most widespread among these guidelines are the positions of the various circuits of the U.S. Court of Appeals on the weight to be given testimony by treating physicians. Another has to do with determinations by other agencies. While not being bound by the determinations of other federal agencies administering disability programs (like the Veterans Administration), SSA must give them some weight. Courts have refused to affirm ALJ decisions that failed to give explicit consideration to such findings.
In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court held that written reports by physicians who had examined a disability claimant constituted substantial evidence supporting a finding of not disabled, notwithstanding the absence of cross-examination and opposing testimony by the claimant and claimant's medical witness.
The regulations require that that medical reports and opinions must be signed if they are to be given weight.
For claims filed on or after March 27, 2017, new regulations address the evaluation of medical medical opinions and the prior findings of other administrative bodies. 20 C.F.R. § 404.1520c. The role of genetic tests in establishing disability is the subject of Social Security Ruling SSR 16-4p.
While the Agency has the ultimate responsibility for evaluating the claimant's medical condition, courts have held that the Agency and an administrative law judge (ALJ) hearing an appeal must give special attention to reports and testimony from a physician who has treated the claimant. Such testimony and reports are distinguished from those coming from physicians who have simply examined the claimant in order to evaluate his or her condition for purposes of the claim. The different circuits of the U.S. Court of Appeals hold different views on how the Agency should weigh treating physician testimony, on when the rule applies, and on whether it extends to the physician's ultimate conclusion about the claimant's condition. The regulations on treatment of medical evidence issued by the Agency in 2017 seek to displace these judicially crafted rules with a multi-factor approach. For claims filed on or after March 27, 2017, the new regulations state that the Agency "will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources." Instead, an ALJ is to consider the persuasiveness of those opinions, weighing their supportability, consistency, relationship with the claimant, specialization, and "other factors." 20 C.F.R. § 404.1520c(c).
For earlier filed claims, the prior regulation (20 C.F.R. § 404.1527) remains in effect, along with three rulings that elaborate on its provisions. Rescinded but still pertinent to pre-2017 claims are Social Security Ruling SSR 96-2p, Social Security Rule SSR 96-5p, and Social Security Ruling SSR 06-3p. The first focused on when medical opinions of a treating source are entitled to controlling weight. The second drew a sharp distinction between medical opinions and opinions of a treating source on issues that bear directly on eligibility such as whether an individual has a listed impairment, what residual functional capacity is possessed by an individual, or whether a claimant's residual functional capacity prevents the individual from performing past relevant work. The third laid laid out a distinction between "acceptable medical sources" and other medical sources and how evidence from these two categories should be considered. It also addressed the weight to be given disability determinations made by other agencies.
Prior to a revision issued in February 2012, regulations required disability adjudicators to recontact treating sources from whom evidence had been received that they considered insufficient or inconsistent before resorting to other measures. The revised regulations authorize a "more flexible" approach. See 77 Fed. Reg. 10,651 (Feb. 23, 2012); 20 C.F.R. § 404.1519h.
When an administrative law judge (ALJ) hears a disability benefit appeal, the record may include a report from a Medical Expert (ME), a physician who has not examined the claimant but has simply reviewed the reports, tests, and other medical evidence provided by others. The extent to which the ALJ may rely on the testimony or report of such a non-examining physician, particularly when it rejects the diagnosis or conclusion of medical personnel who have examined or even treated the claimant, can be a critical issue.
The use of a Medical Expert is left to the ALJ's discretion. While use of a ME may occur before, during or after a hearing, ALJs are directed to avoid off-the-record exchange with such a physician. The appropriate role of such an expert is providing impartial assessment of the available medical evidence in response to specific questions from the ALJ or the claimant. See generally Hallex I-2-5-30.
The role of a medical examination or particular medical tests in establishing physical or mental impairments can be a disputed issue. The issue can arise in one of several ways. With some conditions, Agency policy or an administrative law judge (ALJ) opinion may take the view that an impairment cannot be established without the results of a particular test or procedure. Other symptoms or medical evidence will not suffice. Such a position must ultimately find support in the Act's reference to "medically acceptable clinical and laboratory diagnostic techniques." It is usually invoked when the individual has been examined or tested, and the results do not meet a particular threshold. The claimant's refusal to submit to a medical examination or test can also raise the issue.
The need for a medical examination or particular test may under different circumstances be raised by the claimant. Courts have held that claimants with some medical conditions (significant signs of mental illness, for example) should be given a consultative examination as part of the disability evaluation process. Regulations set out the standards to be used in determining whether or not to order and pay for such a consultative examination. 20 C.F.R. § 404.1517. Courts have not, however, left their application totally to Agency discretion.
When prescribed medical treatment, ranging from surgery to medication, would remove an impairment, restoring the claimant's ability to work, a failure to follow such treatment can lead to a finding that the claimant is not disabled. The regulations recognize a variety of valid reasons for failing to follow prescribed treatment. They run from religious conviction to concern about the riskiness of the procedure. 20 C.F.R. § 404.1530. In addition, courts have recognized practical limits on the requirement, observing that when claimants are financially or psychologically unable to pursue treatment, their failure to do so should not be held against them. On the other hand, some courts have used a failure to follow a physician's instructions or advice as undermining the credibility of testimony about the severity of a claimant's condition.
Social Security Ruling SSR 18-3p, which covers this topic, notes specifically that the claimant's religion, inability to pay for treatment, extreme fear of surgery, or the treatment's high risk can excuse the failure to obtain it. It also states: "Prescribed treatment does not include lifestyle modifications, such as dieting, exercise, or smoking cessation."
When a claimant's medical impairments call for a course of treatment or medication with side effects, those side effects themselves must be considered along with the underlying impairments in determining the individual's residual functional capacity. In the course of focusing on the nature and extent of impairments and developing medical evidence, this dimension is sometimes overlooked.
During the Agency's evaluation of a disability benefit claim new evidence can be submitted at each stage of review. In particular, the hearing before an administrative law judge (ALJ) allows full development of evidence that was not presented or available at earlier stages. The regulations provide that even the Appeals Council may consider new and material evidence so long as it relates to the period up through the ALJ hearing.
Once a claimant has established that he or she cannot perform past relevant work, the next issue is whether there is work available in the national economy that a person with the claimant's residual functional capacity can perform.
In cases properly resolved under the Medical-Vocational Guidelines, the guidelines themselves embody the necessary evidence of work availability of which the Agency has taken administrative notice.
In cases that fall outside the guidelines evidence of work the claimant can perform must come from other sources. An agency decision that the claimant is not disabled that does not rest on such evidence will generally be overturned. Social Security Ruling SSR 96-9p focuses on treatment of cases in which the claimant's residual functional capacity assessment indicates an ability to perform less than a full range of sedentary work.
The issue of how many positions it takes to meet the Act's test of "substantial gainful work which exists in the national economy . . . in significant numbers" has eluded resolution.
The Dictionary of Occupational Titles published by the Department of Labor is frequently used by the Agency, in combination with other government information, in determining the availability of work. Last revised in 1999, it is seriously out of date. The regulations provide that the Agency can take administrative notice of such information in determining whether there is work available in the national economy that a person with the claimant's residual functional capacity can perform. 20 C.F.R. § 404.1566. The Dictionary of Occupational Titles can also be used when the issue concerns the claimant's ability to perform past relevant work. 20 C.F.R. § 404.1540. In such a case, it may assist in categorizing the claimant's past work in terms of required functional capacity. Finally, it can be used to challenge a vocational expert's testimony concerning the available of work the claimant can perform. This becomes possible, for example, if the Dictionary of Occupational Titles indicates that the cited jobs require capacities the claimant lacks.
In cases falling outside the Medical-Vocational Guidelines, it is common to use a vocational expert to testify on the availability of work that can be performed by individuals with the claimant's skills and residual functional capacity. Indeed, expert testimony is probably required in most such cases if the Agency is to meet the burden of coming forward with vocational evidence that courts have placed on it. The regulations simply state that such specialists may be used at the discretion of the Agency. Social Security Ruling SSR 00-4p provides more detailed agency policy on the use of vocation expert evidence. Among other things, it places a duty on ALJs to obtain explanations of discrepancies between vocational expert testimony and the Dictionary of Occupational Titles. See generally Hallex I-2-5-30. Nothing, of course, prevents claimants from producing experts of their own at a disability benefit hearing.
When a vocational expert is used at a disability benefit hearing, the expert's testimony concerns the number and range of jobs available to individuals with residual functional capacities like those of the claimant. Since that testimony comes before the administrative law judge (ALJ) has reached a conclusion on the precise extent of the claimant's impairments and the vocational expert is not in a position to make medical judgments, the testimony is commonly framed in terms of hypothetical individuals with impairments like those the claimant may be found to have. When the hypotheticals on which the vocational expert testifies fail to include all elements of the claimant's medical condition, courts may hold that an ALJ's determination resting on that testimony is not supported by substantial evidence.
Entitlement to Title II disability benefits can depend critically on precisely when an individual who is currently disabled and who was disabled at the time of filing a benefit application became disabled. That is because eligibility requires that the claimant meet an insured status test. Unless the individual becomes disabled while still holding insured status (which would give rise of a period of disability, thus preserving insured status) benefits are unavailable. Since the insured status test requires quarters of coverage in the period immediately before the onset of disability, a disabled individual who ceased working because of health problems some time before meeting the Act's standard of disability may not qualify for benefits unless those health problems reached the Act's standard before the absence of earnings caused insured status to be lost. Furthermore, a claimant who at one point met the Act's standard while insured but then experienced medical improvement may not qualify for benefits because of the need to show that the current period of disability began while the person had insured status.
Less often and less critically the issue of when the claimant became disabled can go to the issue of when entitlement began. Since Title II disability benefits can only be paid for 12 months prior to application such disputes involve much smaller stakes.
Establishing an "onset date" prior to the first time the claimant sought medical attention is difficult but not impossible.
A pair of Social Security Rulings SSR 18-01p and SSR 18-02p address onset determinations. The latter focuses on cases of disability due to blindness.
Since eligibility for Social Security Disability Insurance benefits requires a period of work in covered and taxed employment, few young people qualify. Those that do pose no special issues. Supplemental Security Income (SSI) benefits are, however, available to qualifying children, from infancy. The evaluation of their claims (claims of those under the age of 18) are the subject of both a statutory provision and regulations. 20 C.F.R. §§ 416.924 - 416.924b; 416.925 - 416.926a.
In Sullivan v. Zebley, 493 U.S. 521 (1990), the Supreme Court held that regulations limiting child SSI disability benefits to those who had a listed impairment or the equivalent violated the statutory provision extending benefits to children who suffer from impairments of "comparable severity" to those which would establish disability in an adult. As a result of Zebley, the SSA issued new guidelines that required a functional assessment of children who do not meet or equal a listing. This assessment was analogous to the residual functional assessment performed on adult SSI disability applicants who do not meet or equal a listing. The child's individualized functional assessment was focused on the impact of the medical condition(s) on daily living activities and age appropriate activities.
An amendment to the Act in 1996 removed the statutory language requiring this individualized assessment. Nonetheless, SSI regulations continue to focus on the impact of a child's impairments on the child's "functioning." 20 CFR § 416.924a.
Title II benefits for children of retired, disabled, or deceased workers are normally available only until the age of 18. Eligibility continues beyond that age for children of the insured worker who are under a disability that began before the age of 22. The statutory definition of "disability" applicable to such "disabled adult children" is the same as that for adults. 42 U.S.C. § 402(d)(1)(B).
Numerous Social Security rulings cover aspects of disability determinations for children seeking SSI benefits (see below). Social Security Ruling SSR 11-2p addresses the evaluation of disability in young adults.
All publications of the Social Security Administration are linked directly to the Agency's site.
Links of citations to provisions of the U.S. Code and regulations codified in C.F.R., together with those to Supreme Court and Court of Appeals decisions, employ the Read It Online or RIO service of the Cornell Legal Information Institute. They, thereby, present users with a choice among legal information providers. Choices include the comprehensive fee-based services, Westlaw and Lexis, and a number of free options. To see how this works follow one or more of the following linked references:
In varying ways and to varying degrees the services to which the links provide access include tools for checking on the currency of the cited section or case. (Has the cited section been amended or the cited decision overruled or questioned since this guide was written?) They also provide the best means for retrieving directly relevant decisions of the U.S. District Courts. The “precedential” decisions of the U.S. Courts of Appeals represent only a slim portion of Social Security case law. Following key regulations or appellate decisions into and through Lexis and Westlaw, on the one hand, or Google Scholar, on the other, can lead you to district court decisions that have interpreted them.
This is the fifth electronic format in which the materials integrated here have appeared. The work was first launched in 1991 on LEXIS where it lived awkwardly and for only a short time. (At that point LEXIS lacked hypertext capability and delivered all content through small screen-fulls of character-based monochrome display.) That company's decision not to proceed with its original plan of placing the treatise and its accompanying library of primary law materials on CD-ROM, prompted their migration to the Thomson Corporation's Clark Boardman Callaghan division, which released "Social Security Plus" in 1994. Thomson's acquisition of the West Publishing Company in 1997 brought "Social Security Plus" and a competing West CD-ROM into uncomfortable proximity. Rather than allow their merger, the author brought the compilation to the open Web, as part of the Legal Information Institute's online collection. It lived there for a decade, evolving as the legal resources on the open Web expanded. In 2012, it morphed into a wiki format. The closure of the wikispaces.com site in 2018 prompted the latest conversion.
This segmented form (a series of topical guides) is offered in hopes that some or all of the guides will provide a useful base on which others can build, update, and improve. Note the licensing terms below.
© Peter W. Martin, 2018. This work is licensed under the Creative Commons Attribution-ShareAlike 3.0 License. To view a copy of this license, visit https://creativecommons.org/licenses/by-sa/4.0/. As noted above the author not only authorizes redistribution, reuse, revision, and adaptation of this material (with attribution, please) but encourages it.