Social
Security uses an obsolete publication to identify jobs that a
disability claimant may be able to do. These jobs, in turn, are often
used to deny disability claims. The publication required by Social
Security decision makers is The Dictionary of Occupational Titles (DOT),
first published in the 1930s and last updated in 1993. The DOT
describes 12,569 jobs. Many of them are obsolete, from a bygone era.
Here are a few of the more ridiculous jobs found in the DOT. The DOT
code number is given, to prove this is no joke.
- Horse Identifier DOT Code 153.387-010
- Horse and Wagon Driver 919.664-010
- Butter Melter 523-585-010
- Animal Impersonator 159.047-018
- Bucket Chucker 664.685-014
- Side Splitter 525-684-018
- Bowling Ball Weigher 732.487-010
And my personal favorite....
- Coach
Driver, DOT Code 349.677-014. The DOT job description reads: "May
clean or polish vehicle such as a carriage, wagon or cart."
If you are judged physically and
mentally able to perform one of these archaic jobs (or any other job in the
DOT) you may be denied benefits at Step 5 of the sequential decision
making process, where most denials occur.
The
US Department of Labor considers the DOT to be obsolete. However, the
Social Security Administration considers it their primary vocational
resource--the definitive guide to jobs in the modern age. Judges are required to confirm that any vocational testimony "confirms to the DOT." Social Security has even taken "administrative notice" of the DOT, which makes it difficult to challenge it. Social Security's attitude: If it's in the DOT, it's Gospel.
This could be one reason your disability claim was denied: reliance upon such outdated data as the DOT. Some federal courts have taken notice of denials based on DOT data and have reversed the decisions on appeal.
I think Social Security is moving in the direction of allowing other occupational data to be used; however, no one knows how long that will take.
In
our experience with Social Security disability claims, there are some
factors that seem to increase a claimant's odds of being approved for
benefits. Here are some of them:
- a long, steady employment history;
- being age 50 or above (though not required to get benefits);
- failed work attempt(s) after the disability onset, demonstrating the desire to continue working;
- proper written statements from one or more treating doctors (not just any statement, the proper statement)
Doctors
may provide 2 types of evidence. One is objective evidence, the other
is opinion evidence. Most Social Security cases go to trial with only
the routine medical records from the doctors. This can't be relied on
to produce an award. Opinion evidence, on the other hand, provides the
doctor's opinion about how the claimant is limited in the ability to
perform work activities (sitting, standing, walking, lifting,
bending, concentrating, remembering, regular attendance, etc.). Opinion
evidence is a little harder to come by and is sadly lacking in most
cases that get denied. It can make a huge difference.
For instance, it isn't enough to have medical records proving that the claimant has arthritis.
The claimant is required to prove that his or her medical condition is
severe enough to prevent full-time, remunerative work on a full-time
basis.
We
often see useless doctor's statements like this: "Mr. Charlie Brown
has been a patient of mine for 10 years and it is my opinion that he is
disabled and cannot work at any job." The problem with such a
pronouncement is that it actually violates the federal regulations. The
conclusion about disability is reserved to the Commissioner of Social
Security and doctors may not determine who is disabled (20 CFR 404.1527; 416.927, etc.).
What may properly be stated by a doctor?
The answer is, his or her opinions as to the patient's specific
limitations or restrictions. How long the patient can sit, stand or
walk; how much can he/she can lift? What limitations are there in such
things as concentrating, remembering, making decisions, reaching,
stooping, kneeling, bending, etc. How many days per month would the
patient be expected to miss work because of a medical impairment? These
are examples of things that are permitted and the doctor's
opinion in these specific areas are admissible as evidence (although
Social Security is not bound by the doctor's opinion). But the doctor
may not conclude that a person is disabled or make a vague statement like, "He is not able to work."
In
Huntsville, the Forsythe Firm has helped hundreds of claimants get
Social Security disability payments. We offer free initial
consultations and evaluations without obligation. We are full service
disability advocates and can be involved in every stage of your Social
Security disability claim--from application through appeal. We never
charge a fee unless you win and receive back pay.
PHONE: (256) 799-0297
https://forsythefirm.wixsite.com/website
1)
At what age may I apply for Social Security disability (SSDI)?
Answer: Adults may apply any time before your full retirement age. (If
you were born in 1948, for example, your full retirement age is 66).
Children may apply any time prior to age 18. There are special rules for adults who became disabled prior to age 22.
2)
What monthly benefit may I expect from SSDI? Answer: The benefit
amount will vary based on your average wages and work history. The
maximum monthly benefit in 2020 is $3,011. The average monthly benefit
is $1,257.
3)
Can my spouse or dependent children also receive benefits? Answer:
Yes, dependents may qualify for benefits based on the wage earner's
disability. Dependent grandchildren may also be eligible. A spouse who is caring for a disabled wage earner's dependent children under age 16 may also qualify.
4)
Will I get Medicare insurance with my disability benefits? Answer:
Yes but there is a waiting period. Medicare starts 29 months after the
official onset date of disability for SSDI claims. Note that this is 29 months from the disability onset, not from the date of your decision. SSI beneficiaries get Medicaid and there is no waiting period for Medicaid.
5)
If my doctor tells me I am disabled and cannot continue working, are
disability benefits automatic? Answer: No. You must still apply and
prove to Social Security that you are disabled according to their rules. Many times, such individuals are denied and must appeal in order to get benefits. Appeals must be filed within 60 days of denial.
6)
I saw my doctor today and he does not think I will be able to continue
working much longer. May I apply for Social Security disability now and
keep working until I am approved? I want to have my claim approved
before I stop working. Answer: No, the system does not permit this.
You must not be working at substantial gainful activity when you
apply for disability benefits. If you are, you will be denied at Step
1, regardless of the medical evidence.
7)
I am 64 years old and retired. I worked for more than 40 years. I've
been receiving Social Security early retirement benefits for about 2
years. I've been healthy until now. Recently, however, I was diagnosed
with a severe illness for which there is no cure. Since I am already
receiving Social Security retirement, may I file a disability claim?
Answer:
Yes, you may. You are under full retirement age and it appears you
have adequate work credits to support a claim. Also, I assume your
recent impairment will last for 12 months or more (the duration requirement), so you may file a disability claim and try to prove
disability. As long as you are not working, your present income does not
matter for a Title 2 (SSDI) claim. If your claim is successful, your monthly benefit will be increased to the amount you would have received at full retirement age (payable from the onset date of your disability).
Also, you may qualify for earlier Medicare coverage, in the event you
are not yet 65 when your case is decided. You may continue to receive
your retirement benefits while your disability claim is being decided.
Even if you eventually do not get a favorable decision on the disability
claim, it will have no impact on your retirement benefits, which you
will continue to receive. So, you risk nothing by filing for
disability. A final thought: At age 62, it may be easier to win a
disability claim, compared to a younger individual, thanks to the
medical-vocational guidelines.
________
If
you have a Social Security disability question that was not answered
here, or on one of our many blog posts, please call the Forsythe Firm in
Huntsville, AL at (256) 799-0297.
There is no charge or obligation for a consultation.
Before
awarding an SSDI benefit, Social Security must convince itself that you
are not able to sustain full-time work 8 hours a day, 5 days a week, 52 weeks per year.
Of
course, the physical demands of work vary a great deal from job to
job. Social Security recognizes 5 exertion levels in today's workforce:
- SEDENTARY
WORK requires mostly sitting with lifting no more than 10 pounds at a
time, the ability to occasionally lift and carry files or small tools;
occasional standing and walking (less than 2 hours per day).
- LIGHT
WORK requires lifting no more than 20 pounds at a time (occasionally),
frequent lifting and carrying objects weighing up to 10 pounds; frequent
walking or standing or sitting while pushing arm or leg controls.
- MEDIUM
WORK involves lifting up to 50 pounds occasionally and frequently
lifting or carrying objects weighing up to 25 pounds. It also requires
frequent standing/walking. If you can do medium work, you can also do
light work.
- HEAVY
WORK requires lifting no more than 100 pounds occasionally and lifting
and carrying objects weighing up to 50 pounds frequently. It requires
frequent standing/walking. If you can do heavy work, you can also do
medium work.
- VERY
HEAVY WORK involves lifting objects weighing no more than 100 pounds at
a time and frequently lifting and carrying objects that weight more
than 50 pounds. Frequent standing/walking required. If you can perform
very heavy work, you can also perform heavy work.
Q. If I can perform Light work, can I also perform sedentary work? The answer is yes, usually. There are 2 exceptions:
If
a claimant has difficulty sitting for prolonged periods of time, or has
difficulty performing fine manipulations with the hands (feeling,
fingering, pinching), the person might be found capable of performing
Light work but not Sedentary work.
The
above limitations are only exertional. They do not take into account
postural limitations such as reaching, bending, crouching, squatting,
kneeling, balancing, climbing). They also do not take into account any
mental limitations (memory, focus/concentration, decision making,
etc.). All jobs do have certain mental functional abilities which are
required.
For claimants under the age of 50, Social Security will usually deny claimants if they are found able to perform jobs at any exertion
level. For those over age 50, the rules are a little more relaxed and
the Medical-Vocational Guidelines can be helpful.
___________
The Forsythe Firm
(256) 799-0297
https://forsythefirm.wixsite.com/website
Lyme
Disease is transmitted to humans by the bite of the black legged tick,
commonly called a "deer tick." The infectious agent is a little
bacterium called Borrelia burgdorferi. Symptoms can include a
rash (but not always), fatigue, dizziness, neurological symptoms, joint
aches, and sometimes a fever. Getting a correct diagnosis for Lyme
Disease may be difficult because the symptoms of Lyme Disease are quite
similar to many other illnesses and doctors often have never encountered
a case of Lyme. Lyme is usually curable with a few weeks of
antibiotics. However, if the disease goes untreated, it can cause
severe symptoms, including joint inflammation (Lyme arthritis), heart
problems, disorders of the central nervous system, and more.
There
is no specific listing for Lyme Disease in the Social Security blue
book. If there are severe associated symptoms, a claimant may meet a
listing for another body system: nervous system disorder, heart
impairment, etc. If that is not the case, the claimant must prove that
the combined symptoms of the disease are so severe that full-time work
cannot be maintained.
I
have recently won cases involving Lyme Disease. Here is a little of
what I have learned with regard to Lyme Disease and Social Security.
1)
Try to see out a specialist to confirm the diagnosis. Specialists are
few and far between. Social Security will be skeptical that symptoms
are being caused by Lyme Disease. It is essential to get a firm
diagnosis by a doctor who understands the disease. Many doctors will
tell you that there is no such thing as chronic Lyme Disease, or that it
is impossible to diagnosis it accurately. Some will try to send you
off to a psychiatrist because they think it is a mental impairment.
2)
Be sure your doctor ties the cause of symptoms to the yme Disease. In
other words, the doctor should confirm that such symptoms as chronic
fatigue, dizziness, nausea, palpitations, cognitive problems, etc. are
being caused by the late affects of Lyme Disease, not something else.
3)
If possible, get a medical source statement or residual capacity form
from your doctor (specialist) which specifies your physical and mental
limitations. Have the doctor address the work-like activities that you
are not able to perform, and to state the severity or degree of each
impairment.
4)
Be sure to follow prescribed treatment to the extent possible. If you
have a complicated case of Lyme, especially one that was not treated
early, treatment may take months or years. It's easy to get discouraged
and give up. Find a doctor who will support you and stay with it.
5)
Try to find an attorney or advocate to represent you who has experience
with Social Security disability cases based on Lyme Disease. Some of
the basics of good representation apply to these cases, however, there
are things about Lyme cases that are approached differently.
https://forsythefirm.wixsite.com/website
-----------
The
Forsythe Firm in Huntsville is available for free consultations for any
impairment leading to a Social Security disability claim. We will meet
with you without cost or obligation. If we agree to represent you, you
do not owe a fee unless you win your claim and collect past due
benefits. We can be reached at (256) 799-0297.
In
about 30 percent of Social Security disability cases, the agency will
send claimants to one of their contracted doctors for a consultative
examination (CE). This usually occurs when there is limited evidence
from the claimant's own treating doctors.
Social
Security contracts with doctors in private practice to perform these
exams. Here is generally what to expect at a consultative exam (CE):
- It will be brief. The doctor may spend as little as 15 minutes with you. Usually there are no tests.
- The doctor has been provided with a checklist of things to look for. He/She will focus only on what is on the list.
- CEs are often not helpful for the claimant.
Here are a few tips that may help the examination go smoothly:
- If
you cannot attend the examination, call the Disability Determination
Service (DDS) which scheduled the exam as early as possible. This
should only be for an unavoidable emergency. Also call the doctor's
office. (The doctor will not call DDS for you; it's important you call
them, too). Never be a No-Show.
- Arrive at the exam site 15 minutes early.
- If possible, have someone drive you to the exam.
- Take a list of all medications and dosage with you.
- Be cooperative with the doctor. Failure to do so will guarantee a bad report to Social Security. Put forth your best effort.
- Don't
try to "sell" the doctor on the fact that you are disabled and should
be on disability. The doctor cannot approve you or sign you up for
benefits. He is a fact finder and has a checklist of medical items to
check during the exam.
- Answer the doctor's questions as directly as possible. Get to the point and avoid unnecessary details or rambling.
Doctors are allowed 30 days to send in their examination reports to Social Security.
What happens if you just don't show for a CE? It almost always guarantees a denial and it may hurt you in the future appeal process, as well.
Unfortunately, disabled veterans sometimes get wrong information, even from Social Security.
Sometimes,
we have known of disabled veterans being told, in effect, that they
cannot apply for Social Security disability benefits because they are still receiving
military pay, or "still working." However, the Wounded Warrior program
permits disabled vets to apply for disability when they
are receiving active duty pay if they are on medical leave, performing
restricted duties or under therapy in a military treatment facility.
Social Security's website states the following:
Active duty status and receipt of military
pay does not, in itself, necessarily prevent payment of Social Security
disability benefits. Receipt of military payments should never stop
you from applying for disability benefits from Social Security. If you
are receiving treatment at a military medical facility and working in a
designated therapy program, or on limited duty, the government will
evaluate your work activity to determine your eligibility benefits.
Even
if you are told by someone at a Social Security office that you do not
qualify for disability benefits, check this with another qualified
source. Social Security personnel are generally well trained, hard
working and well meaning individuals who do excellent work. But, like
in all other areas of life,
mistakes are made. That's why you have attorneys and advocates to
assist you with protecting your rights under the Social Security Act and
to make sure that you get all the benefits you are entitled to, even
when a mistake is made.
If
you need to just check out a Social Security disability claim, or
appeal an unfavorable decision, please feel free to contact the Forsythe
Firm here in Huntsville for a no cost, no obligation discussion. (256)
799-0297.
