Will Social Security consider my impairment to be a disability?
Keep in mind that every law that uses the word “disability” defines it in a slightly different way. For example, a person may be disabled under, say, the Americans with Disabilities Act, and not disabled under the Social Security Act. A person is considered “disabled” as defined in the Social Security Act if he or she cannot engage in substantial gainful activity as a result of a severe medically determinable impairment that will last for 12 months or more or result in death.
Almost every word in that definition has a specialized meaning and has been litigated at some point in the federal court system!
In order to determine if you meet this definition, Social Security has developed a five-step evaluation process. If you can be found either disabled or not disabled at any step, the process stops there.
Step 1 asks the question of whether you have worked since you say you became disabled. If that work is such that it is considered “substantial gainful activity” (a term that has a complicated definition) then you may not be disabled. Remember that the definition of disability under the Social Security Act requires that your impairments keep you from working. Therefore, no matter what is wrong with you, if you are able to do “substantial gainful activity” you are not considered disabled under Social Security’s definition. You may have continued working for a while after you developed your impairment. Until you get to the point where it actually stops you from doing “substantial gainful activity,” you cannot be considered disabled.
Step 2 asks whether you have a “severe” impairment. What is medically severe might not be considered legally severe at this step. An impairment is considered “severe” if it prevents you from doing some aspect of work, such as lifting, sitting, standing, walking, moving about, thinking, concentrating, handling instructions, working with other people, etc. If your impairment doesn’t cause you any of these types of limitations, it is not “severe” no matter how bad it might be from a medical standpoint. If you do not have any severe impairment under this definition, your claim will be denied at this step.
Step 3 asks whether your severe impairment (see Step 2 above) meets or equals one found in the Listing of Impairments found in the Social Security regulations. This is a highly technical analysis. If your impairment meets or equals one of these Listings, you are considered disabled (assuming you have gotten through Steps 1 and 2 above). If not, then the analysis proceeds to Step 4.
Step 4 first asks what limitations you have in work activities. This is called your “residual functional capacity” or “RFC.” Once your RFC is determined, the question is whether that RFC allows you to return to any of your past relevant work, which is generally work you have performed in the past 15 years. Even if that job is no longer available to you, if you could, theoretically perform it, you are not disabled.
Step 5 uses the RFC determination from Step 4 but asks a broader question. Instead of just looking at past work the question is whether you could perform any work that exists in significant numbers in the national economy. In making this analysis, your RFC, work background, age, and education are all taken into account. If, taking into account all these factors, there are no jobs existing in significant numbers that you can perform, then you will be found disabled.
What Does the Claims Process Involve?
NOTE: the following information is given for informational purposes only. Unless and until you sign a fee agreement with me, I am not representing you in your claim.
If you feel you are disabled, you should find a claim. You do this by either calling Social Security at 1-800-772-1213 or filing the claim online here.
You will be asked to complete several forms, and the initial decision can take several months. If your claim is denied, you generally have 60 days (plus 5 days mailing time) to file an appeal.
The first step in the appeal, if you filed your claim in Colorado, is to Request a Hearing before an Administrative Law Judge. In some states you must first file a Request for Reconsideration before you request a hearing.
At a hearing with an Administrative Law Judge (“ALJ”) you are given an opportunity to present your claim. This is the only opportunity you will have to actually talk with the person who will make a decision in your case. Once this hearing is over it can be difficult to present any additional evidence, so this is a very important proceeding, and it is highly recommended that you have an attorney who understands Social Security law represent you at this step.
If the ALJ denies your case, you can request review by the Appeals Council. If the Appeals Council denies your request, then you have gone as far as you can go in the administrative process and, if you wish to continue your appeals, you must file a Complaint in the United States District Court for your district.