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SOCIAL SECURITY DISABILITY LAWYER BLOG

Welcome! This site is written for Social Security disability claimants, for
their legal representatives, and for the network of people involved in the
Social Security disability claim process. I hope you find it helpful.
Free Claim Review


NEW PRW RULE WILL ECLIPSE BARNHART V. THOMAS

By Gordon Gates on April 24, 2024
Posted in Step 4, Vocational

In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court held that past
relevant work (PRW) does not have to exist in significant numbers in the
national economy to be considered at Step 4 of the Social Security sequential
evaluation.

Here is the story: Pauline Thomas worked as an elevator operator for six years,
until her job was eliminated. She eventually applied for disability insurance
benefits under Title II of the Social Security Act. After a hearing, an
administrative law judge denied her disability claim, finding that Ms. Thomas
had the capacity to return to her past relevant work as an elevator operator.
The judge rejected the claimant’s argument that, since jobs as an elevator
operator no longer exist in significant numbers in the national economy, she
could not return to her past relevant work.

The Court had to interpret 42 U.S.C. 423(d)(2), which states in part:

> An individual shall be determined to be under a disability only if his
> physical or mental impairment or impairments are 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… “work which exists in the national
> economy” means work which exists in significant numbers either in the region
> where such individual lives or in several regions of the country.

At issue was whether the phrase “which exists in the national economy” applies
to previous work, or only applies to other work. The Court decided 9-0 that the
phrase did not apply to previous work. As a result, the Court upheld the SSA’s
finding that the claimant could return to her previous work, even though those
jobs don’t exist in significant numbers anymore.

The holding of the Thomas case remains in force. The phrase “which exists in the
national economy” does not apply to past relevant work, so there is no
requirement that a past job exist in significant numbers. As a practical matter
however, by reducing the past relevant work period to 5 years, Social Security
will rarely need to consider obselete jobs like elevator operator as PRW. That
was one of the stated goals of the rule change.

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PRW REDUCED TO 5 YEARS, EFFECTIVE JUNE 8TH

By Gordon Gates on April 18, 2024
Posted in Practice notes, Step 4, Vocational

Social Security published a final rule in today’s Federal Register, reducing the
period for past relevant work (PRW) from 15 years to 5 years. The rule becomes
effective June 8, 2024.

Step 4 of the disability sequential evaluation considers a person’s ability to
perform their past relevant work (both as actually performed and as generally
performed in the national economy). At Step 5, Social Security considers whether
a person has acquired job skills from past relevant work that would transfer to
a significant range of other jobs. The new rule will narrow the jobs included in
PRW to just the past 5 years. It is a signifant change in the rules.

Additionally, the final rule states that Social Security will not consider past
work that started and stopped in fewer than 30 calendar days to be PRW.

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MISSED DAYS AT WORK – SCZEPANSKI V. SAUL

By Gordon Gates on April 16, 2024
Posted in Vocational

There is an interesting wrinkle on the issue of missed days at work in the
Second Circuit case of Sczepanski v. Saul, 946 F. 3d 152 (2nd Cir. 2020). That
case probably merits wider attention.

During the ALJ hearing in that case, the vocational witness was asked about
tolerated levels of missed days, specifically during the probationary period of
a new job. The vocational witness testified that missing just one day per month
would not be tolerated during the probationary/training period. The ALJ,
however, declined to specifically consider limitations in the probationary
period. The Second Circuit remanded the case, finding that the claimant’s
inability to complete a probationary period of a new job was relevant to the
Step 5 evaluation of whether the claimant could perform work in the national
economy.

Last Spring, three years after the Second Circuit decision, Social Security
issued an Emergency Message (EM-23021) for pending disability cases that may be
affected by the decision. There is an excellent post by the Empire Justice
Center on the topic.

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MISSED DAYS AT WORK

By Gordon Gates on April 8, 2024
Posted in Vocational

Often at a Social Security disability hearing, there is testimony from the
claimant and the vocational witness about missed days at work.

Many disability claims at the hearing level are decided on the basis of missed
work days. This is because a claimant’s symptoms and limitations often do not
fit neatly into Social Security’s physical RFC categories. And for mental
impairments with symptoms that are not at listing-level severity, the issue of
missed days is sometimes the most practical basis for an award of benefits.

Claimants frequenty have “bad days,” when their symptoms flare. For some it is
more often than not, but for others it might be a bad day every week or two.
Quantifying these bad days, and preparing the client to testify about this
issue, is an important part of the preparation for hearing. Any supporting
evidence of bad days, beyond the claimant’s testimony is highly relevant, and
can help to persuade the judge on this issue. That is why I ask some of my
clients to keep a journal.

Typically, a vocational witness will testify that 1 absence from work a month
would be tolerated by employers, but that two or more absences would not be.

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FEE CAP TO BE RAISED TO $9,200

By Gordon Gates on March 30, 2024
Posted in Practice notes

The fee cap imposed by Social Security on the 25% Representative contingency fee
for direct payment of successful disability claims will be raised from $7,200 to
$9,200 this Fall. Here is the press release from Social Security.

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EVIDENCE FROM NONMEDICAL SOURCES

By Gordon Gates on March 18, 2024
Posted in Tips

Social Security relies primarily on medical evidence to evaluate disability
claims. However, they also look at nonmedical evidence, including the forms that
claimants complete during the disability evaluation process. See 20 CFR
404.1513(a)(4).

Nonmedical evidence can also include a statement from parent, spouse, other
family member, or a friend. That statement is typically 1 or 2 typed pages. It
should be typed; don’t make the judge read your handwriting! It often tells the
story of how the claimant used to be, what changed medically, and what life is
like now.  There is a genuineness to these statements, and they are often very
moving. When you have the right person with the right story to tell, it can be
powerful evidence.

For example, I have a case where my client simply is unable to perform their
daily activities. Their mother comes to the home several times a week to clean,
prepare meals, and do whatever needs to be done, because the client simply
cannot do it. The typed statement from the mother is strong evidence regarding
the claimant’s daily activities, which address the severity of their functional
limitations. Presenting that evidence as a narrative, in the mother’s own words,
is much more powerful than providing the same information on one of Social
Security’s forms.

The statement should be in the record well ahead of the hearing, so it is there
when the judge reviews the claim prior to the hearing. 

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CHECK SHEET FOR “ON THE RECORD” REQUESTS

By Gordon Gates on March 4, 2024
Posted in ALJ hearings, Practice notes, Tips

Social Security now provides a check sheet, in the form of an online fillable
PDF, for on the records requests.

An “on the record” (OTR) request asks Social Security to grant your case on the
record without a hearing. This request is for claims awaiting a hearing at the
Office of Hearings Operations (OHO). On the record decisions can only be fully
favorable. You cannot lose your case on the record. Rather, if the OTR request
is denied, your claim simply stays in line for a hearing.

OTRs are favored by Social Security, when appropriate. Why go though the hearing
process, and all the work to prepare a claim for hearing, if the claim is
definitely going to be granted? Cases granted on the record free up resources
for other claims.

In my view, OTR requests should only be filed in a minority of cases, where a
favorable result is mandated by the evidence and by Social Security’s rules and
regulations. The medical evidence in the record should be up to date before an
on the record request is filed.

An OTR request is certainly appropriate 1) if the claimant meets a listed
impairment, or 2) if PRW is clearly precluded at Step 4 and the claim would be
decided favorably at step 5 by direct application of the Medical-Vocational
Guidelines. Such claims are clear-cut winners. Claims that require a decision
based on subjective evidence (such as the level of the claimant’s pain), or
claims that would require vocational evidence, are not strong candidates for an
on the record decision.

Next time you are considering an on the record request, check out the check
sheet.

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ALLOWANCE RATES FOR DISABILITY CLAIMS

By Gordon Gates on February 20, 2024
Posted in ALJ hearings, Practice notes

I first starting tracking allowance rates on this blog over 15 years ago. Back
in 2008 and 2009, ALJ allowance rates were steady at 63%. From that level, there
has been a significant slide in allowance rates at the ALJ level:

 * 62% in 2010
 * 58% in 2011
 * 53% in 2012
 * 48% in 2013
 * 45% in 2014
 * 45% in 2015
 * 46% in 2016
 * 47% in 2017
 * 45% in 2018
 * 45% in 2019
 * 49% in 2020
 * 51% in 2021
 * 51% in 2022
 * 45% in 2023

To be fair, allowance rates at the initial level of review have crept up from
the 2010 baseline of 35% of initial claims to 38% in 2022 and 39% in 2023. Since
there are many more initial claims than claims at the hearing level, it is a
notable increase.

Those of us practicing Social Security disability law are well aware of the
changes in allowance rates at all levels over the past 15 years. ALJ allowance
rates slid downward in the years after 2010, stabilizing at around 45%. They
trended up slightly during the COVID era, and are now back down to 45% again,
which seems to be the new baseline.

This is not just an abstract discussion. With 200,000 to 300,000 claims at the
hearing level every year, the reduction of allowance rates means tens of
thousands of claimants have their disability claims denied instead of granted
each year. Not every disability case is a clear winner or a clear loser. For
those claims in the middle, the chances of receiving benefits at the hearing
level are now significantly lower.

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FISCAL YEAR 2023 WATERFALL CHART

By Gordon Gates on February 12, 2024
Posted in Practice notes

Each year, the Social Security Administration releases statistics about the
disability and SSI programs in an easy-to-understand format, called the
“waterfall” chart. The waterfall chart shows the percentage of claims approved
and denied at the various levels of review.

The chart shows what claimants can expect, statistically, for their claim for
Social Security disability benefits. I like this chart, and have posted an
annual waterfall chart dating back several years.

For comparison, here is the waterfall chart from last year and the year before.

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TIMETABLE FOR PROPOSED RULE CHANGE

By Gordon Gates on February 9, 2024
Posted in Vocational

Last Fall the Social Security published a proposed rule change that would reduce
the period of PRW from 15 years to 5 years. As I have said before, I strongly
support that change, which would reduce the paperwork burden of disability
claims and lead to more realistic determinations.

The Federal Register published today its semiannual Unified Agenda of Federal
Regulatory and Deregulatory Actions, which describes regulatory actions across
the governent. That document on page 9525 provides a timeline for final action
on the SSA proposed rule, listing April 2024 for final action on the proposed
rule. That timeline had not been explicitly set forth before, although the
proposed rule’s discussion of its expected economic impact assumed an
implementation date of May 2024.

Anyway, now we know. Look for final action on the proposed rule in April.

3/14/2024 Update: The proposed rule has been submitted to OMB for approval.

4/18/2024 Update: The final rule has been published in the Federal Register. It
will become effective on June 8, 2024.

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ABOUT THE AUTHOR

Gordon GatesAttorney

Gordon Gates specializes in Social Security disability law, and he handles
claims at every level of the Social Security disability claim process. He
assists clients…

Gordon Gates specializes in Social Security disability law, and he handles
claims at every level of the Social Security disability claim process. He
assists clients with initial applications for disability benefits, with appeals
of denied claims, and with hearings by an administrative law judge.

Gordon has successfully appealed unfavorable administrative law judge decisions
the Social Security Appeals Council and to U.S. District Court (District of
Maine) to have those claims remanded for new hearings.

Gordon attended Maine Maritime Academy and Tulane University Law School. At
Tulane, he served as Senior Articles Editor of the Tulane Law Review and
graduated magna cum laude. He was admitted to practice law in Maine in 1991.
Since 2005, he has concentrated his law practice on Social Security disability
and SSI cases.

Gordon is the publisher of Social Security Disability Lawyer, a nationally-read
legal blog. He presented at the Fall 2010 conference of National Organization of
Social Security Claimants’ Representatives (NOSSCR) on the topic of Writing
Hearing Briefs for the ALJ.

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