For example, let’s say you ask your treating physician to complete a form for your disability claim. Your physician tells you no because he thinks you can perform some type of work. If your physician puts a summary of that discussion in your medical record, your attorney must submit the medical record even though it is unfavorable to your claim.
How to Get Social Security Disability: Richmond Disability Attorney Corey Pollard Explains SSD Eligibility and How to Qualify for SSD Benefits in Virginia
Richmond Disability Attorney Corey Pollard Explains the Social Security Administration’s (SSA’s) 5-Step Sequential Evaluation for Determining Whether You are Eligible for Social Security Disability Insurance (SSDI) Benefits and Supplemental Security Income
Can I get Social Security disability? This is one of the most common questions we receive from potential clients who are considering applying for Social Security disability benefits in Richmond, Virginia. And like most legal questions, it is a difficult one to answer without reviewing and developing the evidence.
Whether you are applying for SSDI benefits or SSI, you have the burden of proving that you are disabled under the Social Security Act. The Social Security Administration (SSA) will find that you are disabled and award you Social Security disability benefits if you prove that you’re unable to do any substantial gainful activity because of a medically determinable physical or mental impairment that has lasted or is expected to last for a continuous period of at least 12 months. This definition of disability is found in Section 404.150 of the Social Security Act.
As you can see, Social Security disability eligibility is based on your inability to work. There is no such thing as temporary or partial disability under Social Security. The Social Security rules presume that working families have access to other resources that provide support during periods of short-term disability, though it isn’t always the case.
The SSA will consider you disabled if, due to an established physical or mental medical condition, you:
- meet or equal one of the SSA’s medical Listings; or
- cannot perform any of your past work and cannot make an adjustment to other work based on your age, education, acquired job skills, and medical impairments.
Though the definition of disability seems simple, proving that you’re eligible for Social Security disability in Richmond and across Virginia is often anything but easy. This article explains how to get Social Security disability in Richmond, Virginia – both the elements you must prove and what evidence you can use to prove them. If you have any questions about your case, or are seeking legal representation, contact Richmond disability attorney Corey Pollard for a free consultation.
The SSA’s 5-Step Sequential Evaluation to Determine Social Security Disability Eligibility
The SSA uses a sequential evaluation process to determine whether you qualify for Social Security disability benefits. This process is a series of five steps that the SSA follows in a specific order.
If the SSA finds you disabled or not disabled at a particular determination, then it stops at that step and does not move forward. If the SSA cannot find you disabled or not disabled at a step, then it continues through the sequential evaluation process.
Let’s take a detailed look at each of these components as we explain how to get Social Security disability.
Step 1 of SSD Eligibility: Am I Engaged in Substantial Gainful Activity?
At the first step of the SSD sequential evaluation process, the SSA will review your current work activity, if any.
If you are working and your earnings average more than the substantial gainful activity limit each month, then you will be found not disabled.
Section 404.1510 of the Social Security Act defines substantial gainful activity (SGA) as work that:
- Involves significant and productive physical or mental tasks and responsiblities; and
- Is done for pay or profit.
As a practical matter, being unable to do substantial gainful activity means that if you work, you do not earn more than the SGA threshold provided in the Social Security Act. In 2017 a non-blind disability claimant can earn no more than $1,170 per month or else the SSA will find that he or she is capable of substantial gainful activity. A claimant who is statutorily blind may earn up to $1,950 per month before the SSA finds that he or she is capable of substantial gainful activity. The amount changes each year.
Even if you have a medically determinable impairment that would otherwise qualify you for SSDI benefits or SSI, the Social Security Administration will deny your claim if you’re earning more than the SGA working.
If you are not working or your earnings are less than SGA, then the SSA will proceed to step two of the SSD eligibility process.
How Do I Prove That I Am Not Engaged in Substantial Gainful Activity?
There are three ways to prove that you are not working, or that if you are, your earnings are below the SGA level for Social Security disability:
Your testimony. At hearing your disability lawyer will ask you whether you have worked since applying for SSD benefits. If you have worked, a good attorney will ask you to describe all the problems you had in performing that job, the accommodations you received on that job, and, why you can no longer do that job.
Your pay stubs. If you have worked, provide your attorney with copies of all pay stubs that you’ve received since filing for disability benefits. Your attorney an use these earnings to show that you haven’t been engaged in SGA.
Your Social Security disability earnings report. The SSA will produce your earnings history from the IRS. Your attorney can use these reports to prove that you were not engaged in SGA during the period in question
Step 2 of Determining Social Security Disability Eligibility: Is Your Physical or Mental Condition Severe?
If the SSA determines that you’re not engaging in substantial gainful activity then it will evaluate your medically determinable physical and mental impairments to determine if any of your health conditions are severe.
A medically determinable mental or physical impairment is a condition that results from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. In evaluating your conditions, the SSA will look for medical evidence consisting of signs, symptoms, and laboratory findings.
In other words the SSA will review your medical records and reports to determine whether you have a medically determinable impairment. Though your symptoms and subjective pain complaints will play an important role at hearing, these symptoms alone are not enough for the SSA to find that you have a medically determinable impairment. The SSA needs to see an official diagnosis from a health care provider. This means you should get medical treatment consistently to increase your likelihood of success in your disability claim.
When Does Social Security Consider a Medical Condition Severe?
The SSA will find that a medical impairment is severe if it interferes with basic work-related activities.
Basic work-related physical activities include: lifting; sitting; standing; walking; carrying; pushing; pulling; bending; crouching; kneeling; crawling; and, being exposed to hazards and temperature extremes.
Basic work-related mental activities include: the ability to make simple, work-related decisions; the ability to understand, remember, and carry out simple instructions; the ability to respond appropriately to supervisors, coworkers, and the general public in a work setting; and, the ability to deal with changes in routine at work.
As your Richmond Virginia disability lawyer we’ll work on developing the evidence as it relates to your ability to perform basic work-related activities.
The Social Security Disability Duration Requirement: How Long the Medical Impairment Must Last to Qualify for SSD Benefits
Unless your physical or mental disability is expected to result in death, it must have lasted or must be expected to last for at least one year. This is a continuous period; you cannot add up one month here and another few months there.
The SSA refers to this as the duration requirement. And it is found in Section 404.1409 of the Social Security Act.
So for example, if you suffer a severe leg fracture that keeps you bedridden for several months, your claim may still be denied. This is because the SSA will determine that you have not met the duration requirement and that your fracture may heal before you reach the 12 month period.
There is however one exception to the duration requirement: blindness. SSI claims based on blindness do not have to satisfy the duration requirement.
How Do I Prove That I Have a Medically Determinable Impairment that is Severe under the Social Security Act?
In addition to your testimony, the SSA will consider medical records and reports to determine whether you have a medically determinable severe impairment.
As your disability attorney, we work with you to obtain supportive opinions from treating medical providers that not only address the severity of your symptoms but also how long your condition is expected to last and your prognosis.
Step 3 of the SSD Eligibility Process: Do You Have a Medical Condition that Meets or Equals a Listing?
At the third step of the SSD eligibility determination, the SSA will evaluate your medical conditions to determine whether you meet a Listing. The SSA keeps a listing of medical criteria that are considered to be so severe that you are disabled if your medically determinable physical or mental impairment matches them. If you are found to have an impairment that meets or equals a listing, then you will be found disabled without having to move forward to the next step.
Before Steps 4 and 5 of the Social Security Disability Eligibility Evaluation: Determining Your Residual Functional Capacity (RFC)
If the SSA finds that you do not meet a Listing, then it will assess your residual functional capacity (RFC) before moving to step four of the Social Security disability eligibility process.
Your RFC is an assessment of your maximum ability to do sustained work-related physical and mental activities on a regular and continuing basis despite the limitations and restrictions. In other words, it is a summary of the type of work you can do on a full time basis (8 hours a day, 5 days a week) despite the limitations and restrictions caused by your medically determinable impairments.
Limitations refer to activities that you are physically unable to do on a sustained basis. Restrictions refer to activities that you are medically advised to avoid on a sustained basis.
How Does Social Security Disability Evaluate My Physical RFC?
The SSA will determine your exertional capacity after considering your limitations and restrictions of physical strength. The SSA looks at your abilities to perform each of seven strength demands: walking; lifting; standing; sitting; carrying; pushing; and, pulling.
How Does Social Security Disability Evaluate My Mental RFC?
Your nonexertional capacity considers all work-related limitations and restrictions you have that do not depend on your physical strength: These include your abilities to perform physical activities like stooping, climbing, reaching, handling, seeing, speaking, and hearing. They also include your ability to understand and remember instructions, respond appropriately to others, maintain time, attendance, and pace, and tolerate environmental factors.
What Medical Evidence Will Social Security Disability Consider When Determining My RFC?
In 2015 the SSA changed its rules and regulations to require you or your disability lawyer to submit all records that relate to your claim. A document “relates” to your claim if it has a causal connection to your medical conditions, earnings, or work history. You or your disability attorney must submit the record even if it hurts your case.
To get Social Security disability in Richmond, Virginia, you must have supportive medical evidence. Most, if not all, disability claims are decided on the basis of the medical evidence received from health care providers who are acceptable medical sources.
The SSA needs timely, accurate, and sufficient medical records from your treating health care providers to decide if you’re disabled. Here is what we mean:
Timely: When you file for SSDI or SSI benefits, the SSA will ask you for your alleged onset date. This is the date that you allege you became unable to work full time because of your medical impairments. I consider records timely if they cover the period from 12 months before your alleged onset date of disability through the present. Sometimes older records are necessary too. I determine that on a case by case basis.
Accurate: Your medical records must show your actual diagnosis and provide objective and subjective support for the diagnosis. Often doctors are in a hurry and make mistakes in the office note, which is sometimes not written until one week or more after your appointment. This is why you should review your medical records with your attorney. If you see a mistake you can address it with your doctor at your next appointment.
Sufficient: To be sufficient a medical report needs to do more than just state the diagnosis. Your doctor must provide enough support for his or her finding so that the SSA can understand the basis of the diagnosis and opinion, and use the record to reach a determination. The more detailed your medical reports, the better your chance of proving you’re disabled under the Social Security Act. Further, the medical report should be in neat handwriting or typed.
Seem confusing? Let’s break it down more. Here is what the SSA needs from your treating medical providers:
- Your medical history, including all impairments;
- Clinical findings (such as what your doctor observed at each appointment, both physically and mentally);
- Laboratory findings (such as blood pressure readings for HTN and cardiac cases and blood lab results for diabetes cases);
- Diagnostic findings (such as x-rays, MRIs, nerve conduction studies, and CT scans);
- Your official diagnosis;
- A summary of your treatment (such as medication, injections, surgery, counseling, etc) and your response to each treatment;
- Your prognosis (good, bad, or fair);
- Whether you need future medical treatment and, if so, what type;
- A statement of what you can do physically (i.e. how much lifting, standing, walking, bending, lifting, and sitting you can do);
- A statement of what you can do mentally (i.e. can you follow directions, be around people, or stay focused for an entire workday or workweek); and,
- A statement of what type of jobs you could do, if any.
Even if your doctor does provide the above information, the SSA can deny our claim. We see this happen often when the underlying medical records are inconsistent with the doctor’s statement about what you can and can do.
For example, your doctor may provide a written statement that you can not sit, stand, or walk for a long time and that you need a cane. If his treatment notes, however, state that you are walking fine and do not have pain, the SSA may refuse to give weight to his opinion.
This happens a lot because doctors are concentrating on their area of specialty and your specific problem at that visit. They are not focused on your Social Security claim and what is necessary to prove you’re disabled. They are there to diagnose and treat you. Many doctors dislike having to deal with paperwork – whether it’s from insurance companies, Virginia workers’ compensation, long term disability, lawyers, or patients. As a result few doctors have office notes that are as detailed as you and the SSA would like.
Your orthopedic surgeon may write down that you’re mental health is “normal” even though you’ve had crying spells the past week. Why? Because your ortho surgeon is worried about your back and is not treating you for your depression. The SSA can then use this “normal” finding against you and your psychiatrist’s opinion that you’re unable to work.
The best way to combat unintended inconsistencies in the record is to tell all of your health care providers about all of your medical impairments. You should also tell them that you have a pending SSD claim and give them the basics of what you must prove to get win your case. The more specific their reports, the better for you.
Does Social Security Disability Give More Weight to Certain Doctors?
Health care has changed a lot. In the past you would have a primary care physician that you would see when you were sick or hurting. You would build a relationship with your doctor over many years.
You should also provide your disability attorney with copies of all school records and vocational records in your possession, including employee personnel files. This is even more important if you are alleging that you can’t work due to intellectual disability, bipolar disorder, depression, anxiety, specific learning disorder, or schizophrenia.
Step 4 of the Social Security Disability Evaluation: Can You Do Any of Your Past Relevant Work?
At step four the SSA will compare your RFC to the RFC of your past relevant work. If you’re capable of performing any of your past relevant work, then the SSA will find that you are not disabled. If the SSA finds you’re not capable of performing any of your past relevant work, then the disability evaluation continues to step five.
Step 4 of the SSD evaluation has two parts:
1) Do you have the capacity to perform your past relevant work as you actually performed it?
2) Do you have the capacity to perform your past relevant work as it is typically performed in the national economy?
For example, some of you may have worked as cashiers in the past. This job is classified as light exertional work according to the Dictionary of Occupational Titles.
Your employer, however, may have asked you to do heavy stocking up to 50 pounds. If so, then you performed the work at the medium exertional level.
To get Social Security disability, you must prove that you’re unable to perform the work both as you actually performed it and as it is typically performed in the national economy.
What is Past Relevant Work?
The SSA uses a three-part test to determine whether a job is past relevant work:
- Earnings: Did you make enough for the job to be considered substantial gainful activity in the year you performed it?
- Did you perform the job in the past fifteen years?
- Did you perform the job long enough to learn how to do it?
If the answer is yes to all three questions, then a job is considered past relevant work.
Step 5 of the Social Security Disability Evaluation: Is There Other Work That Exists in Significant Numbers in the National Economy that You Can Make Adjustments to Considering Your Age, Education, Work Experience, and the Limiting Effects of Your Medical Conditions?
At step five of the SSA’s sequential evaluation process for disability claims, the SSA must determine whether there is other work you can adjust to based on your age, education, work experience, and physical and mental conditions. If the SSA finds you can make an adjustment to other work, then you will be found not disabled. If you’re found unable to make an adjustment to other work, you will be found disabled and be approved for SSD benefits.
At this step the SSA first considers the Medical-Vocational Guidelines, also known as the Grid Rules. If you meet the criteria of a certain profile then you will be found disabled.
The Grid Rules are based only on exertional imitations and restrictions. If you have nonexertional limitations, then the administrative law judge hearing your case may need to go outside of the Grid Rules to make a decision.
As a Richmond disability attorney fighting for disabled adults and children in Virginia, Maryland, and North Carolina, Corey Pollard has won many claims at step five of the disability evaluation process.
Speak with a Top-Rated Disability Attorney Who Can Help You Get Social Security Disability Benefits
If you’re unable to work because of your health, call, text, or email us today: 804-251-1620. We represent disabled adults in Richmond, Chesterfield, Hanover, Fredericksburg, Newport News, Williamsburg, Norfolk, and Virginia Beach. And we want to help you get the Social Security disability you deserve. There is no fee unless you get approved for SSD.