I was denied Social Security Disability benefits because it was determined that I can do other jobs that no longer exist!

March 29, 2021 in
long term disability social security disability

The Social Security Administration, (“SSA”), determines whether you are disabled by evaluating your impairments and the effect they have on your ability to work.

This is a complex analysis. Even if you cannot perform your past work, you still need to demonstrate that you cannot adjust to other work. If SSA finds that you can do other work, you will be denied benefits.  Unfortunately, SSA relies upon outdated job information regarding the available jobs.

First and foremost, is the analysis as to whether or not you are disabled.  This depends on whether you meet the definition of “disability” under SSA’s rules and regulations. There is a five-step process or analysis that the SSA uses to evaluate each claim and determine if you are disabled.  In general, to meet the definition of disability you must be unable to engage in the 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.

Step 1:

SSA looks at whether or not you are working. If you are working you must not be engaging in substantial gainful activity. In the year 2020, substantial gainful activity is defined as earning over $1,260 a month.  For the year 2021, substantial gainful activity is $1310 a month.  If you have no earnings or are earning under that amount then you move on to step two.

Step 2:

You must show that your impairment or impairments are severe. To be severe, your impairment(s) must have more than a minimal impact on your ability to engage in basic work activity.

Step 3:

It is determined whether your condition meets the criteria of a listing. Social Security created a list of conditions referred to as the “listings”.  If you meet the criteria of a listed condition; you will be considered disabled automatically.

Step 4:

Your residual functional capacity is determined. This is an evaluation of your level of disability as measured by your functional ability to engage in basic work activity considering your impairments.   The first question that must be answered is whether you are able to do any of your past relevant work considering your residual functional capacity. If you are not deemed able to return to your past relevant work, then you move on to step five.

Step 5:

The last and final step, it is determined whether you can return to any other work within your residual functional capacity, considering your age, education and work experience.  If there are no unskilled jobs that you can do within your residual functional capacity, (and transferability of skills is not an issue), then you will be considered disabled.  This is where problems arise.

The problem is that SSA relies upon the Dictionary of Occupational Titles for its job data. Yet, the Dictionary of Occupational Titles is obsolete. It was last updated in the early 1990s and most of the job data within it is from the 1970s and 1980s. The SSA recognizes this issue and has been working on a new source of job data which has been an ongoing project called the Occupational Information System.  It will gather data primarily from the Occupational Requirement Survey which collects data from many sources including the Occupational Information Network which the Bureau of Labor and statistics used to replace the DOT.   The Occupational Information System is projected to be implemented in 2024.

What happens in the meanwhile? For present-day hearings, the administrative law judge and vocational expert at your hearing will continue to rely upon the Dictionary of Occupational Titles for job data when evaluating your capability to adjust to other work in the national economy.  If it is found that you can adjust to other jobs, you will be found not disabled.  The use of the Dictionary of Occupational Titles is flawed because it is no longer reliable. Many jobs do not exist today, or at least do not exist in the same form that they did in the 1970’s and 1980’s which is reflected in the Dictionary of Occupational Titles.  Many jobs that used to be unskilled have evolved and require skills such as use of a computer.

For example, Surveillance System Monitor is a job that used to be an unskilled job that involved monitoring television monitors at public transportation sites and notifying the authorities if action was needed.  Today, TSA has taken over this role and the function of a TSA agent involves more than viewing TV monitors, it involves investigating and working with law enforcement.  This is certainly not an unskilled job.

Another example is Cutter and Paster.  This is somebody that tears or cuts out articles or advertisements from newspapers or magazines using a knife or scissors and puts a label on the clipping.  This job does not exist today but instead is replaced by a general office clerk. An office clerk position involves several administrative tasks like answering phones, filing, use of a computer.  Again, this would be a skilled job.

One more example is a Call Out Operator.  This person compiles credit information, uses the telephone and copies the information onto a form to update the credit record on file.  Today this job is akin to a credit authorizer, checker, and clerk, and involves authorizing credit charges, keeping records of charges and payments, evaluating computerized credit records, and deciding whether to approve credit.  Again, this is no longer an unskilled job.

These are just a few examples of sedentary, unskilled jobs which vocational experts cite as jobs that are available and that claimants can adjust to in the national economy.  The problem is that they no longer exist in the same way that they used to.  They have been replaced by jobs that require skills, and often are not even sedentary any longer.  Yet, claimants are being denied benefits based upon the existence of these obsolete jobs which appear in the Dictionary of Occupational Titles.  Thus, it is important to have experienced counsel who can challenge the vocational expert’s testimony at your hearing.

If you believe you have a disability that prevents you from working, applying for social security disability is likely the right choice for you.  At the LaBovick Law Group, we provide free consultations where we will review the facts of your case to determine if this is the right program for you.  Call us today at (561) 623-3681 for your free evaluation.

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