ParaRegs-Disability-Sequential
Evaluation
|
1317 Past
Relevant Work / Work availability |
|
Code |
Effective |
ParaReg Text |
|
|
The
Social Security Administration (SSA) issued the following Social Security
Ruling (SSR) in regards to the Sequential Evaluation Process. If a
Title XVI claimant is not working or his or her work does not demonstrate the
ability to engage in any substantial gainful activity (SGA) during the period
in which disability is alleged, we give primary consideration to the severity
of the individual's impairment(s). In addition, if medical considerations
alone are not determinative of the issue of disability for a childhood
disability claimant or for a Title XVI claimant age 18 or older, we consider
the ability to do past relevant work and the individual's age, education,
training and work experience, as they relate to the ability to perform any
other work. The
following evaluation steps are followed in sequence shown, but when a
determination or decision that an individual is or is not disabled can be
made at any step, evaluation under a subsequent step is not necessary. Is the
Individual Engaging in Substantial Gainful Activity? When
an individual is actually engaging in SGA or did so during any pertinent
period, and there is no possibility of establishing a period of disability
which ended prior to the date of the decision, a finding shall be made
without consideration of either medical or vocational factors that the
individual is not under a disability. When a Title XVI claimant is not (or
was not) actually engaging in SGA, primary consideration is given to the
severity of the individual's impairment(s). Does
the Individual Have a Severe Impairment? Fundamental
to the disability determination process is the statutory requirement that to
be found disabled, an individual must have a medically determinable
impairment "of such severity" that it precludes his or her engaging
in any substantial gainful work. A finding of ability to engage in SGA,
therefore, may be justified on the basis of medical considerations alone when
a medically determinable impairment(s) is found to be not severe. An
impairment is not severe if it is a slight abnormality or a combination of
slight abnormalities which would have no more than a minimal effect on the
individual's physical or mental ability(ies) to perform basic work activities. When an impairment is not severe, a finding of "not
disabled" is made irrespective of an individual's age, education, or
work experience. When
assessing the severity of multiple impairments, the adjudicator must evaluate
the combined impact of those impairments on an individual's ability to
function, rather than assess separately the contribution of
each impairment to the restriction of function as if each impairment
existed alone. When multiple impairments, considered in combination, would
have more than a minimal effect on the ability to perform basic work
activities, adjudication must continue through the sequential evaluation
process. The
impairment severity requirement cannot be satisfied when medical evidence
shows that the impairment(s) has a minimal effect on a person's ability(ies) to perform basic
work activities, that is, when he or she has the abilities and aptitudes
necessary to do most jobs. Examples of these are sitting, standing, walking,
lifting, carrying, handling, reaching, pushing or pulling; seeing, hearing,
and speaking; understanding, carrying out, and remembering simple
instructions; use of judgment, responding appropriately to supervision,
coworkers, and usual work situations; and dealing with changes in a routine
work setting. It is
reasonable to conclude, in the absence of contrary evidence, that an individual whose impairments do not preclude the
performance of basic work activities, is able to perform his or her past
relevant work. However, if medical evidence establishes only a slight abnormality(ies) that would have
no more than minimal effect on the individual's ability to do basic work
activities, but evidence shows that the person cannot perform past relevant
work because of the unique features of that work, a denial at the "not
severe" step of the sequential evaluation process is inappropriate, and
adjudication should continue through subsequent steps in the process. Does
the Individual Have an Impairment(s) Which Meets or Equals the Listing? The
level of severity described in the Listing is such that an individual who is
not engaging in SGA and has an impairment or the
equivalent of an impairment described therein is generally considered unable
to work by reason of the medical impairment alone. Thus, when such an
individual's impairment or combination of impairments meets or equals the
level of severity described in the Listing, and also meets the duration
requirement, disability will be found on the basis of the medical facts alone
in the absence of evidence to the contrary (e.g., the actual performance of
SGA, or failure to follow prescribed treatment without a justifiable reason).
The claimant's impairment(s) must meet or equal a listed impairment for a
favorable determination or decision to be based on medical considerations
alone. Evaluating
Medical Equivalence -- Medical Judgment Required For an
impairment to be found to be equivalent in severity to a listed impairment,
the set of symptoms, signs and laboratory findings in the medical evidence
supporting a claim must be compared with, and found to be equivalent in terms
of medical severity and duration to, the set of symptoms, signs and
laboratory findings specified for listed impairment. When the individual's
impairment is not listed, the set for the most closely analogous listed
impairment is used. Where
an individual has a combination of impairments, none of which meets or equals
a listed impairment, and each impairment is manifested by a set of symptoms
and relevant signs and/or abnormal laboratory findings, the collective
medical findings of the combined impairments must be matched to the specific
set of symptoms, signs, and laboratory findings of the listed impairment to
which they can be most closely related. The mere accumulation of a number of
impairments will not establish medical equivalency. In no case are symptoms
alone a sufficient basis for establishing the presence of a physical or
mental impairment. Any
decision as to whether an individual's impairment or impairments are
medically equivalent of a listed impairment must be based on medical evidence
demonstrated by medically acceptable clinical and laboratory diagnostic
techniques, including consideration of a medical judgment about medical
equivalence furnished by one or more physicians designated by the Secretary.
The Disability Determination Services physician's documented medical judgment
as to equivalency meets this regulatory requirement. Interrelationship
of Medical and Vocational Factors: Title II Worker or Childhood Disability Beneficiary/Title
XVI Claimant Age 18 or Older When a
determination cannot be made on the basis of the medical factors alone (i.e.,
when the impairment falls short of the level of severity depicted by the
Listing, yet has more than a minimal effect on the ability to perform basic
work-related functions), the sequential evaluation process must continue with
consideration of the vocational factors in the claim. Evaluation
under 20 CFR §416.920(e) and (f) requires careful consideration of whether
the individual can do past relevant work (PRW), and if not, whether he or she
can reasonably be expected to make a vocational adjustment to other work.
When the individual's residual functional capacity (RFC) precludes meeting
the physical and mental demands of PRW, consideration of all the facts of the
case will lead to a finding that (1) the individual has the functional and
vocational capacity for other work, considering the individual's age,
education, and work experience, and that jobs which the individual could perform
exist in significant numbers in the national economy, or (2) the extent of
work that he or she can do, functionally and vocationally, is too narrow to
sustain a finding of ability to engage in SGA. Since
the severity of the impairment must be the primary basis for a finding of
disability, this step of the evaluation process begins with an assessment of
the claimant's functional limitations and capacities. Then a determination or
decision must be made as to whether the individual retains capacity to
perform past relevant work. An evaluation is then made of age, education,
work experience and training. Consideration of the following principles will
help identify the key issues for resolution with respect to these factors. No
single factor should be considered as conclusive. They should be applied in
combination to the range of work that remains within the claimant's RFC The
vocational factors as well as RFC are described in detail as follows: > RFC -- RFC is the remaining ability to perform work-related
physical and mental activities. The claimant's functional capacity must be
defined in terms of the claimant's ability to function in a work setting.
When multiple impairments are involved, the assessment of RFC reflects the
restrictions resulting from all impairments (both severe and not severe
impairments). This assessment is based on all relevant evidence pertaining to
RFC consistent with appropriate clinical and laboratory findings. Assessment of physical capacities (e.g., strength and exertional capabilities) includes an evaluation of the
individual and indicates his or her maximum RFC for sustained activity on a
regular basis. Such assessment also includes an evaluation of the ability to
perform significant physical functions such as walking, standing, lifting,
carrying, pushing, or pulling, and such other physical traits and sensory
characteristics as reaching, handling, seeing, hearing, and speaking insofar
as limited capacity to perform these activities may affect the individual's
capacity for work for which he or she would otherwise be qualified. Any medically determinable impairment(s) not resulting in exertional limitations (such as certain mental, sensory
or skin impairments) must be considered in terms of the limitations resulting
from the impairment. When an individual has such impairment(s) in addition to
an exertional impairment(s), remaining functional
capacity must be assessed in terms of the degree of any additional narrowing
of the individual's work-related capabilities. The assessment of impairments
because of mental disorders includes consideration of such factors as the
ability to understand, to carry out and remember instructions, and to respond
appropriately to supervision, coworkers, and customary work pressures in a
routine setting. The RFC assessment is based primarily on the medical
findings, i.e., the symptoms, signs, and laboratory results, which must be
complete enough to permit and support the necessary judgments concerning the
individual's physical, medical, and sensory capacities and any environmental
restrictions. Descriptions and observations of the claimant's restrictions by
medical and nonmedical sources in addition to those
made during formal medical examinations must also be considered in the
determination of RFC. Where no issue with respect to specific physical or mental
capacities is raised by the allegations of the individual or the evidence
obtained, the individual is considered to have no restrictions with respect
to those capacities. The individual has the burden of proving that he or she
is disabled and of raising any issue bearing on that determination or
decision. For the purpose of determining the exertional
requirements of work in the national economy, jobs are classified as
"sedentary," "light," "medium,"
"heavy," and "very heavy." Such terms have the same
meanings as are used in the Dictionary of Occupational Titles (DOT),
published by the Department of Labor (DOL). In order to evaluate the
claimant's skills and to help determine the existence in the national economy
of work the claimant is able to do, occupations are classified as unskilled,
semiskilled, and skilled. For classifying these occupations, materials
published by the DOL are used. > Age -- The term "age" refers to chronological
age and the extent to which it affects the individual's ability to adapt to a
new work situation and engage in work in competition with others. The following age classifications are established in 20
CFR §416.963: younger person, person approaching advanced age, and person of
advanced age. These designations of age are an expectancy
only, not arbitrary limits, and may not be crucial in a particular
case. Age categories are not applied mechanically in borderline cases. > Education and Training -- Education generally refers to
formal schooling; training refers to skills and knowledge acquired on the job
or through general experience in an industry or field of work. 20 CFR
§416.964 establishes the following classifications of educational levels:
illiteracy, marginal education, limited education, high school and above, and
inability to communicate in English. Training that is vocationally significant prepares an
individual to do a specific job or provides background to do a number of jobs
in the same field. Training that is not reflected in the individual's actual
work experience would raise questions as to its adequacy and current
usefulness to the individual. Content, duration, and recency
should be considered in determining the scope and application of training and
its current usefulness. Normally, if an individual completed training more
than 15 years prior to the point at which the claim is being considered for
adjudication (or when the earnings requirement was last met if earlier) and
did not make use of it in his or her work, it would not affect the claimant's
vocational outlook at the present time. Moreover, even if completed with a
15-year period, training would not ordinarily be expected to qualify an
individual for more than entry level (e.g., at the apprenticeship or lowest
beginning level) occupations. > Experience -- The jobs a person has done, the length of
time spent at them, and the recency of the work are
major factors in determining his or her ability to work. Work experience is
relevant when it was performed within the pertinent 15-year period, lasted
long enough for the individual to learn the job, and consisted of SGA. Work
experience must be examined in the light of available knowledge of the
physical and skill demands of different kinds of work in order to evaluate
the effect of the impairment on the person's ability to return to past
relevant work or to utilize remaining capacities in other jobs. The
RFC assessment is used to determine whether an individual can perform past
relevant work or -- considering an individual's age, education and work
experience -- other work which exists in the nation's economy. > Capacity to Do Past Relevant Work -- The RFC to meet the
physical and mental demands of jobs a claimant has performed in the past
(either the specific job a claimant performed or the same type of work as it
is customarily performed throughout the economy) is generally a sufficient
basis for a finding that the individual is not disabled. Past work experience
should be considered carefully to assure that the available facts support
conclusions regarding the claimant's ability or inability to perform this
work. Where an individual with a marginal education and long
work experience of 35 years or more limited to the performance of arduous
unskilled labor is not working, and is no longer able to perform such labor
because of a severe impairment(s), such an individual will generally be found
to be disabled. (See 20 CFR §416.962.) Also a person generally will be found
disabled if he or she has a severe impairment of any nature, is of advanced
age, has a limited education, and has no relevant work experience. If the individual is able to meet the physical and mental
demands of past relevant work, he or she should be found not disabled.
However, the inability to do past relevant work is not in itself a basis for
a finding of disability. > Capacity to Do Other Work -- If an individual cannot
perform any past relevant work because of a severe impairment(s), but the
remaining physical and mental capacities are consistent with meeting the
physical and mental demands of a significant number of jobs (in one or more
occupations) in the national economy, and the individual has the vocational
capabilities (considering age, education, and past work experience) to make an
adjustment to work different from that performed in the past, it shall be
determined that the individual is not disabled. However, if an individual's
physical and mental capacities in conjunction with his or her vocational
capabilities (considering age, education and past work experience) do not
permit the individual to adjust to work different from that performed in the
past, it shall be determined that the individual is disabled. The
assessment ability to engage in SGA involves the evaluation of such factors
as the functional capacity to perform the physical or mental exertion of work
and to sustain work at a level which meets the standards of SGA on a regular
and continuing basis. In all such cases where a determination or decision
regarding disability is to be made, the evidence must be sufficient to permit
a comparison between the claimant's capabilities and limitations and the
requirements of relevant occupations. The
regulations require that, at this point in the sequential evaluation process,
the rules established in Appendix 2 to Subpart P of Regulations No. 4 must be
used to direct or to guide the determination as to whether the individual is
"disabled." Where all factors relative to an individual coincide
with those in a rule in the Appendix, that rule directs a conclusion as to
whether the individual is "disabled." When all factors do not
coincide with a rule (e.g., the individual has the RFC for more than light
work but for less than the full range of medium work), the rules are used as
a frame of reference for determining whether the individual is
"disabled." Similarly,
when an individual has a combination of exertional
and nonexertional impairments, the rules are used
as a frame of reference for determining "disability." The exertional impairment is considered first under the
applicable rule, and then the additional restriction(s) imposed by the nonexertional impairment is considered. When
an individual has a solely nonexertional
impairment, the principles established in the regulations are applied in
determining "disability," giving consideration to the rules for
specific case situations described in Appendix 2 (i.e., use of the rules as a
frame of reference). When the nonexertional
impairment is a mental impairment, the ability to concentrate, to understand,
to carry out and remember instructions, and to respond appropriately to
supervision, coworkers, and pressures in a work setting are considered. (See
20 CFR §416.945(c).) (SSR No. 86-8) |
|
|
1310-2 |
|
The issues before the federal
Administrative Law Judge (ALJ) include "all the issues brought out in
the initial, reconsidered, or revised determination that
were not decided entirely in your [the applicant’s] favor." However, if evidence presented before or
during the hearing causes the ALJ to question a fully favorable
determination, the ALJ will notify the applicant of the fact that this will
be an issue at the hearing. (20 CFR
§416.1446(a)) |
|
1310-3 |
|
Counties are reminded that there
is now a program, the 250% Working Disabled Program that allows individuals
to earn above the Substantial Gainful Activity (SGA) limit and still qualify
for linkage through disability. Because of this, counties must not base a
decision to process a disability determination for working persons on SGA. The county must refer the case to the
Disability and Adult Programs Division (DAPD) and alert the DAPD analyst to
evaluate the individual’s disability based on criteria for the 250% Working
Disabled program. (All County Welfare
Director’s Letter (ACWDL) 02-40, July 3, 2002) |
|
|
The
Social Security Act encourages severely disabled persons to seek and maintain
employment. These severely impaired
working individuals, whose earnings from substantial gainful activity are too
high to retain financial eligibility for SSI/SSP continue to remain eligible
for Medicaid as deemed SSI recipients as long as their income without
consideration of earnings does not exceed the SSI/SSP payment level. They are referred to as “1619(b)”
recipients, because eligibility is established under Title XVI, §1619(b) of
the Social Security Act. The
CDHS has issued instructions for determining eligibility for such
individuals. There are four basic
requirements. These individuals must: 1. Depend on
Medicaid to continue working. 2. Meet all nondisability requirements for SSI/SSP benefits except
for earnings. 3. Have
insufficient earnings to replace SSI cash benefits, Medicaid, publicly-funded
personal or attendant care which would be lost due to the individual's
earnings. AND 4. Have
received SSI, or have been eligible as a 1619(b) person, in the month before
the Medi-Cal Only determination/eligibility is initially established. (All-County Welfare Directors
Letter No. 97-27, June 20, 1997) |
|
|
1311-2 |
|
Federal law provides, in pertinent
part, that if a claimant is performing SGA, he or she will not be found to be
disabled. If the claimant is working
and the work is SGA, he or she will be found not disabled regardless of his
or her medical condition. (20 CFR
§416.920) |
|
1311-2A |
|
Counties are reminded that there
is now a program, the 250% Working Disabled Program that allows individuals
to earn above the Substantial Gainful Activity (SGA) limit and still qualify
for linkage through disability. Because of this, counties must not base a decision
to process a disability determination for working persons on SGA. The county must refer the case to the
Disability and Adult Programs Division (DAPD) and alert the DAPD analyst to
evaluate the individual’s disability based on criteria for the 250% Working
Disabled program. (All County Welfare
Director’s Letter (ACWDL) 02-40, July 3, 2002) |
|
1311-3 |
|
Federal law provides that SGA is
work that is both substantial and gainful.
It is substantial if it involves doing significant physical or mental
activities, even on a part-time basis.
It is gainful if it is done for pay or profit. (20 CFR §416.972) |
|
1311-4 |
|
The
SGA guidelines are a basis for determining whether an individual is engaged
in SGA. The guidelines are concerned
only with those earnings which represents a person's own productivity. To
determine an employee's countable earnings for SGA purposes: 1. Determine
gross earnings, including payment in kind (e.g., room and board). 2. Deduct
the amount of any subsidized earnings and the amount of certain
impairment-related work expenses. Do
not deduct standard payroll deductions. 3. Average
monthly earnings. (POMS DI 10505.001A.) |
|
1311-5 |
REVISED 3/07 |
Federal
law provides, in pertinent part, that earnings of $300 per month or more
during the period January 1, 1980 through December 31, 1989 will ordinarily
show that a claimant has engaged in SGA.
. The SGA amount was $830 effective January 2005 $860 effective
January 2006 and $900 effective January 2007. (20 CFR §416.974(b); All-County
Welfare Directors Letters No. 04-40, December 29, 2004; 05-42, December 19,
2005; 06-34, November 16, 2006; Medi-Cal Eligibility Procedures Manual
22C-2.1) |
|
1311-5A |
|
Substantial
Gainful Activity (SGA) Earnings Guidelines only apply to blind Title II
individuals, not to those under Title XVI (the SSI program). In 1998, the SGA countable earnings figure
for Title II blind individuals was $1050; in 1999, it was $1110. (POMS DI 24001.025B.3) |
|
1311-5B |
ADDED 2/05 |
SGA
rules do not apply to legally blind persons who meet the Supplemental
Security Income criteria, Medi-Cal beneficiaries who return to work after
disability has been approved, or to individuals applying for Medi-Cal under
the 250 percent Working Disabled Program. (All County Welfare Director’s Letter
04-40, December 29, 2004) |
|
1311-6 |
|
There
is a presumption that when an applicant's earnings are above the statutory
minimum, the applicant is engaged in Substantial Gainful Activity (SGA). (Keyes v. Sullivan (1990) 894 F.2d
1053) This presumption can be rebutted.
Factors to be considered in addition to the amount earned include the
time spent working, quality of a person's performance, special working
conditions, and the possibility of self-employment. (Katz v. Secretary of HHS (1992) 972
F.2d 290) |
|
1311-7 |
|
The
determination of whether a self-employed person is engaging in Substantial
Gainful Activity (SGA) will not be based on income alone, but on the
activities performed and their value to the business. The individual is
considered engaging in SGA if: (1) The work activity, in terms of hours worked, skills, energy
output, efficiency, duties and responsibilities, is comparable to that of
unimpaired individuals in the community who are in the same or similar
business; (2) The work activity, although not comparable to that of
unimpaired individuals, is clearly worth $700 ($780 as of January 1, 2002) a
month when considered in terms of its value to the business, or when compared
to the salary an employee would be paid; or (3) The services rendered are significant to the operation of
the business and receive a substantial income from the business. (20
CFR §416.975(a)) |
|
1311-8 |
|
A
self-employed person or an employee who is forced to stop work after a short
period of time because of an impairment is
considered to have engaged in an unsuccessful work attempt and earnings from
that work will not show an ability to perform substantial gainful
activity. (20 CFR §§416.974(a) and
416.975(a)) A short period of time is
considered to be no more than six months.
(POMS DI 10505.001C.) |
|
1311-9 |
|
Illegal
activities can constitute SGA if they are both substantial (involving
significant physical and mental activity) and gainful (the kind of work
usually done for pay or profit, whether or not a profit is realized). When an
applicant engages in illegal activity (theft) to support a drug habit, he is
not entitled to deduct the cost of the narcotics he purchases as an
impairment-related work expense.
(Social Security Ruling 94-1c, adopting Dotson v. Shalala
(7th Circuit 1993) 1 F. 3d 571) |
|
1311-10 |
|
When a
heroin addict acquires approximately $4,200 of heroin in a month, there is a
presumption that he is engaging in SGA as his earnings exceed $500 per month.
However, in Corrao v. Shalala (1994)
20 F. 3d 943, the 9th Circuit held that the presumption was rebutted. Mr. Corrao spent
only a minimal amount of time working--25 minutes to 45 minutes per
transaction. Second, he did not have
to exert himself significantly either physically or mentally. He did not organize drug dealers; he did
not use his own money; and he did not receive cash for his portion of the
drugs. There was no indication of
initiative, organization, or responsibility. In general, the Court held that
the ALJ has the duty to develop the record fully and fairly when the income
exceeds the guideline. To determine
“whether the presumption is rebutted, the factors to be considered include
the responsibilities and skills required to perform the work, the amount of
time the individual spends working, the quality of the individual's work,
special working conditions, and for individuals who are self-employed, the
value of their work to the business.”
(Corrao, supra, 20 F. 3d at 948) |
|
1311-11 |
|
Illegal
activities can be considered substantial gainful activities. (See Hart v. Sullivan (1992)
824 F.Supp. 903) In Hart, the District Court
of the Northern District of California held that the federal ALJ correctly
denied the claimant's request for Social Security benefits on the basis that
the claimant engaged in SGA. The
claimant was moving $700 of heroin daily, and received $140 of heroin for his
personal use. His work involved
significant physical or mental activities, because of the scope of the
operation and because of the claimant's ability to avoid apprehension by the
authorities. In Speaks, the District Court of the Central District of
California followed the principles established in Corrao
v. Shalala (1994) 20 F. 3d 943.
The Speaks court stated that prostitution was a profession,
illegal in California but legal elsewhere.
The court held that Ms. Speaks, who earned at least $600 per month,
was engaging in SGA, and was thus ineligible for Social Security
benefits. (Speaks v. Secretary
of HHS) |
|
|
The POMS states that for an
impairment or combination of impairments to be considered severe, it must
significantly limit the individual's physical or mental ability to perform
one or more basic work activities needed to do most jobs, for example,
walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling; seeing, hearing and speaking; understanding, carrying out and
remembering simple instructions; use of judgment, responding appropriately to
supervision, coworkers, and usual work situations; and dealing with changes
in a routine work setting. If an individual does not have a condition which
significantly limits his/her physical or mental capacity to perform basic
work-related functions, a finding must be made that he/she does not have a
severe impairment and, therefore, is not disabled. This is a decision based
on medical considerations alone; no consideration of vocational factors is
necessary. When there is no significant limitation in the ability to perform
basic work-related functions, an impairment or combination of impairments
will not be considered severe even though it may prevent an individual from
doing work that he/she has done in the past. If the individual had a highly
specialized job involving unusual work-related functions, the inability to do
this work would be due to the specific demands of the highly specialized work
rather than to the impairment(s). Since the individual clearly is able to
perform basic work activities as they are required in most jobs, he/she does
not have a severe impairment and is not disabled. (POMS DI 22001.015) |
|
|
1312-2 |
|
The
POMS sets forth guidelines in the evaluation of medical impairments that are
not severe for purposes of evaluating Title XVI individuals over 18 years of
age. While an impairment is not severe
if it has no more than a minimal effect on an individual's physical or mental
abilities) to do basic work activities, the possibility of several such
impairments combining to produce a severe impairment must be considered. When
assessing the severity of whatever impairments an individual may have, the
adjudicator must assess the impact of the combination of those impairments on
the person's ability to function, rather than assess separately the
contribution of each impairment to the restriction
of his or her activity as if each impairment existed alone. A claim may be
denied under this concept only if the evidence shows that the individual's
impairments, when considered in combination, are medically not severe (i.e.,
do not have more than a minimal effect on the persons' physical or mental
abilities) to perform basic work activities).
(POMS DI 24505.005A.) Inherent in a finding of a medically not severe
impairment or combination of impairments is the conclusion that the
individual's ability to engage in SGA is not seriously affected. Before this
conclusion can be reached, however, an evaluation of the effects of the
impairment(s) on the person's ability to do basic work activities must be
made. A determination that an impairment(s) is not
severe requires careful evaluation of the medical findings and an informed
judgment about the limiting effect on physical and mental abilities to
perform basic work activities, no evaluation of past work (or age, education,
and work experience) is needed. (POMS
DI 24505.005B.) In the absence of contrary evidence, it is reasonable to
conclude that an individual whose impairments do not preclude the performance
of basic work activities is, therefore, able to perform his or her past
relevant work since, by definition, basic work activities are the abilities
and aptitudes necessary to do most jobs. If the medical evidence established
only a slight abnormality, which has no more than a minimal effect on a
claimant's ability to do basic work activities, but evidence shows that the
person cannot perform his or her past relevant work because of the unique
features of that work, a denial at the “not severe” step of the sequential
evaluation process is inappropriate. The inability to perform past relevant
work in such instances warrants further evaluation of the individual's ability
to do other work considering age, education, and work experience. (POMS DI 24505.005C.) |
|
1312-3 |
|
The
POMS states that duration of disability is that period of time that an
individual is continuously unable to engage in SGA because of a medically
determinable impairment. It extends from the onset of an impairment that
prevents SGA to the time that the claimant no longer has an impairment that
prevents SGA as demonstrated by medical evidence or the actual performance of
SGA. An individual who was previously entitled to a period of disability must
again meet the duration requirement for any subsequent period of disability.
Severe impairments lasting less than 12 months cannot be combined with
successive unrelated impairments to meet the duration requirement. In order
to determine the duration of the impairment, the medical reports should
reflect all the pertinent symptoms, signs, and laboratory findings, as well
as prescribed treatment, and the response to that treatment in terms of
changes in symptoms, signs, and laboratory findings. An
impairment will be considered likely to result in death if, on the
basis of established medical knowledge, it is found to be in a terminal state
under the particular circumstances in the case, or if it does actually result
in death. Subsection E indicates that if a claimant has two or more
concurrent, not severe impairments which, when considered in combination are
found to be severe, it is necessary to determine whether the combined effect
of those impairments can be expected to continue to be severe for 12 months.
If one or more of the impairments improves or is expected to improve within
12 months, so that the combined effect of the remaining impairments is no
longer severe, the individual will not meet the 12-month duration test. (POMS
DI 25505.001) |
|
1312-4 |
|
The
POMS states that when the evidence shows that within 12 months of onset the
individual's impairment(s) did not or will no longer prevent SGA, a
durational denial is appropriate. It is necessary to consider duration in the
context of the sequential evaluation process, however, since duration does
not become an issue unless at some time an impairment
is severe and prevents SGA. In most cases in which the evidence substantiates
a finding of disability, it will be readily apparent from the same evidence
whether or not the impairment is expected to result in death or has lasted or
is expected to last 12 months from the onset of disability. When the
application is being adjudicated before the impairment has lasted 12 months,
the nature of the impairment, therapeutic history, and prescribed treatment
will serve as the basis for determining whether or not the impairment is
expected to result in death or will continue to prevent the individual from
engaging in any SGA for the additional number of months needed to obtain the
required duration. (POMS DI 25505.010) |
|
1312-5 |
|
In
projecting the individual's RFC 12 months from onset, consider all the
evidence, including but not limited to: 1. The nature
of the impairment. 2. Therapeutic
history. 3. Prescribed
treatment. 4. Functional
restrictions. 5. Daily
activities. 6. Type,
dosage, effectiveness, and adverse side effects of any medication. 7. Nature,
location, onset, duration, frequency, radiation and intensity of any pain,
and response to treatment. 8. Precipitating
and aggravating factors for pain or other symptoms (e.g., movement, activity,
environmental conditions). (POMS
DI 24510.020B.) |
|
1312-6 |
|
Federal
law provides, in pertinent part, that we will consider all of your symptoms
in making a determination as to disability (including pain, shortness of
breath, weakness or nervousness) so long as there are objective medical signs
and/or findings which show that there is a medical condition that could be
reasonably expected to produce these symptoms. (20 CFR §416.929) |
|
|
The
federal Administrative Law Judge (ALJ) must obtain an opinion from a “medical
expert” (as defined in 20 CFR §§416.927(f) and 416.912(b)(6)) when there is a
question as to medical equivalence and: 1. No
additional medical evidence has been received, but in the ALJ's
opinion the reported symptoms, signs, and laboratory findings suggest a
judgment of equivalence is reasonable. 2. Additional
medical evidence is received which in the opinion of the ALJ may change the
prior state determination that medical equivalency does not exist. (POMS
DI 24515.013C.1; Social Security Ruling 96-6p) |
|
|
1313-2 |
|
It was
reversible error when the ALJ denied the disability claim based on the fact
there were no limitations which prevented the claimant from performing his
past work when the ALJ failed to find that the claimant's impairment did not
meet or equal a listing. (Fanning v. Bowen (1987) 827 F.2d
631.) |
|
1313-3 |
|
A
finding of "disabled" will be made for persons who are not working;
who have a history of 35 years or more of arduous unskilled work; who can no
longer perform this past arduous unskilled work because of a severe
impairment; and who have no more than a marginal education. (20 CFR §416.962; POMS DI 25010.001B.(1)) |
|
1313-4 |
|
A
finding of “disabled” will be made for persons who have a severe impairment,
have no past relevant work (PRW), are age 55 or older, and have no more than
a limited education. (POMS DI
24510.006B.(2)) |
|
1313-5 |
|
The
disability applicant was unable to use any prosthesis that was reasonably
available to him, because as a practical matter he could not afford a
suitable prosthesis. The 9th Circuit
Court of Appeals held that the applicant, whose leg was amputated above the
tarsal region, met Listing §1.10 because of his inability to obtain a
prosthesis which met his needs. (Gamble
v. Chater (1995) 68 F. 3d 319) |
|
1313-6 |
|
In
determining whether a disability applicant equals the Affective Disorder
Listing §12.04, the 9th Circuit Court of Appeals held that one must evaluate
whether the combined effect of the applicant's mental and physical
impairments satisfies the criteria set forth in §12.04B. (Lester v. Chater
(1995) 69 F. 3d 1453) |
|
1313-7 |
|
An impairment is considered medically equivalent to a listed impairment
if the medical finings are at least equal in severity and duration to the
listed findings. The symptoms, signs
and laboratory findings for the medical records in the case are compared to
the corresponding medical criteria shown for any listed impairment. Medical equivalence may be shown in two
ways: (a)(1)(i) If you have an impairment that is
described in the Listing of Impairments in 20 CFR §404, App. 1, Subpart P,
but-- (A) You do not exhibit one or more of the medical findings
specified in the particular listing, or (B) You exhibit all of the medical findings, but one or more of
the findings is not as severe as specified in the listing: (ii) We will still find your impairment is medically equivalent
to that listing if you have other medical findings related to your impairment
that are at least of equal medical significance. (2) If you have an impairment that is not described in the
Listing of Impairments, or you have a combination of impairments, no one of
which meets or is medically equivalent to a listing,
we will compare your medical findings with those for closely comparable
listed impairments. If the medical
findings related to your impairments are at least of equal medical
significance to those of a listed impairment, we will find that your
impairment is medically equivalent to the comparable listing. Medical equivalence must be based
on medical evidence only, and the medical evidence must be supported by
medically acceptable clinical and laboratory diagnostic techniques. The opinion of one or more medical or
psychological consultants may also be considered. A medical consultant is defined as a
physician, and a psychological consultant (as defined in 20 CFR §416.1016)
must be a qualified psychologist. The responsibility for determining
medical equivalence rests with the Administrative Law Judge for cases at the
hearings level. (20
CFR §416.926(a) - (d)) |
|
|
Federal
law provides, in pertinent part, that a finding of disability is not
precluded where an individual cannot perform a full range of sedentary work
in light of the adverse factors which further narrow the range of sedentary
work (even for a younger individual).
(20 CFR Part 404, Subpart P, Appendix 2, §201.00(h)) Limitation
to less than a full range of sedentary work makes the Grids
inapplicable. The Secretary must make
specific findings of an ability to perform specified jobs, based on reliable
evidence in order to support a denial.
(Gonzales v. Secretary (1986) 784 F.2d 1417) |
|
|
1314-2 |
|