April 23, 2014

Three Winning Arguments in Disability Cases

As a large federal bureaucracy, the Social Security Administration has a dizzying array of procedures and forms that it uses to process disability cases.   Social Security procedure manuals require disability adjudicators and judges to use something called a "sequential evaluation process" to evaluate every disability case.   In case you are interested, the five steps of the process are as follows:

  1. Are You Working?
  2. Is Your Condition “Severe”
  3. Does Your Condition Meet a Listing?
  4. Can You Perform Your Past Relevant Work?
  5. Can You Perform Any Work

Hundreds of words have been written about each step of this process and the Appeals Council and District Courts produce voluminous written opinions that explain what each of these words mean and how they should be applied.
As a busy attorney dealing with disability cases on a day to day basis, I don't have the time or patience to deal with the minutia of Social Security jurisprudence.  Instead, I worry about what it takes to win.

With apologies to the drafters of Social Security's POMS – Programs Operation Manual System, it has been my experience that there are 3 ways to win a case:

  1. Meet a listing
  2. Prove that your functional capacity for work (i.e. Residual Functional Capacity) is less than sedentary
  3. Meet a grid rule

You can read more about how I apply these three "theories of disability" in a back case by clicking on the link.

In my experience about 15 of cases that end up at hearings are decided under a listing theory and about 15% are grid rule cases.  That leaves approximately 70% of the cases that I try as RFC cases.  Note that my percentages may be similar or different that what you might experience where you live.

In my view, Social Security disability practice fits fairly neatly into this three theory box.  I use this approach in every case in my office and I am always able to fit the facts of any particular case into one, two or all three of these arguments.

If you are a lawyer and you want to learn more about how I set up and manage my practice, I am teaching a course entitled "Creating a Social Security Disability Practice at Solo Practice University, an on-line learning resource.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.