Recently I have noticed a trend at many of cases I am trying on behalf of applicants for Social Security disability. After listening to testimony, but before posting questions to the Vocational Expert, the judge will say something like this: “counselor, I am going to find that the [allegations of depression; breathing problems and COPD; knee damage and reduced range of motion in the left lower extremity; etc.] are non-severe impairments and thus will not be included in questions I ask to the vocational expert. Do you have any objections to this?”
What does this mean to you if you are the claimant appearing at a hearing like this?
The term “non-severe impairment” is a term of art in the Social Security world. When judges evaluate claims, or, more accurately, elements of claims, they are required by law to analyze your case using something called the “five step sequential evaluation process.”
In plain English, this means that the judge is required to use a five step analysis to decide if you meet SSA’s definition of disability – are you unable to engage in substantial gainful activity because of a medically determinable condition or conditions that have lasted or can be expected to last 12 consecutive months or result in death?
These steps are:
- Step 1 – are you currently engaged in “substantial gainful activity” (i.e., simple, entry level full time work). If so, you are not disabled.
- Step 2 – is your impairment “severe?” If your impairment is non-severe, you are not disabled.
- Step 3 – does your medical impairment meet a listing? If so, you are disabled; if not, proceed to Step 4.
- Step 4 – can you perform your past relevant work? If you can perform past relevant work you are not disabled; if you cannot, proceed to Step 5.
- Step 5 – can you perform any other work that exists in significant number in the regional or national economy (i.e. can you perform any simple, entry-level job?). If you can, you are not disabled. If you cannot, you are disabled.
Needless to say, judges and lawyers have spent hours arguing about and breaking down each of these steps, but for purposes of this article, let’s focus on Step 2 – is your impairment severe?
As a general rule, federal district courts considering this question have created a very low bar. If the medical record suggests that you have a medical issue that could reasonably impact your capacity for work, that impairment was considered severe.
Increase in “Step 2” Denials
But more recently, Social Security judges have been using Step 2 to either deny claims or to eliminate consideration of one or more medical problems as they proceed through the steps.
In the past, a classic “step 2 denial” was one where a claimant came to her hearing and in testimony claimed that she had severe heart palpitations and chronic shortness of breath. But if the judge looked at the medical records for this claimant and saw nothing – no allegations of chest pain, shortness of breath or heart palpitations – the judge would – reasonably – conclude that there is no evidence that these claimed limitations existed at all or that they could reasonably be expected to interfere with basic work activities or last 12 consecutive months.
In the past, any statement in the medical record that a doctor recognized that a medical problem like chest pain or shortness of breath actually existed was enough to classify it as severe and therefore satisfy Step 5. The judge might later conclude that the impact of this severe impairment was minimal and still deny the claim, but the denial would be at Step 5 as opposed to Step 2.
So, until recently, Step 2 was a paper tiger – it was almost never used to deny a claim.
That has now changed. More and more I am seeing judges eliminate consideration of one or more claimed impairments at Step 2. A claimant might allege disability based on 6 medical problems but after 3 of those problems are dismissed at Step 2, the judge would only consider the remaining 3 medical issues at Steps 3, 4 and 5.
How are Judges Dismissing Allegations of Disability at Step 2?
When I see a judge dismiss a claimant medical impairment at Step 2, it is almost always because of a complete or near complete absence of evidence. From Social Security’s perspective, if you have heart palpitations, or knee pain, or depression, you are expected to seek some sort of treatment – even if that treatment is in the form of emergency room visits or county mental health group counseling.
Further, a claimant’s complaints to his family doctor about pain or depression is often not enough to get past Step 2, even if medications for that condition are prescribed. Family doctor records, in general, are being given less and less weight by Social Security.
I even had a case recently where a firm diagnosis of severe depression by the psychologist performing a consultative evaluation at SSA’s request was dismissed as non-severe because there was no other mention of depression in the record.
This expansion of Step 2 denial raises the question in my mind if Social Security is doing enough to fulfill its obligation to help claimants develop their record for a fair adjudication. I reguarly speak with claimants who simply do not have the funds or the transportation to obtain ongoing medical or mental health care. And I have represented many PTSD patients – survivors of sexual trauma or combat veterans – who are simply not comfortable taking public transportation to a county mental health facility where they will be asked to participate in group therapy.
Why Are Judges Using Step 2 to Dismiss Claims or Parts of Claims?
I think that there are two main reasons that judges are using Step 2 more and more. First, judges want to narrow the issues that they are considering. Some claimants list 5, 10, 15 or more medical problems when they apply, some of which have never been diagnosed or treated. If there are no medical records associated with these conditions, the judge would be very unlikely to conclude that such a condition is disabling so why not knock out that issue early on in the process.
The second reason has to do with the rulings being issued by the Appeals Council and Federal Courts. In the past, the Appeals Council and federal courts were remanding (sending back) cases where the judge did not consider every allegation by the claimant.
Now these appellate bodies are affirming holding by administrative law judges that certain medical issues are non-severe and not worthy of further consideration.
So the bottom line for both disability claimants and their lawyers is this – the increase we are seeing in Step 2 denials is reflective of a tightening of the requirements for a finding of disability. SSA is putting more emphasis on on-going treatment records as well as treatment from specialists, ideally supported by objective medical testing.