WHAT IS A STEP FIVE DENIAL?
To determine whether you are disabled, Social Security is required to use a five step process. Step 4 asks if you can perform your past work. If not, they move on to step 5, which asks, Can you perform any other work that exists in the US economy?
That term "any other work" is so general that it includes literally millions of jobs to be considered. Many of the "other work" jobs will be unskilled, requiring little education or training, perhaps not even the ability to read or write. Another problem, many of those jobs will be at the sedentary exertion level, requiring no lifting over 10 pounds occasionally and the ability to stand for only 2 hours out of an 8 hour workday.
If the vocational "expert" called to testify by Social Security says that you can perform 2 or 3 of these "other jobs," it gives the judge an option to deny your benefits. This is called a Step 5 denial.
There are several defenses to the Step 5 denial. The first and most effective defense is to build such a solid medical case that it's evident that the claimant can't perform even sedentary unskilled work. This requires medical evidence in the form of records and doctor's opinions.
Another defense is to use valid nonexertional limitations. For example, there are mental requirements of work, in addition to physical or exertional requirements. A worker must be able to remember, understand and carry out simple instructions. He must be able to make decision commensurate with his job duties. A worker must also be able to respond appropriately to coworkers, supervisors and perhaps to the general public (in some jobs). A failure to perform any of the mental functions of work would justify a finding of disability.
Further, the claimant must be prepared to question the vocational witness about the "other work" he or she proposes. Many of the jobs offered by these "vocational experts" moved to Mexico or Asia twenty-five years ago and are no longer available in the US economy. Vocational witnesses use the Dictionary of Occupational Titles (DOT) which was last published in 1991. Most of the job data in the DOT date back to the 1980s. Furthermore, the DOT never published any job numbers and did not list jobs by exertion level or skill level.
That term "any other work" is so general that it includes literally millions of jobs to be considered. Many of the "other work" jobs will be unskilled, requiring little education or training, perhaps not even the ability to read or write. Another problem, many of those jobs will be at the sedentary exertion level, requiring no lifting over 10 pounds occasionally and the ability to stand for only 2 hours out of an 8 hour workday.
If the vocational "expert" called to testify by Social Security says that you can perform 2 or 3 of these "other jobs," it gives the judge an option to deny your benefits. This is called a Step 5 denial.
There are several defenses to the Step 5 denial. The first and most effective defense is to build such a solid medical case that it's evident that the claimant can't perform even sedentary unskilled work. This requires medical evidence in the form of records and doctor's opinions.
Another defense is to use valid nonexertional limitations. For example, there are mental requirements of work, in addition to physical or exertional requirements. A worker must be able to remember, understand and carry out simple instructions. He must be able to make decision commensurate with his job duties. A worker must also be able to respond appropriately to coworkers, supervisors and perhaps to the general public (in some jobs). A failure to perform any of the mental functions of work would justify a finding of disability.
Further, the claimant must be prepared to question the vocational witness about the "other work" he or she proposes. Many of the jobs offered by these "vocational experts" moved to Mexico or Asia twenty-five years ago and are no longer available in the US economy. Vocational witnesses use the Dictionary of Occupational Titles (DOT) which was last published in 1991. Most of the job data in the DOT date back to the 1980s. Furthermore, the DOT never published any job numbers and did not list jobs by exertion level or skill level.
The Social Security disability representative or advocate must have a knowledge of the vocational aspects of disability as well as the medical aspects.
ReplyDelete