Follow up on the Claimant and Part Time Work

Previously I had blogged about part time work and social security disability. Part and parcel with that blog is an understanding of Residual Functional Capacity (RFC).

RFC is the term used by Social Security to denote what a claimant can still do despite his/her impairment-related limitations. It is a review of what work abilities the claimant had before disability and what abilities remain viable; taking those residual abilities into account, is there a prior job the claimant could still do, or is there any job within the national economy that the claimant could do on a sustained, daily basis. “RFC is an assessment of what a plaintiff can or cannot do, not what she does or does not suffer from. The plaintiff’s argument that the RFC does not properly recount her physical and emotional problems is irrelevant because an RFC is not supported to enumerate impairments but rather to assess plaintiff abilities and limitations after the impairments are taken into account.” Howard v. Commissioner of Social Security, 276 F.3d 235 (6^th Cir. 2002)

The type of work that is relevant to this review is sustained work, i.e. work activity on a regular and continuing basis, meaning 8 hours a day for 5 days a week or equivalent work schedule (SSR 96-8p, http://www.socialsecurity.gov/OP_Home/rulings/di/01/SSR96-08-di-01.html)

The review must take into consideration all the impairments, all relevant medical evidence and claimant’s and witness statements.

Who decides what a claimant's RFC is? 

Social security considers RFC a medical-legal determination, i.e. it is reserved to social security—state agency medical or psychological consultants, the Administrative Law Judge (ALJ) or the Appeals Council. (20 CFR 404.1546).

What this means is that medical evidence alone may only be one piece of the puzzle and it is for the ALJ to put that puzzle together.

So how does all this technical jargon have to do with the effect of part time work on getting awarded disability?

Consider two common situations.  1) Medical evidence suggests that the claimant's RFC is so limiting that there is most likely no work available, but the vocational evidence indicates sedentary work in existence.  2) Claimant's statements, under questioning by the ALJ, indicates that his/her activities appear to conflict with the medical evidence.

The ALJ makes the RFC determination from the evidence. The first situation is the focus is on the vocational expert and how the decision on work was made. If the ALJ believes the vocational expert over the medical evidence, the claimant loses, if not, the claimant wins.  It is the ALJ's duty to resolve such disputes in the evidence.

The second situation drives attorneys' crazy.  The law does not require that the claimant be confined to bed-rest, yet doing daily activities many times are the focus of the ALJ's opinion on why claimant can work.  

What you see is the ALJ making a credibility determination based on such activities and weighing it  against the evidence setting forth claimant's total disability.

Consider Delsie v. Shalala, 842 F. Supp. 31 ( D. Mass 1994) the claimant was denied benefits –

“Ms. Delsie's allegations of disabling pain were undermined by her admissions that she could undertake sustained sedentary activity such as embroidery and could undertake daily living activities such as housework, marketing, driving and shoveling snow. In addition, the record failed to show that plaintiff required more than symptomatic treatment. In fact, evidence showed that she pursued only sporadic treatment for her symptomatic complaints.”

Now, consider the claimant who has performed medium or light work activity for 15-20 hours per week. Is there a basis upon which the ALJ could deny benefits and have the decision upheld on appeal? You bet.

Why two blogs on the same subject?  Because it concerns me! These poor people are impaired and their life is at its lowest point. You inform them that a hearing they request will be held a year from now. They want to know how they can keep the little they have if claimant doesn't have any income?

Do you tell them live on the street until the hearing? Do you advise them against working part time any some job that is doable?

In my experience, 99% of the clients are hurt, impaired or physically or mentally damaged. This issue is the degree of damage, and unfortunately the desire to maintain a basic life existence can be held against the claimant.