Does the ability to do daily chores hurt my disability case?

It’s an issue that continually pops up in close cases.  The claimant wants disability benefits. He has made his case concerning disabling pain.  The testimony is very good, then the Judge asks a set of questions, which pop up case after case.

Who cleans your residence?  Do you make your meals? What do you do during the day?  The questions are asked in an off the cuff manner.  The client answers the best he can.

Several months later a decision arrives and in reading it over—THERE IT IS—

‘In activities of daily living, the claimant had mild restriction.  The claimant testified that he loads dishes into the dishwasher.  That he swept the floor, the week before the hearing.  He takes care of his dog.

In social functioning, the claimant has moderate difficulties.  He goes grocery shopping with a friend.  When his friend was working, he drove her to work.  He sees friends every Friday. 

With regard to concentration, persistence or pace, the claimant has moderate difficulties. He checks e-mails on the computer.  He did not note any problems with understanding, coherency or concentration other than he seemed a ‘little confused.’

Do you need to be bedridden to get Social Security Disability?—No, what is required is   a claimant prove that he is “unable to perform substantial gainful activity”; simply put, the claimant has to be unable to work.

Nevertheless, claims of inability to work and testimony on ability to perform many normal activities of daily living, comes up again and again and it gives everyone trouble.  Consider the following, Thomas v. Sullivan, 876 F2d. 666 @ 669 (8^th Cir. 1989) the Court noted:

        “First, we note that a claimant need not prove she is bedridden or completely helpless to be found disabled. Gold v. Secretary of Health, Education and Welfare, 463 F.2d 38, 41 n. 6 (2d Cir.1972); Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir.1963). Second, we remind the Secretary that to find a claimant has the residual functional capacity to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). Substantial gainful activity means the performance of substantial services with reasonable regularity either in competitive or self-employment. Markham v. Califano, 601 F.2d 533, 534 (10th Cir.1979). The ability to do light housework with assistance, attend church, or visit with friends on the phone does not qualify as the ability to do substantial gainful activity.”

Leckenby v Astrue, 487 F3d. 626 (8^th Cir. 2007) and Reed v. Barnhart, 399 F3d. 917 (8^th Cir. 2005) have similar holding concerning activities of day living.  While Wagner v. Astrue, 499 F3d 842 (8^th Cir.2007), and Halverson v Astrue, 600 F3d 922 (8^th Cir. 2010) put significant weight upon claimant’s testimony concerning his ability to do such activities.

Consider Halverson v. Astrue, 600 F3d 922 (8^th Cir. 2010) :   

 "We have held that acts which are inconsistent with a claimant's assertion of disability reflect negatively upon that claimant's credibility." Heino, 578 F.3d at 881. Moreover, "acts such as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are inconsistent with subjective complaints of disabling pain." Medhaug, 578 F.3d 805. Cf. Reed v. Barnhart, 399 F.3d 917, 923-24 (8th Cir.2005) ("This court has repeatedly observed that the ability to do activities such as light housework and visiting with friends provides little or no support for the finding that a claimant can perform full-time competitive work."). In this case, because the record contains several inconsistencies as to Halverson's disability, the ALJ did not err. Heino, 578 F.3d at 881. While Halverson argues the ALJ overstated the extent of her daily activities, the record indicates the ALJ's credibility assessment was proper. Mouser, 545 F.3d at 638 “

A successful conclusion can depend upon the answers to these simple questions.  It doesn’t seem fair, to base such an important decision, one so essential to a claimant upon his ability to do simple tasks of necessary living.  Recognizing the issues, I counsel clients to answer the questions truthfully, but when they answer a questionnaire or the Judge, they should make sure to explain in detail all the limitations that go along with each activity.  You must make known the pain, the following period of disability from overdoing it etc,.  Obviously this does not result in benefits in every case, but it gives the claimant a much better shot at winning, then if the effort is not made.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

What is the Burden that the Commissioner must carry at Step Five?

Assume a social security disability case with a client, over 50 years of age, who for the most of his working career worked construction i.e. cement mason.  After having a kidney transplant he was diagnosed suffering with a somatoform disorder. 

The vocational evidence is that claimant could not return to his former employment. This was based in part upon the physician’s report.  The physician noted that if required to do vigorous work, claimant will get nauseated, he is going to start to vomit and then claimant will get anxious.  At this point he will be unable to maintain the job.  He will be physical ill and would not stay on task and ultimately leave the job because of illness.

Because the claimant had always worked construction, the issue of job stress became important.  The law and the regulations make it clear that stress and the reaction to stress is in the individual and not the job.  It doesn’t matter if the job is heavy exertional or sedentary.  If the individual is unable to handle stress, he could be as disabled at the lowest exertion level as when working at a higher exertional level.

There are no medical reports that indicated that claimant could or could not handle stress of a lower exertional level job. At the hearing, the vocational expert admitted that if claimant’s ability to handle stress was the same at the light or sedentary level as with this past employment, he would not be employable.  Nevertheless, he opined that there were approximately 1500 light jobs and a similar number of sedentary jobs claimant could work.  These jobs are what everyone would call low stress jobs.

The Social Security Administration, under the authority of the Social Security Act, has established a five-step process to  determine whether an individual is disabled or not. The determination moves from step one to five.  At each step a determination is made, meaning that if it is determined that you are or are not disabled at a particular step of the evaluation process, the evaluation will not go on to the next step.

The first four steps in this process the claimant carry the burden to establish a compensable disability.  At step five, the burden shifts to the commissioner.

It is at this level that the process determines whether the claimant can do any other work, considering his “residual functional capacity,” age, education, and work experience. If it is determined that a claimant has the ability to do other jobs, then the claimant is not disabled.  If it is found that claimant cannot do any other work, then claimant will be found disabled.

What is this burden that the commission carries?  We know that if evidence, is produced  that there is other work the claimant could do, given his residual functional capacity, age, education and work experience, and that the work exists in significant numbers in the national economy, the burden has been carried.

What about a case as described above, what constitutes his residual functional capacity? 

Once a finding is made that claimant does not meet the Listings (his impairment does not fulfill all the requirements for the impairment set forth in the regulation) but is nevertheless unable to perform past work, the burden sifts to the Commissioner to prove (1) that the claimant retains the residual functional capacity to perform other kinds of work, and (2) that other such work exists in substantial numbers in the national economy. Singh v. Apfel, 222 F.3d 449 (8^th Cir. 2000, McCoy v. Schweiker, 683 F2d 1138 (8^th Cir. 1982)), 42 USC §§ 423(d) (1), (2)

A claimant’s residual functional capacity is a medical question. Nevland v. Apfel, 204 F.3d853 @858 (8^th Cir. 2000)

At step five the claimant must have the ability to do full-time work.  SSR 96-8p requires the ability to do work on a “regular and continuing basis” which means “8 hours a; day, for 5 days a week, or an equivalent work schedule.” Kelley v. Apfel, 185 f3d 1211 (11^th Cir. 1999)

Applying all of the forgoing to the original fact situation, what is should be the ruling?  There is medical evidence that vigorous work will render claimant unable to do his prior work. There is evidence that claimant is impaired by work stress.  There is evidence that the impairment is a somatoform disorder, it isn’t necessarily the work that causes his impairment, but his view of harm produced in working.  There is no evidence one way or the other if claimant would be any more successful at a job found in a lower exertional level.  There is a regulation that warns the Commissioner that stress is in the individual and not in the job, so there cannot be a ‘leap of faith’ that a lower exertional job equal less stress.  The vocational expert indicated that if claimant suffered the same effects in the jobs he listed, claimant would not be able to be competitively employed in any of the jobs.

If the burden at step five is on the Commissioner and the burden to determine what is the claimant’s residual functional capacity, and the decision is a medical decision, without further evidence on claimant’s capacity, can the Commissioner just assume claimant can do the jobs listed by the vocational expert?

What's in a Definition?

A small paragraph can hold a lot of legal content.  Take for instance SOCIAL SECURITY DISABILITY CLAIMS and the definition of disability.

This is basically one definition of disability, but it is modified when dealing with children.

Definition of Disability adult worker (with sufficient paid quarters to get disability insurance) - means the “inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...42 USC 423(d)(1)(A)

There is also a modification to the definition for adult children.  Disabled Adult Children (Title II only) – An adult child may be eligible for social security disability benefits if he or she has an (1) AND INSURED DECEASED PARENT OR (2) AN INSURED LIVING PARENT WHO IS RECEIVING SOCIAL SECURITY BENEFITS FOR RETIREMENT, DISABILITY OR BLINDNESS, and the onset of disability for the adult child precedes her/his 22^nd birthday.

Similarly,there is a modification to the definition for a disabled child. The Personal Responsibility and Work Opportunity Act of 1966 changed the statutory definition of disability or SSI eligible disabled children, requiring that for a condition to be considered disabling it must impose MARKED AND SEVERE FUNCTIONAL LIMITATIONS.  The regulations issued as a result of Sullivan v Zebley, 493 US 521, 110 S.Ct 885 (1990).

For this entry, I am only focusing on the adult definition, i.e. the “inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...42 USC 423(d)(1)(A)

Inability to engage in any substantial gainful activity.  This is a mouthful.  It does not mean as a lot of client’s understand, to be a replacement for unemployment.  The fact that a claimant is not working, or claims to have an impairment that prevents his/her employment, or any job that could be worked produces much less then my prior job, or “The job is below someone with my work history”,  means very little to the process.

It doesn’t matter that you can no longer do your prior employment, if you can do another job, within your function capacity, i.e. you can’t be a security guard, but you could work bench assembly.  It doesn’t matter that you consider such a job below you, or that it does not produce the income your prior job produced.

If there is a job out there that could pay you over $1,100.00 per month and it is within your functional capacity, like it or not, you have the ability to be engage in substantial gainful activity.

Sadly, social security doesn’t need to prove the job(s) that it finds that you can do even still exist in the economy, or where the jobs are.  You cannot argue, if the job is out there  show me where and prove it will hire me, if you are finding me not disabled.  The material upon which social security relies upon to identify jobs is not the most current information on the market.  As a matter of fact, a major part of the job evidence is over ten years old.

What is residual functional capacity?  What does it assess?  RFC is the term used by SSA to denote what a claimant can still do despite his or her limitations.  It must be based on consideration of all impairments, and all relevant evidence, including a claimant’s own statements.  20 CFR § 404.1545(a), 416.945(a).

Residual Functional Capacity include items such as:  The ability to understand, carry out and remember instructions, and the ability to respond appropriately to supervision, co-workers, and work pressures in a work setting. Again the nature and the severity of any mental, emotional, or intellectual limitation will determine the extent to which the capacity to work is impaired.  THE CENTRAL QUESTION IN ASSESSING AN INDIVIDUAL’S MENTAL CAPACITY IS WHETHER THE PERSON CAN PERFORM WORK ON A SUSTAINED, ON GOING, INDEPENDENT AND APPROPRIATE BASIS.  POMS DI 24510.085(A);  SSR 85-15

The inability to be engaged in substantial gainful activity must be because the claimant suffers  a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

The first question is what is a determinable physical or mental impairment?  Is it only impairments for which objective medical evidence exists that show the impairment?  If it is, then people with chronic pain, somatoform disorders etc. would never qualify.  If the definition includes such problems, how do you prove that claimant is suffering?

Consider a claim for benefits based upon disabling pain - :  An individual’s  statement as to pain or other symptoms shall not alone be conclusive evidence of disability…; there must  be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques which show the existence of a medical impairment that results  from anatomical, physiological or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph.(including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings)  would lead to a conclusion that the individual is under a disability. 

Consider a mental disorder - :  The mere existence of a mental impairment is not per se disabling.  There must be evidence of significant functional restrictions in areas such as activities of daily living, maintaining social functioning, deficiencies of concentration, persistence or pace, deterioration or decomposition in a work-like setting, or the ability to sustain mental activities necessary to the performance of sustained work activity.

If that is not confusing enough, there is nothing in the foregoing that says the Judge cannot find claimant’s evidence, i.e. his doctor reports, claimant’s statements, lacking in credibility.

The impairment must result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.

What if there are multiple impairments claimed to cause disability, but one or more occurred at different times, i.e. one impairment existed on filing, another was occurred at a later date and the first healed, but the second did not and at the end of the 12 months the second impairment is all that remains.  You cannot add impairments together to establish the twelve month period.  You can be disabled from multiple impairments if the combined effect lasts the required period of time.

Will my going to school when I apply for SSDI hurt my chances of success?

I had previously posted a blog talking about the possible problems a claimant raises in applying for social security disability while working a part time job.  

Another situation that comes up more often then I would like to see is the claimant who is  in school, college or technical college and applying for benefits.  This throws up as many issues as the claimant who is working part time.

The social security administration concern and its investigation is trying to determine whether or not the course based work, i.e. the course load, is similar in time requirements, schedule requirements and exertion as a full time job.  The argument is that the tasks, skills used day to day in school provide evidence that the claimant has the functional capacity to do a job at some acceptable exertional level.

In these cases, it is important to introduce all modification, alterations, and or accommodations the claimant may have been granted to allow participation in school. The claimant would not succeed with out the accommodations and the accommodations are such that no employer would grant them to an employee, i.e. more then three days off a month, late turn in times etc.

The claimant and his/her attorney will have to show to social security that the  day to day requirements of the school attendance does not conform to the day to day requirements of competitive employment. There are questions to think about. Is the course work all on line?  Is the claimant given substantial time off?  Is the claimant given additional time to finish it task or submit his/her assignments?  Is the claimant given a large amount of assistance?

Social security needs to be convinced that the accommodations given the claimant, the day to day stress in doing school work is an environment not nearly as demanding as competitive employment. 

Going to school, attending the class work and obtaining acceptable grades adds an additional obstacle in obtaining benefits.  I always explain this to a client at time of the application.



This is not to be construed as legal advise, nor is there any attempt to establish an attorney client relationship between myself and anyone reading this blog.  It is simply my thoughts on the subject matter.

Recently attended a hearing in which this was an issue.  The judge spent a lot of time trying to get the claimant to explain how lessons were completed, i.e. typed.  I spent a lot of time, questioning my client trying to show the accommodations, plus referencing exhibits from the school.  The bottom line, it added a real issue that need not have been there. 

How Are My Benefits Determined

I had a client in the office who asked a simple question, “How do they determine how much I will receive?”

I explained that:

The best thing you can do is to go to http://www.ssa.gov and click the 'my benefits' tab and follow the instructions. It will give you the benefit amounts due at this time, at your present age. Remember, to be eligible for a noted benefit what social security calls a benchmark year, must have occurred. A benchmark year takes place when an event occurs which results you becoming eligible for a social security benefits, i.e. retirement, disability, death etc.

My job has been obtaining disability benefits for clients, how the amount of the benefit is determined, I have left to social security, but I will attempt an elementary explanation of how benefits are determined.

The amount of a benefit that a claimant is entitled is based upon a determination of his/her primary insurance amount. Once determined the primary insurance amount (PIA) is the basis for determining retirement, disability and all other auxiliary benefits.

PIA is the figure that SSA uses to calculate the actual benefit payable to a claimant, etc. based upon the claimant's work record. How PIA is calculated depends on a number of factors and can be calculated in one of several ways (1) (SSA will select the method that provides the highest PIA to the claimant).

A good starting point is how much is paid into your account, from years of working, to determine a benefit base. The maximum contribution level has changed since 1937 and continues to change. The total paid into social security is then used as the basis for determining a average monthly earning during any calendar year.

If you became eligible for benefits after 1978, reaching age 61, the PIA is determined by the type of benefit applied, retirement, disability (1) average indexed monthly earnings, (2) average monthly wage, or (3) guaranteed alternative method (20 CFR 404.210-230), years worked, time worked, and application of a formula. In this computation, years counted are those 1950 and after, or after reaching age 22 (if later) up to the occurrence of an eligibility event, retirement, disability, death or blindness. From this group of years, up to 5 years of the lowest earning can be disregarded. A calculation is made to determine base years, i.e. years of the highest earnings.

Lastly, applied to each formula is a factor that reduces benefits if early retirement is taken, i.e retiring at 62 versus age 66. There is also a special minimum benefit amount that is given to certain individuals who have long period of work earning relatively low earnings (assuming that each has at least 11 years of coverage.)