STEP FIVE: THE BURDEN OF PROOF SHIFTS TO THE SSA
SSA’S SEQUENTIAL EVALUATION IS A FIVE STEP PROCESS
The SSA uses a five step review process to see if you qualify for SSDI and SSI benefits. Each step involves a question. The answer to the question helps the SSA know what to do with your claim. Depending on the answer, the SSA can deny your claim, grant it, or move to the next step in the process. Every case must go through the five step process. This article is about the final step in SSA’s evaluation process: step five.
However, before the review process begins you must file an application for SSD benefits. There are two types of Social Security benefits: Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI) benefits. You can file an application online at the Social Security’s website for either one or both:
Social Security Disability Insurance (SSDI):
SSDI benefits are for those who can no longer work due to a severe medical condition. The amount of money you will receive from SSDI benefits is based on the taxes you paid during your working years. If your earnings are high, then you monthly SSDI benefit will also be high. If your income is low, then your SSDI benefits will also be a low amount. To qualify for SSDI, you must have earned enough “work credits.”
A work credit is an amount of taxable income. You can earn up to 4 work credits per year. The amount of work credits you will need depends on how old you are when you apply. If you haven’t earned enough work credits at the time you apply, then you will only be able to file for SSI benefits.
Supplemental Security Income (SSI):
SSI is a needs based benefit. It is for only those people with little to no income, such as children and the elderly. Anyone who makes more than a certain amount of money per month cannot receive SSI benefits. The SSA counts the income of those in your house, not just your income and assets.
If you have a spouse who earns more than $4000 a month, then that income will prevent you from getting SSI benefits. The same rule applies if you are living with a boyfriend and he is paying your bills. Also, the same rule applies if you are living with your mother and she is paying your bills. You cannot get SSI benefits, no matter how severe your medical condition, if you do not meet the income and asset rules for SSI.
If your case proceeds from step one through step five, then an SSA judge will decide whether you can perform your past work or do any other work. Obviously, if the judge finds you can work, then you will not win benefits. However, if the judge finds that you cannot perform any work, then you will win SSDI and SSI benefits.
WHO HAS THE BURDEN OF PROOF AT STEP FIVE?
During the first four steps of SSA’s review process, you have the burden of proving disability under the Social Security Act. Once you make a prima facie showing of disability that prevents you from engaging in your prior work, then the burden of proof shifts to the SSA.
Therefore, at step five, the judge must show in his decision that you retain the capacity to perform alternative work (jobs that are not your past work). The judge must also show that the jobs that he thinks you can perform exist in significant numbers in the national economy.
As an example, let’s say that your past work in the last five years was that of cashier. You have the burden to prove that your medical condition prevents you from returning to your past work as a cashier. Once you make that showing, the burden of proof shifts to the ALJ to show your RFC allows you to perform work in the national economy, given your age, education, and work experience. Grant v. Schweiker, 699 F.2d 189, 191 (4th Cir. 1983).
HOW TO YOU PROVE YOU CAN’T DO YOUR PAST RELEVANT WORK
There are two things that are necessary to prove you cannot do your past work. The first thing the SSA needs is a description of your past work. You are the person who provides that description in the forms you complete for the SSA. In particular, your Work History form contains a description of your past jobs. Therefore, the SSA will use whatever information you write on the form to prove you can work. They will also require you to submit evidence that proves your physical limits.
For example, if your past work was that of cashier, then hopefully you state on your Work History form that you had to lift at least 20 pounds. In fact, as a cashier, you may even lift more than that. If you lift furniture, bags of dog food, or bags of dirt, then you are lifting more than 20 pounds. The one thing that all cashiers have in common is that the job is rarely done in a seated position.
If you can do light work then you can lift up to 20 pounds. It also means you can stand on your feet for the majority of the work day. Therefore, to prove you cannot do your past job as a cashier, you need to prove you have a physical condition that prevents you from lifting 20 pounds. You also need medical evidence that shows you cannot stand for six out of eight hours during a work day. Therefore, medical evidence is the key to winning benefits.
Since the burden of proving you can’t do your past work is on you, you must provide medical evidence that proves you cannot work. Once you provide that evidence, the burden of proof shifts to the SSA to prove there are other jobs you can perform.
YOUR RESIDUAL FUNCTIONAL CAPACITY AT STEP FIVE
At the core of step five is your residual functional capacity (RFC). Your RFC, which the SSA defines at step four of the review process, is what you can still do despite your medical symptoms.
RFC assessments cover a range of physical and mental abilities. For example, your physical RFC includes your ability to lift, stand, walk, bend, and use your arms and hands. Your mental RFC includes your cognitive function. For example, it includes your ability to concentrate, your memory, and your ability to follow instructions. In essence, the RFC is a picture of your remaining abilities after taking your medical conditions into account.
For example, someone with a severe back injury might have an RFC that limits their ability to lift heavy objects but allows for seated work. Alternatively, someone with depression might have an RFC that restricts them from doing a high stress job. Your RFC plays a significant role in showing what work you might be able to perform.
THE SSA CONSIDER OTHER FACTORS UNDER STEP FIVE
Once the SSA defines your RFC, they also look at additional factors under step five. For example, step five considers your age, education, and skills. Learn how each of these considerations comes into play:
- AGE: SSA divides people into age categories. For example, younger individuals are people who are under 50 years old. If you are between the ages of 50 and 54, then you are closely approaching advanced age. Once you are 55 years old and older, then you are of advanced age. After age 60 you are closely approaching retirement age. The SSA rules state that the older you are, the less likely you are able to adjust to a new occupation.
- EDUCATION: The SSA considers your education level and any knowledge or training you learned on the job. For example, someone with a limited education may be not be able to adapt to new technology or learn new skills on the job.
- TRANSFERABLE SKILLS: If your have skills from past relevant work, then the SSA believes those skills can transfer to other jobs. Because of your skills, the SSA may decide that you can adjust to a different occupation. However, if your skills belong to only one type of job, then there may be fewer job options. For example, coal mining skills do not transfer to other forms of work.
THE SSA HAS THE BURDEN OF PROOF AT STEP FIVE
At step five, the burden of proof shifts to the SSA to prove there are “other” jobs (besides your past job) that you can perform. In order to make this decision, the SSA will look at a variety of factors. For example, they will look at your age, education, work experience, and your RFC.
These factors determine whether you can work in jobs that are consistent with your RFC. This determination involves the use of a set of tables known as the medical-vocational guidelines. The older you are and the fewer work skills you have, the easier it is to win SSD benefits.
Once you reach the SSA hearing, there will usually be a vocational expert (VE) who will testify about these factors. The VE is an expert witness. The judge calls a VE to testify about whether a person like yourself can do certain jobs. Also, the VE testifies about the number of jobs available in the economy. VEs have training in job placement. They also know the numbers and types of jobs that exist in the nation.
The Judge listens to your hearing testimony and reviews the medical records. They will also review opinions from the SSA doctors and your doctor to determine how your medical conditions impact you on the job. Then, the Judge will ask the VE questions about what kinds of jobs you could do. Likewise, your attorney will ask questions. Your attorney can also question the VE. If you do not know how to question a VE, then hire a lawyer. Often it is VE testimony that determines whether you win or lose your SSDI and SSI benefits.
THE USE OF HYPOTHETICAL QUESTIONS AT STEP FIVE
At your hearing, when the burden of proof shifts to the SSA, the judge must question the VE to determine if there are jobs in the national economy you can perform. The way the judge decides if you can perform other jobs at step five is through questions to the VE. The judge will ask questions about a person with your symptoms. In each question, the judge will usually add a few more symptoms to see how they impact jobs.
For example, if the medical evidence shows that you cannot stand 6 out of 8 hours during a workday, then the judge might ask: if a person can only stand for two hours in an eight hour day, can they still be a cashier? The VE is going to answer that being able to stand for only two hours will eliminate your ability to do that job.
The judge will then ask: are there other jobs in the national economy that a person could do with this standing limitation?
Of course, there are many jobs that do not require you to stand for the majority of the day. These jobs are seated jobs. If the judge can prove that you can perform seated work, then the SSA has met their burden of proof. Therefore, you would lose your case at step five and not win benefits.
IS THE VE’S TESTIMONY CONTRARY TO THE DICTIONARY OF OCCUPATIONAL TITLES?
The Dictionary of Occupational Titles (DOT) defines light jobs as jobs that require the ability to stand 6 out of 8 hours in a workday, just like the SSA’s regulations. All SSA judges know the requirements of light work. If the judge asks the VE a question and the VE’s answer is contrary to the DOT, the judge must ask for evidence proving the VE’s testimony is accurate. Without evidence, the judge should not rely on the VE’s testimony to deny the claim.
VE’s often testify about jobs that are not properly defined by the DOT. Some of that testimony occurs because the last time the DOT was updated was in 1984. Technology has come a long way since then. Every year the mental skills and physical requirements of jobs change. Therefore, VE testimony provides an understanding of what is truly required to do any job.
THE ALJ’S FINDINGS AT STEP FIVE MUST BE BASED ON SUBSTANTIAL EVIDENCE
In the Tenth Circuit, under Haddock v. Apfel, 196 F.3d 1084 (10th Cir., 1999), an ALJ must investigate and elicit a reasonable explanation for any conflict between the DOT and VE testimony. Furthermore, if the ALJ gives a faulty hypothetical to the VE, then the VE’s testimony will not support a denial of benefits.
An ALJ’s question is deficient when it does not take into consideration all of your limitations. McMillian v. Schweiker, 697 F.2d 215 (8th Cir. 1983). Many times, judges include only some symptoms in their questions. A VE’s testimony is only useful if it addresses whether a particular job can be done with certain limitations and capabilities.
The ALJ’s decision cannot be based on substantial evidence if the ALJ’s questions to the VE did not include all of the limitations. Many circuit courts have held a VE’s testimony cannot constitute substantial evidence to support an ALJ’s decision unless it accurately reflects all limitations. DeLeon v. Secretary of HHS, 734 F.2d 930, 936 (2d Cir. 1984). Arbitrarily choosing limitations to include in the questions to the VE creates a faulty hypothetical that the judge cannot rely on.
VOCATIONAL EXPERT TESTIMONY
Being able to perform a standing job, while seated, is an accommodation that most employers do not give the worker. The VE and the ALJ both know that not all employers will give an employee the option to sit on the job. Most VE’s testify that only a certain percentage of employers will let a worker sit at a job that requires standing.
That need to sit reduces the number of jobs available in the light category. Additionally, the need to sit for six hours, versus stand for the same length of time, should eliminate jobs in the light category. If the VE does not reduce the number of jobs in the light category based upon the ALJ’s standing restriction, then the ALJ is making a mistake by relying on the VE’s testimony.
When a VE provides testimony about job requirements, the judge has a duty to ask about and obtain a reasonable explanation for any possible conflict between the VE’s testimony and information provided in the DOT. “If there is an apparent conflict between expert testimony and the DOT, the ALJ must ‘obtain a reasonable explanation for the apparent conflict.’” Social Security Ruling 00-4p. While the DOT does not trump VE testimony, case law states the ALJ must explore any conflict with the DOT.
Therefore, the ALJ must investigate and elicit a reasonable explanation for any conflict between the DOT and VE testimony. The judge must do this before he relies on the VE’s testimony to support a denial of benefits.
WHAT IS A SIGNIFICANT NUMBER OF JOBS?
Unbelievably, there is no definition in the law about what constitutes a significant number of jobs. The consensus seems to be that if the judge can find a some jobs, then that is good enough.
However, when the job base erodes due to limitations in the judges questions, then most VE’s testify there is a reduced number of jobs available. This is important because the SSA often argues that VE mistakes are harmless error.
Additionally, a VE’s error in not reducing the number of jobs available in the economy is not harmless error. Because the 10th Circuit has suggested that 152,000 jobs is the lower boundary for numerical significance as a matter of law. Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008) (not published). If the VE reduces the number of jobs, then there may not be a significant number of jobs that you can perform.
According to Social Security Ruling 00-4p, an ALJ may not rely on VE testimony if it is based on assumptions or definitions that are not consistent with the DOT’s definitions. For example, the SSA classifies jobs as seated, light, medium, heavy and very heavy. These terms have the same meaning as they have in the DOT. While there may be a reason for finding the demands of a job are different than those in the DOT, the regulatory definitions of exertional levels are controlling in all SSA claims.
HAVE THE CIRCUIT COURTS DEFINED A SIGNIFICANT NUMBER OF JOBS?
The point of a judge finding there are a significant number of jobs is to demonstrate there are thousands of jobs you can do, despite your disability.
Some Circuit courts have tried to define a significant number of jobs. For example, the 10th Circuit suggested that 152,000 jobs is the lower boundary for a significant number of jobs. The Sixth Circuit upheld a finding of 6,000 jobs as significant. This difference shows the problem with the interpreting the word “significant.”
In contrast, the Ninth Circuit states that smaller figures—such as 1,680 jobs—are not significant. However, they also upheld that 25,000 jobs could meet the threshold for a significant number. They stated that 25,000 jobs was sufficient to support a denial of benefits. This means that “significant,” at least in the Ninth Circuit, is somewhere between 2000 and 25,000 jobs.
Finding a significant number of jobs is left to the opinion of the judge. This is unfortunate. Because the SSA and the courts have not set a number for significant jobs, judges often find that a few thousand jobs is a significant number. Other judges find that anything under 5000 is not enough jobs. This is one more reason that having a lawyer can help you in court. Your lawyer can argue that the VE’s numbers are not accurate. She can also argue that the number of jobs is not significant in your Circuit.
IS IT WORTH THE ATTORNEY FEE TO HIRE AN SSD LAWYER?
It isn’t easy to win Social Security benefits. Likewise, the five step review process is frustrating for most people. But, having an attorney throughout the process can make it easier to win benefits. It is our belief that when you have a law firm with experience handling your Social Security case, then the SSA makes sure they follow their own procedures. Your lawyer can make sure the SSA applies the five step process correctly.
Additionally, when you have an attorney with legal experience, they will have access to Social Security’s decisions. Therefore, they can submit medical evidence that may be missing from your case. Additionally, if you listen to your attorney, she can tell you what medical evidence you need to obtain to win your case.
There is evidence that hiring an attorney with the proper experience raises your chances of winning your SSDI and SSI benefits by 30%. It is also smart to hire an attorney to help you with your hearing. After all, you are the star witness at your hearing. If you hire an attorney with experience, then they can prepare you to testify at your hearing. Learn how to prepare for your SSD hearing.
HIRE THE BEST SSD LAW FIRM NEAR YOU
Step five is a nuanced part of SSA’s review process. It requires careful consideration of your age, skills, education, and physical and mental limits. While challenging, understanding step five can be the key to winning your SSD benefits. You can strengthen your case by presenting your limitations with medical records and treating source medical opinions. You can also support the medical evidence with your hearing testimony.
Finally, you can hire the best SSD lawyer to help you present your case and cross examine the VE. This gives you the best possible chance for approval at this fifth and final stage of SSA’s review process.
Hire our SSD law firm to give you legal advice and walk you through the application and review process. In the past 30 years, we have won millions of dollars in future and past due SSD benefits. If you need SSD benefits, then hire an attorney with the legal experience to win. If you don’t win, then you don’t pay an attorney fee. Hiring our law firm triples your chances of winning SSD benefits. For help with step five of SSA’s review process, contact us. We offer a free review of your benefits. Put our legal experience to work for you.
