Bowing to the demand to cut the high cost of the Social Security Disability Program, applicants (claimants) must meet all five phases of the Social Security Administration’s prescribed five-step sequential evaluation process. In an abbreviated form, the steps are:
1. Is the claimant engaged in Substantial Gainful Activity or employment? (If not, then–)
2. Does the claimant have Severe Mental or Physical Impairments lasting more than 12 months or expected to result in death? (If yes, then–)
3. Do the impairments meet or equal the severity of a Defined Medical or Psychological Listing? (If yes, then claimant is disabled; if no, then claimant goes on to steps 4 and 5, which are vocational in nature)
4. Can the claimant perform Any Past Relevant Work that claimant engaged in during the last 15 years? (If no, then –)
5. Can claimant perform any other available work given his/her Age, Education, and Past Work Experience? (If no, then claimant is disabled according to the vocational standards. Anything else will lead to a finding of “not disabled” by the Social Security Administration. Please note that the burden of proof is on the claimant at steps 1 through 4, but shifts to the Social Security Administration at step 5, and this is where the vocational expert comes in. The standard for both, however, is a preponderance of the credible evidence.) (Whitehead 2007).
(Please see part I Social Security disability part I: its history, origin & laws.)
Keep in mind that all of the capitalized words and phrases in the aforementioned five-step sequential evaluation process are terms of art, and have explicit, strict definitions set down by the government’s mental, physical, and medical experts. For example, the terms Age, Education, and Past Work Experience are each strictly defined, and someone who is older, has less education, and less past work experience, will find meeting the threshold of disability easier than someone who might be 40 years old with a college degree and multiple years of past work experience. The point here is that all of these determining factors have very exacting definitions that must be met. Otherwise, the claimant is not disabled, and can find other—even if lesser—work.
As for the medical evaluations, and the testifying medical expert in Social Security disability determination hearings, Carey, Fletcher, and Earp aver that the knowledge and attitude of consulting physicians found that the physicians “were skeptical of the claims of the disability applicant and … thought that the applicant could find employment.” However, a majority of the physicians surveyed also said “they had learned little about disability programs from any source” and most judged it “almost impossible” to determine disability status from just one medical examination (1987). In 1981, the Social Security Administration spent $135 million in consulting physicians’ exams, and the vast majority of applicants were seen just once (Carey, Fletcher, and Earp, 1987).
Because participants in Social Security disability hearings are not adversaries de jure, but are adversaries de facto, it’s difficult to get a completely pro vs. con picture of the Houston Legal Issues Examiner’s interview subject. But, as an attorney advocating for claimants’ disability benefits, his comments certainly illustrate just which side of the fence he sits on with respect to the future, and even the overall purpose, of the program.
Case in point, Mr. Jeff Larsen is a staff attorney at Lone Star Legal Aid, and who, interestingly, is currently embroiled in an unrelated lawsuit against the Texas State Attorney General’s Office for the Texas Department of Health and Human Services Commission’s severe lack of timeliness with respect to processing applications for food stamps. Mr Larsen, in his interview, opined: “I think both Mr. [Herman] Litt, [a frequent testifying vocational expert in Social Security disability hearings], and I would agree that some people should get disability benefits, and others shouldn’t. Any disagreement has to do with the way those benefits are decided.”
Mr. Litt, a testifying vocational expert in Social Security disability hearings for over 30 years, however, possesses what could be called more of a right-to-work Weltanschauung. Herman Litt has a M.A. in Psychology and Rehabilitation Counseling and, in addition to his work with the Social Security Administration, has served as “rehabilitation counselor and hospital administrator for over 20 years.” His position as vocational expert is not necessarily antagonistic to either the claimant or to advocates such as Mr. Larsen, but rather to see everyone who can continue to work, in some type of capacity, be allowed to do so. This is presumably for the betterment of the individual (Litt).
Mr. Litt’s Web-site states:
Herman has had an accomplished and rewarding career as a rehabilitation counselor and hospital administrator. As a rehabilitation counselor, he has helped thousands train for better jobs in the industries that make Houston strong. He developed and managed health care programs for over 20 years and has served as a vocational expert for the Social Security Administration for over 30 years.
Of vocational experts, Mr. Larsen says, “The role of the vocational expert is to advise the judge—what are the physical and mental requirements for the job that the claimant used to do in his previous work, and then responding to hypotheticals from the judge … the vocational expert advises the judge on whether or not there are other jobs the claimant can do.” And herein Mr. Larsen relates a story in which one vocational expert—not Mr. Litt—actually advised the judge that the claimant, unable to perform his past relevant work experience, could still work as an elevator operator. While telling this story, Mr. Larsen slaps the table and guffaws, asking when was the last time anyone saw an elevator operator in Houston? Indeed.
Mr. Larsen adds, “The really ridiculous part of the testimony from the VE [vocational expert] about the passenger elevator operator was her testimony that there were 1000 passenger elevator operators in the Houston area and the assertion that my client could do the job despite his very limited English.
“Certainly, that kind of testimony can be helpful to the judge,” explains Mr. Larsen. “My problem, I guess, is that vocational experts’ testimonies are not based on any real scientific basis. They do have good data in the Dictionary of Occupational Titles produced by the federal government about what are the requirements of various jobs, but unfortunately what the judge is asking about is whether there are other jobs available for a person with certain limitations,” explaining that the government doesn’t take the time or money to do certain research upon this particular point of contention.
Mr. Larsen goes so far as to say that some vocational experts (not necessarily Mr. Litt) “[go] beyond what they can truthfully say … and push their expertise farther than it really goes, especially when they start talking about how many jobs there are in a certain category,” clarifying that the data basically comes from the Census Bureau and the Texas Workforce Commission [in the case of Texas] and it’s not organized in terms of particular numbers. “When the vocational expert says ‘this particular job of eyeglass lens inserter,’ that ‘there are 3000 jobs of this type in a certain area,’ there is no factual basis for saying that. It simply could not exist, that type of numerical certainty.”
This 50+-year-old disability issue currently is law, and likely will remain so. The challenge facing future generations of Americans, is to what extent will our government—or, given the current federal budget deficit, can the federal government—continue to operate an insurance program for disabled workers. It will be telling to see where the new health-care legislation will go, and what, if any, repercussions come from it.
Ultimately, having disabled workers unable to earn enough to keep a roof over their heads might hurt society more than offering a small amount of government-subsidized compensation. The strength of this argument lies in the fact that it is an insurance program—i.e. if a claimant has not worked and paid into the system, or even if a claimant has not worked long enough, and paid enough into the pot to be eligible, then said claimant is not eligible for benefits and won’t even be considered. The limitations, given the current prevailing economic climate, are that government programs and subsidies might be cut or even done away with entirely. It’s also certainly possible that public opinion could sway against those not working and seemingly getting a “handout” for whatever reason, though this is certainly not the case as far as Social Security disability goes.
On the contrary, Stapleton, O’Day, Livermore, et al postulate that the current disability program creates a “poverty trap,” adding that “working-age Americans with disabilities are much more likely to live in poverty than other Americans are” (2006). They add that “[Reforms] should take advantage of the productive capacities of people with disabilities while at the same time providing sufficient support to ensure that those who are working will achieve a higher standard of living than they can under current policies.”
Thus shall the future of the Social Security disability program remain dynamic. It will be interesting to see how the program fares under the current administration and public opinion, especially given the often volatile climate of today’s politics and competing hegemonies.
Sign up for instant email alerts and receive notification whenever a new article is published by the Houston Legal Issues Examiner–hit “subscribe” above!
Please see related articles:
Legal Issues 101: How do I apply for–and win–Social Security disability benefits?
Trying to get Social Security disability benefits or SSI and can’t afford an attorney?
Also, please see Social Security laws & regulations on the government Web-site.
LegallyBlog® on Facebook
Create your badge
Berkowitz, Edward. 2000. “Disability Policy and History.” July 13. (October 3, 2009).
Bureau of Labor Statistics. 2009. “Regional and State Employment and Unemployment (Monthly).” November 20, 2009. (November 26, 2009).
Carey, Timothy S.; Suzanne W. Fletcher; Robert Fletcher; et al. 1987. “Social Security Disability Determinations: Knowledge and Attitudes of Consultative Physicians.” Medical Care, Vol. 25, No. 4 (Apr., 1987), pp. 267-275. (September 23, 2009).
Social Security Administration Online. 2009. “Disability Benefits.” (September 27, 2009).
Stapleton, David C.; Bonnie L. O’Day; Gina A. Livermore; et al. 2006. “Dismantling the Poverty Trap: Disability Policy for the Twenty-First Century.” The Milbank Quarterly, Vol. 84, No. 4 (2006), pp. 701-732. (September 23, 2009).
U.S. Social Security Administration Office of Policy. 2009. “Trends in the Social Security and Supplemental Security Disability Programs.” (November 21, 2009).
Whitehead, Marc. 2007. “Nuts and Bolts of Social Security Disability Law.” Seminar – Houston Bar Association. March 11, 2007.
Copyright 2010 Sami K. Hartsfield – All Rights Reserved