KosAbility is a community diary series posted at 5 PM ET every Sunday by volunteer diarists. This is a gathering place for people who are living with disabilities, who love someone with a disability, or who want to know more about the issues surrounding this topic. There are two parts to each diary. First, a volunteer diarist will offer their specific knowledge and insight about a topic they know intimately. Then, readers are invited to comment on what they've read and/or ask general questions about disabilities, share something they've learned, tell bad jokes, post photos, or rage about the unfairness of their situation. Our only rule is to be kind; trolls will be spayed or neutered.I spend most of my workdays dealing with applications for Social Security Administration (SSA) disability benefits. Many people become very disappointed when their disabling condition that keeps them from performing their prior occupation does not qualify them for SSA disability.
The simple answer for this is that we have 2 completely different types of disability in federal law. The first type of disability provides income replacement. Examples of disability for income replacement purposes includes SSA, the Veterans Affairs (VA) disability pension system, and Workers Compensation (WC). The second type of disability definition is used to protect rights in various contexts such as school and work. This definition, usually called section 504 disability, is the basis for rights under the Individuals with Disabilities Education Act (IDEA) and the American with Disabilities Act (ADA).
Follow me below the squiggly to learn how these conflicting definitions confuse us and set us up for disappointment when applying for SSA disability benefits:
Income Replacement Disability
The 3 major forms of income replacement for the disabled are administered by SSA, WC, and the VA.
The VA and WC systems pay for less than total disability
Briefly, both the VA and WC systems will provide income replacement benefits for individuals with as little as 10% (for the VA) or 5% (for some state WC programs) disability.
WC only pays if the resulting disability was related to a workplace injury. In contrast, the VA will pay for service-connected injuries and their natural consequences without regard to resources and will pay for other disabling conditions if the veteran has few resources. In addition, the VA considers all veterans with 100% disability in their system as "unemployable."
How WC and the VA determine disability is a topic for another blog. Nevertheless, the method that WC and the VA use to determine disability is different than the process used by SSA. A VA determination of "unemployable," therefore, might or might not result in an SSA determination of "disabled."
SSA pays only if an individual is "disabled"
SSA uses a 5-step evaluation process to determine disability for adults. Childhood disability determinations require a different analysis that need postponed for another blog.
Step 1 examines whether the individual is working and if that work activity is substantial and gainful. "Substantial" is defined as earning more than an amount set by SSA every year. For 2013, that amount is $1,030 a month for non-blind applicants. "Gainful" means activity performed with the expectation of income. For example, passive income such investment income is not "gainful" unless the individual actively manages the portfolio and receives income from the management activity alone. Further, the activity is not "gainful" if the individual receives the income from accommodated work. Examples of accommodated work include special hours, more frequent breaks, specialized equipment, reduced productivity, or working due to family relationship or other altruistic reason.
Step 2 assesses whether the individual has any severe impairments. A severe impairment is a medically determinable condition that results in more than minimal limitation in the person's ability to perform work-related activities. In addition, the impairment must have lasted or must be expected to last at least 12 months. To establish a severe impairment requires objective medical findings by an acceptable medical source such as a medical doctor or psychologist. Subjective reports by the individual alone is not enough. For example, Mary Sue says that she is disabled due to depression but has no record of treatment or evaluation for the condition although she obtains medical care for other issues. Mary Sue will have more difficulty establishing the condition is severe than Billy Bob who regularly obtains specialized psychiatric care from a local clinic, provides clinic notes for that care, and the clinic notes show that he continues to have difficulty with memory despite complying with recommended treatment.
Step 3 considers whether any of the severe impairments meet or equal the listings published in the Blue Book, also known by its formal name as 20 CFR Part 404, Subpart P, Appendix 1. There are separate listings for adults and children. Each listing generally requires a fairly profound level of illness or dysfunction. For example, the listing at 1.02A, major dysfunction of a weight-bearing joint, requires the inability to ambulate effectively, which basically means that the upper extremities are occupied with the use of assistive devices when walking, such as the use of 2 crutches or use of a walker as well as depending on a wheelchair to move about. An individual whose condition meets or equals any listing is "disabled."
The next step, sometimes called "step 3-and-a-half," assesses the individual's residual functional capacity (RFC) given their severe impairments. In other words, it defines what work-related activities can the person perform. SSA uses the medical evidence submitted into the record as well as the individual's subjective reports to make this determination. A typical RFC addresses how much a person can lift and carry as well as how long they can sit stand or walk. Many also address postural limitations such as bending or kneeling, environmental restrictions such as work at unprotected heights, and mental limitations.
Step 4 addresses whether the individual's RFC permits or precludes the person from performing past relevant work, or occupations performed for sufficient period to learn them fully. SSA uses the Dept. of Labor's Dictionary of Occupational Titles (DOT) or the opinions of independent vocational experts in making this determination. The DOT provides the job requirements for various occupations including exertional level (i.e., sedentary or light), skill level (i.e., unskilled or semiskilled), and other job requirements (i.e., frequent or occasional kneeling). An individual who can perform any past relevant work is "not disabled."
Step 5 assesses if the claimant can perform other work. SSA uses the Medical-Vocational Rules (aka Appendix 2 to Subpart P of Part 404 or the "grid rules"), sometimes supplemented by the testimony or reports from an independent vocational expert, to make this determination. The grid rules consider the individual's age, education, work experience, and RFC. An individual is "disabled" if the grid rules direct a finding of disability, if the vocational expert reports or testifies that there are no occupations that a person with the same RFC can perform, or if other reason exists to find that the RFC substantially erodes the available occupational base sufficiently to warrant a finding of "disabled."
In sum, the standard for SSA disability for adults is either: profound limitations or illness of at least 12-months duration or likely to last at least 12 months that meets or equals the listings; or, inability to perform any past relevant work and inability to perform any other work.
This is a very difficult barrier to overcome.
About 33% of people applying for SSA disability obtain favorable determinations at the initial or reconsideration levels. State Agency medical and psychological reviewers make these determinations. On average, about 50% of those who request a hearing before an SSA Administrative Law Judge (ALJ) receive a favorable decision, usually because their condition worsened between reconsideration and the hearing. Only about 5% of those who appeal an unfavorable ALJ decision eventually receive a favorable determination.
Rights Qualifying Disability
The definition of "disability" to qualify for rights under federal law uses a lower standard than SSA.
Section 504 of the Rehabilitation Act (RA) of 1973, the earliest of the rights-qualifying disability laws, states that "no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under" any program or activity that either receives Federal financial assistance or is conducted by any Executive agency or the United States Postal Service. Each Federal agency developed its own section 504 regulations that include reasonable accommodation for employees with disabilities, program accessibility, effective communication with people who have hearing or vision disabilities, and accessible new construction and alterations.
Under section 504, individuals with disabilities are "persons with a physical or mental impairment which substantially limits one or more major life activities" where
"major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning."
Examples of disability under section 504 include the following:
* arthritis of the fingers that reduces typing or keyboarding speed
* depression that reduces the ability to remember or concentrate
* a learning disorder resulting in the ability to perform only single-digit addition.
Note: these might or might not be "severe impairments" for SSA
Accommodations under section 504 could include:
* a keyboard designed to reduce carpal tunnel syndrome pain
* a chair that supports an individual weighing 400 pounds
* allowing a sit or stand option when collecting movie tickets
Note: these might or might not meet the SSA definition of accommodated work
Enacted in 1975, the IDEA requires public schools to make available to all eligible children with disabilities a free appropriate public education in the least restrictive environment appropriate to their individual needs. Schools must identify children with section 504 disabilities and develop an Individual Educational Plan for accommodations, if appropriate.
The ADA later modified the definition of disability to include any individual who "has a physical or mental impairment, a record of an impairment, or is regarded as having an impairment." In addition, the ADA extended discrimination protection and accommodations to most individuals who work in the private sector, work for state or local government, use public transportation, or use public accommodations.
Many people with a disabling condition are disabled under section 504 and "not disabled" per SSA
Joe Doe (not his real name) is a 35 year old pharmacist with severe arthritis of the right knee and a recently healed left ankle fracture. He clearly qualifies as eligible for section 504 accommodations at work because his injuries prevent him from standing or walking for a full shift, which most pharmacists must be able to do. His employer, a major drug store chain, could not accomodate his inability to stand and walk for a full shift. Joe exhausted his short-term and long-term disability leave. He is now unemployed.
He applies for SSA benefits. Using the 5-step sequential evaluation process, the agency finds that he is not working at above substantial gainful activity (step 1) and has serious impairments of osteoarthritis of the right knee and history of fractured left ankle (step 2). Joe acknowledges that he can stand and walk without the use of a cane or crutches and can walk at a decent pace over uneven ground, so his impairments do not meet the listing at 1.02A, major disfunction of a weight-bearing joint, or 1.03, major reconstruction of a major weight-bearing joint (the left ankle) (step 3). SSA concludes that he is able to lift and carry 20 pounds occasionally and 10 pounds frequently because he acknowledged in his application that he helps with laundry and vacuuming around the house and sometimes carries the trash to the curb. As for his ability to sit, stand, and walk, SSA finds that he can sit for 6 hours and stand or walk for 4 hours in an 8-hour workday with occasional balancing, crouching, stooping, and climbing ramps or stairs but no kneeling, squatting, or climbing ladders (concluding step 3-and-a-half). A vocational expert affirms that Joe's abilities and limitations prevent him from returning to his job as a pharmacist (step 4) but states that a person with those same abilities and limitations could perform at least 3 unskilled light occupations. Joe is "not disabled" according to SSA (step 5).
Hence our collective confusion and the source of disappointment
Like Joe, I am both "disabled" using the section 504 definition but not so according to SSA. The psychic effort needed to accept my limitations caused by rheumatoid arthritis was difficult. I cannot stand for more than about 30 minutes without pain. I type with 4 fingers because the others no longer go up and down in a regular enough pattern to rely on them. I rely on public transportation and comute almost 2 hours each way because driving the 1-hour to to work and the 1-hour trip back causes exhaustion so severe that I drift off to sleep at the wheel on the way home. I look unstable when walking due to balance problems and an intermittent limp.
Nevertheless, I work. Full time. With minimal section 504 accommodations of a split keyboard, bar mouse, ergonomic chair, and speech recognition software. My employer holds me to the same attendance, quality, and production standards as all others with my job description. My work activity, therefore, probably does not meet SSA's definition of "accommodated work."
It is tough to realize that SSA would likely not find me "disabled" because I accept my disease and resulting limitations as a component of my self-identity.
But I don't need income replacement. I earn income despite the disability.
So, disabled, but also "not disabled."
What's your story?