54 RI Bar J., No. 1, Pg. 7 (July/August 2005). Social Security Disability Law: The Facts And Some Recent Changes.

• Author: Donna M. Nesselbush, Esq.

Rhode Island Bar Journal

Volume 54.

54 RI Bar J., No. 1, Pg. 7 (July/August 2005).

Social Security Disability Law: The Facts And Some Recent Changes

July/August 2005pg. 7Social Security Disability Law: The Facts And Some Recent ChangesDonna M. Nesselbush, Esq.Donna M. Nesselbush is a partner in the law firm of Marasco & Nesselbush.She chairs the Rhode Island Bar Association's Sub-Committee on Social Security Disability Law, and she is a Municipal Court Judge in Pawtucket, Rhode Island.The Social Security Act was enacted in 1935 during the Great Depression by Franklin Delano Roosevelt to ameliorate the rigors of life and to provide for the "security of the men, women and children of the Nation against certain hazards and vicissitudes of life." (Message to Congress 1/17/34). When initially enacted, the Social Security Administration offered a variety of programs including programs for railway workers, miners who had contracted black lung disease, and social security retirement insurance benefits. In 1954, a Disability Insurance Benefits program (DIB or SSDI) was added for disabled workers. In 1972, Supplemental Security Income (SSI) benefits were added for disabled individuals who were income eligible/low income and who had not worked long enough to qualify for SSRI or SSDI.This article focuses on the Social Security disability programs (SSDI and SSI) which are crucial to disabled workers, crucial to the war against poverty, and crucial to the safety net which is perceived to exist for Americans who fall on hard times. Social Security Disability is defined as the inability to engage in substantial gainful activity because of a medically determined physical or mental impairment. The disability must be total and must preclude the claimant from performing not only her/his "past relevant work," but also any other work which exists in significant numbers in the regional or national economy. (See 20 CFR 404.1505 (a)). The regulations regarding the Social Security Disability Insurance Program can be found at 20 CFR 404 et seq. The regulations regarding SSI disability can be found at 42 USC § 1381 et seq., 20 CFR § 416 et seq.The Social Security Administration employs a five-step sequential evaluation which will be discussed hereinafter to evaluate claims of disability. (See 20 CFR 404.1520.) Additionally, there is an appendix to the regulations, Appendix 1 to Sub-Part P of part 404 which contains a complete "Listing of Impairments." The Listings are broken down by body systems as follows:Listing 1.00: Musculoskeletal System;Listing 2.00: Special Senses and Speech;Listing 3.00: Respiratory System;Listing 4.00: Cardiovascular System;Listing 5.00: Digestive System;Listing 6.00: Genito-Urinary System;Listing 7.00: Hemic and Lymphatic System;Listing 8.00: Skin;Listing 9.00: Endocrine System;Listing 10.00: Multiple Body Systems;Listing 11.00: Neurological;Listing 12.00: Mental Disorders;Listing 13.00: Neoplastic Diseases, Malignant;Listing 14.00: Immune SystemEach of these Listings contain certain criteria that must be met for the claimant to "meet" or "equal in severity" a listed impairment. (See 20 CFR 404.1525, 1526). If the claimant's impairment meets or equals the listing, s\he will be found disabled. If the claimant's impairment does not meet or equal a listed impairment, the Social Security Administration will establish the claimant's "residual functional capacity," meaning what the claimant can do despite her/his impairment. (See 404.1545). After establishing "residual functional capacity," the Social Security Administration will then make a vocational determination as to whether the claimant has the "residual functional capacity" to return to any of her/his "past relevant work," or to return to other work which exists in significant numbers in the regional or national economy. (See 404.1560). As you can imagine, establishing a person's "residual functional capacity," and determining whether, vocationally, a claimant can return to her/his "past relevant work," or other work can and does involve a quagmire of factual, medical and legal issues.To facilitate the disability determination, the Social Security Administration has established a set of GRIDS reflecting major...