Quick Drafting Question

[bigfatzerotwice]

The claimant alleges an onset date of January 2003. He returned to work at SGA levels in March 2006 (dates made up). The ALJ finds he can perform other work at step 5. Same fact pattern, but now assume the ALJ finds him not disabled due to SGA after March 2006, and able to return to past relevant work from January 2003 to March 2006.

What is the correct way to handle this?

[float]

Assuming no typos in your hypo, claimant loses: "not disabled" from 3/06 on, and "able to return to past relevant work" = "not disabled" for 1/03 to 3/06. How to handle it? Don't take the case.

[hooligan]

Dec 23, 2008 20:25:51 GMT -5 bigfatzerotwice said:

The claimant alleges an onset date of January 2003. He returned to work at SGA levels in March 2006 (dates made up). The ALJ finds he can perform other work at step 5. Same fact pattern, but now assume the ALJ finds him not disabled due to SGA after March 2006, and able to return to past relevant work from January 2003 to March 2006.

What is the correct way to handle this?

I assume you are drafting the ALJ decision. The obvious answer is to take it one step at a time using the 5 Step process. Step 1 - is he earning SGA? Answer: yes, but only after March, 06. Need to go to subsequent steps for earlier period. Assume Step 2 = severe. Assume Step 3 = not at listing levels. Step 4 - need to articulate RFC and pose Hypo for vocational expert. VE explains prior relevant work. If RFC is consistent with PRW, = Not Disabled. If hypo not consistent, go to Step 5, are there other jobs he could have performed during that period consistent with the hypo?

I apologize if this is an over-simplification for some.

[latinlawyer]

It is very important to know if this is a Title 2 only case, a Title 16 only case, a "concurrent" case, AND also the date of filing of the application(s).

This is because the fact situation given will become meaningless if a date when benefits could be payable cannot be "reached." Remember, retroactivity of Title 2 applications is only 12 months for benefit purposes, and there is also the five full month waiting period to be accounted for. If the claimant cannot receive benefits, it is meaningless to award him a "closed period" in the past.

For Title 16 applications it may even be clearer, since they are only effective with the filing month. If the claimant filed, I assume, some time after March 2006, but before the present, he would have been working at the SGA level at all relevant times and this is a clear cut and easy denial.

For the Title 2 part it will be very important to know the date of filing, etc.

Again, like the last post, I apologize for over-simplifying.

Bye!

[hooligan]

Jan 3, 2009 17:07:25 GMT -5 latinlawyer said:

If the claimant cannot receive benefits, it is meaningless to award him a "closed period" in the past.

This would be true for a Rep who could not be paid if benefits were not awarded.

However, an unpaid period of disability can be helpful to some applicants. Those months of disability would toll the quarters of coverage calculation (and thereby extend the Date Last Insured). It could also affect the formula used to calculate retirement benefits based on average annual earnings by excluding zero earning years from the calculation.

[jcse]

I think float is incorrect; he can be found disabled from 1/03-3/06. But we cant say what rationale is correct BFZT, because your facts are limited as to whether cl. could return to PRW from 1/03 to 3/06..?? If he is engaging in SGA as of March 2006, this can be used as a basis for denial. If he is found disabled during the 1/03-3/06 period, some judges may carve out a "trial Work Period" after 3/06.

[bartleby]

"The claimant alleges an onset date of January 2003. He returned to work at SGA levels in March 2006 (dates made up). The ALJ finds he can perform other work at step 5. Same fact pattern, but now assume the ALJ finds him not disabled due to SGA after March 2006, and able to return to past relevant work from January 2003 to March 2006.

What is the correct way to handle this?"

I believe the answer is that in the first scenario, the claimant is denied at Step 5 as of January 2003. In the second scenario the claimant is denied at Step 4 as of January 2003. The fact that he began SGA in March of 2006 is irrelevant to this decision. There is no need to pile on reasons for denial, once a basis for denial has been established. As usual, JMHO..

[jcse]

True in theory but not exactly true in practice. The 1st question most judges will ask at an SSA hearing is, have you worked since your onset date. SGA is never irrelevant to the decision, as the ALJ has an obligation to mention it even if he uses another basis for denial. As the claimant returned to work in March 2006, that period of time would be before the ALJ at the present hearing...and the evidence surrounding the claimant's ability to return to SGA can affect how the ALJ adjudicates the prior period.

[bartleby]

The point is that if the ALJ has decided that the claimant can do work as of January of 2003, there is no need to mention that he has done so in March of 2006. To do so implies that the ALJ's opinion needs additional backing to be valid. Some ALJ's will find that the claimant is capable of performing his/her past relevant work and then state assuming arguendo that the claimant can't do PRW they then go to Step 5 and ask the VE to state jobs the claimant can do. This is wrong in my opinion, based upon reading CFR404.1520. With the backlog so large, we don't need to invent work, we need to do it and do it right. As usual, JMHO..

[jcse]

Bartelby, you (or whoever) deleted your other post stating that cl.'s return to SGA in March 2006 was irrelevant, but I still disagree with your statement re: cl.'s return to SGA that "there is no need to mention that he has done so in March of 2006. To do so implies that the ALJ's opinion needs additional backing to be valid"
!
It is not a matter of additional backing..Again, the whole period is before the ALJ, not just Jan. 2003, so it must absolutely be mentioned, it is a substantive issue. It is a matter of professional responsibility. And how much extra work does it take to say "The cl. returned to work in March 2006" It has nothing to do with writing an alternative rationale or being duplicative.

[mertonite]

Jan 7, 2009 10:07:54 GMT -5 bartleby said:

"The claimant alleges an onset date of January 2003. He returned to work at SGA levels in March 2006 (dates made up). The ALJ finds he can perform other work at step 5. Same fact pattern, but now assume the ALJ finds him not disabled due to SGA after March 2006, and able to return to past relevant work from January 2003 to March 2006.

What is the correct way to handle this?"

I believe the answer is that in the first scenario, the claimant is denied at Step 5 as of January 2003. In the second scenario the claimant is denied at Step 4 as of January 2003. The fact that he began SGA in March of 2006 is irrelevant to this decision. There is no need to pile on reasons for denial, once a basis for denial has been established. As usual, JMHO..

I don't agree that the SGA is irrelevant. The sequential evaluation is just that, SEQUENTIAL. You must complete the steps one at a time. "Are you engaging in SGA?" is the first step. Yes, you still have to address the earlier period, but you must go step by step.

Furthermore, the fact he returned to work can be used as grounds for reducing the claimant's credibility; lessening the weight given doctor opinions favorable to the claimant's; etc.