Practice Tip #2: Burden Of Proof In A Disability Claim

Every Social Security disability case is different and depending on the claimant’s age, education, past work experience, and transferable work skills, so is your burden of proof.

Let’s begin by discussing age. If the client is a younger individual (under age 50), your burden of proof is that the individual must be incapable of doing “any work” that exists in the national economy. Therefore, you must prove that he/she cannot perform work at ANY exertional level. That’s your burden of proof. The cumulative effects of the claimants impairments must preclude work at even the sedentary level. Let’s review – the sedentary level requires an individual to be able lift up to 10 lbs. occasionally, 0 lbs. frequently, sit for 6 hours, and walk or stand for 2 hours. That’s a high burden of proof as there are jobs that exist that don’t require any additional postural activities such as bending, stooping, kneeling, crouching, crawling, etc.. An often cited position in disability hearings is the infamous “Surveillance Systems Monitor” position.

We’ll discuss in another blog post about how to effectively prove an erosion of the claimant’s ability to perform those positions in another post. For now, we will discuss how the “burden of proof” requirement should affect your strategy in proving disability claims.

If, an individual is of advanced age (55+) your burden of proof requires you to A. Prove the client cannot return to any past relevant work (step 4) and would therefore B. GRID out. This burden of proof unfortunately, limits individuals of advanced age whose PRW is sedentary or light. The GRIDS benefit individuals whose PRW was performed at medium or heavy. Nevertheless, that’s how congress crafted the laws.

In practice, and the point I want to emphasize here is; if your client will GRID at light, YOU DON’T HAVE TO PROVE THEY CAN’T FUNCTION AT ALL. What this means is, don’t overplay your hand. A person whom would GRID at light, can still do some light household chores, drive a vehicle, walk without an assistive device, and perform most activities of daily living. Let that understanding guide the client when completing the SSA-3373 and when testifying before an administrative law judge.

Why shouldn’t you emphasize that your client cannot “do anything”? Credibility… If your client’s alleged impairments are not consistent with the medical opinions, test results, etc. in his/her file, then testifying as to “not being able to do anything” is not credible. If the state agency or administrative law judge finds your client isn’t credible, you may lose the case unnecessarily.

In conclusion, let the client’s, age, education, and past relevant work, guide your case strategy, and be mindful of exactly what you have to approve to win the case.

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