Social Security Administration employs a well known five step sequential analysis. Step 1 of the sequential analysis is the question: are you working? If a claimant is working and earning at a level of “substantial gainful activity,” s/he is, by definition, not disabled. At Step 2 of the sequential analysis, if the claimant is not working, a decision is then made as to whether the claimant has a “severe impairment.” At Step 3, a determination is made as to whether the claimant meets or equals in severity a listed impairment. If s/he does, the claimant will be found disabled. After Step 3 but prior to Step 4, a determination as to the claimant’s “residual functional capacity” is made. Once “residual functional capacity” is established, at Step 4, a determination is made as to whether the claimant can return to her/his “past relevant work.” If the claimant can return to her/his “past relevant work,” unless a GRID rule applies, s/he will be found not disabled. If it is determined at Step 4 that the claimant cannot return to her/his “past relevant work,” at Step 5 a determination is made as to whether the claimant retains the “residual functional capacity” to perform any other type of work which exists in significant numbers in the regional or national economies.
After Social Security personnel completes the application process, the “initial” application is sent to Disability Determination Services (DDS) to make disability determinations. The DDS claims examiner assembles the claimant’s medical records, with the help of the claimant’s attorney if one is involved, and the case is sent to a DDS reviewing physician for a disability determination. A Notice of Initial Determination is then sent to the claimant.
If denied, the claimant then has the right to file a “Request for Reconsideration.” The file will then be returned to DDS to a new claims examiner for additional development of the medical record, if necessary, and for a second disability determination by the DDS reviewing physicians. A Notice of Reconsideration is then sent to the claimant.
If denied again at the reconsideration level, the claimant then has the right to Request a Hearing before an Administrative Law Judge at the Office of Disability Adjudication and Review. The average delay from the filing of a Request for Hearing to the scheduling of the hearing varies but currently is approximately sixteen (16) to eighteen (18) months at the Providence Office of Disability Adjudication and Review. At the hearing, the ALJ often employs the services of medical and vocational experts to provide expert opinion evidence as to the claimant’s medical condition, residual functional capacity, and ability to work, including statistical data regarding the existence and incidence of jobs the claimant could perform, despite his/her impairment. After the hearing is held, the average processing time for the issuance of a decision is anywhere from one to six months.
If the ALJ issues an Unfavorable Decision, the claimant can file a Request for Review with the Appeals Council. The Appeals Council is located in Falls Church, Virginia and handles all Requests for Review of Unfavorable Decisions (at the hearing level) for the entire country. If Marasco & Nesselbush appeals your case to the Appeals Council we will write a detailed Memorandum of Law, supporting your appeal.
If the Appeals Council affirms the ALJ’s Unfavorable Decision, the claimant has the right to file a complaint for relief in the United States District Court (USDC) for the district in which s/he resides. Again, Marasco & Nesselbush will always write a Memorandum of Law supporting your appeal.