While the severity of the impairment is the most significant factor in Social Security Disability cases, age follows right on its heels as the second most important factor. The reason is simple – the law is different for people of different ages. The younger a person is, the more difficult it is to prove an inability to work. Conversely, every year older will make the case for disability a little bit easier.
The basic idea is that as we get older, the real opportunity to change careers diminishes. As an example, consider a 55-year-old construction worker who has only worked in construction his entire life. Let’s further assume he has an impairment that prevents him from working construction but would permit him to work in an office, a sit down job with very little lifting. The problem is that at 55 he probably will not be able to make the transition to working in an office. It’s too late in his working career to learn a completely new set of skills. Recognizing this fact, the Social Security Administration’s (SSA) rules separate the world into three different age groups and treats each differently.
I have some good news for all you 49ers out there, the SSA considers anyone under the age of 50, to be a “younger person.” The bad news is that as a “younger person,” the SSA has determined that you are still able to learn how to do a completely new job. In considering our construction worker, let’s say he is 45 when he becomes unable to work in construction. SSA would deny his claim for disability because as a “younger person” he does have the ability to learn how to do a desk job.
Closely Approaching Advanced Age
Claimants between the ages of 50-54 are considered to be “closely approaching advanced age.” According to SSA rules, these individuals will have some difficulty transitioning to new types of employment but this difficulty will only partially limit their ability to transition. For the construction worker who now is limited to sedentary work (no lifting over 10 pounds), the SSA will find that he cannot make the adjustment to that type of work and consider him disabled. However if that same construction worker can do light work (no lifting over 20 pounds), SSA will find that he can make the transition to light work and will deny benefits.
The good news for you unfortunate souls 55 and over is that if you cannot perform your prior work, you are probably entitled to benefits. This is an oversimplification but it is not far from the truth. In the construction worker example, even though he may still be able to do light work (lifting up to 20 pounds), at age 55 SSA will find him disabled. Any claimant who is over 55 years old and cannot perform the work they have performed for the past 15 years has a very good claim for benefits.
Sometimes 49 Equals 50
Regardless of vanity, I may argue to the SSA that you should be considered to be 50, even though you are only 49. There is a rarely used portion of the Social Security regulations that provides that age categories should not be applied “mechanically.” 20 CFR § 404.1563(b). Thus if the law would grant you disability benefits at age 50 but you are only 49 and 6 months, SSA may “deem” you to be 50 and grant the benefits. Don’t worry – your “deemed” age is a part of attorney client privilege. What happens at the hearing, stays at the hearing!
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877