Age: A Crucial Factor in Your Social Security Disability Case

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.

Younger Persons

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.

Advanced Age

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!

David Galinis
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877
301-670-7030
dgalinis@bsgfdlaw.com
www.BSGFDlaw.com

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20 Responses to Age: A Crucial Factor in Your Social Security Disability Case

  1. Stephanie says:

    How is it that they can consider someone 50+ unable to learn a new skill for a new career? That idea seems absurd to me. I personally know several people who have gone back to school and/or changed careers after 50. Two of them happen to be my parents. I have Ankylosing Spondylitis and a extruded disc at L5-S1, resulting in spinal stenosis and inflammatory pain. I haven’t worked for 6 years, and so I applied 2 years ago. I was turned down, and now I know it is because of age. They claimed I could work light duty as a sales associate in a retail environment, so for the last 2 years I have been trying to find such work. NO ONE will hire me because I cannot stand for long periods, climb ladders, bend, or lift over 20lbs. I understand I can learn new skills and have a career that works for me, but currently I cannot afford the schooling or training needed, because I am married I cannot get financial aid. In the meantime, I had assumed I could be on disability and the extra income could pay for such training… but apparently not because I’m under 50, so I don’t qualify.

    Is there any way I can be approved for SSD, even if it’s temporarily until I can finish school and find a career that works for me? I don’t even have my high-school diploma at the moment! :( I am unsure what direction I should approach an appeal in, what type of way I can convince them I qualify. Any advice would be greatly appreciated.

    Also, I have had trouble finding legal help. Every attorney I have talked with has not been interested in my case because they prefer disability cases that are injury or work related. Do you handle cases for debilitating disease?

    -Stephanie

    • dgalinis says:

      Stephanie,

      Thank you for your comments and questions. It’s not that the government does not think that someone over 50 cannot learn a new skill or career, just that it will be more difficult to do so. Thus, the law makes it easier to obtain disability benefits in those cases because it is less likely that someone over 50 will be able to transition to a completely new career.

      Unfortunately, there are no “temporary” SSD benefits. In order for you to obtain benefits, you will need to prove that you are unable to work full time and that this condition has lasted or is expected to last at least 12 months. In determining whether you can work, the SSA will consider whether you can do any job that exists in substantial numbers in the national economy. While it may be more difficult to prove your case if you are under age 50, it is by no means impossible.

      I encourage you to call me if you wish to discuss the specifics of your case further. I do not require that the disabling condition be work related. Our toll free number is (800)827-2667.

      David

  2. If they would raise the minimum wage, say to 11.00 per hour, you will get a lot of folks off of SSDI who just take a shot at disability and win. They don’t want to be 50 and working at McDonald’s and Walmart, (or where ever) at like 8.00 per hour. They get as much on SSDI!!!!!

  3. Vicky says:

    My Husband has been working at the same kind of labor job for 38 years or more will soon be 60
    this year and is going back to work to light duty maybe and just found out he has a cracked Dis
    due to his work and Nerve damage to his right leg on a EMG test I am thinking of apply tor SSA for him soon he has been off work for one month and going to PT starting next week he has a long work history of labor work and a 8th grade completed. Vicky

    • dgalinis says:

      Dear Vicky,

      Thank you for your comment. I think your plan is sound and I agree that an application should be filed as soon as he stops working as the process could take many months.

      David

  4. Robin says:

    I have stage 4 breast cancer @ age 50 and my $1000. per month income from ss disability is NOT cutting the bills. I was making 2400. month bring home so, it has drastically cut our family income. I feel that I can work part time as a receptionist or something to help with the bills but, I wld have to have Wed’s off due to Chemotheropy treatments. My question wld be—can you work and what kind of income can you obtain while on ssdi?

  5. E. Corley says:

    If a person is 49, should they wait until they are 50 to apply? (even though it might mean missing out on some past benefits?) Is it that much easier to get awarded after 50 compared to the late 40s?

    • dgalinis says:

      Thank you for your comment. There is no reason to wait. First, it may take 2 years to process your claim and you will have turned 50 by the time you have a hearing. Second, the rules allow for the SSA to consider you to have reached 50 even if you are not quite 50. I discuss this in the last paragraph of the post.

      David

  6. ray says:

    if you are 4 months from turning 55 will SSA say that you are 55 when applying for disable?

    • dgalinis says:

      Dear Ray,

      Thank you for your comment. There is a regulation which indicates that the SSA should not mechanically apply your chronological age in borderline situations. Thus if you are 54 and a half and the regulations would find you disabled as of age 55, they should consider you to be 55. Sometimes, though, SSA needs reminded of this regulation. (See CFR 404.1563).

      David

  7. roger keith says:

    i am 53 have dull numbness( unexplained) in one arm and i leg,have stabbing pain in buttock all one side of body have low back pain,not as bad as buttock pain stright leg test today was pain at 70 to 90 degrees or so with the effects at the lower back area,but was servere at the buttock.doctor was always looking confused,also weakness in numbness related area,.i feel it will be spinal senosis..the ssi doctor would not say but was asking about my xray.and he left the room (i guess to find the xray from the hospital)..i am confused how this will work out. i wish i didnt even hurt and could just go to work and make lots of money …do you think by any of this confused message it could be a ssdi case that would win??

    • dgalinis says:

      Dear Roger,

      Thank you for your comment. The fact that your condition is “unexplained” is a problem. It is important that you get an appropriate medical evaluation by a qualified medical doctor to document, objectively, what is causing your disability. I recommend seeing an orthopedic or osteopathic doctor and, potentially, a neurosurgeon.

      David

  8. Linda Ramsey says:

    I have been turned down twice for SSDI. I now have 30 days left to appeal. Not enough time to obtain additional medical information. I expected my first hip surgery to be a success and so I didn’t expect to still be disabled. I had to have my second hip replaced 4 months later and it’s doing fine, but my first hip is still not recovered. I am unable to sit, bend or walk for long periods of time. I have a very painful limp and my balance is very poor. I also have spinal stenosis which also causes me much pain. I have done sedentary work in the past so they stated I can continue that line of work, but I am unable to bend or stoop and need to lie down during the day. I can not afford an attorney and have only 30 days left to appeal. I am 63 yrs old and am receiving early Social Security. I am waiting the results of an x-ray of my hip and believe it may show calcium build-up around the surgery site. (heads up from the tech) I can not afford an attorney. Is there any advice you can give me? Is it possible to ask for an extension for time at the hearing to gather more medical evidence?

  9. Linda Ramsey says:

    I forgot to add that the initial injury was nearly three years ago….surgery nearly 2 years ago. Three years of intense daily pain has caused me to become severely depressed. I have all the classic symptoms of depression and have tried many medications, but they have not proved helpful thus far. I didn’t mention the depression on my original application since it was not an issue at that time. I do not see a psychiatrist yet, but do have plans to start counseling. My conditions have taken my life away from me and I find it difficult to obtain the care I need and documentation in the short amount of time they give you to appeal. Again, is there a possibility of requesting and receiving additional time so that I can obtain the information I need?

    • dgalinis says:

      Thank you for the comment. I apologize for the late reply but I was inundated with comments to my blogs and my practice had to come first. You cannot get an extension to file an appeal. But the fact that you don’t have additional evidence should not stop you from filing the appeal and then providing the additional evidence. Please also understand that most attorneys do this work on a contingent basis and only receive a fee if they are successful. So your concerns about affording an attorney should not be an issue.

      David

  10. led says:

    Hi David,

    I have not put enough credit in my Social Security. High School graduate and I worked here and there. I was married for 11 years and a housewife for 11 years. I got divorced in 2005. After divorced I got a job as a caregiver. until I never return to the work force anymore. Two months ago, I had an emergency and had been diagnosed for having a pancriatitis, hiatal hernia and choronic intestinal metaplasia. Abdominal pain felt each day and am taking Proton Inhibitor for 6 months. Will I quality for SSI at the age of 55 though tuning 56 in July?

    • dgalinis says:

      Thank you for your comment. Whether you qualify for SSI depends not only on your disability but on your income and resources. My suggestion is to apply for SSI. If you meet the income and resource requirements, they will evaluate whether you are disabled and entitled to monthly SSI benefits.

      David

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