STEP 5 HEARING EVIDENCE

Step 5 refers to the final step in the sequential process for determining disability.  A claimant reaches step 5 if he is not engaged in significant gainful activity (working), has a severe impairment, does not meet one of the Social Security listings, and is found unable to perform any of his past relevant work.  The final question becomes:  can the claimant do any work available in significant numbers in the national, regional or local economy?  That's the test of Step 5.  And that's where many Social Security disability claims run aground.  Social Security generally has a vocational expert to help the judge sort out how many jobs are available that the claimant could perform, even with his restrictions.  Vocational experts can be very resourceful when it comes to "finding jobs" that claimants "could perform."


Step 5 must be determined using the same Residual Function Capacity (RFC) that was used in Step 4 (Can the claimant perform past relevant work?).  In a best case scenario, the claimant will have a RFC that only provides for unskilled sedentary work.  So the claimant must prove that he cannot perform the easiest, least stringent jobs in the economy.  For sedentary work, the claimant must be able to

• sit for about 6 hours out of an 8 hour work day
• stand or walk for up to about 2 hours out of a 8 hour work day
• be able to lift less than 10 pounds frequently and up to 10 pounds occasionally
• carry small objects like files or small tools
• stoop occasionally
• have good use of hands and fingers for "bilateral manual dexterity"
• have no severe visual limitations that would restrict use of small parts or impact safety
• have no unusual environmental restrictions
• not be restricted by marked or severe mental impairments (ability to understand and remember instructions, concentrate, adjust to changes in the work routine, get along with supervisors, co-workers or others, etc.)

Postural restrictions can significantly erode the occupational base (number of jobs).  For example, a claimant's need to shift from sitting to standing at will would be a significant limitation if it could accommodated by two breaks and a lunch break spaced at approximately 2 hours.  Having to carry a hand held assistive device, such as a cane, might erode the number of jobs if the free hand could not be used to carry small objects (files, small tools, a book, etc.).

Mental restrictions can certainly disqualify a claimant for unskilled sedentary work. If there is evidence of some mental impairment, I recommend form HA-1152 be completed by a treating source to document the functional limitations imposed by the mental impairment.  (A mere diagnosis of a mental illness is usually not sufficient to show disability, with rare exceptions--such as in the event of severe mental retardation, for example).

In cases where the claimant will go all the way to Step 5, intricate planning and preparation must be used to prove that the claimant cannot perform even unskilled, sedentary work. Keep in mind that "work," as defined in Social Security disability law means persistent, gainful work for 8 hours a day, five days per week (or a similar schedule), 52 weeks per year.  The ability to work "sometimes" does not meet the test for "sustained work activity."


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