DISABILITY: THE BURDEN OF PROOF

Social Security uses a 5-step sequential process to determine whether an individual is disabled under their rules.  The burden of proof at steps 1 - 4 rests with the claimant.  However, at step 5 the burden of proof shifts to the Social Security Administration.

The claimant bears the burden of proving that he is not engaged in substantial gainful activity; that he has a serious medically determinable impairment; that he meets a disability listing or has a functional capacity that prevents work; and that he cannot perform any of his past relevant work.

Then, the burden of proof shifts, at least substantially, from the claimant to the Commissioner of Social Security.  At the 5th and final step, Social Security must prove that the claimant is not able to perform any other work which exists in the local, regional or national economy.  It is not sufficient for Social Security merely to make this argument.  They must demonstrate that a significant number of jobs exist that the claimant could perform.  By the way, the following are a few things that Social Security does not have to prove in order to deny a disability claim:

• that certain jobs are open and available, whether locally or nationally
• that the claimant would be hired for any particular job or occupation
• that the proposed job would pay as much as the claimant's past work
• that the claimant possesses any licenses or permits required for the work
•  that work is available near the claimant's place of residence (state, county, etc.)
• that the economy is strong enough to support hiring of new workers

It is immaterial from a Social Security disability point of view whether the claimant could find a job or even whether any jobs are open.  It is enough for them to demonstrate that a significant number of jobs exist in the regional or national economy and that the claimant is able to perform one of the jobs if he could find it.

Therefore, there is much consideration to be done in the planning, preparation and presentation of a disability appeal.

The Forsythe Firm represents Social Security disability claimants in Alabama and Tennessee - without a fee until the case is won and back pay collected. Call (256) 799-0297 or toll free 1-855-854-CASH.