The Definition Of Disability

     The Social Security disability programs receive much public and press attention but few people who talk about these programs have ever actually read the definition of disability that Congress has passed and that the Social Security Administration must apply. Let's look at the definition of disability that Social Security must apply to adult claims. I'll alternate portions of the definition of disability in bold with my comments. 

 The term “disability” means inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ... 

     Many things to note here. 

     First, it says "inability to engage in any substantial gainful activity ..." It's not enough to be unable to obtain employment due to illness. You have to be unable to do it whether or not you can get it. 

     It says "any" substantial gainful activity. Generally, it's not enough just to be unable to do what you used to do. 

     That term "substantial gainful activity" is what lawyers call a term of art -- something whose definition takes some spelling out. Social Security has lengthy regulations defining the term.

    What does that term "medically determinable" mean? It's never been clear to Social Security or anyone else but it's always been clear that it takes more than just a claimant saying he or she is disabled. An important example of the problem is pain. How does one determine medically how much pain an individual is in? There is no meter that measures pain. Does that mean that pain cannot be considered because it's not "medically determinable"? It's hard to imagine that Congress intended for Social Security to completely ignore pain. There must be medical proof although exactly how much and of what kind is unclear. You will note as we go along that the subject of pain keeps coming up.

      It says "physical or mental impairment" meaning that psychiatric illness must be considered. If you think that mental illness isn't really real, take it up with Congress but first look around at you own family and friends. Don't you know someone who suffers from serious mental illness. If you don't, count your blessings because you're unusually lucky. Also, be honest with yourself. You don't have any mental problems at all? Seriously? Ever been a bit off your game at work because of an argument with your spouse or because a loved one died or because you were mad about something or nervous about something? Ever had to take a day off work because of something like this? How many more mental problems would it take before you have a persistent problem with working? Are you still completely sure that mental disability could never happen to you? 

     Unless the impairment is expected to result in death, it must be "expected to last for a continuous period of not less than 12 months."  Injuries or illnesses that don't take you out of work for at least a year don't count. Twelve months is a long time to be out of work with no income.

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country. 

      This really nails it down. It specifically says that being unable to do your former work isn't enough. You have to be unable to do just about any other job, even if that job isn't anywhere near you and regardless of whether there is any job vacancy and regardless of whether you would be hired. There's also no point in saying you're disabled because you lack transportation to work. That isn't going to cut it. 

     Social Security must consider your age, education and work experience in determining whether other work exists which you can do. Young people often wonder why age should be considered. The reason is that people become less adaptable as they age. A transition to an entirely different line of work isn't so hard when you're in your 30s but few people in their 60s can manage it. Still don't agree with the consideration of age? Just wait until you're older. You'll understand then. 

     Note one thing the definition of disability doesn't say. It says nothing about the status of the job you used to perform. Let's say you worked in a high status, high wage job in the past but all you can do now is a menial, low-paying job. You're not disabled under the definition of disability in the Social Security Act. Most European countries define disability differently and would say that a person in that situation is disabled. This difference tells you something important about both Europe and the United States.

In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Commissioner of Social Security does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process. 

    This entered the statutes because Social Security was at one time trying to evaluate a claimant's problems one by one without considering how they added up. For instance, if the claimant had a bad right hip and a bad left knee, if neither one was all that severe, then to Social Security they added up to nothing but if you have problems in both legs, you have real problems walking. I know. I'm oversimplifying what Social Security was doing at the time but no one, including Social Security, wanted to defend what the agency was doing at that time. This should tell you that at times Social Security has been extraordinarily callus in applying the definition of disability. 

An individual shall not be considered to be disabled ... if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner’s determination that the individual is disabled 

     You still think that Social Security is awarding benefits to people because they are alcoholics or drug addicts? It's very clear in the statute that they aren't supposed to do this and they don't. However, note that this doesn't forbid paying disability benefits to alcoholics or drug addicts as long as their substance abuse isn't "a contributing factor material" to finding the person disabled. Do you want to deny disability benefits to someone who is dying of cancer because they drink too much? Something like 20-25% of the adult population of this country has a substance abuse problem. You can't just deny all their disability claims automatically. Well, I guess you could take a "go die in the gutter" approach to substance abusers. Some people might wish that the statute said that, but it doesn't. If it did, it would be extremely harsh and punitive.

For purposes of this subsection, a “physical or mental impairment” is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 

     Again, there is the emphasis on medical evidence of disability. The problem is that there are no "medically acceptable clinical and laboratory diagnostic techniques" that measure pain or fatigue much less the severity of symptoms associated with mental illness. Congress thought that physicians could tell how sick a person is apart from anything the patient says. Most of the time, though, it's just not possible. A physician has to ask a patient about their symptoms and make informed judgments. There is a tension in the definition of disability that comes from the inability of Congress to accept the obvious -- physicians have a luxury that veterinarians do not have -- talking with their patients. It's just part of medicine. 

An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Commissioner of Social Security may require. An individual’s statement as to pain or other symptoms shall not alone be conclusive evidence of disability as defined in this section; there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques, which show the existence of a medical impairment that results from anatomical, physiological, or psychological abnormalities which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability. Objective medical evidence of pain or other symptoms established by medically acceptable clinical or laboratory techniques (for example, deteriorating nerve or muscle tissue) must be considered in reaching a conclusion as to whether the individual is under a disability. 

      This is the same thing as above at greater length. Congress wants Social Security to consider pain but Congress wants Social Security to do the impossible -- use an objective medical test to measure pain. Saying the same thing at greater length doesn't resolve the tension in the definition of disability.