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Disability and the Inability to Work

By Scott B. Elkind, Esq.

The I am often asked the same questions by many people considering a disability claim:

  • Am I disabled if I cannot do my old job?
  • Am I expected to do other work?
  • The answers are not simple and involve somewhat lengthy explanation.

The analysis under the pertinent Social Security Regulations is complicated. The Social Security requires that you have a physical or mental condition which is of such severity, as demonstrated by substantial medical proof, that it prevents you from performing your past work or other jobs available in the national economy. This general disability standard only tells part of the story.

The Social Security regulations provide certain adjustments for age, but these adjustments mostly address the ability of an individual to perform more arduous work in terms of lifting, carrying, and walking. However, Social Security will deny claims frequently on the basis that they believe a claimant is capable of lighter and/or less complicated work. This includes unskilled work which involves little or no training. Examples of unskilled jobs routinely cited by the Administration for this purpose include the positions of security guard, information clerk, and assembler.

Private insurers take a different approach to the question of the ability to perform alternative work. Most group policies include a 24 month “own occupation” period which pays benefits when your injury or illness prevents you from performing your previous job. Beware, the insurer will consider your job only as it is performed generally and not the specific requirements of your position. Persons holding individual policies can bargain for a stricter own occupation definition of disability.

After the 24 month “own occupation” period of disability ends, private insurers will reconsider claims to determine whether a claimant is capable of performing any other occupation for which the claimant is qualified by virtue of his or her work experience and/or education. Although not identical, this standard is very similar tot he standard utilized by the Social Security Administration. What is surprising is that the similarity of definition has not been honored by the courts which have uniformly stated that Social Security disability decisions in and of themselves are not binding on private insurers when determining disability as part of their claims review process.

As you can see, the requirements of both the Social Security Administration and private insurers are complex. For this reason, disability claimants should acquire skilled legal counsel to assist them in their claims. To assist clients with their disability claims, we formed the Elkind & Shea, The Disability Benefits Law Firm. Our entire practice focuses solely on helping disabled persons receive the benefits they deserve. Our experience includes success in thousands of cases, both Social Security and private insurance, from initial application all the way through federal court appeals. Please visit our website atwww.disabilitybenefitslawfirm.com and you can learn about the extent of our experience while learning valuable information concerning your rights to disability benefits. What you will discover is that we have handled situations similar to yours and have the knowledge and skill to provide the assistance you require. In order to assist the disabled, we offer free, no-obligaton consultations over the phone for your convenience.

Principal with Elkind & Shea, The Disability Benefits Law Firm. His practices focuses on obtaining disability benefits for clients.

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