A person may qualify for social security disability or disability SSI benefit only up to the month prior to their full retirement age.
The Social Security Act provides for a phased in increase in full retirement age from age 65 to 67. Person born after 1960 reach full retirement age at 67. The earliest age for taking early retirement remains at 62.
Based on a law passed in 1997 “qualified aliens” who were lawfully residing in the United States on or after August 22, 1996 can qualify for SSI benefits based on blindness or disability if they meet the other eligibility requirements, even after age 65.
The same rules generally apply in determining disability for individuals over the age of 65 as for those under the age of 65. The five-step sequential process is used.
Step One considers whether or not the person is engaged in “substantial gainful activity” (SGA). If so, the person cannot be found disabled, regardless of their age or the severity of their medical condition.
Step Two considers whether or not the individual has a medically determinable “severe” impairment, or combination of impairments. An impairment is considered “severe” if it more than minimally limits the person’s ability to do basic work activities. This is a screening mechanism to sort out cases which to not rise to a level of seriously impeding the person’s ability to work. However, for individuals aged 72 or older, this screening mechanism is not as important, and any medically determinable impairment for persons of this age will automatically be considered severe. In addition, it is not correct to disregard an impairment simply because it is considered “normal” for the person’s age.
If a person has a combination of impairments, each of which is considered “nonsevere”, the limiting effects of those combined impairments must still be considered. Only if the combined effects of the nonsevere impairments do not more than minimally limit the person’s ability to do basic work activities may the claim be denied at step two.
Step Three considers whether or not the person’s impairments meet or medically equal one of the listed impairments contained in social security’s regulations. These listed impairments are presumed to be disabling. If a listing is met or equaled, the person is found “disabled”. If not, the inquiry proceeds to step four. Limitations based on factors such as the person’s age, height, body habitus, or the difficulty of their prior work are not considered in determining whether he or she meets or equals a listing.
Step Four considers whether the person can do his or her prior relevant work (PRW — typically, any type of substantial work for profit the person has done in the prior fifteen years), either as they actually performed it or as it is generally performed in the national economy. If a person’s PRW includes work in a foreign country, social security will determine whether this work is also performed in the United States and whether the person could do this work as generally performed in the United States. To make the step four determination, the person’s residual functional capacity (RFC) must be assessed. This is defined as the most a person can still do despite the limiting effects of his or her impairments. In making this determination, all of the person’s medically determinable impairments, even those that are nonsevere, are considered. Additionally, the person’s symptoms, such as pain, which are related to a medically determinable impairment, must be considered.
If the person can do their prior relevant work, they are found “not disabled.” If not, the inquiry proceeds to step five.
Step Five considers whether the person, given their age, education, prior work experience, and RFC, can do any full-time work that exists in significant numbers in the national economy.
In making this step five decision, Social Security’s Medical/Vocational guidelines either direct a decision or serve as a framework for making a decision. Generally, adjudicators use the rules for individuals aged 60-64 when determining whether an individual aged 65 or older can adjust to other work.
There are two special profiles that may apply to older individuals.
1) The “arduous physical labor” profile. This applies where the person is not working, has a history of 35 years or more of arduous, unskilled labor, can no longer perform this arduous labor because of a severe medical impairment(s), and has a marginal education (typically 6th grade or less).
2) The “no prior work” profile. This applies where the person has a severe impairment(s), has no prior relevant work, is age 55 or older, and has a limited education (typically 11th grade or less).
If either of these applies, the person must be found “disabled.”
Transferability of prior work skills to other work sometimes comes into play in applying the Medical/Vocational Guidelines. In order to find transferability for a person aged 65 or older who is found to be limited to “sedentary” or “light” work, there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.
Individuals aged 65 or older who can perform the whole range of “medium” work are found disabled when they have no more than a limited education (including those who are illiterate in English or cannot communicate in English) if they have no prior relevant work (PRW). Individuals of such age are also found disabled even if they can perform the whole range of “medium” work if they have a marginal education (including those who are illiterate in English or cannot communicate in English) and no PRW or their PRW is unskilled, or if it is skilled or semi-skilled, those skills are not transferable to another occupation.
The definition of disability includes a duration requirement of twelve months or longer. With respect to older individuals (aged 65 or older) special care should be taken to consider the fact that with age comes the increased likelihood of certain chronic impairments such as osteoporosis, osteoarthritis, loss of vision, loss of hearing, adult-onset diabetes mellitus, hypertension, and impairments of memory.
Because social security has an obligation to develop the evidence where it appears there may be an undiagnosed or unreported impairment, they will sometimes purchase consultative exams for the claimant. Where the person has multiple impairments, it may be most efficient for social security to purchase a general physical exam, rather than sending the claimant to multiple exams to assess each individual impairment.
Claimants have an affirmative obligation to cooperate in the disability determination process, including attending scheduled exams. For older individuals, there may be difficulty in attending these exams; or, depending on the person’s impairment or ability to communicate, they may not fully understand the need to attend these scheduled exams. In such cases, social security will make attempts to recontact the claimant and/or third parties in order to reschedule exams where there is good cause for non-attendance.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.