New York Social Security Disability Lawyer Blog

In Social Security claims, age most often comes into play in determining a person's eligibility for retirement benefits. But age can also be an important factor in determining whether a person is eligible for Social Security disability benefits. In Oberg v. Astrue, the Ninth Circuit Court of Appeals explains how those who review disability claims should account for both a claimant's age and any previous disability benefits claims.

The Social Security Administration (SSA) denied Plaintiff Deborah Oberg's Social Security disability claim for the period ending on July 31, 2003. Plaintiff then filed another claim, asserting disability for the period covering May 23, 2003 to June 30, 2005. The SSA also denied this claim. Following a hearing before an SSA Administrative Law Judge (ALJ), the ALJ determined that Ogden is not disabled for benefits purposes.

On appeal, the Ninth Circuit explained that the SSA's decision on Plaintiff's first claim "is res judicata and creates a presumption that she was not disabled for the present period." Although this presumption does not apply where an ALJ reopens a decision on a prior period of disability, the Court found that this exception was not warranted in the present matter because the ALJ "made it clear that he was not reopening the prior decision when he plainly stated that the presumption would apply and also pointed out that nothing had changed since the prior adjudication." That the ALJ considered the record of the prior decision did not mean that he reopened the prior disability period, according to the Court.

Nevertheless, the Court found that the ALJ erred in failing to note that Plaintiff changed age categories after the first decision. The SSA sorts disability benefits claimants into specific age categories which it then uses to determine the claimant's ability to perform work in spite of any physical or mental limitations. A claimant under 50, for example, is considered a "younger person." Between 50 and 54, a claimant is a "person closely approaching advanced age" and even if the medical condition remains the same the Medical -Vocational Guidelines (usually referred to as the "Grids") may direct a finding of disabled in the oldre age category and not the younger.

In this case, Plaintiff went from being classified as a "younger person" to a "person closely approaching advanced age" during the time between her first and second claims. "A change in age category is material for the purposes of determining a person's ability to do other work in the economy," the Court held, adding that the age category change could have altered various aspects of the ALJ's decision including the residual functional capacity determination and vocational expert testimony.

Indeed, SSA regulations provide "[i]f you are closely approaching advanced age (age 50-54), we will consider that your age along with a severe impairment(s) and limited work experience may seriously affect your ability to adjust to other work." As a result, the Court remanded the case to the ALJ for further proceedings, taking the claimant's age category into account.

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A new government report released yesterday estimates that the Social Security Disability trust fund will exhaust its reserves in just four years, two years earlier than previously projected. Obviously, this is a disaster for the millions of disabled Americans who apply for disability benefits each year.

I have been saying for years that there are three options to deal with this: raise taxes, raise the entitlement age (for retirement), and means testing. The corollary to means testing for Social Security Disability is to raise the age brackets in the Grids, the Vocational-Educational guidelines under which many cases are decided. That is, what used to lead to a finding of disabled say at age 50 or above would now not be disabling until 54 or 55.

In 2011, the payroll tax was lowered in order to spur economic growth. Unfortunately, cutting the payroll tax, while palatable to working Americans, is clearly part of why the date for "exhausting" the trust funds keeps getting closer. It really is time for the government to face up to this and I believe that they are going to do a little bit of all three potential fixes, though the one that "works" best is not only reinstating but further raising the payroll tax, because it guarantees more money is paid into the system. The age and means testing save money but the amount that is actually saved is never certain.

Although today's news today is grim, I see this as nothing new. The time for change was about ten years ago but perhaps this current scare will finally force some long overdue action on the part of the politicians.

Lew Insler, Esq.