Tuesday, October 25, 2016

How Did You Do on the Test?

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?

Answer 1:  A person can receive a period of disability and disability insurance benefits only if the person is both fully insured and currently insured.  42 USC sec. 416(i)(3).  The statute defines fully insured status as
one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage
42 USC sec. 414(a)(1).

Our claimant was born in 1954.  She turned 21 in 1975.  Counting 33 years, one for each quarter, takes us to 2008.  The year before the claimant becomes disabled or dies is 2008.  She is fully insured to 2009.

The statute defines currently insured status as:
The term “currently insured individual” means any individual who had not less than six quarters of coverage during the thirteen-quarter period ending with (1) the quarter in which he died, (2) the quarter in which he became entitled to old-age insurance benefits, (3) the quarter in which he became entitled to primary insurance benefits under this title as in effect prior to the enactment of this section, or (4) in the case of any individual entitled to disability insurance benefits, the quarter in which he most recently became entitled to disability insurance benefits, not counting as part of such thirteen-quarter period any quarter any part of which was included in a period of disability unless such quarter was a quarter of coverage, and who satisfies the criterion specified in subsection (c).
42 USC sec. 414(b).

Our claimant has 20 quarters accumulated between 2003 and 2009.  She has at least one in 2003 and at least one in 2009.  She is missing eight quarters of coverage during those seven years.  Her currently insured status extends 12 more quarters, to December 31 2012.

The claimant must have both, fully insured status and currently insured status.  Her date last insured for disability purposes is December 31, 2009. 

Question 2:  When this person turns 62 in 2016, can she collect a RIB?

No.  She doesn't have 40 quarters of coverage to be fully insured for RIB or early RIB.  Telling the claimant that lacks 40 quarters of coverage to take a RIB of any kind is below the standard of care.

Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

This is the math problem.  The period for assessing past relevant work is 15 years before the date last insured.   20 CFR sec. 404.1560.  Counting back 15 years is not 2009 minus 15.  That would include 1994.  One year prior to December 31, 2009, is January 1, 2009.  Counting back 15 years is January 1, 1995.

Bonus Question:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

No.  Work performed in 1994 is legally irrelevant under the regulations defining the relevant period.  Some may quibble that the period reaches to December 31, 1994.  Now meet the substantial gainful activity test of $500 per month in earnings with that day alone.  Can't be done.  It isn't relevant.

Assume that an attorney obtains a remand from the USDC to reassess the RFC.

Why does that help?  The ALJ found an inability to perform work after 1994, just the past work performed in 1994.  The first bonus question did not assume the ability to perform work done in 2003 to 2009.  Don't assume facts not in the question and not in evidence.  The correct issue is the lack of past relevant work.  In 1999, the person was 55 years of age.  She just needs a light residual functional capacity to "grid" out.

I left a lot out of the question.  The focus of the question is the technical issue -- calculating the date last insured and the period of the past relevant work.  If you got the date last insured right but counted the work done in 1994 as relevant, give yourself a B.  If you thought the date last insured was other than December 31, 2009, i.e. 2012 or some other date, give yourself a C.  If you got the date last insured correct as well as excluded the work in 1994 as irrelevant, give yourself the A.  You earned it. 

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