Burdens of Proof

When applying for Social Security Disability, the Administration must use a five-step analysis to determine if a claimant is disabled. Going through the steps, if at any point the claimant does not meet a step, the analysis ends and the Administration will find that the claimant is not disabled. The steps are:


  1. Is the claimant engaging in substantial gainful activity (making more than $1,170 per month before taxes in 2017)? If the claimant is making more than the limit, he or she is not disabled.
  2. Does the claimant have a severe impairment (An impairment that materially limits the ability to perform work activities)? If not, the claimant is not disabled.
  3. Does the claimant meet or equal a listing due to his or her impairments (Listings outline specific impairments and certain objective findings that, if documented, result in a finding of disability)? If not, the analysis goes to the next step.
  4. Can the claimant perform his or her past relevant work (work done at substantial gainful activity for a long enough period to learn the skills involved in performing the work, done in the last 15 years)? If yes, he or she is not disabled.
  5. Can the claimant perform any other work, as outlined by Social Security’s rules and regulations? If yes, the claimant is not disabled.


The burden of proof is on the claimant for the first four steps of the analysis. If the claimant proves that he or she cannot do any past relevant work, the burden shifts to the Social Security Administration to determine if there are other jobs available. This becomes important at a hearing, as an administrative law judge at hearing will have a vocational expert present to testify as to the availability of jobs for a person matching the claimant’s residual functional capacity. If it is established that he or she cannot do past relevant work, the onus is on the judge to establish that there is other work available. If the judge does not question the vocational expert about the existence of other jobs, by definition the Administration has not proven that there are jobs available for the claimant.
These issues can become very esoteric. Consult a Social Security Disability attorney if you have any questions about the disability adjudication process.

Written by Adam Kachelski

Adam Kachelski is a 2014 graduate of the University of Wisconsin School of Law. He lives and works in Cincinnati.

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