**Kathleen**

**Shannon Clancy, P.[a.]{.smallcaps}**

***Respond to:***

114 South Front Street 120 South Elm Street

Wilmington, North Carolina 28401 Williamston, North Carolina 27892

**910-762-6091 252-792-0999**

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e-mail: ksgpa@glancynet.com www.glancynet.com

*Personal Injury*

*Certified Workers\' Compensation Specialist Social Security Disability*

December 13, 2005

Ms. Jo Anne B. Barnhart

Commissioner, Social Security Administration

Post Office Box 17703

Baltimore MD 21235-7703

Re: NPRM concerning Age as a Factor in Determining Disability Dear
Commissioner Barnhart:

Please accept these comments on the NPRM announced in the November 4,
2005 Federal Register at 70 Fed. Reg. 67101 et seq. By way of
background, I am an attorney who has been representing claimants before
the Social Security Administration for twenty years. One hundred per
cent of my practice is devoted to this work.

I oppose the proposals outlined in the NPRM and urge you to shelve them.
I do so for two basic reasons.

To begin with, you have not offered a legitimate reason for, as you put,
\"redrawing the lines.\" You cite studies which purport to show that the
average American is living longer, that the average health of the
elderly population is improving, and that more elderly individuals are
working longer. I don\'t know whether those statements are true. I do
know, however, that whether they are true or not has nothing to do with
the disability determination process. This is because the disability
determination process necessarily is invoked when an impaired or a
disabled person comes under scrutiny. Were you to legitimately provide a
rationale for redrawing the lines, you would cite studies that shows
disabled or impaired elderly people are living longer, enjoying better
health, and working longer. This you have not done.

Your second stated reason for making the proposed change is the
assertion that the economy has shifted to less physically demanding
occupations. Again, I have no way of knowing whether this assertion is
true. I have seen reports that it may not be. For example, one of the
nation\'s largest employers, Wal-Mart, Inc., has recently indicated in
an internal memo that it would benefit their workers to redesign all
jobs to include physical activities into the daily routine, such that,
for example/ a cashier would be

Kathleen Clancy *Attorney • Certified Workers\' Compensation Specialist*

Barbara von Euler *Attorney • *Mason Hogan *Attorney • *Terrie Haydu
*Attorney*

Grace Rosky, [rn. ccm ]{.smallcaps}• Michael Clancy *Disability Advocate
• *Otto Lukert *Disability Advocate*

Ms. Jo Anne B. Barnhart

Commissioner, Social Security Administration

Post Office Box 17703

Baltimore MD 21235-7703

Re: NPRM concerning Administrative Review Process for Adjudicating
Initial Disability Claims

required to walk into the parking lot to gather carts.^1^ However,
whether your assertion is true or not, it cannot support your position
for it fails to take into account the other factors upon which the
Medical-Vocational Guidelines are based: education and transferability
of skills. The elderly population I represent in disability matters, and
who form the bulk of claimants affected by this proposed change, simply
do not have the education or the skills to adjust to these less
physically demanding occupations because those occupations require
skills they do not have and cannot readily obtain. The American economy
has simply passed these workers by; they cannot make easy adjustments to
skilled work. The worker over the age of 50 today is in much worse shape
than her counterpart of 1978---when the age categories were first
adopted. In 1978, there were far more unskilled light and sedentary
occupations than there are now and it was easier for an older person to
move into these occupations than it is now.^2^

Thirdly, you cite your \"adjudicative experience\" to support the
proposed change. Without any explanation you indicate that the millions
of step five disability decisions you\'ve made since 1978 have now
caused you to realize that it \"appears\" that there are \"many jobs\"
that the disabled older worker can perform and adjust to. With all due
respect, this is nonsense. The guiding principles of the
Medical-Vocational Guidelines have always been that they represent a
number of occupations the disabled could admittedly do---but that said
number does not represent work that exists in significant numbers in the
national economy for that particular claimant. For example, a fifty-six
year old claimant with limited education and past unskilled medium work
would be found disabled pursuant to Medical-Vocational Rule 202.01 even
if he could perform the full range of light work, which, according to
the Medical-Vocational Guidelines themselves, means he could perform all
1400 unskilled light occupations found in the Dictionary of Occupational
Titles and all 200 unskilled sedentary occupations alleged to be found
in the Dictionary of Occupational Titles. There is nothing in your NPRM
that explains why your adjudicative experience at step five changes this
analysis such that the age categories would need to be adjusted.

In addition to the fact that you have not provided adequate rationale
for your proposed changes, I oppose them because the NPRM represents a
disheartening furtherance of the Social Security Administration\'s
ongoing efforts to divorce the disability determination process from
reality and move it into the realm of the purely theoretical.

^1\ ^Wal-Mart\'s memo is available online:
[http://www.wakeupwalmart.com/news/benefits-cut.pdf]{.underline}

^2\ ^I refer you to the comments of my colleague Charles Hall for
documentation of the change in the skill\
requirements of modern day sedentary and light work.

Ms. Jo Anne B. Barnhart

Commissioner, Social Security Administration

Post Office Box 17703

Baltimore MD 21235-7703

Re: NPRM concerning Administrative Review Process for Adjudicating
Initial Disability Claims

Such a divorce causes untold harm to the program in the eyes of the
public, by which I mean not only the claimants who are forced to live
(or die) by the program, but also by physicians and other stakeholders
or onlookers who try to make sense of the system. Everybody knows and
understands that the reality is that the aforementioned fifty-six year
old claimant with limited education and past unskilled medium work is no
more likely to find employment in today\'s economy at the light level of
exertion than a fifty-eight year old worker with the same demographics.
Yet, under the proposed changes, the fifty-six year old will not be
found to be disabled. For the claimant and his neighbor, his doctor, his
pastor, his Congressman, and his Senator, such a seemingly arbitrary and
capricious disparity in outcome violates common sense and one\'s
knowledge of how the real world works. This comes at an enormous cost.
It undermines the integrity of the program and, by extension, the
government itself.

In making these comments, I appreciate the fact that, if the
Medical-Vocational Guidelines are to be maintained, the lines must be
drawn somewhere and that there will always be disparate results above
and below that line. However, where the lines have been drawn since 1978
has served us well; the current rules have resulted in consistent
decisions that mirror reality and reflect common sense notions of how
our economy works. Because you have not provided adequate reasons for
changing them and because changing them will result in real damage to
the program and real harm to a vulnerable population of claimants, I
urge that the proposed changes not be adopted.

Mason Hogan

Thank you for this opportunity to comment. With highest regards, I
remain Sincerely yours,