In order to win a claim for Social Security’s disability insurance program, you are required to prove your eligibility. At almost every stage of the process, it’s up to you to show that you qualify. However, after you show that you’re unable to do your previous job, it’s then up to Social Security to prove that you can do some other job. At that point in the process, they bear the burden of proving that you can work.
If you can do other work that is available in the national economy, then Social Security will find you are “not disabled” and therefore will deny benefits. What does it mean, however, if the proof shows that it is “not impossible” for you to do another job? Has Social Security met its burden of proof? In a recent appeal, Disability Alabama argued that “not impossible” does not mean possible.
“So you’re telling me there’s a chance?”
There’s a scene in the 90s buddy comedy “Dumb and Dumber” in which Jim Carrey’s character asks a woman if what the odds are of her going out with him. “Not good,” she says. “Like one in a 100?” He asks. No, she tells him, it’s more like 1 in a million. Clearly, Jim Carrey’s character does not have a shot with this woman. But because he’s dense, he reacts to the news with elation saying, “So you’re telling me there’s a chance?” He doesn’t have a shot.
In a recent Social Security claim a vocational expert testified in a disability hearing that it was “not impossible“ for someone to work in a different profession. The expert expressed doubt that this claimant could work another job but said was “not impossible.” The hearing judge interpreted “not impossible” to mean “possible” and ruled the claimant was not eligible for benefits because there was other work they could do. But in speech, two negatives do not equal a positive.
Double negatives are created when to negative elements are used back to back. Typically this involves “not” and “im…”, “un…”, “in…” or other similar prefixes. Typically these phrases: “not impossible”, “not unimpressed”, etc. are often used in regular speech but are less useful for formal legal writing because they create confusion.
An example of a double negative in popular culture is Homer Simpson’s statement, “I’m not not licking toads.” The phrase is meant to obscure whether or not the speaker is indeed licking toads.
In this particular Disability Alabama appeal, a vocational expert used the double negative “not impossible” when describing whether someone had the ability to work in another job. The government had to show that work in another job was “possible” and the Claimant argues that “not impossible” does not mean “possible.”
Appellate Issues are Hidden in Plain Sight
The appellate issue identified in this appeal may or may not be successful. It is, however, an example of why it helps to talk to an experienced appellate lawyer to identify potential avenues for appeal before giving up. This is especially true in Social Security appeals where the complex federal laws and regulations are fertile grounds for appeals. While only about a quarter of Social Security appeals are successful in getting a new hearing, pursuing an appeal can sometimes be better choice than filing a new disability application.
If you’ve been denied Social Security disability in Alabama - either before or after a hearing - contact Disability Alabama about your appeal rights.