Own Occupation vs Any Occupation: Breaking Down Disability Claim Stages

Welcome to Season 5, Episode 37 of Winning Isn't Easy. In this episode, we'll dive into the complicated topic of "Own Occupation vs Any Occupation: Breaking Down Disability Claim Stages."

Most people think that winning an ERISA disability claim comes down to proving you’re sick or injured enough to stop working. But that’s only half the battle. The real fight often happens on the work side of your claim - where insurance carriers dissect your job duties, analyze your skills, and argue that you can still perform “other work,” even if you can’t do your old job. In this episode of Winning Isn’t Easy, disability law expert Nancy L. Cavey breaks down how carriers use vocational analysis to deny claims - and what you can do to stay one step ahead. You’ll learn how insurers evaluate your own occupation versus any occupation, and why these two stages can dramatically change the outcome of your case. Nancy walks through the eight key questions carriers ask, from assessing your residual functional capacity and physical strength to determining how your skills might “transfer” to other jobs. You’ll also discover how labor market surveys, transferable skills assessments, and vague job descriptions can be used to distort your work history - and how to push back with detailed, accurate evidence. By the end, you’ll understand why your medical records alone aren’t enough, and how clear documentation of your job duties, limitations, and vocational profile can make or break your claim. When it comes to ERISA disability claims, knowing how your work is evaluated is just as important as knowing your diagnosis. Because when carriers twist the definition of “work,” you need to be ready to defend the truth. Winning Isn’t Easy, but with insight, preparation, and the right strategy, you can protect your benefits and your future.

In this episode, we'll cover the following topics:

One - The First Four Questions - Proving Disability at the Own Occupation Stage

Two - The Next Four Questions - Skills, Transferability, and the Labor Market

Three - The Any Occupation Stage - A Tougher Standard

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals. 

Transcript

Nancy Cavey [00:00:00]:
 Foreign hey, I'm Nancy Cavey, national ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast isn't legal advice. The Florida Bar association says I have to say this, and now that I've done that, nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Now, understanding the work side of an ERISA disability claim can be the difference between getting your benefits or getting denied. Carriers aren't just evaluating your medical condition.
 
 Nancy Cavey [00:00:51]:
 Ultimately, the question is can how does your medical condition and your functional capacity impact your ability to perform your occupation, and how your skills and experience might transfer to other work when we get to the own I'm sorry, any occupation stage. Many disability claims go through two stages, as I've just alluded to. One is the own occupation stage and the next is the anti occupation stage. Now, at each stage, the disability insurance carrier or plan is going to be asking a series of details, detailed questions about your work, the skills that you have learned in your occupation, and what you can still do despite your functional, physical, psychiatric or cognitive restrictions and limitations. Now, these questions aren't arbitrary. They're designed to identify whether ultimately your skills can theoretically transfer to other types of work at the any occupation stage. If the carrier decides at this stage your skills can transfer, your claim benefits are probably going to be denied. And that's crazy, even though you may clearly be disabled, because we are dealing with a mythical issue of transferability of skills.
 
 Nancy Cavey [00:02:09]:
 That's why I think today's episode is one that is really key for you to understand, because this is the game that is played at every stage of a disability claim. So what I want to do is to walk you through the first four questions that a carrier is going to ask at the own occupation stage, from your residual functional capacity to your strength and skills in your past occupation. Then we're going to tackle the next four questions, how those limitations that you have may impact your ability to do your own occupation and and then ultimately what impact this might have on the transferability of skills and how ultimately they're going to be using labor market surveys to come into play. And this is just the setup, if you will, for the any occupation stage. They're thinking about this from the very beginning of your disability insurance claim. You're not. You're thinking about, well, can I do my own occupation. And, and they're thinking about, well, we've got to figure out what our exposure in this case is going to be.
 
 Nancy Cavey [00:03:20]:
 Is this person likely to be able to do their own occupation? But what about any occupation? How can we try to set this claim up? Now for a denial at the any occupation stage? You can see we're thinking about this completely differently than the disability carrier plan. But what I want you to understand at the end of this episode is what why this analysis is crucial. It's about vocational evidence, the analysis of your medical condition and residual functional capacity, and how to develop a winning strategy to maintain your benefits not only at the own occupation stage, but at the any occupation stage. We want your benefits to be protected regardless of what stage you are in your disability claim. So let's think about these three things. Number one is proving disability at the own occupation stage. Number two, proving ultimately your inability to do work at the any occupation stage. And this deals with skills transferability and labor market.
 
 Nancy Cavey [00:04:27]:
 And then three, how the game plays when you actually get to the ne occupation stage, the tougher standard. All right, let's take a break for a moment before we get into this episode.
 
 Speaker B [00:04:40]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of Robbed of your peace of mind, which provides you with everything you need to know about the long term disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:05:15]:
 Welcome back to Winning isn't Easy. Let's talk about proving disability at the own occupation stage. The first four questions that are material to that determination. If your doctor has told you that you can't work and suggested that you apply for your disability benefits, you need to understand first and foremost that a doctor's note isn't going to be sufficient to win your case. You have to meet the specific definition of disability in your policy or plan, and it's the carrier and not your doctor that controls how that definition is applied. Now, you also need to understand the definition of occupation, own occupation, and any occupation, because that's going to be the standard you have to meet to get your disability benefits at each stage. Remember, you have the burden of proof now. At the own occupation stage, benefits are typically paid for up to two years.
 
 Nancy Cavey [00:06:07]:
 If you can't perform your occupation as that term is defined in your policy or plan, there is no uniform definition of disability or occupation. It might be that you're disabled if you can't perform the material and substantial duties of your occupation at the time you became disabled, or you can't perform one or more of the important duties of your occupation, or you can't perform the duties of your occupation as you perform them for your employer, or you can't perform the occupational duties of your occupation as defined by the Dictionary of Occupational Title. You need to understand what is this standard, because ultimately, again, the medical proof has to address why you can't do that particular occupation and at the any occupation stage, both medically and vocationally, why you can't do any occupation. Now, remember, the carrier doesn't really care whether you can return to your old job with your specific employer if that's not the definition. They only care about whether you can perform your insured occupation as it is defined by the terms of the policy of the plan. Now, this is where the first four of the eight critical questions are going to come in. And they aren't random. They form the framework carriers and vocational experts use to decide whether you're going to qualify for your benefits at both the own occupation stage and and any occupation stage.
 
 Nancy Cavey [00:07:45]:
 So the first question they're going to ask is, based on the medical review, is there an objective basis of the diagnosis? Is there an objective basis of the restrictions and limitations? And is there consistency in the person's report of their symptoms and functionality of such a severity, intensity, duration and frequency that would preclude them from engaging in their own occupation? Residual functional capacity is what you can still do both physically, cognitively and psychologically in a work setting based on your physical functioning. The carrier is going to characterize residual functional capacity into strength levels. The Dictionary of Occupational Titles is used practically exclusively in disability insurance claims. And they're going to be looking at the Dictionary of Occupational Titles descriptions of work. There's very heavy work, heavy work, medium work, light work, or sedentary work. Now, every symptom is going to matter, including psychological symptoms and cognitive symptoms and functioning in the analysis, but not quite right at this point. What is essential here is that your doctor is completing the APS forms, but in my view, that your doctor is asked by you or your lawyer to fill out Social Security Disability residual functional capacity forms. Now, we Social Security lawyers and I do both Social Security and ERISA work have developed over 60 residual functional capacity forms for all sorts of physical conditions, from back conditions to shoulder conditions to knee conditions to fibromyalgia to ms, Parkinson's, home, heart disease, you name it, we probably have a form for it.
 
 Nancy Cavey [00:09:39]:
 I find that the APS forms that the carrier or plan asks your doctor to fill out don't ask the right questions. So we want to ask the right questions so that we can establish what your level of residual functional capacity is. Now, once we've done that, the next question the carrier is going to be asking is what's the strength level of your past occupation? As I said, carriers or plans rely on the Dictionary of occupational titles. And it's a decades old government resource. And they're going to take your occupational description and try to plug it into a dot code. The vocational evaluator for the disability insurance carrier plan is going to review that work history form that you filled out, that they may even review your resume or the job description from your employer, or they may talk to your employer about your job. And what they're going to do is look at that work history, assign a dot code and ultimately define your occupation. Remember, you didn't insure a job, you insured an occupation.
 
 Nancy Cavey [00:10:51]:
 And here's one of the big dangers I see. I see that disability carrier or plans VE's may actually misclassify what your occupation is. You might have an occupation that sort of crosses over a number of DOT codes. We in Celsius Credit call that a composite occupation. Now the other bigger problem is that the DOT may not reflect how your job is actually performed today. So for example, a software developer might be categorized under an outdated job code that doesn't account for modern screen time demands or cognitive loads. And that is going to be a problem. It's a problem.
 
 Nancy Cavey [00:11:33]:
 For example, when we represent attorneys. There's a basic DOT job description for an attorney, but that description is years, actually ancient in terms of what it is we do, and particularly what we do with technology. But that may be in fact how the occupation is defined. The other thing that they're going to do, step three is to determine what skills you have. The DOT identifies occupations as unskilled, semi skilled or skilled, and they use something called an SVP specific vocational preparation. The carriers are going to be asking, look, based on your residual functional capacity, be it physical, psychiatric, cognitively or combined, do you have the strength and the ability to perform your own occupation as that term is defined in the policy of the plan. Now, the more skilled your job is deemed, I think it's ultimately easier for the carrier or the plan to say at the any occupation stage that your skills can transfer into other work and therefore your claim is going to be denied. Now the other thing they're going to be doing, step four is to determine what the strength level, as I said, is of your past occupation and compare that against your current residual functional capacity, what they're doing is comparing the exertional requirements of your occupation.
 
 Nancy Cavey [00:13:08]:
 And if they don't align, then the carrier plan may deny your own occupation claim, saying that you know, there isn't any reason why you're disabled, you can go back to your old occupation. Too bad. So sad. And we're going to deny or terminate your benefits. Now, the other thing that they don't do, and they should, is to take into other factors. The DOT does require the use of analysis of things like thinking, people skills, and other occupational demands that I find that disability carrier plans or plan VE's just ignore. And that's one of the things that we attack. If the VE misclassifies your past occupation, if the VE says you can go back to your past occupation based on their liar for higher medical reviews, if the VE does not consider the other DoT criteria, including non exertional impairments, we are going to be attacking, arguing that the disability carrier plan has wrongfully denied or terminated your benefits at the own occupation stage.
 
 Nancy Cavey [00:14:22]:
 Got it. Let's take a break. Welcome back to Winning Isn't Easy. Let's talk about the next four questions that are material to a disability carrier plan's determination of your entitlement to benefits not only at the own occupation stage, but at the any occupation stage. And that's skills transferability and labor market. Even if your residual functional capacity suggests that you can't return to your past occupation, the carrier isn't going to stop there in terms of their initial analysis. They're going to pivot to a broader analysis. What skills have you learned in your current occupation? What skills have you learned in your past occupation? Based on your education, can you either be retrained to do something, or do you have an education that could be used to do another type of occupation? And so this is where I find that claims are being set up at the any occupation, I'm sorry, own occupation stage for an any occupation stage denial.
 
 Nancy Cavey [00:15:43]:
 And you might be saying what? Well, that's important in my view, because sometimes the carrier might say, look, we think that the person can probably go back to their past work, but they've only got another 10 months in their any occupation benefits. Let's set this up for a claims denial at the any occupation stage, because that's where the greater value of this case is. Because remember, the benefits for own occupation are normally limited to two years, but your policy may provide that benefits are paid to age 65 or age 67 or even longer. And so the greater value or the greater exposure, if you will, to the disability carrier plan is in any occupation stage. And that's where the fight is. So they may want to spend time setting up the claim, your claim for denial or termination at any occupation stage while you're still in the own occupation stage. So one of the questions they're going to ask is, look, based on this person's residual functional capacity, both physically, cognitively and psychiatrically, have the skills that this person has learned been reduced? Now remember, limitations aren't just about strength. They're also non exertional in nature, such as the need to alternate sitting and standing, the loss of fine motor dexterity, visual impairments, the need for frequent rest breaks, cognitive impairments.
 
 Nancy Cavey [00:17:23]:
 Now why is this important? It's important because if these limitations erode your ability to use your skills, you may not be able to do other work. But what I find is that vocational experts often ignore these nuances. They'll misclassify your occupation so that they can misclassify your transferable skills, or they may just brush aside the non exertional impairments that would erode your ability to take those skills to other work. So the question then becomes for them, do you have transferable skills to other occupations? For example, carriers often argue that management, budgeting, training, organization skills can seamlessly move to other occupations. I've had this case and I think it's a good example of the games that they play. I represented a warehouse person at Costco and he was disabled as a result of chronic back pain. He couldn't lift or stand, but he was a manager. So the carrier argued that his supervisory skills could transfer into a desk based management role in another industry.
 
 Nancy Cavey [00:18:38]:
 And of course, to make these leaps, vocational experts use software like SkillTrans, often without regard to whether this new occupation actually fits both your physical, cognitive and psychiatric limitations. So just be aware of that little game. Now they're also going to ask, what other occupations can you do? And I think this step is a hypothetical step. Both in the world of Social Security and in the world of erisa, it generally doesn't matter whether you can realistically land a job. Vocational experts are going to search occupational databases like the Standard Occupational Classification, the SOC system to identify other occupational duties that would match your physical, psychiatric and cognitive residual functional capacity form and see if there are transferable skills. What they're going to do is list three or more occupations that they think that you are going to be capable of doing, sometimes wildly disconnecting this from your career history, your education, in fact your really your Skills. And remember, they're thinking about this at the own occupation stage. The next question they're going to ask, depending on the terms of the policy or plan, is do we have to produce a labor market survey or an occupational wage survey that supports these occupations? Because this particular policy says that for this quote unquote new occupation to count, it has to pay at least 80% of your pre disability wages.
 
 Nancy Cavey [00:20:20]:
 And they get that number wrong too. So they're starting to look at whether these occupations actually exist in the labor market and whether there are jobs within that particular labor market. Again, labor market's a broad term. It could be the national economy, it could be the local economy. It really counts. To read that policy and understand where is the geographic range that we are talking about. I will tell you that generally compensation rarely matters because not all policies or plans will have this provision that any own occupation, I'm sorry, any occupation, occupation or job pays at least 80% of the pre disability wages. In many policies of plans, you just have to identify some other occupations and therefore compensation rarely matters.
 
 Nancy Cavey [00:21:12]:
 The carrier doesn't care if the identified occupation or job pays a fraction of your former salary. And your actual employability is irrelevant, particularly your age, because remember, age is rarely a factor in an ERISA disability claim. So the standard is theoretical, not real world. Mythical employability, not practical real world employability. Now, you can see at every one of the questions that I've just detailed in this episode there can be mistakes made and they will use every opportunity to make a mistake. They'll use outdated dot codes, they will misclassify your occupation. They will overstate transferable skills, they will disregard erosion of occupational skills because of things like concentration pace or bilateral manual dexterity issues. Or they will cherry pick occupations that don't realistically exist.
 
 Nancy Cavey [00:22:09]:
 And remember, even after approval at the own occupation stage, they're going to revisit these questions in periodic claims reviews. Because remember, they're looking for any basis to argue that you've improved and that you can go back to your own occupation while setting up this claim for an any occupation denial when your own occupation benefits end, which is normally two years. So you can expect this to really heat up, if you will, at least six to eight months before that 24 month of own occupation benefits end. Got it? Now you are understanding the disability carrier plan game. So let's talk about what's next in our next episode. And that's going to be talking about the any occupation stage. Ready for a break? Let's do it.
 
 Speaker B [00:23:04]:
 Are you a professional with questions about your individual disability policy, you need the Disability Insurance Claims Survival Guide for Professionals. This book gives you a comprehensive understanding of your disability policy with tips and to dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we're giving away free copies of the Disability Insurance Claim Survival Guide for Professionals. Order yours today@disabilityclaimsforprofessionals.com.
 
 Nancy Cavey [00:23:46]:
 Foreign welcome back to Winning Isn't Easy the Any occupation Stage A Tougher standard and the game gets rougher now after the own occupation period ends, most policies are going to transition to an any occupation definition of disability, and that's a much harder standard of disability. Now the standard isn't whether you can perform your own occupation, it's whether you can perform any occupation for which you are reasonably qualified by education, training or experience. Real world hiring, availability of work and pay are irrelevant, as is your age. Now there are factors that will dominate this stage in the carrier's analysis of your case. The first is going to be your residual functional capacity and it's going to be reevaluated in light of your diagnostic studies, your exam findings, what your physician has to say about your restrictions and limitations, and what their liar for hire peer review doctors say about your restrictions and limitations, your residual functional capacity. The other thing they're going to be assessing is your transferable skills. And that is going to probably be as flawed as it was in the origins of this case. But here's the catch.
 
 Nancy Cavey [00:25:12]:
 The higher your skill level, the less transferable your skills might be, though they'll play that one too. So a lawyer's litigation skills don't translate neatly to paralegal work because the duties are different. But many times I have seen them say that. A trial lawyer, for example, could do other type of non litigation work because after all, they're a lawyer. And any lawyer can be a lawyer can be a lawyer can be a lawyer. Now I also see this game in retail settings. So you might be a retail manager or a district manager. And what they're going to argue is while you physically may not be able to do the retail managers physical occupational duties, you've got retail management skills that can transfer to management in an entirely different field.
 
 Nancy Cavey [00:26:10]:
 Carriers and vocational experts are going to lean heavily on tools like the Dictionary of Occupational Titles, specific Vocational Preparation Levels, and other computerized tools that they will use to identify transferable skills and and other occupations. That's really why it's important that if your claim has been denied that you are involving not only an ERISA attorney but a vocational evaluator who will be hired for the purposes of rebutting and taking apart the liar for hire carrier or plan vocational evaluator. What they're going to be doing is again arguing that your skills can be adapted to new roles even when those roles are unrealistic, don't pay a living wage, and may not even exist in your geographic area. That's where many claims get denied or terminated. They're going to exploit vague policy language, rely on outdated vocational data, and ignore the practical realities of disability. Now, that can be an uphill battle unless you are prepared. And in my view, the preparation starts from the very beginning. You need to understand both the own occupation and any occupation definitions of the disability and occupation.
 
 Nancy Cavey [00:27:25]:
 You need to understand what it is you have to prove. Next, you have to determine what necessary medical proof should be supplied to the disability carrier plan about your residual functional capacity form status. Rather, are you going to use residual functional capacity forms that we Social Security lawyers have developed? Are you going to have a functional capacity evaluation? Are to you going, Are you going to have a CPET exam to measure your cognition and fatigue? How are you going to get your doctor to endorse these restrictions and limitations? You need to be thinking ahead because again, you've got the burden of proof. And that proof becomes a whole lot harder at the any occupation stage. Now remember, we've talked about in this episode a number of the tools that disability carriers or plans are going to use to to create a denial or termination. And that strategy is going to start from the very beginning. That's just another reason why, in my view, you should be working with an experienced ERISA disability attorney from the very beginning. So not only you can deal with the challenges of getting your own occupation benefits, but you're anticipating a claim denial or termination at the any occupation stage.
 
 Nancy Cavey [00:28:47]:
 And believe me, I've had cases where the claimant has been on claim for five or 10 years and all of a sudden the disability carrier plan liar for hire doctor comes up with an opinion that this person has recovered or that they're able to do other occupations in the national economy. Why? Because they're tired of paying your benefits. They are looking for a reason to deny or terminate benefits. And it's very easy to create one at that transition stage from an inability to do your own occupation to any occupation and then, you know, into that own occupation stage. Remember, they are not in the business of paying disability benefits for the life of the claim. They were happy to collect your gold in the form of premium, and they're just as happy as to rule that you aren't entitled to your disability benefits or that you've recovered so that you can perform your own occupation, or any occupation. Now you understand the games. Good.
 
 Nancy Cavey [00:29:50]:
 Thank you for tuning in to this week's episode of Winning Isn't Easy. If you found this episode helpful, please take a moment to like our page, leave a review, share it with your family and friends, and subscribe to this podcast. Join us next week for another insightful episode of Winning Isn't Easy. Thanks for listening.