Maine Social Security Disability Lawyer

Past Relevant Work

At step 4 of Social Security's sequential evaluation, the SSA considers your ability to perform your past relevant work. This is a very important step in the process, because if the SSA determines that you retain the residual functional capacity to return to your past relevant work, your disability claim will be denied.

For those applying for disability benefits, it is important to fully describe the requirements of your past jobs in your work history report or adult disability report. Don't forget to specify the lifting, standing and other requirements of your prior work. Be sure to tell Social Security if your prior work included a composite job, with dual responsibilities.

Social Security will match your current abilities to the requirements of your past work. The SSA looks at both how each job was actually performed by you, and how those jobs are generally performed in the national economy. Social Security will simply compare your abilities with the requirements of each of the previous jobs. It doesn't matter if the past job doesn't exist anymore.

Remember that not all past work is past relevant work. However, even part-time work at SGA can be past relevant work.

Social Security classifies jobs according to skill level. You may have learned job skills at your previous work. If your acquired job skills can transfer to skilled or semi-skilled work that you are still able to do, it is problematic for your claim.

Eliminating your past relevant work is important for all claimants, but it is particularly important for Social Security disability claimants 50 to 54 years old, claimants 55 to 60 years old, and claimants 61 to 65 years old.

Claimants age 55 and older

The Social Security Administration has special rules for claimants age 55 and over. If you can no longer perform your past relevant work, then Social Security must take your age into account when considering whether or not you can do other work at step 5 of the sequential evaluation. This principle is embodied in the Medical-Vocational Guidelines, which are used by the SSA to determine disability at step 5.

I think it is very helpful for claimants age 55 or older to have a disability lawyer's help with their initial disability application, because there are some common mistakes to avoid. I have worked with many clients in this age group, and often a claim can be granted without the necessity of a hearing if the initial application is completed properly.

I ensure that I have a winning theory of the case before filing. Then, I help the client thoroughly complete the work history report, being sure to fully describe the requirements of past work. I analyze the past work for transferable skills, which can sink a disability claim. Then, I describe the claimant's functional limitations, and ensure that all sources of medical treatment are listed, so that Social Security gets a complete medical record. Lastly, I ask the client which of his or her doctors are most supportive, so that I can get a doctor's opinion.

For the lawyer, this process means front-loading the time spent on a disability claim. The hours of getting to know a client, the medical history and work history, are all spent before even applying for benefits. For the client, getting help with the disability application means that common mistakes are avoided, all the necessary details are included, and the application is supported by a winning theory of the case.

If you are age 55 or older and can no longer do the kind of work you've done in the past, consider getting a Social Security disability lawyer involved as early as possible. There is no up front cost, and no fee at all unless your claim is successful. 

Social Security Disability vs. Early Retirement

Many people who become disabled at or near the age of 62 choose to file a claim for early retirement benefits instead of Social Security disability benefits. This is a usually a mistake, since the Social Security system penalizes people who retire early, at age 62. If you receive Social Security disability benefits instead, you avoid those penalties. So don't automatically take the retirement check.

The critical aspect of a disability claim for those approaching retirement age is to rule out your past relevant work at step 4. If you can no longer do your past work, the SSA must consider your age when determining whether or not you can perform other work at step 5 of the sequential evaluation. If you can't rule out your past work, you do not get the benefit of being over age 55 (or age 60) at step 5. 

I prefer to be involved as early as possible with a disability claim of a worker over age 55. Ideally, I am consulted before the claim is filed. That way, some common mistakes can be avoided.

{update: I have written an updated post on early retirement and Social Security disability benefits}

Past Relevant Work as Generally Performed

At step 4 of Social Security's sequential evaluation, the SSA considers whether or not you have the ability to return to your past relevant work. The SSA considers your past work, both as you performed it (and described it in your Work History Report), and how that work is generally performed in the national economy. See Ruling 82-61.

To determine how the work is generally performed in the national economy, the SSA looks to the Dictionary of Occupational Titles (DOT) for a description of your job. For example, if you were a cashier, the SSA would look at the requirements of that job both as you described it and as it is described in the DOT.

The work history report doesn't have much space to describe your job duties. Most claimants just give the title of their previous jobs, and don't fully describe their job duties. The SSA will then try to match the title of that job to a listing in the DOT. This is where the problems begin, because the job descriptions in the DOT are often not an exact match to the job performed by the claimant.

I have one such claim right now. The claimant worked as a safety coordinator. He described the job as light to medium exertional work, requiring him to make site visits regularly and carry heavy materials from time to time. DDS denied the claim at step 4, stating that the claimant could still perform that job as generally performed.

However, when I reviewed the claim file, I learned that DDS used the DOT description for safety manager for its analysis. Safety manager was the claimant's boss's title, not the job the claimant performed. Safety manager is a sedentary job, and does not involve site visits or carrying heavy materials occasionally. The job of safety coordinator, on the other hand, is more physically demanding.

The claimant is over the age of 55. If past work is ruled out, he would then grid "disabled" under the Medical-Vocational Guidelines. So this error by DDS is the difference between winning and losing the claim.

I am confident that we be able to remedy this DDS error at the hearing level, hopefully with an on the record request.

Related Article: Past Relevant Work: the Composite Job

Part-time Work at SGA Can Be Past Relevant Work

Sometimes workers in chronic pain reduce their hours from full-time to part-time to try to stay employed and manage their pain. If this part-time work is above the SGA level, it can cause a problem for an eventual Social Security disability claim.

Social Security considers whether or not you can return to your past relevant work at step 4 of the sequential evaluation process. Even part-time past work is past relevant work if the wages were above the level of substantial gainful activity and you performed the work long enough to learn it. See Social Security Ruling 96-8p, footnote 2.

This can be a trap for the unwary. When Social Security determines your residual functional capacity, it typically must consider your ability to work on a "regular and continuing basis," which means 8 hours a day, for 5 days a week, or an equivalent work schedule. Ruling 96-8p. However, part-time past relevant work performed at SGA is an exception to this rule. 

This provides yet another reason to prepare a detailed work background.

Past Relevant Work: the Composite Job

Sometimes a prior job is actually more than one job at the same time. You were both a RN and a nurse supervisor. You were both a receptionist and a filing clerk. You were both a carpenter and a construction supervisor. These are called composite jobs.

If your past relevant work included a composite job, it can cause problems with your Social Security disability claim. The SSA must determine, at step 4 of the 5-step sequential evaluation process, whether you have the residual functional capacity to perform your past relevant work. Not only does Social Security consider your ability to do your past work as you performed it, but also as generally performed. And this is where the composite job can cause problems with a claim.

Typically, in the short space available on the work history report, you only give the job title for part of your composite job. Then you describe what you had to do. Social Security may find that you can't do the job as you describe it, buy can still do that job as generally performed. The problem is that the "generally performed" analysis does not consider the composite nature of the job. The SSA will just use the job title that you gave in your work history report to determine how the job is generally performed in the Dictionary of Occupational Titles (DOT). If that past job was a composite job, this approach is incorrect under Social Security's own rules.

Past Relevant Work Recap

At step 4 of Social Security's sequential evalution process, the SSA considers your ability to perform your past relevant work. This is a very important step in the process, because if the SSA determines that you retain the residual functional capacity to return to your past relevant work, your disability claim will be denied.

For those applying for disability benefits, it is important to fully describe the requirements of your past jobs in your work history report. Don't forget to specify the lifting, standing and other requirements of your prior work.

Social Security will match your current abilities to the requirements of your past work. The SSA looks at both the way you described your past work, and how those jobs are generally performed in the national economy. Social Security will simply compare your abilities with the requirements of each of the previous jobs. It doesn't matter if the past job doesn't exist anymore.

Not all your past work is past relevant work.

You may have learned job skills at your previous work. Social Security classifies jobs according to skill level. If your acquired job skills can transfer to skilled or semi-skilled work that you are still able to do, it can be problematic for your claim.

Eliminating your past relevant work is important for all claimants, but particulary for Social Security disability claimants over the age of 50.

Previous Work and The Supreme Court

This article is the last in a series regarding how your previous work can affect your Social Security disability claim. We complete the series with an opinion from the highest court in the land, because there is actually a U.S. Supreme Court case regarding "previous work" in a Social Security disability claim. The case is Barnhart v. Thomas, 540 U.S. 20 (2003).

Pauline Thomas worked as an elevator operator for six years, until her job was eliminated. She applied for disability insurance benefits under Title II of the Social Security Act. After a hearing, an administrative law judge denied her disability claim, finding that Ms. Thomas had the capacity to return to her past relevant work as an elevator operator. The judge rejected the claimant's argument that, since jobs as an elevator operator no longer exist in substantial numbers in the national economy, she could not return to her past relevant work.

The claim went all the way to the U.S. Supreme Court, which is the seventh level of review available for a Social Security disability claim (count 'em: 1-initial review, 2-reconsideration, 3-hearing by an ALJ, 4-Appeals Council review, 5-U.S. District Court, 6-U.S. Circuit Court of Appeals, and 7-U.S. Supreme Court).

The Court had to interpret 42 U.S.C. 423(d)(1)(A), which states in part:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy... "work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

At issue was whether the phrase "which exists in the national economy" applies to previous work, or only applies to other work. The Court decided 9-0 that the phrase did not apply to previous work. As a result, the Court upheld the SSA finding that the claimant could return to her previous work, even though those jobs don't exist anymore.

So at step 4 of Social Security's sequential evaluation process, all the SSA does is match your physical and mental abilities to the physical and mental requirements of your past work.

Not all Past Work is Past Relevant Work

Social Security considers your Past Relevant Work (PRW) at step 4 of the sequential evaluation process. It is important to properly define your past relevant work, because it can only hurt you in a Social Security disability claim. If Social Security determines that you have the capacity to return to your PRW, your disability claim will be denied.

But not all past work qualifies as past relevant work. Past relevant work is "work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it." 20 C.F.R. § 404.1560(b)(1). Let's look at each requirement:

• First, past relevant work must be in the past 15 years. The 15 years runs back from the date of determination, or from the date last insured, whichever is earlier.
• Second, past work must have been substantial gainful activity to qualify as PRW. If you were an employee, the work must have been performed at the SGA level. If you were self-employed, see 20 C.F.R. 404.1575. Remember that an unsuccessful work attempt is not substantial gainful activity and therefore not past relevant work. By definition, an unsuccessful work attempt must occur after the onset of disability. See 20 C.F.R. 404.1574(c).
• Third, the work must have "lasted long enough for you to learn to do it." Unskilled work can be learned in less than 30 days. Skilled work takes longer. The length of time depends on the nature and complexity of the work. There are no firm rules here, but the vocational training times set forth in the Specific Vocational Preparation (SVP) section of Appendix C of the DOT are a good guide.

These rules are important. For certain claims, eliminating a problematic job from past relevant work can make the difference between winning and losing.

Combination of Impairments

Social Security must consider the combination of your impairments when considering your eligibility for benefits. Even non-severe impairments must be considered in combination with your severe impairments. See 20 C.F.R. 404.1523.

This can be very important. Sometimes a seemingly minor impairment can rule out your past relevant work, and move your claim past step 4 of the sequential evaluation process. 

I have had cases where past relevant work was ruled out due to asthma (can't be around fumes), near blindness in one eye (no depth perception for factory work), and moderate anxiety (cannot interact with the general public), when those impairments were combined with the claimant's other impairments. Each of these claims then won at step 5 of the sequential evaluation process, via the medical-vocational guidelines.

Remember, your RFC must include all your impairments, even non-severe ones.

Past Relevant Work

As discussed in the previous post, step 4 of Social Security's sequential evaluation process is a determination of your ability to retun to your past relevant work. Your "past relevant work" is work you have performed in the past 15 years at the SGA level.

All Social Security does at this step is compare your physical and mental residual functional capacity to the requirements of your past work.

To determine the requirements of your past work, SSA looks at the work history report, which describes how you actually performed your past work. SSA also considers how the job is generally performed in the national economy, according to the Dictionary of Occupational Titles.

Social Security looks at the fit between your retained work capacity (your RFC) and the requirements of your past work. If you still retain the capacity to perform your past relevant work, your claim will be denied.

For more on this topic, read Social Security Ruling 82-61.

Google search Question

From time to time I look at the web statistics for this blog, and how visitors get here. Sometimes a visitor follows a link from another blog, or comes via my Social Security disability website. But often people land here when they use an internet search engine, such as Google.

The stats show the exact search terms that lead a vistor to this blog. I have been intrigued to see that some people type in a whole long question when they search, rather than just using keywords. For example, I had a recent visitor who conducted this search: what does it mean when an administrative judge requests a review of title and positions from a claimants work record by vocational expert?

I am going to answer that question right now.

It means that the ALJ is considering whether or not you can return to your past relevant work at step 4 of the sequential evaluation process. After the vocational expert (VE) characterizes your past jobs, the judge will ask the VE whether or not a person with your limitations could return to any of those previous jobs. If the VE answers yes, you have probably just lost your disability claim. If the VE answers no, the judge will then proceed to step 5 of the sequential evaluation process. The judge may then ask the VE if there are other jobs available to a person with your impairments. Hopefully the answer to this question is also no.

Vocational expert testimony is complicated, and it often a determines whether or not your claim is granted. Please do not attend a disability hearing without a Social Security disability attorney.

Residual Functional Capacity

Your Residual Functional Capacity (RFC) is the cornerstone of your Social Security disability claim. Unless you meet a listed impairment, the administration's assessment of your RFC will decide the outcome of your disability claim.

The RFC is Social Security's assessment of your abilities to do sustained physical and mental activities on a regular and continuing basis in a work setting. The RFC considers only those funtional limitations resulting from medically determinable impairments.

The RFC is used to determine whether or not you can return to your past relevant work (step 4 of the sequential evaluation process) or do other work (step 5 of the sequential evaluation process).

For more about your RFC, read Social Security Ruling 96-8p.