Maine Social Security Disability Lawyer

Traits versus Transferable Skills

There is an excellent discussion of job traits versus transferable skills in Kramer v. Astrue, No. 1:10-cv-207-JAW (D. Me. March 25, 2011).

Here is the relevant excerpt (I have removed citations to the administrative record):

The administrative law judge found that the plaintiff’s past jobs as a firefighter and an emergency services dispatcher required the following skills: “[p]erform a variety of duties, deal with people, perform effectively under stress, and make judgments and decisions.” These were identified by the vocational expert in his testimony as the transferable skills he would consider in responding to the administrative law judge’s hypothetical questions. The plaintiff contends that these are not job skills in the world of Social Security, but rather traits, the existence of which has no effect  on the question of whether an applicant has transferable work skills.

In order to find that a claimant who cannot return to his past relevant work can perform other work of a skilled or, as in this case, semi-skilled nature, an administrative law judge must find that the claimant has skills developed in his past work that can be transferred to the specific other work identified as available for him.  20 C.F.R. § 404.1568(d); Social Security Ruling 83-10, reprinted in  West’s Social Security Reporting Service  Rulings 1983-1991, at 26;  see also Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998).  In the instant case, the vocational expert so testified, and the administrative law judge relied on his testimony.  The plaintiff’s challenge here, then, is not to the administrative law judge’s  findings, but rather to the vocational expert’s testimony.  

...               

The listed “skills” are: performing a variety of duties, dealing with people, performing effectively under stress, and making judgments and decisions. As the court noted in Ellington v. Secretary of Health & Human Servs., 738 F.2d 159, 161 (6th Cir. 1984), skills identified as “independence of judgment” and “responsibility for work product” “are too vague to constitute particular skills which are transferable.”   Such “skills” are not distinguishable “from those of a lawyer, a secretary or a nuclear physicist.”  Id.  In Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002), the court, holding that “there is an inherent difference between aptitudes and skills” in Social Security parlance, id. at 474, found that the following abilities were not transferable skills:  to learn and apply rules and procedures, to use reason and judgment in dealing with all kinds of people, to think clearly and react quickly in an emergency, to keep physically fit, to make conclusions based on facts and one’s personal judgment, and to change easily and frequently from one activity to another.  Id. at 476-77.  Remand was ordered in both of these cases. 

For the case at hand, the identified “skills” do not differ significantly from those rejected in Ellington and Draegert, and I, therefore, reject them as a basis for the vocational expert’s identification of three semi-skilled jobs that the plaintiff could perform, given the RFC assigned by the administrative law judge. 

Judge Rich made the correct analysis. Bear this case in mind next time a vocational expert takes a liberty with the applicant's transferable skills. Don't let the VE testify about traits instead of transferable skills. Object to that testimony, and say that those traits are not "transferable skills," as that terms is defined by the Social Security Administration.

One Residual Functional Capacity, Two Outcomes

In a Social Security disability case, the record often contains a Residual Functional Capacity (RFC) or a medical source statement that sets forth limitations like these: lifting and carrying 10 pounds occasionally and less than 10 pounds frequently, standing and/or walking for about 2 hours in an 8-hour work day, sitting about 6 hours in an 8-hour day, occasional postural limitations, and occasional reaching. This is basicially a sedentary RFC with occasional posturals and occasional reaching.

Reaching means extending the hands and arms in any direction, and includes working with your hands in front of you. Occasionally mean up to one-third of the work day. Read more about manipulative limitations and Social Security Disability. 

This should be a winning RFC. Social Security Ruling 83-10 states that sedentary work requires "good use of the hands and fingers for repetitive hand-finger actions." Social Security Ruling 83-14 states:

a limitation to unskilled sedentary work with an additional loss of bilateral manual dexterity that is significant...warrants a conclusion of "Disabled." (The bulk of unskilled sedentary jobs requires bilateral manual dexterity.)

Whether you are doing desk work or factory work (the two main categories of sedentary jobs), you must have good use both hands. As a result,the unskilled sedentary occupational base is severely eroded by the limitation of occasional reaching. Other nonexertional limitations would further erode the occupational base. See Social Security Ruling 96-9p for the implications of an RFC for less than sedentary work. Under Social Security's rules, a fully favorable decision is appropriate in most cases based upon this RFC.

But when the judge has a vocational expert (VE) at the hearing, this outcome could change. If the judge asks that VE a hypothetical questions with the same functional limitations described above, the VE likely will testify that two unskilled sedentary jobs described in the Dictionary of Occupational Titles are available: surveillance system monitor (DOT Code 379.367-010) and call-out operator (DOT Code 237.367-014).

Those are the two sedentary jobs in the DOT that require less than frequent reaching. Call-out operator requires only occasional reaching, and surveillance system monitor requires no reaching at all. These two jobs are a thorns in the side of a claimant's representative, because VEs cite them all the time.

Now, with only two jobs remaining out of the entire unskilled sedentary occupational base, one would think that the unskilled sedentary job base would be severely eroded. Nevertheless, those two jobs are enough to lose a disability claim.

Of course, this raises two fairness issues:

1. Claimants with the same limitations are getting one result at a hearings without a VE, and potentially getting a different result after a hearing with a VE.
2. The SSA uses the occupational data contained in the Dictionary of Occupational Titles (Fourth Edition), which was compiled by the U.S. Department of Labor back in 1991 and has not been revised or updated since that time. So your claim is denied based upon occupational data that is 20 years out of date. Think about how much the workplace has changed in 20 years.

But complaining about fairness is not going to help your client at the hearing. If you cannot persuade the judge that there are additional limitations to those listed above, and the VE lists these two jobs, what do you do?

Well, of course you can cross-examine the VE on the job numbers. It is pretty well known that there are no statistics available with job numbers by DOT code, so the VE's job numbers are going to be, to put it gently, an estimate. The judge knows it, and a vigorous cross may not change the result.

Nevertheless, surveillance system monitor, as that job is described in the DOT, does not really exist today. So it is definitely worth asking the VE about the DOT definition, which specifies government-owned transportation centers. If the VE strays from that definition, then what is the source for his statistics regarding numbers of jobs?

Both these jobs are GED Reasoning level 3 jobs. So if there is an additional limitation to simple tasks, the jobs should be precluded by that limitation.

You must anticipate this VE testimony ahead of the hearing and prepare for it. You should never be surprised to hear the VE list these two jobs in response to a hypothetical containing the above RFC. Ideally, you can scour the record and find some nonexertional limitations that would preclude these two particular jobs. And have your cross-exam ready.

Disability and the inability to get work

Colorado Springs disability attorney Tomasz Stasiuk recently published an article entitled Criminal records, hire-ability, and Social Security disability. He writes:

The problem is that in disability cases, Social Security does not take hire-ability into consideration when deciding if an individual is disabled. In Social Security disability and Supplemental Security Income (SSI) cases, Social Security only looks at whether an individual is able to perform the duties of the job. Social Security does not consider whether an individual is actually likely to be hired for a job.

Tomasz is exactly right. The inability to get work, by itself, does not lead to a disability finding. Social Security's regulations, specifically 20 CFR 404.1566(c), state:

Inability to obtain work. We will determine that you are not disabled if your residual functional capacity and vocational abilities make it possible for you to do work which exists in the national economy, but you remain unemployed because of—

(1) Your inability to get work;

(2) Lack of work in your local area;

(3) The hiring practices of employers;

(4) Technological changes in the industry in which you have worked;

(5) Cyclical economic conditions;

(6) No job openings for you;

(7) You would not actually be hired to do work you could otherwise do; or

(8) You do not wish to do a particular type of work. 

At step 5 of the sequential evaluation, Social Security will match your functional abilities against the requirements of of jobs in the national economy. For the purposes of a Social Security disability determination, it doesn't matter if no employer would hire you.

Post-Hearing Memorandum

Loyal readers know that I am a strong proponent of the hearing brief, which is filed into the record ahead of a Social Security disability hearing to assist the judge in the evaluation of the claim. Sometimes a post hearing memorandum is also called for. 

In my experience, a post hearing memorandum is needed when there has been vocational expert (VE) testimony at the hearing, and the VE identified available jobs in response to the judge's hypothetical questions. After 3-4 hypotheticals from the judge, and cross-examination by the claimant's representative, the step 5 analysis can be muddled. A post hearing memorandum can help to clarify.

Social Security Ruling 96-9p, footnote 8 states in part: "Whenever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision." So a quick post hearing memorandum on the topic of the VE testimony is entirely appropriate.

It may be that the judge has already made up her mind by the end of the hearing. But maybe not. You have to assume that the judge is still considering the matter, and that a short post hearing memorandum will be helpful for your claimant.

Completing the Work History Report

Many claimants complete the Work History Report (Form SSA-3369-BK) as part of a Social Security disability or SSI application process. However, the importance of the report is often not recognized by claimants. It is usually one of several reports that must be completed, and it seems innocuous. But it's not. In many claims, the work history report is just as important to the determination of disability as the claimant's medical records.  

Unless your condition meets a listed impairment, the SSA will make a medical-vocational determination of your claim at steps 4 and 5 of the sequential evaluation. The vocational part of that determination relies heavily on your work history report, because the report helps to establish your past relevant work.

At step 4, the SSA will simply compare your RFC to the requirements of your past work, both as that work is described in the work history report, and as generally performed (see Social Security Ruling 82-61). If Social Security determines that you can still perform your past relevant work, your claim will be denied. 

If you do not describe the work requirements accurately, Social Security may conclude that you can still perform that past relevant work. So be sure to fully describe all of the requirements of the work you have performed in the past 15 years. 

Claimant is a Nurse - Transferable Skills

I have a client who just received a Reconsideration denial on the basis of transferable skills. The claimant is 60 years old, and has been a hospital nurse for over 25 years. Now, due to fibromyalgia, coronary disease, bilateral carpel tunnel syndrome and other impairments, she can no longer perform her past relevant work as a nurse. 

DDS assessed a light exertional RFC. For a 60 year old claimant with an unskilled work background, that would have been the end of the process. The claim would have been granted according to Medical-Vocational Rule 202.06 (light RFC, advanced age, no transferable skills or education allowing direct entry to skilled work). But DDS decided that the skills from her SVP 7 nurse job would transfer to three other SVP 7 nursing jobs performed at the light exertional level:

• nurse supervisor, DOT Code 075-167-010
• office nurse, DOT Code 075-374-014
• school nurse, DOT Code 075.124-010

As a result, the claim was denied under Medical-Vocational Rule 202.07.

I have reviewed the Social Security disability claim file, and there is not an actual transferable skills analysis anywhere to be found. Social Security has specific rules for transferable skill determinations. Since the existence of transferable skills can make the difference between winning and losing a claim, these rules are critically important.

Medical-Vocational Guidelines Section 202.00(f) states: 

For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry.

Social Security Ruling 82-41 elaborates:

In order to establish transferability of skills for such individuals, the semiskilled or skilled job duties of their past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation.

I see two potential problems right away with the DDS vocational determination. First, the DOT job descriptions of the other three nursing jobs contain some different skills than those acquired from the generic nurse job. In particular, the job of nurse supervisor has a whole set of supervision and management skills that are not part of the job description of a regular nurse. Second, each of the three light exertional nursing jobs may require a significant vocational adjustment, contrary to 202.00(f) and Ruling 82-41. Resolving these issues will probably require a hearing.

The claim also needs medical development. The claimant stopped working largely because she could not be on her feet all day, as required by her job. So the DDS light exertional RFC is beyond the claimant's actual abilities. Medical source statements from her doctors are likely to describe a sedentary RFC, which would rule out those three nursing jobs, and would resolve the issue of transferable skills. 

Lastly, the claimant has good days and bad days with her fibromyalgia. So there is also the issue of whether or not she is able to work on a sustained basis.

Each of these areas will be developed. If the new evidence is particularly strong, I will make an on the record request, and try to obtain a fully favorable decision without my client having to wait for a hearing.

Get the Vocational Rehabilitation Records

Vocational rehabilitation records can provide persuasive evidence for a Social Security disability claim.

First, the records show that a claimant has been trying to find work, in spite of his or her impairments. This can be important, because an ALJ often considers the claimant's motivation to work when determining a disability claim.

I also like voc rehab records because they add a practical element to the disability process. The disability process - particularly with vocational expert testimony at a hearing - can be so theoretical. The vocational records shine the harsh light of reality onto the process. The vocational rehabilitation records almost scream out: We can't find a job that this person can perform. We tried. Couldn't do it.

I cannot remember a claim I lost when I had strong vocational rehabilitation evidence. So get the vocational rehabilitation records. And ask the claimant's vocational rehabilitation counselor for an opinion letter regarding the claimant's employment prospects. It can be persuasive evidence in support of a disability claim.

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

The Worn Out Worker Rule

There is an offbeat little provision in the Social Security regulations that grants benefits for a worker who fits a particular vocational profile. This is the "worn out worker" rule. See 20 C.F.R. 404.1562(a).

The rule has 3 requirements for claimants:

1. a marginal education,
2. 35 years or more of only arduous unskilled physical labor,
3. the claimant is unable to do this kind of work because of a severe impairment(s).

Social Security Ruling 82-63 clarifies the requirements of the regulation, and is a must-read if you have a claimant who may meet the criteria of the rule.

For many situations, the same result would be reached by the Medical-Vocational Guidlelines. However, a worn out worker would still be found disabled at the medium exertional level if he could no longer do his past work, because the worn out worker rule would be used rather than the grid rules. Ruling 82-63 states that section 404.1562 is a "pre-grid" rule, and must be applied prior to the numbered rules of the Medical-Vocational Guidelines.

A mine worker, a farm worker and a commercial fisherman are examples of workers that might benefit from this rule.

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.

Transferable Skills

At step 5 of the sequential evaluation process, the SSA considers your vocational abilities in addition to your medical condition, age and education to determine whether or not you can perform other work.

Acquired job skills can affect the outcome at step 5 if those skills can readiliy transfer to other jobs. Vocational skills trump age in a Social Security disability claim.

Let's look at an example to see how it works.

Suppose we have a 56 year old car mechanic who can no longer perform that medium exertional level job. He is given a residual functional capacity at the light exertional level. For an unskilled worker or a worker without transferable skills, the Medical-Vocational Guidelines would direct a finding of "disabled" under grid rule 202.04 or 202.06. However, if there is a determination that the worker has acquired job skills that transfer to skilled or semi-skilled jobs within his residual functional capacity, a finding of "not disabled" is directed by grid rule 202.07.

The acquired skills must be "readily transferable to a significant range of skilled work within an individual's residual functional capacity" to deny the claim at step 5. See Medical-Vocational Rules 201.00(e) and 202.00(e).

At a hearing, testimony of a vocational expert would be required regarding the acquired skills and the jobs to which they would transfer. Whenever transferable skills are at issue in a claim, you have to be prepared to cross-examine the vocational expert with finesse. Remember, disability hearings where transferable skills are contested are pretty rare - maybe 2 or 3 times in a hundred hearings. And each one of those cases has unique facts. So the vocational expert is way out of his or her comfort zone.

Read Social Security Ruling 82-41. Read it, print it out and take it with you to the hearing. Ruling 82-41 is still the touchstone for job skills and transferability.

Judgment is not a Job Skill

Wisconsin disability lawyer David Traver, host of the Connect Forum, wrote an excellent post that notes a recent Seventh Circuit case stating that judgment is not a job skill for the purposes of a Social Security disability claim.

In Villano v. Astrue, __ F.3rd __, No. 08-2150 (7th Cir. Jan. 26, 2009) the Seventh Circuit Court of Appeals stated:

In determining whether the claimant can perform jobs that exist in significant numbers at step five of the analysis, the ALJ must decide whether the claimant acquired any skills from her past work experience, and if so, whether they would transfer to new jobs. See S.S.R. 82-41; Key v. Sullivan, 925 F.2d 1056, 1062 (7th Cir. 1991). This circuit has not addressed whether “judgment” is a skill, but at least two other circuits have determined that it is not, explaining that a skill as defined in S.S.R. 82-41 and 20 C.F.R. § 404.1565(a) is a particular learned ability, and “judgment” is too vague to constitute such a skill. See Draegert v. Barnhart, 311 F.3d 468, 475-76 (2d Cir. 2002); Ellington v. Sec’y of Health & Human Servs., 738 F.2d 159, 159-61 (6th Cir. 1984). Thus, the ALJ erred in concluding that Villano had a generalized skill of “judgment” that was somehow transferable to new jobs in a different field.

To read the full Villano opinion, go to this page of the Seventh Circuit Court's website, and enter the docket number: 08-2150.

This opinion is good reminder that the issues of job skills and transferability of job skills can make the difference between winning and losing a Social Security disability claim. The Villano case also provides yet another example of a vocational expert with an expansive definition of what constitutes a job skill. Such artistic license must be cross-examined vigorously when encountered.

What are Job Skills?

In the context of Social Security disability, the touchstone for job skills is Social Security Ruling 82-41. That Ruling states:

A skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market.

At a Social Security disability hearing, a vocational expert may testify regarding a claimant's acquired job skills. In my experience, vocational experts can be cavalier about what exactly constitutes a skill. I have had disability hearings where vocational experts named things like making change and dealing with the public as acquired job skills from a cashier job. To me, those things do not rise to the level of skills, as defined by the Ruling.

What constitutes a skill is important, because the existence of transferable skills can doom your Social Security disability claim.

Past Relevant Work and Job Skills

 

An important aspect of your past relevant work is the skills you may have learned on the job. Social Security analyzes skills using the Specific Vocational Preparation (always referred to as SVP) criteria set forth in Appendix C of the Dictionary of Occupational Titles.

The SSA recognizes three classifications of skill level: unskilled work, semi-skilled work and skilled work. Let's look at each:

Unskilled work is defined as "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. ... a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs." See 20 C.F.R 404.1568(a).

Semi-skilled work "needs some skills but does not require doing the more complex work duties." Semi-skilled work is "less complex than skilled work, but more complex than unskilled work." 20 C.F.R 404.1568(b).

Skilled work requires a person to use judgment. "Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity." 20 C.F.R 404.1568(c).

Why does this matter? Well, after Social Security has determined that you cannot return to your past relevant work at step 4 of the sequential evaluation process, the SSA considers your ability to do other work. And when assessing your ability to do other work, your job skills are a strong factor. How strong? If those acquired job skills can transfer to other jobs you are able to perform, your disability claim will be denied.

There will be more on the topic of job skills and transferability of skills in upcoming posts. To receive the frequent updates to this site, please subscribe to my feed. Updates are also available by email.
 

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.