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SSA issued Social Security Ruling 24-2p to clarify how past relevant work (PRW) is evaluated. It is a comprehensive look at PRW. This Ruling rescinds SSR 86-8, and rescinds and replaces SSRs 82-61 and 82-62.

The Ruling poses and answers 10 questions about Past Relevant Work:

  1. How do we define PRW?
  2. How do we determine whether an individual’s past work was done within the past 5 years?
  3. How do we determine whether an individual’s past work started and stopped in fewer than 30 calendar days?
  4. How do we determine whether an individual performed work long enough to learn to do it?
  5. How do we determine whether an individual can perform PRW?
  6. How do we determine whether an individual can perform their PRW as they actually performed it?
  7. How do we determine whether an individual can perform their PRW as it is generally performed in the national economy?
  8. How do we obtain evidence concerning an individual’s work history?
  9. What information do we require when determining whether work is PRW that an individual can perform?
  10. What findings and rationale must our determination or decision include when we find an individual is able to perform PRW?

The new Ruling becomes effective on June 24, 2024, just two days after the new final rule revising the PRW period from 15 to 5 years. It seems to be an appropriate time to recast how Social Security looks at PRW.

New Ruling 24-1p addresses three medical-vocational “profiles” that are occasionally applicable in disability claims. The profiles are considered at Step 5 of the sequential evaluation. If you meet the criteria of the profile at Step 5, you will be found disabled under Social Security’s rules. This new Ruling recinds and replaces Ruling 82-63.

The first profile is often referred to as the “worn out worker” rule. This rule has 3 requirements for claimants: a marginal education, 35 years or more of only arduous unskilled physical labor, and the claimant is unable to do this kind of work because of a severe impairment(s).

The second profile is sometimes called the “no work” profile, because it applies to claimants who have no past relevant work (PRW). This profile has the following requirements: the claimant has a severe impairment (or impairments), has no PRW, is age 55 or older, and has no more than a limited education. In light of the revised 5-year period for PRW, this profile may get used much more often, but the claimant must have a limited (less than 12th grade) education.

The third profile is the “lifetime commitment” profile. It applies to an individual who is not working at SGA level, has a lifetime commitment (30 years or more) to a field of work that is unskilled, or that is skilled or semi-skilled but provided no transferable skills, can no longer perform this past work because of a severe impairment (or impairments), is closely approaching retirement age (i.e., age 60 or older), and has no more than a limited education.

On April 18, 2024, Social Security published a final rule revising the period for Past Relevant Work (PRW) from 15 years to 5 years. That published rule contained an implementation date of June 8, 2024.

A notice in today’s Federal Register delayed implementation of the new rule by two weeks. The new rule will now become effective on June 22, 2024.

For many years I have written briefs for judges prior to hearings on disability claims. Since I have started writing short briefs for disability examiners at the initial or reconsideration level, I have won many more cases at the DDS levels of review.

I write short, one or two-page letters to the disability examiners, setting forth my theory of the case. The letter briefly describes the claimants limitations, cites the medical evidence, and then makes the vocational analysis based upon the claimant’s limitations, age, and work history.

There has been a significant amount of turnover at the state agencies that make determinations on Social Security disability claims. As a result, a number of examiners do not have extensive experience. A letter analyzing the claim can be a big help.

The letter is particularly helpful regarding the vocational evidence, which goes to the heart of what the disability examiner must analyze when making a determination. At Reconsideration, I often find myself pointing out the errors in the vocational analysis that was done at the initial level.

Call and write your disability examiner. You will get more favorable determinations due to that increased communication.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well.

The upcoming Juneteenth National Independence Day is coming up, and will be celebrated on Wednesday, June 19th this year, right in the middle of the business week.

Juneteenth has only been recognized as a federal holiday since 2021. The holiday may sneak up on some practitioners. If you have a hearing scheduled from June 20th through June 27th, you must take the holiday into account when calculating filing deadlines.

New evidence includes updated medical evidence and the Representative’s brief. Everything must be filed 5 business days ahead to be timely for the hearing. While filing earlier is always best, it is important to be aware of the deadline.

I really like the checksheet for on the record (OTR) requests. It gives the judge all the information needed to evaluate an OTR request.

Here is a completed checksheet from an actual case (with identifying information changed, of course). Page 1 has all the relevant dates. Page 2 has the theory of the case, distilled to its essence.

Completing the checksheet is an extra step, but it shows the judge that you have thought through the OTR request carefully. I think it helps. I have used it three times now, and each time the OTR was granted, including the sample case above.

In January, Social Security added claims at Initial and Reconsideration to its status report in Electronic Records Express (ERE). After 4 months using this additional feature, I have found it to be hugely helpful. It is a terrific improvement for those of us managing Social Security disability claims.

I check the list of cases almost every day. Not only does it show you the new cases with which you have been associated, but when a DDS determination has been made, that claim disappears from the list. That is a cue to call the local office to see if the claim has been allowed or denied. The new system is much more efficient than calling the disability examiner or the local office repeatedly when a determination is expected.

Social Security updated its Best Practices for Claimants’ Representatives just over a year ago, in April of 2023. I was reminded of them by my recent letter from an ALJ, which set forth that particular judge’s best practices for a hearing.

This list of best practices is required reading for Social Security disability lawyers. It is worth revisiting once or twice a year, to ensure you are following best practices.

Without a doubt, following best practices makes you a more effective advocate for your clients.

I recently had a disability case with a judge from the Albany hearing office. That judge sends out a letter 30 days before a scheduled hearing setting his expectations for evidence at the hearing. I really liked the letter. It is not standard practice for most judges to send a prehearing letter like this, at least not in my area. It should be standard practice, though, because is was super helpful to get. I will explain below.

Here is the actual judge’s letter. Let’s look at it paragraph by paragraph:

Hearing Records: In this section, the judge reminds the Representative that records are due 5 business days ahead of the hearing. This is by regulation. But notice the tone of the reminder. There are no threats from the judge that evidence may be excluded at hearing if not timely filed. There is just an explanation about why timely evidence is important. In the next paragraph, the judge encourages Representatives to obtain a treating source statement.

Briefs: I loved what the judge said about hearing briefs. He gave a concise description of what to include in a brief. This judge will accept a brief 1 day ahead of the hearing. The rule is 5 business days ahead of the hearing. I wish more judges would specify when they want the brief. In the absence of that guidance, however, the earlier the brief is submitted the better.

Claimant’s Medications (SSA HA-4632): This judge wants a medication list in all cases. Fair enough.

OTR Requests: The judge wants OTR requests at least 7 days prior to the hearing, and only in appropriate cases. Makes sense. The judge also said to please call his clerk if an OTR is filed, and let the clerk know. That makes sense too; an OTR should be reviewed promptly. Since I had filed an OTR request in my case with this judge, I called the clerk to let them know. I got a call back that afternoon, saying that the OTR request had been granted. Had the letter not had the instruction to call the clerk, I would not have done so and the OTR request likely would not have been acted on so quickly.

Post Hearing Records: If the record is left open after the hearing, records should be accompanied by a letter brief explaining the purpose, relevance, and impact of the new evidence.

As I said, this letter was very helpful for me, because the case was with a judge with whom I was not familiar. We have a sense of these issues with the judges we see regularly, but it was nice to see what a judge expects written down ahead of the hearing.

In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court held that past relevant work (PRW) does not have to exist in significant numbers in the national economy to be considered at Step 4 of the Social Security sequential evaluation.

Here is the story: Pauline Thomas worked as an elevator operator for six years, until her job was eliminated. She eventually 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 significant numbers in the national economy, she could not return to her past relevant work.

The Court had to interpret 42 U.S.C. 423(d)(2), 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’s finding that the claimant could return to her previous work, even though those jobs don’t exist in significant numbers anymore.

The holding of the Thomas case remains in force. The phrase “which exists in the national economy” does not apply to past relevant work, so there is no requirement that a past job exist in significant numbers. As a practical matter however, by reducing the past relevant work period to 5 years, Social Security will rarely need to consider obselete jobs like elevator operator as PRW. That was one of the stated goals of the rule change.