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If you have a claimant awaiting at the hearing level who was denied benefits by DDS at Step 4 due to the ability to perform a past job, and that job was last performed more than 5 years ago, that job no longer counts as PRW.

Take a look at the case to see if an on the record request is appropriate. Ideally, any remaining PRW would be clearly precluded by the DDS RFC assessment, and the claimant is old enough to be found disabled by direct application of the Medical-Vocational guidelines.

Here is some sample language, excerpted from an on the record request I just filed:

This is an on the record request for John Smith.

The claimant suffers from severe degenerative disc disease, status post cervical fusion, among other severe impairments. DDS assessed lifting and carrying limitations of 10 pounds, in addition to other limitations (Reconsideration DDE, Case Documents, “A” section). Although the claimant has more severe functional limitations than assessed by DDS, his claim should be granted on the record based upon the DDS RFC because of the recent revision to the past relevant work (PRW) period.

This claim was denied at Reconsideration at Step 4 based upon a Sedentary job last held in 2010. SSA’s Final Rule amending the PRW period from 15 years to 5 years became effective on June 22, 2024. As a result, that 2010 Sedentary job no longer constitutes past relevant work. See also Social Security Ruling 24-2p.

Based upon the new PRW 5-year rule, the claimant’s sole past relevant work is as a driving instructor, which was performed at the Light exertional level (Work History Report, Case Documents, “E” section), and is generally performed in the national economy at the Light exertional level (see INSTRUCTOR, DRIVING, DOT code 099.223-010).

At Step 4 of the sequential evaluation, the claimant’s PRW is precluded, based upon the 10-pound lifting/carrying limitation of the DDS RFC. His PRW was at the Light exertional level, which requires lifting and carrying up to 20 pounds occasionally. See 20 C.F.R. 404.1567(b) and Social Security Ruling 83-10.

At step 5 of the sequential evaluation, the claimant does not have acquired job skills that transfer to “a significant range” of jobs within his limited RFC, as required by Section 202.00 (e) of the Medical-Vocational Guidelines. He does not have recent education that allows direct entry to skilled work within his limited RFC. The claimant is 60 years old. At the Sedentary exertional level, he grids “disabled” by direct application of Medical Vocational Rule 201.06. At the Light exertional level, he grids “disabled” by direct application of Medical Vocational Rule 202.06.

A Recommended Fully Favorable Decision Checksheet is attached.

A Fully Favorable decision is respectfuly requested.

7/15/2024 Update: The OTR request has been granted, and a Fully Favorable decision issued.

In January, Social Security added claims at Initial and Reconsideration to its status report in Electronic Records Express (ERE). After 5 months using this additional feature, I have found it to be hugely helpful. It is a marked improvement for those of us managing Social Security disability claims.

Social Security has now added more data to this report. A Representative can now download an Excel spreadsheet that provides additional information, including:

  • Case level (Initial or Reconsideration)
  • Receipt date (date received at DDS)
  • First date assigned to an adjuster
  • Closure date
  • Federal Quality Review (FQR) start date

This is a terrific update. You can now see at a glance if the case has been received by DDS, assigned to a disability examiner, if it was closed and when, and if it was sent to Federal Quality Review. Each one of these items previously required a telephone call to the field office or to DDS to determine status.

Social Security released EM-24026, entitled: Isolated Occupations We Will Not Use to Support a “Not Disabled” Finding at Step Five of the Sequential Evaluation Process and EM-24027, entitled: Guidance Regarding the Citation of Certain Occupations at Step Five of the Sequential Evaluation Process.

These two Emergency Messages are steps toward addressing the outdated occupational data from the Dictionary of Occupational Titles (last updated in 1991) that is used to determine whether or not the claimant can perform “other work” at Step 5 of Social Security’s sequential evaluation.

Of the two EMs, the second is the most important. The 13 unskilled occupations listed in EM-24027 are often cited at Step 5 in support of disability denials.

The new 5-year period for past relevant work (PRW) becomes effective today. New DDS determinations and ALJ decisions will only evaluate 5 years of past work. The 5 years runs from the date of adjudication (or the date last insured, if earlier). See 20 C.F.R. 404.1565(a) and Ruling 24-2p.

In the world of Social Security disability, this final rule is a seismic shift.

If you haven’t done so already, you should review all your pending claims to determine whether or not jobs held more than 5 years ago were the basis for a denial at Step 4, or for a denial at Step 5 due to transferable skills.

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.