I had a hearing yesterday where I thought I would be able to finally invoke the worn out worker rule. This is an offbeat provision in the Social Security regulations that grants benefits at step 5 of the sequential evaluation 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:
- a marginal education,
- 35 years or more of only arduous unskilled physical labor,
- 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. A mine worker, a farm worker and a commercial fisherman are examples of workers that might benefit from this rule. But the requirement for a marginal education is hard to meet.
My client had been a marine worm and clam digger since age 10, on a seasonal basis. That certainly qualifies as arduous, unskilled physical labor. He performed that job, and other seasonal work, for his whole working life. He is now 48 years old. He can no longer perform that job due to peripheral vascular disease in both legs.
DDS assessed a sedentary RFC, and denied the claim under Medical-Vocational Rule 201.18. However, in this situation, a different result would be reached by the worn out worker rule than under the Medical-Vocational Guidlelines. A 49 year old worn out worker would be found disabled at the sedentary 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. DDS did not develop sufficient information to use the rule: they only went back 15 years for work history, and they did not investigate the applicant's marginal literacy.
I have been waiting to win a case under the worn out worker rule since I learned about it at my first NOSSCR Conference. Finally, I had a case where the claim would have been lost under the Medical-Vocational Guidelines, but would win because of the worn out worker rule! And that is what would have happened, except the judge determined at the hearing that the claimant met a listed impairment, so the case was granted at step 3. As a result, the issue of worn out worker rule at step 5 was not reached.