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An important aspect of your past relevant work is the skills you may have learned on the job. 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.

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, if Social Security determines that you cannot return to your past relevant work at step 4 of the sequential evaluation, the SSA considers your ability to do other work at step 5. And when assessing your ability to do other work, your acquired job skills can be a relevant factor. If those acquired job skills can transfer to a significant number other jobs you are able to perform, your disability claim will be denied.

There will be more on the topic of transferability of skills in upcoming posts.

Social Security’s Program Operation Manual Series (POMS) states that an RFC must reflect the claimant’s ability to work on a sustained basis. See POMS Section DI 24510.057

RFC represents the most a claimant can do despite his or her limitations or restrictions. Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work activities:

      • In an ordinary work setting,
      • On a regular and continuing basis, and
      • For 8 hours a day, 5 days a week, or an equivalent work schedule.

However, if a claimant is unable to sustain a 40-hour workweek because of a severe medically determinable impairment (MDI), the adjudicator or medical consultant must discuss sustainability in the RFC.

This POMS section mirrors the language of Social Security Ruling 96-8p. However the POMS is a primary source of information used by Social Security employees at the DDS level to process claims for Social Security benefits.

Here is what the POMS section says at the end:

REMINDER: Inability to sustain a 40-hour workweek is an RFC finding. The adjudicator must use that RFC finding to complete the sequential evaluation process. If the claimant’s past relevant part-time work is within his or her RFC, deny the case at step 4 of the sequential evaluation process. If the claimant cannot do PRW, proceed to step 5. An inability to sustain a 40-hour work week at step 5 would result in a significantly eroded occupational base at all exertional levels. (bold emphasis added)

So, if your RFC limits you to less than full-time work or an equivalent schedule, you will be found disabled at step 5.

Remember, however, part-time work at SGA can be past relevant work. If you performed part-time work at the SGA level, and that past relevant work as performed is within your RFC, your claim will be denied at step 4 of the sequential evaluation.

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 determine 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) or do other work (step 5 of the sequential evaluation process).

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

I frequently talk to clients and potential clients, who say “I am diagnosed with x, y, and z,  so I cannot work.” I hear this statement almost every week.

Here is how I respond:

“Well, x, y, or z can certainly be a basis for disability. But the issue in your case, and the reason your claim for disability benefits has been denied so far, is that Social Security needs to assess the severity of your symptoms from these ailments. Your diagnosis was a necessary step, but it is just the first step. The big issue is: what are your functional limitations that result from your diagnoses, and do those functional limitations prevent gainful employment on an ongoing basis?”

Disability is functionality. Your ability to function in the workplace is the issue in your disability case.

The task for disability claimants and disability lawyers is to provide evidence of those functional limitations. Ideally, that evidence includes the patient’s medical progress notes, as well as opinions from treating physicians. Evidence can also include statements by nonmedical sources, including family and friends (see 20 C.F.R. 404.1502 (e)). Lastly, your testimony at the hearing will address your functional limitations. At the hearing judges usually want to know about your activities of daily living, so that they can infer your level of functioning from that evidence.

There are many pieces to a successful claim for disability benefits. Understand that your diagnosis is just a beginning step to establishing disability.

I have three clients at various stages of the Social Security disability process whose past relevant work is solely as a surgical technician, or surgery tech. Obviously, assisting the doctor in the operating room is a demanding job. The Dictionary of Occupational Titles describes the job as Light, SVP 7 (DOT Code 079.374-022). According to Selected Characteristics of Occupations (SOC), the companion volume to the Dictionary of Occupational Titles, the job requires frequent (up to 2/3rds of a workday) reaching, handling, and fingering, which makes sense.

The ability to perform past relevant work must be ruled out in every disability claim, or the case will be denied at step 4 of the sequential evaluation used in every Social Security disability case (unless a listed impairment is met).

What’s interesting is that each of these clients is unable to perform the past surgery tech job for a different reason.

  • Client 1 has polyneuralgia, and does not have the use of the hands required for the job. Before having to stop work, this client dropped instrument trays all the time. That is not acceptable in the environment of the operating theater.
  • Client 2 can’t do the standing required by the job, and by Light exertional work in general, due to back and joint problems.  Update: this claim was granted at the Reconsidertion level of review.
  • Client 3 has severe anxiety, which prevents this client from maintaining the focus and concentration required for this job. This client has other impairments, but anxiety is the thing that most clearly precludes this type of work. Update: this claim was granted at the Initial level of review.

I am confident that with a little help in the form of opinions from treating doctors, I will be able to rule out past relevant work in each of these cases. So bear in mind, either physical or mental impairments (or a combination) can be used to rule out past relevant work.

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 1)  as you performed it (and described it in your Work History Report), and 2) 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 Dictionary of Occupational Titles.

I just had this discussion with a client. His claim was denied at Reconsideration because, according to Social Security, he was able to perform one of his past relevant jobs as generally performed in the national economy. The client was adamant that he could not perform that job, given all the walking it required. He even sent me a read-out from his Apple watch showing how many steps a day he took while performing that job (7,500 steps a day on average, if you are wondering). But it doesn’t matter, because Social Security will also consider how that job is generally performed in the national economy.

You have to be prepared to rule out the claimant’s ability to perform past relevant work both as performed and as generally performed in the national economy.

Certain findings in a Social Security disability case are reserved to the Commissioner. Particularly, the determination of whether or not your are disabled is reserved to the Commissioner. See 20 C.F.R. 404.1520b(c)(3). Therefore, your doctor’s opinion that you are disabled in given no special significance by the SSA.

In fact, the heading for this section of the regulations is “Evidence that is inherently neither valuable nor persuasive.” That is an emphatic statement!

Section (3) of 20 C.F.R. 404.1520b(c) gives a list of statements on issues that are reserved to the Commissioner:

(i) Statements that you are or are not disabled, blind, able to work, or able to perform regular or continuing work;

(ii) Statements about whether or not you have a severe impairment(s);

(iii) Statements about whether or not your impairment(s) meets the duration requirement (see § 404.1509);

(iv) Statements about whether or not your impairment(s) meets or medically equals any listing in the Listing of Impairments in Part 404, Subpart P, Appendix 1;

(v) Statements about what your residual functional capacity is using our programmatic terms about the functional exertional levels in Part 404, Subpart P, Appendix 2, Rule 200.00 instead of descriptions about your functional abilities and limitations (see § 404.1545);

(vi) Statements about whether or not your residual functional capacity prevents you from doing past relevant work (see § 404.1560);

(vii) Statements that you do or do not meet the requirements of a medical-vocational rule in Part 404, Subpart P, Appendix 2; and

(viii) Statements about whether or not your disability continues or ends when we conduct a continuing disability review (see § 404.1594).

These statements, if adopted, would tend to direct the determination of disability, and must therefore be made by the SSA.

In practice, however, it is terribly frustrating to have a treating doctor’s opinion dismissed by a DDS examiner or an ALJ because the issue is reserved to the Commissioner. The solution to this problem is to ask your treating doctor for specific opinions regarding the nature and severity of your functional impairments. Your doctor’s opinion regarding your diagnosis and functional limitations will be considered by Social Security.

Substantial Gainful Activity (SGA) is the amount of money you can earn from wages and still be eligible for Social Security disability benefits. The SGA amount is important for two classes of people:

A person applying for disability benefits must have (or be expected to have) a period of 12 consecutive months with wages below SGA (subject, of course, to the rules for unsuccessful work attempts and Impairment Related Work Expenses).

A person receiving Title II disability benefits can earn up to the SGA amount and still receive benefits (be sure to also take a look at the trial work rules).

The SGA amount for 2021 is $1,310. Each year it is adjusted for inflation. For 2022, it will be $1,350. Here is a table showing SGA amounts by year.

 

 

Social Security has a number of policy rulings that expand upon the regulations contained in the CFR. Social Security Rulings are binding on all components of the Social Security Administration, in accordance with 20 CFR 402.35(b), and are to be relied upon as precedents in adjudicating cases.

Anyone serious about representing clients before the Social Security Administration needs a good working knowledge of the rulings. The rulings can win cases for you, and can help to frame issues in a Social Security disability case.

The SSA’s website has a list of Social Security Rulings by Year. It is worth bookmarking on your computer, so you have the full list of rulings readily available. Each listed ruling is linked to the actual ruling, so it is an excellent reference. There is also a list of Rulings by subject matter.

The lists makes it easy to find a Ruling if you only remember the year or the topic. But the lists are also worth browsing, and you may find a Ruling you either did not know about or had forgotten about.

An “on the record” (OTR) request asks Social Security to grant your case on the record without a hearing. This request is for claims pending at the hearing level at the Office of Hearings Operations (OHO).

OTRs are favored by Social Security, because they save valuable resources. Why go though the hearing process if the claim is definitely going to be granted? Cases granted on the record can free up scarce resources for more complicated claims.

What’s nice about on the record decisions is that they can only be fully favorable. You cannot lose your case on the record. Rather, if the OTR request is denied, your claim simply stays in line for a hearing.

Although there is nothing to lose by filing an OTR request, they should only be filed in a minority of cases, where a favorable result is mandated by the evidence and by Social Security’s rules and regulations. Also, the medical evidence in the record should be up to date before an on the record request is filed.

Two areas where an OTR is certainly appropriate are 1) if the claimant meets a listed impairment, or 2) if the claim would be decided favorably at step 5 by the Medical-Vocational Guidelines. Such claims can be clear-cut winners. Claims that require a decision based on subjective evidence (such as the level of your pain), or claims that would require vocational evidence, are not strong candidates for an on the record decision.