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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.

This article is the last in a series regarding how your previous work can affect your Social Security disability claim. We complete the series with an opinion from the highest court in the land, because there is actually a U.S. Supreme Court case regarding "previous work" in a Social Security disability claim. The case is Barnhart v. Thomas, 540 U.S. 20 (2003).

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

The claim went all the way to the U.S. Supreme Court, which is the seventh level of review available for a Social Security disability claim (count 'em: 1-initial review, 2-reconsideration, 3-hearing by an ALJ, 4-Appeals Council review, 5-U.S. District Court, 6-U.S. Circuit Court of Appeals, and 7-U.S. Supreme Court).

The Court had to interpret 42 U.S.C. 423(d)(1)(A), 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 finding that the claimant could return to her previous work, even though those jobs don't exist anymore.

So at step 4 of Social Security's sequential evaluation process, all the SSA does is match your physical and mental abilities to the physical and mental requirements of your past work.

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.

Social Security disability is an insurance policy, and you gain that insurance coverage through the Social Security taxes that you pay when working. Social Security counts each quarter that you work as 1 credit.

How long do you have to work before you are initially covered for Social Security disability? It depends upon your age.

Before age 24, you need just 6 credits earned in the 3-year period prior to the onset of your disability.

Between age 24 and 31, you need to have credit for working half the time between age 21 and the onset of disability. For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27).

Age 31 and older, you need to have earned 20 credits within the 10 years prior to the onset of disability. Further, you must have the total number of credits shown in this table.

NOSSCR has published the state-by-state statistics for Social Security allowance rates in 2008. Charles Hall has republished the state-by-state numbers on his blog, Social Security News.

In Maine, 35.7% of Social Security disability claims were allowed at the initial determination. At the Reconsideration level, 15.5% of the claims appealed after the initial denial were allowed.

These allowance rates are surprisingly close to last year's numbers.

The SSA's website has an excellent tool for those considering whether or not to apply for Social Security disability benefits.

The Disability Planner has many pages of helpful information regarding Social Security protection if you become disabled. It is worth a visit, and the site is easy to navigate.

I have added a link the Disability Planner to the Resources of Note section on the sidebar of this site.

A medical source statement is an important piece of evidence in a Social Security disability claim. The opinion of your treating doctor regarding your functional limitations should be given controlling weight by the SSA, if the opinion is not inconsistent with the other substantial evidence in the case record. 20 C.F.R. 404.1527(d)(2).

Social Security has a form, entitled Medical Source Statement of Ability to do Work-Related Activities (Physical), for a treating doctor to give an opinion regarding a patient's functional limitations for a Social Security claim. The form is not available on Social Security's website, and it is hard to find anywhere online.

Here is the version of HA-1151 that I use in my Social Security disability practice. Download form HA-1151.

Warning: be careful with this form! If your doctor gives Social Security an opinion regarding your limitations that still allows for employment at the sedentary exertional level, your claim could be worse off with that opinion than without it. It depends upon your particular situation. Do not have your doctor complete the form and blindly send it to Social Security. Get help from a Social Security disability attorney first.

There is a little known Social Security benefit called the Adult Child Disability benefit. I took on one such claim this week, for the first time in quite a while.

An adult disabled before age 22 may be eligible for child's benefits if a parent is deceased or receives retirement or disability benefits. The SSA considers this a "child's" benefit because it is paid on a parent's Social Security earnings record. This benefit is usually more favorable for the claimant than SSI payments.

The "adult child" must be unmarried, age 18 or older, and have a disability that started before age 22.

The SSA makes the disability determination using the usual adult disabilty process. 

I just submitted a critical case request for a Social Security disability claim here in Maine. A critical case request asks Social Security to expedite a particular claim.

There are three situations that constitute critical cases: 1) the claimant's illness is terminal, 2) the claimant is suicidal or homicidal, and 3) dire need.

Dire need is the most frequent basis for a critical claim request. Dire need is when the claimant is without (and is unable to obtain) food, medicine or shelter. Mere hardship is not enough. The situation must be dire.

My client is facing imminent foreclosure. She has been disabled and out of work for almost two years, and her husband was laid off last year. With no income, they have been unable to keep up with their mortgage payments.

Critical cases are governed by HALLEX I-2-1-40. ODAR uses an evaluation sheet to review critical case requests. Documentation of the critical situation is important. 

The Seventh Circuit recently decided 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.

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.