Disability Doc

Question 1: What is the correct way to evaluate composite jobs?

Answer: It is no longer necessary to document if job duties are done in terms of percentages or fractions of a work day or to evaluate the work at the higher exertional level. DDS will only determine that an individual cannot do past work as generally performed in the national economy if it is able to find a reasonable occupational counterpart. DDS will not find an individual capable of doing past relevant work if he or she can only do parts of a past job or parts of several past jobs. The adjudicator should provide a rationale why he/she is unable to complete Step 4 of sequential evaluation.

Consider the work activity as actually performed as the claimant describes, including all elements (both exertional and non-exertional) and function-by-function. Compare this work to the RFC assessment to determine if the claimant can perform each activity described. If the answer is yes, find them capable of past work as performed. If not, consider if there is a DOT description that closely corresponds to the job description provided. If there is a comparable DOT description and the claimant can perform the functions as the DOT describes it with the given RFC, find them capable of past work as generally performed. Composite jobs are rare.

The following examples illustrate composite jobs:

Example 1: In one particular state, teacher aides also drive buses as part of their duties. If only one paycheck with no separation in pay for each particular job, this constitutes a composite job with no DOT counterpart. However, if there are two different checks or distinct pay rates for each separate job, further evaluation may be needed to determine if either of the job duties was performed at SGA level.

Example 2: The claimant has an RFC for sedentary work. The past work description is a receptionist at a mobile homes sales lot. For five hours a day, visitors are greeted, phones answered, appointments scheduled and mail opened. For the other 3 hours each day, cleaning of model homes is performed including vacuuming, mopping and dusting. The claimant cannot return to past work as performed with her RFC. A past work denial cannot be done saying she can perform just the receptionist job without the cleaner duties because that was only part of the past job. Since a DOT description that requires both functions cannot be located, DDS will proceed to step 5 of the sequential evaluation.

Question 2: Many small business owners have functioned essentially as owner/operators. Does DDS consider this a composite job?

Answer: Such work does not normally represent a composite job. A valid assessment requires a complete description of the work. How does the individual spend his or her time? Which duties and responsibilities are basic and which are incidental? The reality of the situation will dictate the assessment, but generally speaking, the smaller the business, the more likely it is that the individual functioned as a worker rather than as a manager.

Reference: VG 01-02 Working Supervisors (dated March 7, 2001 )

Question 2: Convenience store clerk is a common occupation, but is not listed in the DOT. How should this work be classified?

Answer: Two DOT occupations have been suggested as alternatives for “convenience store clerk” –Cashier-Checker, 211.367-014 and Stock Clerk, 299.367-014. Depending on specific facts of the case, different occupations may be matched to the same job title given by different claimants. How the work was performed, not the job title, is paramount. There may be no DOT occupation that adequately matches the duties performed or, some other occupation may be a closer match (e.g., Sales clerk, 290.477-014).

Question: Does a Teacher, Secondary school, 091.227-010 have transferable skills to sedentary jobs after age 49?

Answer: In general, an individual aged 55 or older would not be expected to have transferable skills from this work. Occupations utilizing secondary clerical skills are not closely related enough to offset advanced age, unless an individual had obtained specific clerical skills in the performance of their job duties. Most likely these skills would come from additional duties not usually associated with the normal duties of teaching. In order to make this determination it is imperative that a detailed description of the individual teacher’s work is obtained.

This is even more important when the individual is aged 50 to 54. Other work does not have to be as closely related to teaching for this age group and skills obtained from teaching are more likely to transfer to clerical occupations. Carefully consider what duties were actually performed and make a judgment of transferable skills on a case by case basis. A clear explanation of the judgment being made is crucial.

Reference: 20 CFR , Appendix 2 to Subpart P of Part 404, Section 201.00 (f and g), DI 25025.005, SSR 82-41.

Questions: Will the requirement to document a 15 year work history be reduced to 5 or 10 years? What about the proposal to skip step 4 of sequential evaluation and go to step 5 instead?

Answers: Actuary figures project that a change to only 5 or 10 years of work history would cost five billion dollars over just five years. The 15 year work history requirement will remain. The requirement of completing step 4 prior to completing step 5 of sequential evaluation will remain, also due to the projected high costs that would be incurred if the proposed change were implemented.

Central Office (CO) emphasized that it is the claimant’s the burden of proof at step 4, and responsible for making evidence available to prove disability. If there is insufficient information to complete a vocational analysis, a determination should be made due to insufficient evidence of failure to cooperate. At step 5, the burden of proof shifts to the Commissioner to show other work the claimant can adjust to. A determination that does not proceed through all the steps of sequential evaluation is not defensible as a fully documented decision.

Question: Does DDS consider whether an upper extremity impairment involves the dominant extremity?

Answer: Fingering abilities are generally most important for sedentary work. When only one hand is limited in sedentary work, look at the extent of the limitation and hand dominance. A dominant hand impairment can be an example of functional adversity to be considered in Borderline Age cases. Hand dominance is not usually important, but in close cases, such as borderline age, DDS does consider it.

Question: What types of jobs can DDS cite for individuals with significant upper extremity impairments?

Answer: For such individuals it is often more appropriate to cite fields of work rather than specific occupations. Some examples include machine tending, signaling, non-complex clerical support work, etc.

Reference: DI 25020.005 A5

Question: What impact does a reaching restriction have on an individual’s occupational base?

Answer: A restriction on an individual’s ability to reach down and/or out poses a significant limitation on the occupational base. However, if the restriction is confined only to overhead reaching, it would not significantly limit the occupational base, although it might preclude the performance of past work. Unfortunately, the Dictionary of Occupational Titles (DOT) and its associated volumes do not make any discrimination in the function of reaching. If the restriction is only on overhead reaching, it may be necessary to contact the individual for a more detailed description of the physical demands of past work before a determination can be made regarding the individual’s ability to perform it.

Reference: DI 25001.001 B36.; DI 25020.005 A8; and Central Office Memorandum to San Francisco Regional Commissioner “Manipulative Impairments of the Upper Extremities” (dated March 15, 1989 )

Question: What types of non-exertional restrictions does DDS consider if the individual has a back impairment?

Answer: Typical restrictions to consider would be postural ones – stooping, crouching, climbing, balancing, etc.; however, consideration should be given to the claimant’s ability to tolerate the jolting associated with the operation of some trucks or construction equipment. A restriction in this area would not significantly limit the occupational base, but might preclude the performance of past work.

Question: What type of visual loss would prevent an individual from avoiding the ordinary hazards of the workplace?

Answer: Generally speaking, a loss of visual fields would have greater impact in this area than a loss of acuity, particularly if the loss is predominately in the inferior fields. However, another important factor that must be considered in this assessment is the nature and extent of environmental hazards of the individual’s past relevant work and any other work that would otherwise fall within his or her remaining functional capacity.

The phrase "inability to avoid ordinary hazards in the workplace” is primarily a reminder that consideration must be given to whether the visual loss (fields or acuity) would likely result in injury to the individual or others by bumping into, tripping over, or being hit by another person or object that commonly exists within the previous or anticipated workplace. Objects that could result in injury will vary depending on the work environment and the individual’s ability to visually detect those objects. For example, the objects could be such things as doors, walls, boxes, chairs or other furniture, dangerous machinery, elevated heights from which the individual could fall, or hot liquids or chemicals that could spill if bumped into.

Reference: DI 24510.006; 25020.005 A10; and Central Office Memorandum to San Francisco Regional Commissioner “Request for Policy Guidance on Evaluation of Claims Involving Reduction of Visual Acuity and Visual Fields” (dated 09/22/03 ).

Question: Does DDS cite particular types of occupations for individuals who must “avoid stress”?

Answer: No. Multiple studies have shown that there is no such thing as a stressful or non-stressful job. In fact, the use of the terms “low stress unskilled work” or “non-stressful unskilled work” has been the basis for some legal challenges to the disability program. Stress comes from a person’s perception of the work. Therefore, there may be specific functions that an individual cannot tolerate, but not necessarily specific jobs. The mental residual functional capacity (MRFC) assessment is crucial in reaching a decision in such cases. The consultant should specifically describe what causes stress for the individual and what work functions or situations he or she should avoid.

Reference: DI 24510.061B 4b.

Question: One of the criteria for determining the relevance of past work is its duration. How does DDS determine what is “sufficient” duration?

Answer: For many years a twelve-month rule of thumb has been employed. It should be emphasized that this is only a guideline and is not to be applied mechanically. To do so would be contrary to SSA’s policy of individual assessment, i.e., evaluating each case on its own merits. A more flexible guideline that can be used in this assessment is the Specific Vocational Preparation (SVP) noted in the DOT for the occupation in question.

SVP  Time
1      Short demonstration only (unskilled)
2      Beyond short demonstration to 1 month (unskilled)
3      Over 1 month to 3 months
4      Over 3 months to 6 months
5      Over 6 months to 1 year
6      Over 1 year to 2 years
7      Over 2 to 4 years
8      Over 4 years to 10 years
9      Over 10 years

Example: Within the relevant period of time, the claimant performed an occupation for nine months. The DOT shows a SVP of 2, meaning that the work can normally be learned to a level of average performance within thirty days. In this case, the work would be considered vocationally relevant because it was performed for a long enough period of time for a reasonable expectation to be made that the claimant successfully learned and performed the work.

The use of the SVP as a guideline makes sense when it is applied in the context of DI 25001.001 B32c. This defines the duration criterion as:

(work) lasted long enough for the person to:

• learn the techniques,
• acquire the necessary information, and
• develop the facilities needed for average performance of the job situation. The length of time this takes depends on the nature and complexity of the work.

This last sentence also allows for a potential finding that work performed for a year is not relevant when the work is unusually complex and has a high SVP. This points out the deficiencies of using a twelve-month guideline without appropriate consideration of other facts of the individual case.

Reference: DI 25001.001 B32; and Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles ( SCO ), page 473

Question: Another criterion for determining relevancy is the “recency” of the work. How does DDS assess work performed mostly prior to the relevant fifteen-year period, but which extends for a short time into that period?

Answer: There is nothing definitive about the fifteen-year criterion. In fact, the language in the Social Security Act refers only to past work without any mention of when it was performed. The use of the fifteen-year timeframe is an administrative expedient used by SSA and actually works to the claimant’s advantage. Given that the fifteen-year period is not hard and fast, the work described in this question could be considered relevant. Factors to be taken into consideration when making that decision include:

• total duration of the work;
• subsequent work activity or lack of it;
• the nature of the work and any continuity or similarity between it and subsequent work;
• any acquired skills that were used in subsequent work; and
• the nature of the industry (stable or subject to rapid change).

Reference: DI 25001.001 B37

Question: How does DDS determine the relevancy of seasonal work from the standpoint of SGA ?

Answer: In disability adjudication, seasonal work most commonly occurs in agriculture and it is generally unskilled work, i.e., it can be learned in a short period of time. For a determination of whether or not it constitutes SGA , DDS makes a month to month assessment, keeping in mind that there is more to an SGA determination than dollars paid in wages or salary.

Reference: DI 24001.001

Question: If the claimant has the functional capacity to perform past, relevant work, but is unable to secure a license to perform that work, must DDS consider this in the assessment at step 4 of sequential evaluation?

Answer: No. SSA operates under its own guidelines and does not attempt to incorporate those of other governmental agencies or industries. Step 4 of sequential evaluation considers only the individual’s functional ability to perform past work. It involves no consideration of the individual’s ability to return to that work. Thus, if the claimant has the physical and mental capacity to perform past work, a denial is appropriate regardless of whether he or she can secure a license to be employed in that work.

There is a note of caution to be added here. The adjudicator should attempt to discover why the license cannot be obtained, i.e., a medical reason or an administrative reason. If the reason is medical, the RFC should be carefully reviewed to ensure that appropriate consideration has been given to the effects of the applicable impairment or medical condition. If it has, a denial would be appropriate.

When step 4 is considered appropriately, it also helps in adjudicating claims where past work was performed in military service or in a foreign country. The question is can the individual perform it, not can he or she return to it.

Reference: DI 22001.025; and DI 25005.001 B3

Question: How much latitude does DDS have in applying the two adverse profiles specifically described in the POMS?

Answer: Very little. Since the profiles are already fairly liberal in their intent, SSA expects that they will be interpreted very strictly.

Reference: DI 25010.001

Question: Are there any guidelines on situations where an individual is approaching another age category and the change in category would materially affect the decision?

Answer: Yes, but again it should be emphasized that these are guidelines only, not rules. One such guideline that has been used is the six-month rule of thumb. This should not be applied mechanically since to do so would simply replace one mechanical cut-off point with another. Flexibility at these age breaks is a concept that has received approval in the courts, primarily because it provides the opportunity for individual assessment. It allows the adjudicator to consider the positive and negative factors in the vocational profile of the specific individual.

A guideline that can be used and adapted to individual cases is that the further the claimant is from an age break, the more adverse should be the other factors in the vocational profile in order to justify considering the individual in the older category.

Example: Claimant A is 54 years and 11 months of age at the time of adjudication. Claimant B is 54 years and 7 months. Very little would be needed to justify evaluating Claimant A as being of advanced age. However, for Claimant B to be evaluated as of advanced age, the RFC, education, and work history components of the profile would have to be quite adverse, e.g., markedly limited RFC, illiteracy, or inability to communicate in English, minimal or no work history, etc. This is not meant to be a specific profile for the adjudicator to follow. Rather, it is designed to suggest factors that might be considered in making such a decision.

If the adjudicator elects to exercise appropriate judgment and place an individual in an older category than represented by his or her chronological age, a rationale for this judgment should be provided on an informational SSA–5002. All of the factors that went into the decision should be explained. If there is a medical report that weighed heavily in the decision, it should be cited.

If an individual is 54 years and 11 months and has a vocational profile that meets rule 202.10, but the adjudicator feels that there is justification for considering the individual to be of advanced age, the claim would be evaluated under rule 202.01. In this case, rule 202.01 is considered to be met.

Reference: DI 25015.005 A1

Question: When using the vocational rules, is attainment of a GED equivalent to an educational level of high school or more?

Answer: Yes

Question: If the claimant speaks only Spanish, but lives and works in an area where Spanish is a common, or the predominant, language, why do we have to consider the ability to communicate in English at step five of sequential evaluation?

Answer: The concept of ability to perform other work is based on a national economy test, a national economy that is predominantly English speaking. If the program were to consider regional factors, such as Spanish being commonly spoken in Miami, it would mean that an individual could be an allowance in Minneapolis, but a denial in Miami. This would in effect make place of residence an entitlement factor, which is inappropriate in a national disability program.

Reference: DI 25015.010 A4

Question: Why must DDS go through every step of the sequential evaluation even when it is clear the decision for a specific case will be a denial?

Answer: At step four of sequential evaluation the burden of proof is on the individual to demonstrate that he or she cannot perform past work. At step five, the burden of proof shifts to SSA, and by extension to the adjudicator, to show what other work the individual can perform. Therefore, the adjudicator should not concede any point at step four that is not true.

Reference: DI 25005.001 A; SSA Program Circular DI 04-00-OD (effective 11/2/2000 ).

Question: An individual is disabled on the basis of a vocational rule, but the alleged onset is prior to the time the individual attained the age category specified in the rule. How does DDS establish onset in such a case?

Answer: An important factor to consider here is that age should not drive onset. Onset is a medical issue and the adjudicator should look for a medical event that can establish onset. Disability cannot be established based on a vocational rule until all of the entitlement factors in that rule are met.

Reference: DI 25501.001 C