Past Relevant Work -- Obrien v. Bisignano

 The Ninth Circuit published its opinion in Obrien v. Bisignano on July 1, 2025. This is a step four past relevant work claim. Obrien arose under the 15-year paradigm. Obrien has continued relevance under the 5-year rules for what is and is not relevant in comparing residual functional capacity (RFC) to past work. 20 CFR 404.1560, 404.1565 (2024). 

Obrien filed a claim for benefits and wound his way through the administrative process. Obrien's representative at the hearing and before the Appeals Council did not much. The court decision does not suggest the presence of a pre-hearing brief of a merits brief to the Appeals Council. The Commissioner smells blood and cries forfeiture on the question whether past work was relevant. 

The Commissioner did capitulate to error in finding sales representative outside of the RFC assessed. As to Obrien's past work as a telemarketer, the Commissioner argued that whether the work was performed within 15 years of the relevant date (date of decision for SSI or date last insured for DIB) or whether the earnings exceeded the threshold amount for substantial gainful activity was forfeited. 

The Commissioner raised the issue in the opposition portion of the joint submission to the district court. Obrien's attorney responded on the merits but not directly to the forfeiture argument. On appeal, the Commissioner argued that Obrien forfeited the forfeiture issue. Five times in the decision Obrien characterizes the reply portion of the joint submission as optional. Nor did the district court treat Obrien's submissions as forfeiting the issue. Obrien further noted that the supplemental rules classify a reply as optional. No forfeiture of the forfeiture issue occurred. This holding has broad civil procedure applications on whether an issue is preserved on appeal. Where the reply is optional, a party does not have an obligation to respond to every argument made by the opposing party -- but clearly the party with the burden of proof or persuasion should address all issues. We will discuss that in a future blog post. 

The merits question asks whether Obrien forfeited the issue of the ALJ's classification of past work as relevant. The Court relies on Sims v. Apfel for the judicially created administrative issue exhaustion requirement. Sims rejected the holding of several circuits that an issue not raised to the Appeals Council was waived under judicial review. Shaibi v. Berryhill addressed and applied forfeiture of step five findings, challenges to vocational testimony must be raised to the ALJ or Appeals Council. Obrien further addressed Carr v. Saul for the non-forfeiture of appointments clause challenges. 

Applying Sims, Shaibi, and Carr, the court observed that the issue of the existence of past relevant work and the ability to perform past relevant work were squarely raised in the notice of hearing. The ALJ found the existence and ability to perform past relevant work but did not explain those findings. Those issues exist essentially or permanently in the step four requirements for past work, relevance, and the ability to perform described in the regulations. Obrien's contentions that one occupation exceeded his RFC and the others were either too long ago or not substantial gainful activity did not rest on any new evidence but on the record before the ALJ. Obrien then cautions that raising issues is still required where new evidence is submitted as in Shaibi and Meanel v Apfel. 

On the merits, Obrien considers whether work performed outside of the 15-year period. Obrien rejects the district court unadvocated position that 15 years is measured from the initial determination. The ALJ did not invoke the discretionary portion that generally 15 years is the measure. Therefore, any work performed outside of 15 years prior to the date last insured cannot meet the recency test of past relevant work. 

Obrien advocated that he worked from January to April 2009 and that his posted earnings should be averaged over four months. The Commissioner argued that because Obrien had called January to April 2009 three months, his earnings should be averaged over three months. The court noted that SSR 83-35 suggested averaging over calendar months worked. The court further observed that neither party relied on POMS DI 10505.015 suggesting that averaging must account for partial months of work activity. POMS states that months and earnings in partial months should not be used in calculating average earnings. The court found no basis in the record to allocate the earnings. The court further noted that it would not resolve the issue because even if Obrien worked 3.25 months, his earnings would fall below substantial gainful activity. The problem with the court's journey down the un-briefed rabbit hole is that POMS does not count fractions, it either includes the month and the earnings or it excludes both.  

Obrien ends the analysis with the duty to develop the record. Substantial evidence does not support the ALJ decision triggering the duty to develop. This holding represents a protentional restriction on the duty to develop theory. The duty to develop theory typically rests on a record that was underdeveloped but in that state supports a denial of benefits. 

As the coup de grace, footnote 8 ends the litigation over the application of five-year rule for past relevant work as applied to cases final before June 22, 2024. Obrien cites 89 Fed. Reg. 48138 (June 5, 2024). In none of the unpublished cases preceding Obrien did either the Commissioner or the Court cite the clear statement in that de facto amendment of the final rule amending 20 CFR secs. 404.1560, 404.1565). 

Obrien represents a win for claimants seeking review on the increasingly frequent resort to forfeiture, the civil procedure question of the role of the reply brief in transcript litigation, the duties of the ALJ to make findings in the five-step sequential evaluation process, and the need for articulated findings even when the issue is typically without controversy at the past relevant work issue at step four. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Past Relevant Work -- Obrien v. Bisignano, California Social Security Attorney (August 8, 2025) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

It Is the Percentage of the Day, Not the Hours of the Day that Matters

In a NOSSCR CLE and in hearings before SSA, I heard presenters, vocational witnesses, and ALJs express reliance on the hours of the day for sitting and standing (including walking) relying on the Occupational Requirements Survey. In Social Security disability hearings, reliance on hours in a day is a mistake.  

We use packers and packagers, hand (SOC 53-7064) as our example of the day. The ORS reports:

Occupational Requirements – sitting, standing (including walking)	2018	2023	2024
choice of sitting or standing is allowed	4.3	2.3	<0.5
choice of sitting or standing is not allowed	95.7	97.7	>99.5
Percent of Day standing is required (10th percentile)	90	90	100
Percent of Day standing is required (25th percentile)	100	100	100
Percent of Day standing is required (50th percentile - median)	100	100	100
Percent of Day standing is required (75th percentile)	100	100	100
Percent of Day standing is required (90th percentile)	100	100	100
Percent of Day standing is required, mean	95.5	95.9	98
hours of standing (10th percentile)	4	4	6
hours of standing (25th percentile)	5	5.88	6
hours of standing (50th percentile - median)	8	8	8
hours of standing (75th percentile)	8	8	8
hours of standing (90th percentile)	8	8	12

The amount of standing at the 10th and 25th percentiles falls within the generally used (and wrong) assumption that light and medium work require six hours of standing/walking during a workday. The question is whether those jobs are full-time work. Packers and packagers stand 90 to 100% of the workday at the 10th and 25th percentiles. How can that be? The jobs are part-time. If a job requires four to six hours of standing during the workday and that standing represents at least 90% of the workday, the person is not working and eight-hour workday. Algebraically:

                                Workday x 90% = 4 hours

Divide each side by 90%. 

                                Workday = 4 hours / 90%

                                Workday = 4.44 hours

The O*NET reports that all packers and packagers work at least a 40-hour workweek.  The ORS disagrees. In the special release dataset for "SVP 1-2 and 35-40 weekly hours - reference year 2023," the downloaded XLSX spreadsheet states that 58.2% of packers and packagers work 35-40 hours and requires a high school diploma or less; 44.4% of packers and packagers have no minimum education requirement. The ORS reports  that 18.2% of packers and packagers require a high school diploma and 70.3% have no minimum education requirement. How do we get from 88% and 70% down to 58% and 44%? Some of the jobs require more than 40 hours and some represent part-time work. 

SSR 96-8p is clear that full-time work satisfies the Commissioner's burden at step five - the existence of other work assuming the claimant's medical-vocational profile. (A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.). At step four, part-time work may matter. (The ability to work 8 hours a day for 5 days a week is not always required when evaluating an individual's ability to do past relevant work at step 4 of the sequential evaluation process. Part-time work that was substantial gainful activity, performed within the past 15 years, and lasted long enough for the person to learn to do it constitutes past relevant work, and an individual who retains the RFC to perform such work must be found not disabled.). 

Do not allow vocational witnesses to use "hours" as a substitute for "percentage of the day" when assessing the requirements of work. Part-time work does not count. 

That was not always the case. Prior to 2003, the regulations provided for a step-five finding of the ability to perform other work "on a full-time or reasonably regular part-time basis." 20 CFR 404.1562, 416.962 (2002). SSA deleted that language in 2003. 68 Fed. Reg. 51153 (Aug. 26, 2003). The notice explains:

However, in SSR 96-8p, we explain that at step 5 we consider only full-time work when we consider other work you are able to do. (See 61 FR 34474, 34475 (July 2, 1996).) 

The number of hours that includes consideration of part-time work is not probative at step five. The percentage of the day is the better measure of how much time a worker will spend sitting or standing/walking during a full-time workday. 

___________________________

Suggested Citation:

Lawrence Rohlfing, It Is the Percentage of the Day, Not the Hours of the Day that Matters, California Social Security Attorney (July 25, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

A Limitation to Simple Work -- a Medical and Educational Finding

We have heard and seen the limitation to simple work in various iterations. Simple and routine; simple and repetitive; simple instructions; simple tasks, all associated with a medically determinable severe impairment that limits the range of work available to a person. The Commissioner pushes back on this concept. Vocational Witnesses (VW) will argue that the person has a high school education. The time has come to recast that finding of medical impairment as causing a ripened educational deficit. We start with the regulation:

Formal education that you completed many years before your impairment began, or unused skills and knowledge that were a part of your formal education, may no longer be useful or meaningful in terms of your ability to work. Therefore, the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower. However, if there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities.

20 C.F.R. §§ 404.1564(a); 416.964(a) (emphasis added). 

The Commissioner states as a matter of law that the grade level completed may not represent educational abilities. We agree. A person that lacks the ability to perform the cognitive functions associated with a high school education lacks the ability to bring those educational abilities to bear in a work setting. 

The Commissioner states  that an individual with a high school education and above possesses the educational ability to perform semi-skilled through skilled work. 20 C.F.R. §§ 404.1564(b)(4), 416.964(b)(4). Individuals with a marginal education have the “reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs.” Id. at (b)(2) (emphasis added). The ALJ bears the burden at step five to determine the claimant's education level. Silveira v. Apfel, 204 F.3d 1257, 1261–62 (9th Cir. 2000) (finding the Commissioner bears the burden at step five to establish the claimant is literate) overruled on other grounds 20 §§ 404.1564(a); 416.964 (deleting the ability to communicate in English and illiterate in English). 

Social Security Ruling 20-1p confirms regulations. An individual with at least a fourth-grade education can read and write simple messages. The Ruling reiterates “to assign an individual to an education category lower or higher than his or her highest level of formal education, there must be specific evidence supporting the finding in the determination or decision.” An ALJ finding that a claimant could not perform more than simple work means that the person lacks the ability to access and use a high school education. The historical note that the claimant has a high school education or more does not answer the question posed by 20 C.F.R. §§ 404.1564(b), 416.964(b): whether the claimant's actual educational abilities are lower than his formal education level achieved. Where the ALJ finds a limitation to simple work, the factual finding answers that question; the claimant's actual educational abilities are not commensurate with past education. The finding of a high school education therefore conflicts with the finding of a limitation to simple work because the claimant cannot access that reasoning, arithmetic, and language abilities beyond simple work. 

In Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015), the Ninth Circuit considered whether a limitation to simple routine tasks conflicted with the ALJ’s finding that the claimant could perform work requiring reasoning level three. Zavalin rejected the Commissioner’s argument that “the DOT’s reasoning levels correspond only to a person’s level of education and, therefore, Zavalin is presumptively capable of Level 3 Reasoning because he completed high school,” instead finding “the DOT’s reasoning levels clearly correspond to the claimant’s ability because they assess whether a person can ‘apply’ increasingly difficult principles of rational thought and ‘deal’ with increasingly complicated problems.” Id. (emphasis original) (citing DICOT, Appendix C, available at https://www.dol. gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC. Zavalin stands for the proposition that a claimant lacks the ability to access their formal education in the presence of a limitation to simple routine tasks. The court’s conclusion is consistent with the regulation: that “the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower.” 20 C.F.R. §§ 404.1564(a), 416.964(a) (emphasis added).

How does this impact the disability analysis? A person 55 years of age or older limited to medium and simple work with no past relevant is presumptively disabled. 20 C.F.R. part 404, subpart P, Appendix 2, Rule 203.10. A person limited to simple work with any other severe impairment and no past relevant work is presumptively disabled.  20 C.F.R. §§ 404.15642b), 416.962(b). 

This additional theory of disability takes advantage of the change of past relevant work from fifteen years to five years.  20 C.F.R. §§ 404.1560, 416.960 (as amended 2024). More claimants will meet that vocational criterion of no past relevant work. This additional vocational detriment will apply to SSI claims that have remote work experience, if any, as well as DIB claims on or over the edge of the date last insured. 

We should press this point. A person limited to simple work should never be treated as having the ability to access and use a high school education. That person should be treated as having a marginal education. 

And now the bad news. The DOT broke down the educational requirements in reasoning, mathematics, and language on an ascending scale. The regulations break down the categories as illiteracy, marginal education, limited education, and high school education and above. 20 C.F.R. §§ 404.1564(b), 416.964(b). The Occupational Requirements Survey tracks illiteracy but does not differentiate between limited education of grades 7-12 and grades 1-6. The ORS is not agency compliant as to education. That failing may require or allow a claimant to rely on the DOT to fill in the interstitial gaps where a grade 1-6 makes a difference compared to 7-12. In assessing Specific Vocational Preparation, the various data sets have always treated high school as a zero. Jobs that require a high school education are unskilled but not simple. Under the reasoning level 3 analysis as inconsistent with simple work, an educational ability of 7-12 (without graduation) occupies a GED 3-4 level. And we must recognize that the median adult in the US reads at the 6th grade level -- capable of not more than simple work under the operative regulations. 

Education will not be a primary erosive factor on the ability to perform work in a SOC group. 

___________________________

Suggested Citation:

Lawrence Rohlfing, A Limitation to Simple Work -- a Medical and Educational Finding, California Social Security Attorney (May 8, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

And Now for the Bad News -- Really Bad News

I had a recent hearing with vocational witness Skylar De Pedro. This is the first time I had a vocational witness testify to a straight Standard Occupational Classification (SOC) with an Occupation Requirements Survey (ORS) reduction for Specific Vocational Preparation (SVP) and exertion. I doubt it will be the last. 

If we examine general office clerks (SOC 43-9061) for full-time, unskilled, sedentary work, the www.occucollect calculator reports:

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% Unskilled (ORS 2023)	# Unskilled
1,847,314	35.7%	659,491
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
659,491	81.1%	534,847

Using the BLS-endorsed methodology, and applying the O*NET part-time data with the 2023 OEWS and 2023 ORS data, the estimate is over half a million jobs. That is a significant number by any stretch. We confirm that with the ORS report:

43-9061 - Office clerks, general

Education, Training, And Experience (values are Percentages or Days)

Occupational Requirements – specific vocational preparation	2018	2023	2024
specific vocational preparation is short demonstration only	4.4	2	1.1
specific vocational preparation is beyond short demonstration through 1 month	31.3	33.7	44.6

Physical Demands (values are Percentages, Pounds, or Hours)

Occupational Requirements – strength, exertion	2018	2023	2024
strength required is sedentary	73.3	81.1	84.6

And the O*NET:

Reporting O*NET Dataset 29.2

Custom Report for: 43-9061.00 - Office Clerks, General

Structural Job Characteristics	%	Response
Duration of Typical Work Week — Number of hours typically worked in one week.	15	More than 40 hours
	59	40 hours
	26	Less than 40 hours

 We don't reasonably expect to win a full range of sedentary medical-vocational profile case. That requires that we drill down in the data. Occasional contact with others as defined in the O*NET knocks the job number from over 500,000 jobs to about 10,000 jobs:

Interpersonal Relationships	%	Response
Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?	82	Constant contact with others
	14	Contact with others most of the time
	2	Contact with others about half the time
	0	Occasional contact with others
	2	No contact with others

A limitation to simple work tasks (those not requiring a high school education or equivalent) out of the ORS data sets is not as dramatic an erosion:

Occupational Requirements – education	2018	2023	2024
no minimum education requirement	15.2	18.1	10.9
no minimum education required, and literacy is not required	--	<0.5	<0.5
no minimum education required, and literacy is required	--	<25	10.9
minimum education level is a high school diploma	78.7	74.4	84.1
minimum education level is a high school vocational degree	-	<0.5	--

Further erosion of the number of jobs depends on variables in the medical-vocational profile. Postural demands are not likely in sedentary work. Manipulation (gross, fine, and keyboarding) limitations will significantly erode the occupational base. Limitations in speech, hearing, and vision will have a dramatic, if not preclusive, impact on general office clerks. 

Once the witness uses the BLS-endorsed methodology for estimating the size of the exertion-skill occupational base, using the rest of the data is wide open. Use the data sets, plural intended, as the basis for cross and rebuttal evidence. 

Never surrender. 

___________________________

Suggested Citation:

Lawrence Rohlfing, And Now for the Bad News -- Really Bad News, California Social Security Attorney (March 25, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

When Looking at Job Numbers, Why Does Industry Matter?

In SSR 24-3p, the Commissioner of Social Security doubles down on the viability of the Dictionary of Occupational Titles (DOT) as a reliable source for occupational information as well as the quest for vocational witnesses to do something that they are not trained to do, estimate job numbers. EM-21065 REV 2 cautions that OccuBrowse (the first tier of SkillTRAN products) allows searches by a variety of other lists, "such as industry." The EM makes a more general statement about Job Browser Pro and notes that OASYS uses the same methodology for its data estimates. 

On top of this layer, the importance of industry and how industry impacts job numbers analysis is not predictable in hearings. Some vocational witnesses will use a SkillTRAN product, others reject them, some do not consider industry at all, and some make up their own unique black box that we do not get to see. In the age of SSR 24-3p and the general description of methodology, the industry in which an occupation exists matters.

The introduction to the DOT in the parts of the occupational definition, the DOT recognizes that it lists industry in every DOT code. It is in parentheses. The Employment Training Administration states:

In compiling information for the DOT, analysts were not able to study each occupation in all industries where it occurs. The industry designation, therefore, shows in what industries the occupation was studied but does not mean that it may not be found in others. Therefore, industry designations are to be regarded as indicative of industrial location, but not necessarily restrictive.

To use the DOT description as applicable to an occupation in an industry not contemplated by the DOT is a misuse of the DOT. The DOT description applies to the industry or industries in which ETA studied that occupation. The industry designation "is an integral and inseparable part of any occupational title. An industry designation often tells one or more things about an occupation." The "any industry" designation has alternate meanings:

    1. Nearly all industries

    2. In a number of industries, but not most industries and which  are not considered to have any particular industry attachment. 

The lead statement (after the alternate titles, if any) provides other information that is useful in "any industry" occupations to narrow the field. 

Job Browser Pro and OASYS assign the DOT codes to the industries in which SkillTRAN believes that the occupation exists. Why? Because the DOT states industry specifically or suggests the industries in the lead statement or task element statements. When a vocational witness does not or cannot provide industry designations using the North American Industry Classification System (NAICS), that testimony is inconsistent with the DOT. 

Where else are the NAICS codes used? Glad you asked. County Business Patterns (CBP) states aggregate job numbers in specific industries, industry groups, industry subsectors, and industry sectors. CBP provides the data county-by-county, state-by-state, and nationally. CBP is number (2) on the list of sources that SSA considers reliable. 20 CFR 404.1566(d)(2). CBP uses NAICS codes and so you every vocational witness (and representative). CBP provides a real challenge to novice users. OccuCollect does the work for users. 

Are there any other governmental data sources that use NAICS codes? We are on a roll, YES. The Occupational Employment and Wage Statistics (OEWS) provides job numbers at the occupation-industry intersection (SOC-NAICS) to the industry group (four non-zero digits) and some specific industries (five- and six-digits). The OEWS reports industry sector (two digits) and subsector (three digits) as well. The OEWS is mentioned as an acceptable source in SSR 24-3p. The OEWS data is difficulty to navigate. OccuCollect does the work for users. 

Is there another one? Yes there is. The Employment Projections table 1.8 (EP) provides industry-occupation matrix date by occupation and table 1.9 by industry. The EP data is very similar to the OEWS data and easier to use. OccuCollect reports that data and in a crosswalk report puts that data side-by-side to the OEWS data. 

Lens inserter and final assembler are in the optical goods industry. That is a very small industry inside of the industry group medical equipment and supplies manufacturing (NAICS 339100). Small products assembler I puts together small parts. The DOT says "any" but the job duties belie the "any" as meaning "all." Small products assembler works in parts of the manufacturing sector (NAICS 31-33) and more likely that the last third of that huge listing, NAICS 33xxxx. Small products assembler II has a job description dealing with wood products. Small products assembler II does not work with metals. See Employment Projections, 51-9199. The EP are the foundation of the Occupational Outlook Handbook and every SOC code in the OOH hyperlinks to the EP. The OOH is number (5) on the list for administrative notice. 20 CFR 404.1566(d)(5).

When an occupation does have a clear industry designation or the lead statement/task elements suggest or exclude industries, a representative must hold the vocational expert to the task of identifying the industries considered. Industry matters. That is unless the vocational witness studied the occupation in every industry. 

I doubt it. 

___________________________

Suggested Citation:

Lawrence Rohlfing, When Looking at Job Numbers, Why Does Industry Matter?, California Social Security Attorney (March 19, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

ORS Reports for SVP 1 or 2, 35-40 Hours per Week by Minimum Education

BLS reports "SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement" in an excel spreadsheet. This same report is replicated by SOC code on OccuCollect.com. Today, we look at electrical and electronic equipment assemblers (SOC 51-2022). Line 358 of the ORS report:

SOC	Occupation	Illiterate		No Min		HS or less
512022	Electrical and electronic equipment assemblers	<10	[15]	<10	[15]	26.3	10.1

The second number in each column is the standard error. If a user runs this report in OccuCollect, that person will get a null result. Why? Thanks for asking. The OOH and OEWS report combines SOC 51-2022 and 51-2023 to form electrical, electronic, and electromechanical assemblers, except coil winders, tapers, and finishers (SOC 51-2028). The OccuCollect report, sans the ORS header, reports:

51-2022 - Electrical and electronic equipment assemblers

SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement

The OOH Dataset does not report a Job numbers for this SOC.

Minimum Education Required	Percentage	# of Jobs
Total Jobs (OOH 2023)	100%	Not Reported
No literacy	<10%	Not Reported
No Minimum	<10%	Not Reported
High School Diploma	26.3%	Not Reported

There are job numbers in the OEWS and OOH. Running the OEWS data on the report states:

51-2028 -

SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement

Minimum Education Required	Percentage	# of Jobs
Total Jobs (OEWS 2023)	100%	267,440
No literacy	Not Reported	Not Reported
No Minimum	Not Reported	Not Reported
High School Diploma	Not Reported	Not Reported

Users can put those two together. There are less than 10% of jobs (< 26,744) jobs that do not require a high school education, some of those may not require literacy.  The problem gets worse. The 2018 and 2023 ORS date report on education states:

Occupational Requirements – education	2018	2023	2024
no minimum education requirement	26.7	23.1
no minimum education required, and literacy is not required	--	<10
no minimum education required, and literacy is required	--	<35
minimum education level is a high school diploma	66.8	66.7
minimum education level is a high school vocational degree	-	-	--
minimum education level is an associate's degree	-	-
minimum education level is an associate's vocational degree	-	-	--
minimum education level is a bachelor's degree	-	<0.5
minimum education level is a master's degree	-	<0.5
minimum education level is a doctorate degree	-	<0.5
minimum education level is a professional degree	-	<0.5

The ORS reports two-thirds of jobs require a high school education or equivalent (see the Collections Manual for the definition of high school education) and 23.1 to 26.7% of jobs have no minimum education requirement. Of those jobs that do not have a minimum education requirement, less than 35% require literacy and les than 10% do not require literacy. Less than 35% plus less than 10% equal 23.1%. That's stats. 

This aggregation of 90+% of jobs includes all skill levels. The ORS reports for skill level SVP1 and 2:

Occupational Requirements – specific vocational preparation	2018	2023	2024
specific vocational preparation is short demonstration only	-	<0.5
specific vocational preparation is beyond short demonstration through 1 month	29.2	29.2

The difference between 29.2% of jobs as unskilled and the report of 26.3% of jobs as requiring a high school diploma or less is answered by two syllables, part-time. There are approximately 70,300 jobs in the national economy for a person limited to unskilled work. Less than 10% of those jobs exist for a person limited to simple work, less than 7,000 jobs at all exertional levels. 

The regulations define a high school education as having the "abilities in reasoning, arithmetic, and language skills acquired through formal schooling." 20 CFR 404.1564(b)(4). A limitation to simple work is in fact a limitation on the ability to access a high school education under subsection (b), "the numerical grade level that you completed in school may not represent your actual educational abilities."

Of those less than 7,000 jobs at all exertion levels, the ORS tells us that less than 3,000 are sedentary and less than 1,500 are light jobs:

Occupational Requirements – strength, exertion	2018	2023	2024
strength required is sedentary	-	34
strength required is light work	28.3	20.8

In today's economy, the number of sedentary and light jobs for a person with a limited education or a limitation to simple work is less than 4,500. Less than is the critical phrase. Because SSA defines full-time work as a 40-hour workweek or an equivalent schedule, the reliable number is even lower. 

Proper presentation of the number of jobs as rebuttal evidence requires chasing the rabbit all the way down the hole, ignoring the Cheshire Cat, evading the Queen of Hearts, and escaping the a-statistical methodology used by witnesses with a request that the agency adhere to its promise -- administrative notice. 20 CFR f404.1566(d).

Be not afraid. 

___________________________

Suggested Citation:

Lawrence Rohlfing, ORS Reports for SVP 1 or 2, 35-40 Hours per Week by Minimum Education, California Social Security Attorney (March 1, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.