If you have no more than a marginal education (see § 404.1564) and work experience of 35 years or more during which you did only arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), we will consider you unable to do lighter work, and therefore, disabled.
the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower.Developing the evidence of the ability to perform at the 6th grade level or less may require testing by a qualified professional where the claimant attended school beyond that level.
The second element, 35 years or more of only arduous unskilled physical labor, requires getting out of the box. The ALJ mantra gets stuck at 15 years, the relevant period for past work most of the time. If a claimant has arduous work experience for the past 15 years, that raises the flag and requires the representative to examine the other 20 or more years to capture 35 years of work experience exclusive of the period after work cessation.
The third element uses the phrase, "you are not working." This represents a linguistic difference from the "If you are doing substantial gainful activity" found in the fist step of the five-step sequential evaluation process. The difference may be intentional to include non-substantial gainful activity or may represent an artifact from the 1960 regulations that never caught anyone's attention.
The fourth element contains additional oddities that fall outside of the regulatory norm. The regulation requires the "inability to engage in that past work because of a severe impairment." The regulations require a medically determinable severe impairment at step two of the process but must consider severe and non-severe impairments after establishing that presence in assessing listings and residual functional capacity. It does not require much to knock out the ability to perform arduous work so the presence of an impairment as opposed to an impairment that reaches "severe" may constitute different questions. Because "severe" is a de minimis test, an impairment that eliminates the ability to engage in arduous work probably satisfies the test.
This raises the question, "what does arduous mean?" The word is clearly ambiguous. Social Security Ruling 82-63 does not define the word. It does caution that grid rule 203.01 does not capture this adverse profile for people under the age of 60. POMS DI 25001.001 states:
No specific physical action or exertional level denotes arduous work. Such work may be arduous if it demands a great deal of stamina such as repetitive bending or lifting at a very fast pace. For additional information on arduous work see DI 25010.001B.1.A great deal of stamina -- that is the sub-regulatory test. The reference to POMS DI 25010.001 B.1 is completely unhelpful in defining the word arduous; it points back to POMS DI 25001.001 for the definitions of arduous, marginal education, and unskilled work. Arduous probably includes heavy and very heavy work as well as medium work that requires frequent, very fast bending/stooping or frequent, very fast lifting. Extract from the claimant testimony of abject exhaustion at the end of the day to meet the great deal of stamina test.
One more observation about the 35-year test. Assuming a claimant that stopped school around the age of 12 and went to work for socio-economic reasons, that person may have started objectively arduous work well before age 20. This profile could prove useful in meeting the disability test for a claimant under the age of 55. Proving disability for a person capable of medium exertion and closely approaching advanced age -- now that is lawyering.