Sunday, January 14, 2018

The Worn Out Worker -- 35 Years of Arduous Work and the Inability to Adapt

Last week we looked at the adverse vocational profile of an individual of advanced age, no relevant work experience, and possessing a limited education as presenting a profile of a claimant lacking the ability to adjust to other work -- the person is disabled.  We stick in the same regulation but examine the profile of the worn out worker.  The regulation describes the elements of the person deemed disabled:
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 first element of marginal education looks at §404.1564.  Marginal generally means 6th grade or less.  Sixth graders can read and engage in math.  The regulation does not require illiteracy.  A claimant that reads the newspaper may nonetheless have a marginal education.  The actual grade entered or completed may not prove dispositive:
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.  

Wednesday, January 10, 2018

Adverse Vocational Profiles -- The Inability to Adjust to Other Work

Is a person with a residual functional capacity for medium work ever disabled?  The answer is "yes," tell the ALJ to read the regulations.  We look at the policy changes that came about in 1975 with the advent of the SSI program -- people that don't have enough connection to the work force to have insured status. 

The statute requires consideration of age, education, and work experience in assessing the ability to engage in other work at step five of the sequential evaluation process.  This structure holds true for disability insurance benefits.  The inclusion of a federal SSI program meant that the agency would regularly decide the question of disability for people that lacked relevant work experience.  The regulations describe that adverse profile as calling for a finding of disability beginning at age 55:
If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) (see §§ 416.920(c)416.921, and 416.923), are of advanced age (age 55 or older, see § 416.963), have a limited education or less (see § 416.964), and have no past relevant work experience (see § 416.965), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to subpart P of part 404 of this chapter.
A claimant passing that bright line of age 55, having a limited education or less, with no past relevant work experience, and having a severe impairment has an entitlement to a finding of disability.  That's it, drop the mic and walk away. 

For disability insurance purposes, it is now common for work experience to buy a quarter of coverage and not qualify as past relevant work because the amount earned does not rise to substantial gainful activity.  In 1975, the agency defined SGA as more than $200 per month.  A quarter of coverage cost $250 per month.  A person earning the minimum for SGA needed to work in each quarter of the year to earn four quarters.  In 2018, the agency defines SGA as more than $1,180 per month.  A quarter of coverage costs $1,320 in 2018.  But the person need not work in every quarter; earnings are annualized so that $5,280 earned in five months purchases four quarters of coverage.  A claimant can work at non-SGA amounts for five months a year and earn four quarters of coverage.  It is now easier to purchase insured status without every accumulating PRW.  The adverse vocational profile comes up more often now even in disability insurance benefit cases. 

The keys that unlock the doors of relevance of work experience rest in the earning as we just discussed but also in the concepts of duration and recency.  Recency represents the most common problem of PRW in SSI cases.  When we see a finding of ability to perform PRW in SSI cases, we should always comb the earnings record for earnings and recency even for unskilled work experience. Nor do we have to look very hard; the vocational profile regulation tells us where to look for that three-part test of relevance of past work. 

We need to remain vigilant for the adverse vocational profiles for claimants over the age of 55 and having not more than a limited education.  Does the claimant have relevant work experience?  If  not, a step two finding of a medically determinable severe impairment terminates the inquiry with a finding of disability.  See also the medical-vocational guidelines, rules 201.01, 202.01, 203.01, 203.02, and 203.10 that direct the same findings for the adverse profiles at step five.  For a further explanation of the adverse profile case, see the Social Security Ruling

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