Saturday, January 25, 2020

A Plain Conflict Between the Regulation, Ruling, and POMS

In 2003, Social Security amended the regulations concerning adverse medical-vocational profiles that warrant a finding of disability without the assessment of residual functional capacity. Social Security added paragraph (b) to §§ 404.1562, 416.962Prior to the 2003 amendment, the regulations provided:
If you have only a marginal education and work experience of 35 years or more during which you did 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), we will consider you unable to do lighter work, and therefore, disabled. However, if you are working or have worked despite your impairment(s) (except where the work is sporadic or is not medically advisable), we will review all the facts in your case, and we may find that you are not disabled. In addition, we will consider that you are not disabled if the evidence shows that you have training or past work experience which enables you to do substantial gainful activity in another occupation with your impairment, either on a full-time or a reasonably regular part-time basis.
(Example omitted).  The regulation now reads:
(a) If you have done only arduous unskilled physical labor. 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.
(b) 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 §§ 404.1520(c), 404.1521, and 404.1523), are of advanced age (age 55 or older, see § 404.1563), have a limited education or less (see § 404.1564), and have no past relevant work experience (see § 404.1565), 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 this subpart.
The concept of a person of advanced age, lacking past relevant work, and limited to medium exertion was presumptively disabled.  Appendix 2, Rules 203.02, 203.10.   The explanation for the rules contained in Social Security Ruling 82-63. In that ruling, the agency expands:
Rules 203.02 and 203.10 in Table No. 3 of Appendix 2 reflect the policy decision in July 1975 with respect to persons who have a severe exertional impairment which limits them to the medium level of work exertion. However, should only rules 203.02 and 203.10 be considered, a person with a severe nonexertional impairment who is of advanced age, has a limited education, and has no recent and relevant work experience might not be found to be disabled.
The 1982 ruling states that a person of advanced age, limited education, and severe mental impairment "might not be found to be disabled." The 2003 regulation states that if a person is of advanced age, possesses no more than a limited education, has no past relevant work experience, and has a severe medically determinable impairment, that person is presumptively disabled.  The regulations are clearly positive law. The ruling is binding on agency adjudicators. Something is wrong.

The SSA also issues POMS DI 25010.001. There, the agency describes the paragraph (a) arduous unskilled work profile, the paragraph (b) no work experience profile, and a third lifetime commitment profile (not currently working at SGA levels; lifetime commitment of 30 years or more to a field of work that is either unskilled or leaves no transferable skills; no longer able to perform past work because of a severe impairment; closely approaching retirement age; and having no more than a limited education).

To resolve the tension between the ruling, amended regulation, and current POMS provision, we need to understand that rulings are not positive law but are instead policy statements or interpretations of regulations or the statute. SSR 83-63 properly interpreted the provisions of rules 203.02 and 203.10, but did not anticipate the 2003 regulatory changes. The statement that a person with a nonexertional impairment otherwise meeting the adverse vocational profile "might not be found disabled" is inconsistent with the regulatory language. Because it is inconsistent with the regulatory language, it is not entitled to deference.

The POMS provision is more troublesome in its addition of the lifetime commitment profile for an individual at least 60 years of age.  The current version of the adverse vocational profile regulation does not include this profile. Whether an ALJ would apply the lifetime commitment profile to an individual age 60 or over represents a fair question.

The take away from this is simple: just because a ruling is still in place does not mean that it is entitled to deference. It might be wrong. It might not be consistent with amended regulations. Or it might not be entitled to deference for other reasons.

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SUGGESTED CITATION:

Lawrence Rohlfing, A Plain Conflict Between the Regulation, Ruling, and POMS," California Social Security Attorney (January 25, 2020), revised (January 27, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/01/a-plain-conflict-between-regulation.html




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