Appendix 2, § 202.00(c) -- Significant Range and Application to Limited Education

Lounsburry v. Barnhart held that a person limited to light work and over the age of 55 required more than one occupation to satisfy the "significant range of work" requirement of Appendix 2, Rule 202.00(c).  Two scenarios arise under Rule 202.00(c) that warrant discussion, what constitutes a significant range getting resolved by published opinion and whether the rule applies to a person with a limited education resolved by joint motion.  

Courts disagreed whether two occupations represented a range of work.  Daniel v. Colvin held that two occupations do not represent a significant range of work for Lounsburry purposes.  Susan M. v. Berryhill  held that two occupations did represent a significant range of work for Lounsburry purposes.  The district courts had a clear conflict.  The Ninth Circuit reversed in Maxwell v. Saul.  Lounsburry relies on and Maxwell cites the definition of range of work in Social Security Ruling 83-10 as all or substantially all occupations.  Maxwell relies on the dictionary definitions of range as a series between limits and significant as a "noticeably or measurably large amount."  Maxwell reversed and awarded benefits after Maxwell reached 55 year of age.  

Another question that arises concerns the 55+ year old claimant that has a limited education.  Rule 202.07 applies to a person with a high school education or more.  Footnote 2 to the rule points to subsection 202.00(c).  Rule 202.03 applies for a claimant with a limited education and the question turns on transferability of skills.  Footnote 1 to the rule points to subsection 202.00(f).  Subsection (f) requires very little, if any, vocational adjustment for a claimant over 60.  The question is whether the ALJ must adduce evidence of the ability to perform a significant range of skilled or semi-skilled work in order to find transferability of skills for an individual over the age of 55 and limited to light exertion, even if the claimant has a high school education, the regulations do not permit the ALJ to find the presence of transferable skills for an individual with a limited education.

We start with the text of subsection 202.00(c):  

However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled.

This text does not differentiate between high school, more than high school, limited education, or marginal education.  The subsection continues: 

Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education.

Introducing the positive impact of a high school education or more does not change the outcome -- that education has little impact on vocational adjustment.  

Getting older, having less education, having an unskilled or no work background constitute vocational adversities under section 204.00.  Subsection (c) applies to all claimants of advanced age and even the introduction of greater education does not remove application of the favorable grid rule to the claim.  

Martinez v. Colvin was wrong.  The Ninth Circuit granted a joint motion for remand and the district court complied.  

The Medical-Vocational Guidelines constitute a tangle web.  We must take care in unraveling that tangled web as we see in the definition of significant range and application of subsection 202.00(c) to people with less than a high school education.   

___________________________

Suggested Citation:

Lawrence Rohlfing, Appendix 2, § 202.00(c) -- Significant Range and Application to Limited Education, California Social Security Attorney (March 4, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/03/appendix-2-20200c-significant-range-and.html

Office Clerks, General -- Eroding Job Numbers based on Education

We covered office clerks, general down to the point of estimating the number of light and sedentary unskilled jobs and the number that did not require more than  six hours per day.  To summarize:

43-9061 Office clerks, general

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Short-term on-the-job training
2016 Employment	3,117,700

43-9061.00 (office clerks, general)

# of Jobs	% Unskilled	# Unskilled
3,117,700	35.3%	1,100,548
# Unskilled	% Light Unskilled	# Light Unskilled
1,100,548	41%	451,224
# Light Unskilled	% ≤ 6 hours sitting	# ≤ 6 hours sitting, light
451,224	25%	112,806
# Unskilled	% Sedentary Unskilled	# Sedentary Unskilled
1,100,548	32.8%	360,980
# Sedentary Unskilled	% ≤ 6 hours sitting	# ≤ 6 hours sitting, sedentary
360,980	25%	90,245

The next step in the process requires application of the medical-vocational profile of the claimant:  age, education, work experience, and residual functional capacity.

43-9061.00 (office clerks, general)

Series ID: ORUV1000075800000075

Not seasonally adjusted

Series Title: % of office clerks, general; minimum education level is none

Requirement: Education, Training, And Experience

Occupation: office clerks, general

Estimate: minimum education level is none

Year	Period	Estimate
2017	Annual	12.9

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000075

Series ID: ORUV1000075800000076

Not seasonally adjusted

Series Title: % of office clerks, general; minimum education level is a high school diploma

Requirement: Education, Training, And Experience

Occupation: office clerks, general

Estimate: minimum education level is a high school diploma

Year	Period	Estimate
2017	Annual	83.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000075800000076

We use this data to erode the number of general office clerks based on a limited education.  

# Unskilled	% Light Unskilled	# Light Unskilled
1,100,548	41.0%	451,225
# Light Unskilled	% Limited Education	# Limited Education
451,224	12.9%	58,208
# Light Unskilled	% ≤ 6 hours sit	# ≤ 6 hours sit, light
451,224	25.0%	112,806
# ≤ 6 hours sit, light	% Limited Education	# Limited Education
112,806	12.9%	14,552
# Unskilled	% Sedentary Unskilled	# Sedentary Unskilled
1,100,548	32.8%	360,980
# Sedentary Unskilled	% Limited Education	# Limited Education
360,980	12.9%	46,566
# Sedentary Unskilled	% ≤ 6 hours sit	# ≤ 6 hours sit, sed.
360,980	25.0%	90,245
# ≤ 6 hours sit, sed.	% Limited Education	# Limited Education
90,245	12.9%	11,642

If the claimant has a limitation to six hours of sitting in an eight-hour day and possesses a limited education, the number of jobs available drops dramatically.  

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. 

No High School, Unskilled Work and the OOH

In our unending quest to put consistency into the adjudicative mode, here is the list of the 74 Occupational Groups, according to BLS, that do not require a high school diploma (or equivalent) and have either no training time or short-term on-the-job training:

SOC Description	Code
Hosts and hostesses, restaurant, lounge, and coffee shop	35-9031
Models	41-9012
Agricultural equipment operators	45-2091
Agricultural workers, all other	45-2099
Amusement and recreation attendants	39-3091
Automotive and watercraft service attendants	53-6031
Bartenders	35-3011
Building cleaning workers, all other	37-2019
Carpet installers	47-2041
Cashiers	41-2011
Cleaners of vehicles and equipment	53-7061
Combined food preparation and serving workers, including fast food	35-3021
Construction laborers	47-2061
Conveyor operators and tenders	53-7011
Cooks, fast food	35-2011
Cooks, institution and cafeteria	35-2012
Cooks, short order	35-2015
Counter and rental clerks	41-2021
Counter attendants, cafeteria, food concession, and coffee shop	35-3022
Crossing guards	33-9091
Cutters and trimmers, hand	51-9031
Derrick operators, oil and gas	47-5011
Dining room and cafeteria attendants and bartender helpers	35-9011
Dishwashers	35-9021
Door-to-door sales workers, news and street vendors, and related workers	41-9091
Entertainers and performers, sports and related workers, all other	27-2099
Farmworkers and laborers, crop, nursery, and greenhouse	45-2092
Farmworkers, farm, ranch, and aquacultural animals	45-2093
Food preparation and serving related workers, all other	35-9099
Food preparation workers	35-2021
Food servers, nonrestaurant	35-3041
Graders and sorters, agricultural products	45-2041
Grounds maintenance workers, all other	37-3019
Helpers, construction trades, all other	47-3019
Helpers--brickmasons, blockmasons, stonemasons, and tile and marble setters	47-3011
Helpers--carpenters	47-3012
Helpers--painters, paperhangers, plasterers, and stucco masons	47-3014
Helpers--production workers	51-9198
Helpers--roofers	47-3016
Hoist and winch operators	53-7041
Home health aides	31-1011
Hunters and trappers	45-3021
Industrial truck and tractor operators	53-7051
Insulation workers, floor, ceiling, and wall	47-2131
Janitors and cleaners, except maids and housekeeping cleaners	37-2011
Laborers and freight, stock, and material movers, hand	53-7062
Landscaping and groundskeeping workers	37-3011
Laundry and dry-cleaning workers	51-6011
Lifeguards, ski patrol, and other recreational protective service workers	33-9092
Loading machine operators, underground mining	53-7033
Machine feeders and offbearers	53-7063
Maids and housekeeping cleaners	37-2012
Material moving workers, all other	53-7199
Meat, poultry, and fish cutters and trimmers	51-3022
Mine shuttle car operators	53-7111
Motion picture projectionists	39-3021
Motor vehicle operators, all other	53-3099
Packers and packagers, hand	53-7064
Parking lot attendants	53-6021
Personal care aides	39-9021
Pipelayers	47-2151
Pressers, textile, garment, and related materials	51-6021
Refuse and recyclable material collectors	53-7081
Retail salespersons	41-2031
Rock splitters, quarry	47-5051
Sewing machine operators	51-6031
Shampooers	39-5093
Slaughterers and meat packers	51-3023
Stock clerks and order fillers	43-5081
Tank car, truck, and ship loaders	53-7121
Taxi drivers and chauffeurs	53-3041
Telemarketers	41-9041
Ushers, lobby attendants, and ticket takers	39-3031
Waiters and waitresses	35-3031

This information corresponds to the information in the Occupational Outlook Handbook. As we have discussed before, the Commissioner of Social Security takes administrative notice of the OOH.