Thursday, March 4, 2021

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. SaulLounsburry 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)

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