EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2

We pick up from the discussion of DPT and Temperaments earlier this week.  EM-21065 says more disturbing and misguided things about GED and aptitudes:

SSA does not use General Education Development (GED), Aptitudes, and frequency counts or percentages in adjudication.

Later, EM-21065 says: 

Only use SVP to determine the demands of work. SSA does not consider GED or Aptitudes to identify the demands of work for disability adjudication in SSA’s disability programs.

Continuing:   

SSA does not consider the descriptors of GED, Aptitudes, Work Situations (Temperaments), or Work Functions (DPT) when searching for a person’s past work or when limiting work demand requirements for a search of occupations for a TSA or occupations to cite for a framework determination or decision. We should not use these features since our policy does not use these descriptors to identify the demands of work for disability adjudication in SSA’s disability programs.

And finally: 

1. SSA does not consider the following information:

General Education Development (GED) ratings. These ratings do not correspond with SSA’s regulatory definitions of unskilled, semiskilled, and skilled work.

Aptitudes and Work Situations (Temperaments). These ratings do not represent functional requirements for work because they reflect the personal interests, natural abilities, and personality characteristics of job incumbents rather than limitations or restrictions resulting from a medically determinable impairment(s), as is required for SSA’s disability programs.

We start with GED, general educational development.  This is a specification of reasoning, mathematics, and language in the DOT trailer with a three digit code.  Appendix C of the DOT describes the category:

General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study.

GED describes the educational level required for satisfactory job performance.  These are bona fide occupational qualifications for the integral, essential, and expected job functions.  The statute commands the Commissioner to consider education.  Many unskilled jobs do require a high school education or equivalent.  It is true that GED does not correlate 1:1 to skill level.  

There are 16 DOT codes classified as semi-skilled that require reasoning level 1.  There are 1,887 DOT codes classified as semi-skilled and skilled that require reasoning level 2.  The regulations include in semi-skilled that is not academically challenging:  

A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

Those are the exceptions.  Of the approximately 10,000 skilled and semi-skilled occupations, the majority require reasoning level 4 or higher.  Nor does correlation have to be 1:1 to be informative about the requirements of work.  

Aptitudes represents a different challenge.  As with temperaments, the aptitudes were not "selected" for inclusion in the SCO.  Aptitudes are part of the DOT dataset defined in the Revised Handbook for Analyzing Jobs.  The RHAJ defines:

Aptitudes: Capacities or abilities required of an individual in order to facilitate the learning of some task or job duty. The II Aptitudes included in this component are defined and discussed in Chapter 9.

There is that pesky description, again: required.  In Chapter 9, the RHAJ expands on the definition:

Aptitudes, a component of Worker Characteristics, are the capacities or specific abilities which an individual must have in order to learn to perform a given work activity. There are II Aptitudes used by USES for job analysis. Nine Aptitudes are measured by the United States Employment Service's General Aptitude Test Battery (GATB). Two others, Eye-Hand-Foot Coordination and Color Discrimination, have been added to these for job analysis because they are considered to be occupationally significant. Measurements for these Aptitudes have not been developed for the GATB. 

These are not nice to have, aptitudes are the ability that "an individual must have in order to learn to perform a given work activity."  Employers require aptitudes that a person must have to learn how to perform the BFOQ or essential functions of a job.  Absent those aptitudes, a person is not expected to learn how to do the job.  Aptitudes represent an educational component of work.  

SSA is not the expert agency about the requirements of work.  The Department of Labor is the expert agency about the requirements of work.  When we need information about what is and is not required in the workplace, DOL is the source of that information.  EM-21065 warrants no deference and no respect under controlling court precedent.  

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Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2, California Social Security Attorney (June 29, 2022) https://californiasocialsecurityattorney.blogspot.com