Basic Tools of Statutory Construction Demand that SVP 1 and 2 Is Part of Unskilled But Not Synonymous

SSA has broad discretion to set out the the rules for benefits. 42 USC § 405(a) grants that discretion:

The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

In furtherance that obligation to make rules,  regulations, and procedures, the Commissioner promulgated 20 CFR  § 404.1568 to define skill requirements. The Commissioner defines unskilled work in subsection (a):

Unskilled work is work which needs little or no judgment to do simple duties

 that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs. 

(Emphasis added). A semantic and textual analysis of a statute or regulation may consider six basic considerations:

Ordinary-Meaning Canon: Words are understood in their everyday sense unless they are technical.

Rule Against Surplusage: Different words in a statute should not have the same meaning; every word is given effect.

Expressio Unius Est Exclusio Alterius: The expression of one thing implies the exclusion of others.

Consistent Usage: A word or phrase is presumed to bear the same meaning throughout a statute.

University of Houston Law Center, Cannons of Construction (adapted from Scalia and Garner). 

The regulation uses the phrase "little or no judgment" and "little ... judgment." The Expressio Unius Est Exclusio Alterius doctrine implies that little or no judgment excludes a category of work that requires more. The same doctrine applies to teh "simple duties" provision. Most importantly, the Rule Against Surplusage requires that the court give meaning to both "little or no judgment" and to "simple duties." The word "and" creates elements to the term of art "unskilled work." The first sentence lists judgment, simple, and short period of time--three elements. The penultimate sentence lists examples of simple duties, defines short period as within 30 days, and restates the need for little judgment--three elements. 

Is SVP the sole criterion for unskilled work? The regulation's twice stating three elements does not permit that conclusion. Can the Commissioner redefine a regulation that using ordinary tools of statutory construction is unambiguous? Probably not. 

The definitions of semi-skilled and skilled work do not have a training or SVP component defined. See subsections (b) and (c). Work can require judgment, can require more than simple duties, can require duties listed for semi-skilled work, and can require functions required of skilled work. SVP is part of the equation--it is an element of unskilled work. But SVP is not the sole determining element of unskilled work. If current policy (that is not readily discernible in POMS or EM and clearly not in the regulation) were the proper statement of skill requirements, subsections (a) through (c) would read very plainly:

(a) Unskilled work. Unskilled work requires up to 30 days to learn to do the job. We consider an occupation unskilled if the Department of Labor classifies it as specific vocational prepraration levels 1 and 2. 

(b) Semi-skilled work. Semi-skilled work requires more than 30 days and up to 6 months to learn to do the job. We consider an occupation semi-skilled if the Department of Labor classifies it as specific vocational preparation levels 3 and 4. 

(c) Skiled work. Skilled work requires more than 6 months to learn to do the job. We consider an occupation skilled if the Department of Labor classifies it as specific vocational preparation level 5 or higher. 

The regulations are not that plain. The implication is that this restatement of unclear agency policy is that classification of work as unskilled, semi-skilled, or skilled is not SVP determinative but instead SVP influenced. POMS  DI 25001.001 Medical and Vocational Quick Reference Guide is consistent with the construction of 404.1568:

87. Unskilled work

Work that requires [1] little or no judgment to do [2] simple duties that a claimant can learn on the job in a [2] short period of time (i.e., 30 days or less). Such work usually has an [3] SVP level of one or two as rated in the SCO.

71. Semiskilled work

Semiskilled work requires some skills but does not require complex duties. Usually, semiskilled work has a specific vocational preparation (SVP) level of three or four as rated in the SCO.

77. Skilled work

Skilled work requires good cognitive functioning, involves skilled job functions, and has an SVP level of five to nine in the SCO.

(Emphasis added). Usually means not always. Most SVP 1 and 2 occupations are unskilled, but not all. Most semi-skilled occupations have SVP 3 or 4, but not all. SVP 3 or higher rules out unskilled classification. SVP 1 or 2 does not rule out semi-skilled classification. 

Unskilled is a term of art. Discerning unskilled requires judgment and is not simple. We have a skilled job to do--parsing the regulation.

Parse away. 

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Suggested Citation:

Lawrence Rohlfing, Basic Tools of Statutory Construction Demand that SVP 1 and 2 Is Part of Unskilled But Not Synonymous, California Social Security Attorney (May 10, 2026)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.