Requiring that all four criteria be met is the Social Security Administration’s interpretation of the regulation. In Social Security Ruling 82-41, an example is given concerning transferability, where the only difference in two situations is an age change which requires consideration of the older worker rule. The claimant’s past work was as a carpenter in the construction industry. If he is not old enough to invoke the stricter rule (age 60 for light work), he has transferable skills to other jobs in the furniture industry which "involve tools, raw materials and activities similar to those in past carpentry work." Only the industry is different. However, if the claimant is nearing retirement age (ages 60-64), he does not have transferable skills because "the claimant’s carpentry skills cannot be transferred with very little, if any, vocational adjustment in terms of tools, work processes or the industry" becausae the industry is different. It reads:
Further support for the argument that all four criteria are required by the agency’s own interpretation can be found in the Social Security Administration’s Program Operating Manual Systems (POMS), which states:
The Commissioner’s intent at the time of the regulation was promulgated is also relevant. One accepted source for determining the Commissioner’s intent is the commentary contained in the Federal Register when the regulation was promulgated. The regulation at issue became effective May 8, 2000 (see 65 Federal Register 17994 (April 6, 2000)). The comments accompanying implementation of the regulation state that the only more restrictive rule would be "no adjustment." It reads:
However, the Utah District Court recently held that two criteria need to be met and that there be "overall very little adjustment." See Jensen v. Barnhart, Case No. 2:03CV00837 (November 23, 2004). The district court agreed with Jensen that if only one criterion were met, it would render the rule meaningless (id.). For example, a heavy equipment operator at a steel mill could satisfy the regulation by accepting a completely different job such as a data processor in the same industry (id.). However, the court rejected Jensen’s argument that all four must be met because this would read "or" out of the regulation (id.). And the Tenth Circuit upheld the decision. See Jensen v. Barnhart, 463 F.3d 1163 (10th Cir. 2005). The only other cases to address the number of criteria that need to be met in order for the regulation to be satisfied come from the Ninth Circuit. In one case, where the alterative job required some adjustment to new industries and work settings, there was more than very little, if any, vocational adjustment. Renner v. Heckler, 786 F.2d 1421, 1424 (9th Cir. 1986). In the other case, merely transferring to a different industry required more than the minimal adjustment contemplated under the regulation. Martinez v. Apfel, 189 F.3d 473, 1999 WL 599469 (9th Cir. 1999).
The district court’s interpretation of the regulation required a significant rewording. There is nothing in the regulation regarding "overall adjustment." The Tenth Circuit wrote that there was nothing in the law preventing an ALJ from making such a judgment, implying that the agency just must give "full consideration" to these issues and that the regulation was just intended to provide guidance. Jensen v. Barnhart. 436 F.3d at 1166. Further, Jensen’s interpretation contradicted the plain language of the regulation.
An interpretation of a part of a regulation should yield consistent results when read in the context of the regulation as a whole and when read together with other regulations and rulings. The district court’s interpretation of 20 C.F.R. §404.1568 requiring that only two criteria need be met results in inconsistences similar to the one recognized by the lower court. For instance, if the alternative work were in the same industry with the same work settings, but required very different job duties, the regulation is again rendered meaningless. All one has to do to the court’s example is put the data processor to work in the same steel mill as the heavy equipment operator or change the data processor into any sort of laborer who doesn’t use the same tools and machines and has very different job functions. The district court’s interpretation fails by its own logic.
Requiring that only two criteria be met leads to inconsistencies with other parts of the regulation. The rule on transferability that applies to all workers and that is clearly intended to be a weaker rule states that transferability is most probable and meaningful where each of the following occur:
(B) the same or similar tools and machines are used; and
(C) the same or similar raw materials, products, processes, or services are involved.
Under the district court’s interpretation, if only work settings and industry are similar, then the more restrictive rule is met while the less restrictive rule is not met because neither B nor C is satisfied (because tools, machines, raw materials, products, processes and services are all different). These inconsistencies mean that the district court’s interpretation cannot be correct because it leads to absurd conclusions.
The logical possibility remains that the rule should be that there are "at least three criteria and very little overall adjustment." At this point, it becomes less clear what "overall adjustment" could mean other than that all four criteria are met. And one can still generate inconsistencies between the two rules. Where only work settings, tools and industry are similar, the more restrictive rule is met and the less restrictive rule is not because B and C are still not met (machines, raw materials, products, processes and services are all different).
It also begins to become obvious that the four criteria-tools, work processes, work settings and industry-are not individually equivalent in importance. Tools and work processes are part of the weaker rule and seem to be the most important to the similarity of jobs. Industry is clearly defined in the DOT and is not as important. SSR 82-41 provides instances where it is not important at all. Work settings are not defined or otherwise mentioned and seem to be only a loose restriction. Thus, to require that only one or some of the criteria need to met makes little sense. Of course, in Jensen tools and work processes were similar to both past jobs.
One can distinguish a particular case from Jensen on this point. In Jensen, there were only different industries in the case of the past work as an auto salesman. Jensen v. Barnhart, 436 F.3d at 1166. Since only industry was different this could meet the exception that skills are easily transferable across industry lines from professional, administrative or clerical jobs.Others also merely quote the regulation as if it’s meaning is obvious. See Thomas Bush, Social Security Disability Practice, section 128 (James Publishing 2004). Industries and work settings were different for the Western Union job.
Advanced age (55 and older) has long been recognized as the critical age where workers have difficulty adapting to the demands of other jobs, and Social Security regulations for many years have required that much stricter criteria be met before such individuals who are limited to sedentary work can be found to have transferable skills. "Advanced age is considered `the point where age significantly affects a person’s ability to do substantial gainful activity.’" Dikeman v. Halter, 245 F.3d 1182, 1188 (10th Cir. 2001)(quoting 20 C.F.R. §404.1563(d)). "The (alternative) work must be less demanding than that previously performed by the claimant; at the same time, though, it cannot require so little skill that anyone at all could do it, as older people are at a competitive disadvantage for such jobs." (id.)
If ALJ’s are allowed to rely upon dissimilar very low skill level jobs (like telephone solicitor, information clerk and reservation clerk—the jobs identified in Jensen) that almost anyone can perform with minimal training as meeting the more restrictive rule for transferability, the intent of the rule is subverted. Suppose you are 63 years old and suffer a severe injury that leaves you unable to be on your feet more than two hours a day and mentally unable to perform more than basic reasoning, and hence are unable to practice law, but are able to answer a telephone, take down short messages and respond appropriately to the public. You may have transferable skills to a receptionist (which has an SVP of 3), in contravention of the requirement that the duties of the past work and the alternative work must be very similar. The industry and work settings are the same, and some of the tools (telephone and pencil) seem to be the same, too.
Therefore, the way to read Jensen is that the duties of the past work were very similar to the alternative work. The VE said that the past jobs had an SVP of at least 4 while the alternative work was 3. It seems a stretch to consider the duties similar, but the court held that there was substantial evidence that they were similar and that there was substantial evidence for number of the other requirements. Jensen v. Barnhart, 436 F.3d at 1168. And given the long laundry list of purported skills that one must assume would be used in the alternative work, one could argue that these jobs really were not such that anyone could do them with training of less than 30 days.
In affirming Jensen, the Tenth Circuit held that "[b]ecause the Commissioner’s interpretation is neither ‘plainly erroneous [n]or inconsistent with the regulation," (citation omitted) and because Jensen’s alternative reading is contradicted by the plain language of the regulation, we affirm the district court’s resolution of this issue." Jensen v. Barnhart, 463 F.3d 1163. When the court referred to the Commissioner’s interpretation it is referring to the interpretation in this case. The court does not address the issue of whether Jensen’s interpretation is the agency’s interpretation, as argued here. The court said that what Jensen was asking the court to do was reweigh the evidence, rather than categorizing it as a failure of the ALJ to develop the record for an unrepresented claimant. The court does not address this issue, but the case can be read as an example of the industry exception in particular cases. The decision is mainly a series of naked conclusions and contains little analysis of the issues, which is common to the court’s treatment of vocational issues in general.
Final comments.
In almost all crucial medical-vocational issues, the Social Security Administration has chosen to adopt a policy of providing very little direction in the regulations and rulings. One can find more explicit directions in the POMS, but these are not legally binding. Courts have declined to step in and clarify the issues and or to force the agency to adhere to it’s own policies. This makes it very difficult to attack an ALJ’s decision on the basis of what he failed to do or how he did the analysis, making it imperative that the advocate bring out lack of foundation, inconsistency with Social Security law or policy or other problems with the testimony in cross-examination, closing statements or post-hearing briefs. As mentioned, the part of the regulation under consideration, 20 C.F.R. §404.1568(d)(4), also requires that the past work and the alternative work be "very similar." 65 Federal Register 17998 (April 6, 2000). With any less than four criteria the rule could be easily met by very dissimilar jobs. The Social Security Ruling on transferability of skills expands on the job similarity requirement by stating that the job duties must be very closely related and the alternative work must be able to be performed at a high degree of proficiency with a minimal amount of job orientation. It reads: by Ward Harper
page 1: Residual functional capacity and cross-examination.
page 7: Past relevant work and composite jobs.
page 9: Relevant fictions: use of the Medical-Vocational Rules as a framework and the numbers of jobs.
page 10: The general rules regarding transferability of skills.
page 12: The "strict rule" of transferability; why each of the four criteria
page 18: Final comments.
I. Residual functional capacity and cross-examination.
(1) It defines "residual functional capacity" as an assessment of an individual’s ability to do sustained work-related physical and mental activities on a regular and continuing basis, i.e. 8 hours per day, 5 days per week. There is a caveat with respect to lucrative past part-time work in note 4.
(2) The assessment must first identify the individual’s limitations on a function-by-function basis, including all the functions listed in 20 C.F.R. 404.1545. This explicitly applies just to step four, but the SSR also makes the point that it is difficult to place any set of limitations into an exertional category without considering them on a function-by-function basis first, even at step five.
(3) The assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts and nonmedical evidence. The adjudicator must explain how any material inconsistencies or ambiguities in the case record were considered and resolved. All the evidence must be considered in making the assessment.
(4) The assessment considers only functional limitations that result from an individual’s medically determinable impairments (this includes medically determinable impairments that are not "severe").
(5) Medical impairments and symptoms are not intrinsically exertional or nonexertional. It is the functional limitations that are so classified. Thus, for instance, a person could have exertional limitations from fatigue from an impairment such as depression.
(6) If there is no allegation of a limitation of a specific functional capacity, and no information in the case record of such a restriction, the adjudicator must consider the person to have no limitation in this area.
What we need for the hearing is an assessment of RFC that is detailed, supported by the evidence and which relates directly to the requirements of work, and hence the Dictionary of Occupational Titles (DOT). The biggest problem with the SSA physical RFC assessment form is that it contains little detail. "Standing" is either 6 hours, 2 hours or less than two hours. Reaching, fingering, handling and feeling are all "limited" or "unlimited." For a generic physical RFC form, I suggest that you make your own form that uses the terminology of the DOT ("occasional, frequent," etc.) for all the limitations that are in the Selected Characteristics of the Dictionary of Occupational Titles. Add other limitations that can come from pain or other symptoms.
Thomas Bush’s Social Security Disability Practice is probably the best source for useful forms. He has many forms geared to specific impairments which contain RFC questions. If you are not going to get a good letter from the physician, these are the most useful forms to send him. And you can alter them as you see fit (before you send them). He also has a generic form that has useful additional questions (perhaps too many) and is fairly specific in its categorization of limitations.
Most sedentary unskilled jobs require bilateral manual dexterity and most require frequent reaching, fingering and handling. The only sedentary unskilled job that requires no reaching, fingering and handling is surveillance systems monitor. Most VE’s will say that even less off task time is allowed on this job and that the claimant must be able to maintain attention and concentration through most of the day. You also might attack the job on the basis of the claimant’s reasoning, language or mathematical abilities, as was done in Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005), where the court held that the reasoning level of 3 for that job was inconsistent with "simple routine tasks."
Social Security’s mental RFC forms are arguably worse than the physical forms. The DDS mental RFC forms formerly used the terms "unlimited, good, fair, and poor or none." "Fair" was defined as "ability to function in this area is seriously limited, but not precluded." In Cruse v. United States Department of Health and Human Services, 49 F.3d 614, 618 (10th Cir. 1995), the court held that "fair" had the same meaning as "marked." Now the forms from ODAR (HA-1152) do not use "fair," but define marked in the same way, which is helpful because "fair" to many vocational experts (VE’s) didn’t sound very limiting. One VE used to defend her contention that almost no "fair" limitations precluded work by claiming that the definition says the ability is not precluded. "Moderate" is defined as "there is moderate limitations in this area but the individual is still able to function satisfactorily." "Extreme" is defined as "no useful ability to function." The problem remains that this doesn’t tell us much. One merely goes from satisfactory to seriously limited but not precluded.
The forms DDS uses now do not even define these terms and "marked" is the most severe term. The instructions in the POMS to filling out these forms merely state that the "moderately limited" box should be checked when the capacity to perform the activity is impaired and "markedly limited" should be checked when the evidence supports a conclusion that the individual cannot usefully perform or sustain the activity. DI 24510.063. This may explain why the "marked" box is never checked on DDS forms; it would render the individual disabled. And "moderate" does not indicate how impaired the individual is.
In the regulations, the meanings of the terms "moderate," "marked" and "extreme" are so vague as to be almost meaningless. "Marked" is defined in children’s impairments as two standard deviations below the mean (an IQ score of 70 is also two standard deviations below the mean). Dr. Houston has shown how WAIS testing can be used to show marked limitations (generally, a score of 4 is two standard deviations below the mean of 10), but these concern concentration, persistence or pace. For social functioning, activities of daily living, and various categories on the mental RFC form, the definitional problems remain. And the same definition does not appear in the adult listings.
The preamble to listing section 12.00 states that "marked" is defined as "more than moderate but less than extreme. A marked limitation may arise when several activities or functions are impaired, or even when only one is impaired, as long as the degree of limitation is such as to interfere seriously with your ability to function independently, appropriately, effectively, and on a sustained basis." Moderate and extreme are not defined. This does not help much.
But perhaps one should not expect the definitions in the listings to be of assistance in defining terms used in RFC assessments. Social Security Ruling 96-8p states that:
the limitations identified in the "paragraph B" and "paragraph C" criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment at steps 4 and 5 of the sequential evaluation process require a more detailed assessment by itemizing various functions contained in the broad categories found in paragraphs B and C....
The matter is not nearly this simple nor is the relationship of the categories in the listings to categories in an RFC assessment merely that of more or less detail. The broad categories that are identified in the POMS that the various functions fit under are (1) understand, carry out, and remember simple instructions, (2) make judgments that are commensurate with the functions of unskilled work, i.e. simple work-related decisions, (3) respond appropriately to supervision, coworkers and work situations and (4) deal with changes in a routine work setting. The broad categories on the form DDS uses, SSA-4734, are (1) understanding and memory, (2) sustained concentration and persistence, (3) social interaction and (4) adaptation. These are not the same broad categories identified by paragraph B. Further, the POMS at DI 24510.060 states that the categories identified on SSA-4734 are not RFC assessments, but merely summary conclusions to use as a worksheet. It states that the actual RFC assessment appears in the narrative, which.
must include a discussion of all mental capacities and limitations
The POMS does not specifically describe how the functional limitations are to be phrased in the narrative. See DI 24510.065. All it says is that the capacities and limitations should be described in detail, the extent to which the individual could be expected to perform and sustain the activity should be included, and it should include any additional information or consideration which is necessary to give a clear description of the individual’s mental residual functional capacity. It also instructs the examiner to record conclusions of functional capacity provided by examining physicians that are appropriate and consistent with the documented medical and nonmedical evidence and to confine discussion to the effects of the impairment(s) on function. DDS evaluators rarely, if ever, follow their own instructions.
Most ALJ’s will not allow representatives to use terms such as "moderate" or "marked" by themselves to question a VE and most VE’s will say that they can’t answer the question without being told the functional consequences. This apparently stems from a "training" given by the Appeals Council a couple years ago. Before this training, these terms were often used in hypothetical questions as if their meaning was obvious. Given the above, the new view makes sense. The POMS states that one is not to use severity ratings or nonspecific qualifying terms like moderate or moderately severe to describe limitations because these terms do not describe function and do not usefully convey the extent of capacity evaluation. DI 24510.065 B.d. But it is odd that one is not allowed to use the very terms that are used by DDS and that occur in the regulations. This is just one example of the agency conveying important policy considerations in ways that do not appear in the regulations or the rulings.
It seems pretty clear that you need to come up with your own definitions in functional language if you want to use mental RFC forms. If the definition used by the physician in assessing RFC is different from the definition you are using in your hypothetical, then you are being forced to interpret what he meant. So, I think it makes sense to make your own forms with your own definitions so that the limitations you propose to the VE are clearly supported by the treating physician opinion.
In Thomas Bush’s Social Security Disability Practice, he uses the old definitions plus one category called "unable to meet competitive standards" between "seriously limited, but not precluded" (what used to be "fair") and "no useful ability to function." He defines this as "your patient cannot satisfactorily perform this activity independently, appropriately, effectively and on a sustained basis in a regular work setting." I guess the benefit may be that it imports the definition of "marked" in the regulations, although I’m not sure that is a benefit and it seems contrary to the POMS. In my view, this makes what was "fair" appear to be moderate (contrary to Cruse) and does not help meaningfully define these terms. It is also difficult to see how a medical provider can be expected to know what competitive work standards are and what it means functionally to be independent, appropriate, or effective or what is "a regular work setting."
However, Social Security Ruling 96-9p states that a substantial loss of ability of any of the following would justify a finding of disabled: (1) understanding, remembering, and carrying out simple instructions; (2) making judgments that are commensurate with the functions of unskilled work, e.g. simple work-related decisions; (3) responding appropriately to supervision, coworkers and usual work situations; and (4) dealing with changes in a routine work setting. These are also part of the basic abilities and aptitudes needed to do most jobs identified by 20 C.F.R. 404.1521. And they are the four broad categories identified by the POMS under which the 14 categories that relate to performing any job are subsumed, although changes in a routine work setting have no subcategories. Not only are (2) and (4) inconsistent with the above VE opinion, I think most VE’s will testify that there are some jobs where dealing with coworkers is not important. And some ALJ’s are of the opinion that (1) is almost never satisfied. Furthermore, most VE’s will testify that other abilities such as completing tasks in a timely manner are what is really essential to unskilled work.
Although the list of job requirements is agency policy, it does appear that the items on the list are not of equal importance. And changes in a routine work setting doesn’t make much sense. Arguably, it is the inability to adapt to a routine work setting that would make a person disabled. However, one can still ask questions of the VE based on the regulations and ruling for the purposes of appeal. Where the opinion of a VE (who is there to testify about factual issues) conflicts with the law, the law should trump.
One needs to have a good idea of what a particular VE is going to say and frame the question in a way that you can get the answer you want. We used to have people such as the former director of DDS testifying as a "vocational expert." It appeared that some VE’s used to see their role as adversarial to the claimant; to name some jobs whatever the limitations. This isn’t the case now. The VE’s on our current panel are far more competent and consistent and are less likely or unlikely to cater their opinion to the conclusion the VE thinks the ALJ wants. Furthermore, I think that most if not all of our current ALJ’s just want honest consistent answers.
This raises the issue of what general points one can make about cross-examining VE’s. Some authors on this issue seem to think that it is always an adversarial relationship. Luckily, in Utah that is not the case now. If we do get another biased VE, then treatment should be adversarial from the start, including questioning this person’s credentials and objecting to him even testifying as an expert. For such VE’s, one can question the foundation for each item of his testimony. In McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2005), the court held that the VE’s vague answers to questions did not establish a foundation for her testimony, which required the ALJ to inquire into her reliability and required her to substantiate her opinions with documentation. Further, plaintiff’s counsel should not have to pay the VE for the documentation she should have brought to the hearing in the first place. The precursor to this case is Donahue v. Barnhart, 279 F.3d. 441 (7th Cir. 2002), where the court held that although Rule 702 of the Federal Rules of Evidence does not apply to disability cases, "the idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence," which does not exist if "vital testimony is conjured out of whole cloth."
Thomas Bush gives a couple other practice tips in addition to knowing the vocational issues, the requirements of jobs in the DOT and other sources of data, the VE and the ALJ. He advises to try new approaches all the time. If you use the same approach to cross-examining an individual VE more than a few times, it may not work. I would add that the questions to ask are highly dependent on the facts of the individual case and what the VE says in response to the ALJ’s questions. Cross-examination is an art that involves getting answers you want in the record. There is no magic formula. Of course, you should always make sure the VE gives the DOT number for any job named and you should always make sure that each individual limitation that is going to potentially rule out or reduce the numbers of jobs is given to the VE in a hypothetical. One should also remember that convincing an ALJ that your client is disabled rarely comes down to what the VE says (with the exception of transferring skills). Most of the time anything brought out in cross-examination is going to be most useful in an appeal of an unfavorable decision.
Bush also advises that as a rule, a friendly approach works better than slash and burn cross-examination and at the least, always start with questions that will yield answers on which you and the VE will agree. I would add that a Social Security hearing is not supposed to be an adversarial proceeding and you don’t want to make it into one. If you have a situation where you think the ALJ actually is the adversary and has made his mind up to rule against your client whatever evidence or arguments are presented at the hearing, the most you can do is make a good record for appeal of his decision.
II. Past relevant work and composite jobs.
In order to qualify as past relevant work a job must meet the recency, duration and SGA tests. See SSR 82-62. It must have been performed in the last fifteen years, performed long enough to learn the job and the job must have been SGA (look at the earnings record for this). Specific vocational preparation time can tell you if it meets the duration test. If the SVP is greater than the time the job was performed, it does not meet the test.
Social Security Ruling 82-61 states that a claimant will be found not disabled if he is able to perform (1) the actual functional and job duties of a particular past relevant job or (2) the functional demands and job duties of the occupation as generally required by employers throughout the national economy. In order for a different job to qualify as the same "type" of work as a claimant’s actual past job, the claimant must be able to perform all of the essential functions of the job. Valencia v. Heckler, 751 F.2d 1082, 1086-1087 (9th Cir. 1985). The Commissioner cannot evaluate past work according to the least demanding function. Valencia v. Heckler, 751 F.2d at 1086 (there are many other cases citing this holding). Vocational experts will often testify that a particular job is a composite of different jobs rolled into one. "Composite jobs" have significant elements of two or more occupations and, as such, have no counterpart in the DOT. Social Security Ruling 82-61. The Ruling also states that the DOT can be relied upon to identify the type of work. It defines a "type" of work as what is usually required by employers in the national economy versus the requirements of a claimant’s actual job.
Webster’s Dictionary defines a "type" as a class or group with characteristics in common. Logically, there is no necessity that each individual job must also be a member of a larger class. To find that a claimant can perform one of the composite parts as itself an individual past relevant job, one would have to ignore at least one of the essential functions of a claimant’s actual job. If a claimant cannot perform all the duties of such a job, then the analysis must move to step five of the sequential evaluation to determine if there is other work that can be performed because each part of a composite job cannot be considered an independent type of work. In such a case, there is not a "type of work" corresponding to the claimant’s occupation. Armstrong v. Sullivan, 814 F.Supp. 1364, 1372 (W.D.Tex. 1993); Bechtold v. Massanari, 152 F.Supp. 1340, 1345 (M.D.Fla. 2001).
Other findings at step four can also affect step five. The vocational expert might testify that a past job is an "any industry job." A claimant’s past work was in some specific industry, no matter what the DOT designation may be. This matters when we get to the strict rule of transferability.
III. Relevant fictions: use of the Medical-Vocational Rules as a framework and the numbers of jobs.If a claimant’s limitations do not fit squarely in the grid rules, the grids are used as a "framework" for the decision. See Social Security Ruling 83-14. An argument Ralph Wilborn used to make but which does not ever seem to have been adopted by a court relies on the fact that according to the regulations there are approximately 200 unskilled sedentary occupations and 1400 such light occupations. See Grids at 201.00(a) and 202.00(a). A person over 50 and confined to sedentary unskilled work even though he might still be able to perform 200 occupations is disabled, as is someone over 55 and confined to light unskilled work even though he might be able to perform 1600 occupations. Assume that person A can perform the full range of light and sedentary work, is over 55 years of age and has no transferable skills. The grids direct a finding of disabled. Assume that person B has a very restricted range of sedentary or light work such that he can perform no unskilled sedentary/light occupations but could perform three and only three semi-skilled jobs. According to the way ODAR procedures have worked for many years, person B would not be disabled even though he can perform 1597 fewer jobs and is clearly more disabled. One could argue that this fails to give the proper consideration to age that is embodied in the grids. The implications are that someone like the latter individual should have to be able to perform approximately 1600 occupations rather than three. Despite the logic of the argument, it seems unlikely that it will ever be accepted, although it is more consistent with the grids than the way the analysis is routinely performed.
A second very plausible argument is that VE’s have no reliable method to ascertain the numbers of jobs. This is because the census codes of the Department of Labor on average group ten different occupations into one category and there is no way to determine the numbers of jobs for each individual occupation in this census code. I have chosen to usually view these numbers as one of the fictions we must except to even have a disability process. I don’t think courts would accept the proposition that all such testimony is unreliable and so there never is a basis for saying that a substantial number of jobs exist.
However, the argument may be applicable in a particular case where a VE’s testimony seems very unrealistic and the claimant’s disability is such that it is a close call as to whether he can work, or even better, the facts really do seem to indicate that he is disabled. We have seen that Donahue v. Barnhart, 279 F.3d. 441 (7th Cir. 2002), held that although Rule 702 of the Federal Rules of Evidence does not apply to disability cases, "the idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence." In such a case, you should ask the VE for the basis of his testimony and make him produce written documentation. Since he is going to have to extrapolate from the data, the next question is whether he is using a reliable method. An "educated guess" is not such a method. There is no such method.
IV. The general rules regarding transferability of skills.While a vocational expert’s testimony if often not very important for claimants under 50 years of age (the ALJ’s generally know the kind of limitations that will prevent all work), for claimant’s over 50 years of age it is often crucial. If the claimant can transfer skills, he is not disabled. If he cannot transfer skills, he is disabled.
It should be noted that certain RFC findings may eliminate the need to address the technical issues of transferability. The POMS section cited earlier states that in order to do semiskilled or skilled work a person must be able to understand and remember detailed instructions, carry out detailed instructions, and set realistic goals and make plans independently of others. If a claimant does not have these abilities, he cannot even perform semiskilled work, and thus does not have the RFC to use any skills. On the other hand, if the past work was unskilled, the claimant acquired no skills. This is regardless of the DOT designation. If the claimant learned to perform the job adequately in less than 30 days it is unskilled work and transferability is not possible.
The importance of a skill is that it gives the person "a specific advantage over unskilled workers in the labor market." Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). The DOT rates skill levels on the basis of how long it takes to acquire the skill. "The work must be less demanding than that previously performed by the claimant; at the same time, though, it cannot require so little skill that anyone at all could do it, as older people are at a competitive disadvantage for such jobs." Dikeman v. Halter, 245 F.3d at 1188. The content of work activities in some semi-skilled jobs may be little more than unskilled. Dikeman v. Halter, 245 F.3d at 1185. Semi-skilled work is SVP levels 3 and 4. Social Security Ruling 00-4p. Even at the higher level of semi-skilled jobs, it may involve many tasks that do not provide a special advantage over unskilled workers. Id.
The vocational expert must differentiate between the skills acquired in the past work and the skills that would actually be used in the alternative work. The skills must come from the claimant’s actual job and not the type of work, so one must find out in detail what he actually did, rather than the title he put on the work history report. The skills must enable the claimant to meet the requirements of the alternative job (not just be hired). If the alternative job is one often performed by persons who do not have the skill when hired and they can perform adequately with a little training, the skills are not really required to perform them.
The item in question must meet the regulatory definition of a skill. Traits or aptitudes are not skills. See Frey v. Bowen, 816 F.2d 502, 517-18 (10th Cir. 1987). According to SSR 82-41:
The two codes relevant to the transferability of skills are "work fields" and "materials, products, subject matter and services" (MPSMS). The MPSMS code corresponds directly to requirement (3) above. If the codes of the past work and the alternative work are in different groups (the first two digits of the code constitute the group), one has an argument that to find transferability of skills is not consistent with the DOT. The question of whether there is the same or lesser degree of skill is answered by looking at the specific vocational preparation time (SVP). The alternative work must have an equal or lower SVP than the past work. Whether there are the same or similar tools and machines seems a relatively easy vocational question although there is no answer in the DOT.
These codes are not defined in the DOT, but both the Dictionary of Occupational Titles (page 1017) and The Selected Characteristics of the Dictionary of Occupational Titles (page v.) refer to The Revised Handbook For Analyzing Jobs (Department of Labor, 1991) as a sister publication of the U.S. Department of Labor to be used in the analysis of jobs. Social Security regulations take administrative notice of such publications. 20 C.F.R. 404.1566(d). "Work fields" is described by The Revised Handbook for Analyzing Jobs as "categories of technologies that reflect how work gets done and what gets done as a result of the work activities of the job." Materials, products, subject matter, and services (MPSMS) describe to what the work is done (basic materials processed, such as fabric, metal or wood; final products made, cultivated, harvested or captured; subject matter or data dealt with or applied, such as astronomy or journalism; services rendered, such as barbering or janitorial). The Revised Handbook states that "the assigned Work Field(s) and MPSMS together answer the question, ‘What does the worker need to know?’"
To what does "work fields" correspond? One could argue that it reflects the "work processes" part of the stricter rule for claimants over 55 years of age (see below). However, it is a code not only for how work gets done, but for what gets done. In The Transitional Classification of Jobs, Field and Field claim that the work field code is one of the primary resources in identifying transferability of skills in the traditional method. Skills cannot be transferred outside of a work field (there are 98 work fields). One finds all the jobs in the same work field, then one takes all the jobs that begin with the same DOT code number that are at the same or lower exertional level of the claimant. These are the possible jobs to which skill may transfer. In the example he uses, a person has past work in a machine shop and is now limited to light work. Of the 12,741 jobs listed in the DOT, this process reduces the possibilities to 38 jobs. Of course, further considerations may eliminate these jobs.
V. The "strict rule" of transferability; why each of the four criteria (tools, work processes, work settings and industry) must usually be met.If a claimant is over 55 years of age and restricted to sedentary work or 60 years of age and limited to sedentary or light work, further significant restrictions apply. The regulations provide that:
Ralph Wilborn, arguably the foremost expert on such issues, in "The Advocate’s Guide to Transferable Skills," in his Social Security Disability Advocate’s Handbook (James Publishing 2004), writes "[t]he regulations and ruling use the word ‘or’ instead of `and.’ If more than `very little’ vocational adjustment is required in terms of any one of the above four elements, the special transferability provision has not been satisfied and transferability of skills will not be found."The details of a claimant’s past relevant work are often key in determining whether he can perform that work or has transferable skills to other work. Unfortunately, the work history report is often very inadequately filled out and this form, like many other SSA forms, contains few details. So it is very important, especially if the claimant is over 50 years of age, to go through this work in detail in a prehearing conference. Claimants will often fail to mention the physical requirements that occur only infrequently in a job, but which are a requirement of the job. And claimants often misrepresent how important or skilled their past jobs were, resulting in a finding of transferability of skills when there really is none. They need to understand that the work history report is not a resume geared to make them look good. It needs to be accurate. Take a look at the earnings record. It is amazing how many times a claimant has presented his job as involving a very high level of skill but was making $7 an hour.I do not have the perfect solution. My solution for a generic mental RFC form has been to import the regulatory definitions of "occasional" and "frequent" into the forms; defining "moderate" as the ability is precluded up to one-third of a workday and "marked" as the ability is precluded one-third to two-thirds of a workday (i.e. frequently). This definitions are arguably an extrapolation of performing the activity on a sustained basis. The various capacities describe what is appropriate, independent or effective and the severity describes the sustainability. So it incorporates the definition in the adult listings in a way that does not collapse two very different kinds of ratings. It also reflects the extent to which the individual could be expected to perform and sustain the activity, one of the main requirements of the POMS. And it makes for clearly stated hypothetical questions. However, it may make more sense to disregard "moderate" and "marked" altogether and just substitute "occasional" and "frequent" or some other terms.The next question is how to define the individual capacities. Although the POMS at DI 25020.010 identifies 14 different limitations as being critical for unskilled work, many VE’s will not testify that each of them if precluded one-third of the time or more will rule out all jobs. For instance, one of our most respected VE’s recently testified that one-third of the time being unable to complete a normal workday without interruptions from psychologically based symptoms, work in coordination with or proximity to others without being unduly distracted, and get along with coworkers or peers without unduly distracting them or exhibiting behavioral extremes needed further elaboration with functional consequences before she could answer the question. The VE testified that a limitation in making simple work-related decisions, responding appropriately to changes in a routine work setting and being aware of normal hazards and taking appropriate precautions would not eliminate the jobs, the latter because there weren’t hazards on those jobs. The VE remarked that responding appropriately to changes in a routine work setting was almost an oxymoron because in routine settings there weren’t changes. Although different VE’s will have different views on what mental limitations rule out all competitive work, I think this opinion is close to what most good VE’s will say and it is sensible. (tools, work processes, work settings and industry) must usually be met.Residual functional capacity (RFC) is often the key issue in a disability case. In determining residual functional capacity, Social Security Ruling 96-8p delineates the following requirements:
TRANSFERABILITY OF SKILLS AND OTHER MEDICAL-VOCATIONAL ISSUES
