Capability to Do Other Work in Social Security Disability and SSI Cases - Melvin
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Capability to Do Other Work in Social Security Disability and SSI Cases

by Melvin Cook

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Solely Exertional Impairments

SSR 83-12 (PPS-103)

The Social Security Grids set forth rules for determining whether or not a person can adjust to significant other work than that which they have done in the past. This determination is made by considering the person’s age, education, prior work experience and medical limitations.

If a person has a medically determinable severe impairment(s) that is not severe enough to meet the criteria of one of Social Security’s Listing of Impairments, but is still severe enough to prevent the person from doing their prior work, then the adjudicator must consider if there is other significant work in the national economy that the person could adjust to.

The Grids set forth directions for when a person fitting precisely within its tables should be found “Disabled” or “Not Disabled.”

The Grids are tables found in the Code of Federal Regulations (CFR) that use different exertional categories of work; i.e., sedentary, light, medium, heavy and very heavy. The exertional categories interact with the person’s vocational profile of age, education and prior relevant work experience in order to assist an adjudicator in making an appropriate decision on the person’s case.

Exertional work demands are defined in Social Security regulations as the seven strength demands of work; i.e., sitting, standing, walking, lifting, carrying, pushing and pulling.

Non-exertional demands are defined as all other work demands. They encompass a wide variety of postural, manipulative, environmental and psychological activities. These can be tasks such as bending, stooping (bending the body downward and forward by bending the spine at the waist), kneeling, crouching (bending the body downward and forward by bending both the legs and the spine), balancing, crawling, climbing, concentrating, persisting in a task, interacting appropriately with co-workers, supervisors, and the general public, using one’s hands effectively, reaching forward and overhead, and exposure to dust or other irritants in the workplace, to name but a few.

SSR 83-12 sets forth guidelines for deciding a disability case for a person with solely exertional impairments. So, the non-exertional impairments will not come into play in this post.

If a person’s exertional limitations fit squarely within one of the Grids, such as having the remaining capacity to do a full range of light or sedentary work, then the table for that particular exertional level will direct a finding of either  “Disabled” or “Not Disabled”.

However, there may be circumstances in which a person can do more or less than the full range of work in a particular exertional category. In such situations, the Grids do not direct a finding of “Disabled” or “Not Disabled”, but rather are used as a framework for decision making.

In such circumstances, the person may be said to be “between the Grids” (my terminology).

For example, maybe a person can do the full range of light work except that he can only lift 18 lbs. rather than the 20 lbs. required of the full range of light work.

Or, as another example, maybe a person can do a little more lifting than is required by light work, but not enough to meet the 50 lbs. lifting requirement of the full range of medium work.

If a person is between two Grid rules that would each direct the same result, then a decision is easy. It will simply be the same as the result directed by each of those Grids. So, for example, suppose a person would be found “Disabled” under the Grids if they were capable of performing the entire range of both light and sedentary work. If the person cannot perform the full range of light work because they cannot lift up to 20 lbs., they would still be found “Disabled”. This is because even if they could do the full range of light work and lift up to 20 lbs., they would be found “Disabled”. so being able to do a lesser range of work necessitates the same result.

Or, as another example, suppose a person would be found “Not Disabled” under the Grids if they could perform the entire range of either light or medium work. If the person can perform more than the entire range of light work but less than the entire range of medium work they will still be found “Not Disabled” because both ranges of work direct such a finding.

Where a person is between two Grid rules that each direct different results, the situation is slightly more complicated.

For example, suppose a person can do more than the full range of sedentary work but less than the full range of light work. Further, suppose that the person would be found “Disabled” if he or she were limited to the full range of sedentary work but would be found “Not Disabled” if he or she were limited to the full range of light work.

In such a situation the adjudicator must look at the relative severity of the person’s limitations in order to determine if a decision can be readily made or if a decision will require expert assistance. If the person can do only slightly less than the full range of light work, such as being able to  lift up to 18 lbs. rather than the 20 lbs. required by the full range of light work, then she will readily be found “Not Disabled” by using the Grids as a framework for decision making. On the other hand, if her ability to do the full range of light work is severely compromised and she can only do slightly more than the full range of sedentary work, a finding of “Disabled” would be indicated.

In more difficult situations, where the person’s abilities are somewhere more “in the middle”, it is advisable for the adjudicator to consult a vocational resource, such as a vocational expert, who can assist in assessing the vocational implications of the person’s limitations.

Another situation in which it may be advisable for the adjudicator to consult a vocational resource is where the person’s limitations amount to “less than sedentary”; or in other words, their limitations prevent them from doing the full range of sedentary work. In such a situation, the person is not “between the Grids”, but may be said to be “below the Grids” (again, my terminology).

If the person’s limitations would not significantly erode the sedentary occupational base, a decision can be made quite easily using the Grids as a framework for decision making. For example, if the person can do the full range of sedentary work except that they cannot have frequent exposure to petroleum products, this would only slightly diminish the sedentary occupational base and would still result in the same decision as otherwise directed by the Grids. This is because there are not many sedentary jobs in the national economy that require frequent contact with petroleum products.

But where a person’s restrictions represent a more significant erosion of the sedentary occupational base, it is advisable for the adjudicator to consult a vocational resource. Social Security’s rules make it clear that even younger individuals may be found “Disabled” if their condition(s) limit them to less than sedentary work.

SSR 83-12 mentions two special situations:

The first is where the person must alternate between sitting and standing. So, for example, suppose the person could otherwise perform the full range of duties of light and sedentary work but must be allowed to sit or stand as the need arises. If the person is able to manage their condition by alternating between sitting and standing during the customary work breaks (i.e., morning and afternoon breaks and the lunch period), then the occupational base would not be eroded at all. But if the person needs more frequent periods of alternating between sitting and standing than can be accommodated by ordinary work breaks, the occupational base may or may not be significantly eroded. In such a situation, consultation with a vocational resource is advisable in order to determine the effect of the sit/stand limitation on the person’s occupational base.

In most professional or managerial jobs the individual is allowed a large degree of choice as to whether they will perform their work sitting or standing. However, unskilled types of jobs are typically structured so that a person cannot ordinarily sit or stand at will. Most jobs have work processes that demand a person to be in a certain place or posture for a certain length of time in order to accomplish a certain task.

If a vocational expert at a hearing were to give examples of significant numbers of unskilled jobs where sitting and standing could be alternated at will, a possible line of cross-examination by a claimant’s attorney might be as follows:

“As a vocational expert for the Social Security Administration, you are familiar with Social Security’s rules and regulations, correct?

“Yes.”

“Isn’t it correct that the regulation known as SSR 82-12 states that most jobs demand that a worker be in a particular place or posture for a certain length of time in order to complete a certain task?”

“Yes.”

“Isn’t it also true that the same regulation states that unskilled types of jobs are typically structured so that a person cannot ordinarily sit or stand at will?”

“I will take your word for it, but …”

The Vocational Expert then will then to go on and defend his or her testimony.

This is not to say that there are no unskilled jobs in which sitting and standing at will is allowed. However, according to SSR 82-12, the need to sit or stand at will would cause a significant erosion of the unskilled occupational base. The VE would then need to give a strong explanation for his or her testimony that there are significant numbers of unskilled jobs that will accommodate sitting or standing at will.

Vocational Experts for the Social Security Administration are expected to be familiar with Social Security’s rules and regulations. Moreover, they are not supposed to give testimony that is contradicted by Social Security’s rulings and regulations.

Vocational Experts are impartial and often give testimony that ends up being helpful to claimants.

The second special situation mentioned in the SSR is where the disability claimant has lost the use of an upper extremity. A person who has lost the use of an arm or a hand (because of amputation, for example) has a rather definitive impairment. Obviously, they cannot do work involving the use of both arms or both hands. Moreover, they would generally not be expected to perform sedentary work because most unskilled sedentary jobs require good use of both hands.

Persons with the least remaining function as a result of lost use of an upper extremity would have the lower occupational base while persons with the most remaining function would have the higher occupational base. Using a vocational resource may be advisable in order to help the adjudicator determine the person’s remaining occupational base given their remaining functional capacity.

As always, if a finding of “not disabled” is made, the decision must be in writing and must include citations of occupations or jobs the person can do functionally and vocationally despite their limitations, as well as a statement of the incidence of such work in the region where the individual resides or in several regions in the country.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.

Contact a Salt Lake City Attorney Committed to Protecting Your Rights

When it comes the family law and social security disability, each client and case is different. It is also important to select an attorney with the experience, skills and professionalism required to address your legal issues. To learn more, contact the Salt Lake City law offices of Melvin A. Cook and schedule an initial consultation to discuss your case.

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