SSR 96-9p Summary and Commentary
Adjudicators in social security disability and SSI cases have the responsibility to determine a claimant’s residual functional capacity. This is an administrative term of art meaning the greatest amount of work like activities a person can do despite his or her medical impairments. It is defined in terms of sustained work capability, or what is the most a person can do on a regular and continuing basis. Regular and continuing is defined as 8 hours per day, five days a week, or an equivalent work schedule.
RFC as an administrative assessment differs from RFC as determined by a claimant’s treating physician. In other words, a person’s treating doctor may provide an opinion as to the person’s capacity to do work like activities despite his or her impairments. These opinions are entitled to special significance because of the treating relationship between the doctor and patient. In certain circumstances, such opinions are entitled to controlling weight. For more on the difference between administrative RFC assessment and an RFC opinion from treating physicians, please see my post from October 24th, 2014.
RFC is a function-by-function assessment of various important work-like activities. These include sitting, standing, walking, lifting, carrying, pushing, pulling, handling, fingering, reaching, to name just a few. It is important for adjudicators to compare the person’s limitations in these categories with their previous work to see if the person retains the capacity to do their prior relevant work. Prior relevant work is defined broadly as substantial work that the person has done in the past fifteen years prior to adjudication. As one might expect, work becomes less relevant the more historically remote it is. The world of work changes gradually but perceptibly in our modern society and work that was relevant twenty years ago may not be as relevant today.
RFC considers only limitations and restrictions cause by a person’s physical and/or mental impairments and their related symptoms, including pain. It does not consider age or body habitus (or physique).
The RFC assessment must include a narrative showing the presence and degree of any specific limitations, and an explanation of how the evidence in the file was considered in the assessment.
RFC becomes important at steps four and five of the five-step sequential analysis for determining disability. Adjudicators must follow these five steps one at a time until a decision can be made on whether or not a person is disabled:
Step one determines whether or not a person has done substantial gainful activity (SGA) since the time they allegedly became disabled. Work activity that results in earnings of more than $1,070 per month (a figure that is adjusted from time to time) is generally considered SGA. If the person has maintained SGA during the alleged period of disability, they may not qualify and are considered “not disabled”, even if there are severe impairments. If there is no SGA, the process continues to step two.
Step two considers whether or not a person has a medically determinable impairment or combination of impairments that more than minimally interferes with their ability to do basic work activities. If there are no “severe” impairments, there is a finding of “not disabled.” If there is a severe impairment(s), the process continues to step three.
Step three considers whether or not a person has an impairment or combination of impairments that meets or equals in severity one of social security’s listed impairments. These are impairments that are precisely defined by certain objective medical criteria. If these criteria are met, the condition is deemed severe enough to be totally disabling. If a listing is met or equaled, then a finding of “disabled” is made at step three. If the impairment(s) does not meet or equal a listing, then the process continue to step four.
Step four determines whether or not a person retains the functional capacity (RFC) to perform their prior relevant work (performed in the past 15 years). If the answer is “yes” the person is found “not disabled.” If the answer is “no”, the process continues to step five.
Step five considers whether or not there is any work existing in the national economy in significant numbers that the person can do on a sustained basis (8 hours a day, 5 days a week or an equivalent work schedule). Again, the person’s remaining functional capacity, or RFC is considered, along with the person’s age, education and work experience. Social Security has a limited burden of proof at step five to show there is work that exists in significant numbers in the national economy for a person of the claimant’s medical and vocational profile. If there is such work, the person is found “not disabled.” If there is not such work, the person is found “disabled.”
RFC is determined by adjudicators at each level of adjudication. These levels are: initial, reconsideration, hearing by Administrative Law Judge (ALJ), and Appeals Council. If a claim is awarded at any level of this process, great for the claimant. If it is denied, the claimant may appeal and proceed to the next level of adjudication. At the hearing and Appeals Council levels, the RFC assessments of adjudicators at the initial and reconsideration levels are not binding, but they are expert opinions that must be considered along with all of the other evidence in the case file.
In social security disability cases, work is classified according to its exertional requirements, or the strength demands of the job. These strength demands fall into the seven basic categories of standing, walking, sitting, lifting, carrying, pushing and pulling.
In disability cases, there are five basic categories of work that can come into play. These are sedentary, light, medium, heavy and very heavy. As might be expected, these categories represent progressive levels of difficulty in performing the strength demands of a job.
This post will focus on sedentary work. Sedentary work is defined in disability cases, unsurprisingly, as primarily seated work. But even seated work may require occasional standing and walking. “Occasional” is also a term of art that is defined administratively. It means very little to up to one-third of the work day. In practical terms, this means about two hours out of an eight hour work day.
Sedentary work also requires the ability to lift no more than 10 lbs. at a time and to occasionally (again, very little up to about 2 hours per day) lift and carry articles such as docket files, ledgers, and small tools.
Sedentary work, as might be expected, can be either skilled or unskilled. This post will focus primarily on unskilled sedentary work.
In addition to the strength demands of sedentary work, there are also nonexertional activities required by most sedentary occupations and jobs. Nonexertional activities are defined as any work capacities that are not one of the seven strength demands of a job. These may be activities such as seeing, manipulation, understanding, remembering and carrying out simple instructions.
Social Security’s regulations take administrative notice of the existence of numerous unskilled occupations within each exertional category (about 1600 such occupations are administratively noticed). This means that there are presumed to be numerous unskilled occupations at each exertional category. Social Security rules take administrative notice of about 200 unskilled occupations in the sedentary category.
This post focuses on the impact of an RFC for “less than sedentary” and what it means for a finding of disability. This is especially important for claimants under age 50. This is because persons aged 50 and older are found disabled if they are limited to a full range of sedentary work unless they have transferable skills or education that provides for direct entry into skilled sedentary work. The GRID rules direct this result. For more on the Grids, or Medical/Vocational Guidelines, please see my post from October 2nd, 2014. Where a person’s profile exactly fits within the criteria for the Grids (age, education, work skills and full range of exertional category), the Grids rules direct a finding of “disabled” or “not disabled.”
Again, the inability to do a full range of sedentary work is especially critical for claimants under age 50, who are considered “younger workers.” In other words, they do not have an adverse vocational profile which presumably limits them in making an adjustment to other work.
However, just because a person has limitations that preclude them from doing a full range of unskilled sedentary work does not automatically rendered them “disabled.” Rather, it is the extent to which their functional limitations erode the unskilled occupational base that determines whether or not a decision of disabled is warranted. Note the magic words “erosion of the occupational base.” This terminology is admittedly strange to a layperson, but very important in disability cases. It may be helpful for a claimant to consult with or hire an attorney to help them understanding and applying these concepts to their unique circumstances.
The heart of this post is to consider various limitations that are typically considered to be either significant or not significant in eroding the unskilled sedentary occupational base.
Lifting and Carrying: As mentioned above, sedentary work typically requires the ability to lift up to 10 lbs. and to carry small items throughout the day, such as docket files, ledgers, and small tools. Support a person is limited to lifting and carrying slightly less than 10 lbs. with no other limitations in performing the full range of sedentary work activities. This probably would not cause the occupational base to be significantly eroded. However, suppose a person can only lift or carry no more than 1 or 2 lbs. This would significantly erode the occupational base. Limitations in between these amounts may require the adjudicator to consult a vocational resource, such as a vocational expert.
Pushing and pulling: Limitations on pushing and pulling are not considered to have a significant effect on the unskilled sedentary occupational base.
Standing and walking: As mentioned above, sedentary work, though primarily done in the seated position, may require standing and walking for up to 2 hours in an 8 hour work day. If a person is limited to slightly less than 2 hours of standing and walking, this would not significantly erode the unskilled occupational base. However, a limitation to standing and walking only a few minutes per day would erode the base significantly. Limitations in between these parameters may require consulting a vocational resource.
Sitting: Some people may be limited to sitting for less than 6 hours out of an 8 hour workday. The extent of erosion of the occupational base would depend on the extent of the limitation. In some unusual cases, a person may be able to stand and walk more than they can sit.
Alternate sitting and standing: A person may need to get up from the work station and possibly walk around periodically. Where this cannot be accommodated by the regularly scheduled breaks and a lunch period, the occupational base for unskilled sedentary work will be eroded. The extent of the erosion will depend on the unique facts of the case, including the frequency of the need to alternate sitting and standing, and the length of time needed.
Medically required hand-held assistive device: Some people may need a medically prescribed hand held assistive device for walking. If it is needed only for walking on uneven terrain it may not significantly erode the unskilled sedentary job base. However, if both lower extremities are impacted, there may be a significant erosion of the unskilled occupational base.
Postural: An ability to stoop occasionally (from very little up to one-third of the time) is required in most unskilled sedentary occupations. A complete inability to stoop (bending the spine forward and down at the waist) would typically erode the unskilled sedentary occupational base significantly and result in a finding of disability. Likewise a limitation to balancing even when walking or standing on level terrain may significantly erode the unskilled sedentary occupational base.
Restrictions on such activities as climbing ladders, ropes, scaffolds, kneeling, crouching or crawling, or balancing on narrow, slippery or erratic surfaces would not typically significantly erode the unskilled sedentary occupational base.
Caveat: sometimes vocational experts will miss the fact that a particular job requires some of these activities. So, for example, light housecleaning typically requires hanging drapes, which would require climbing (stairs, ladder, or scaffolding), particularly for a person not tall enough. It is important to remember that whenever a vocational expert is used at a hearing, the claimant has the right to review and respond to the VE evidence prior to a decision being issued.
Manipulative: Most unskilled sedentary jobs require bilateral manual dexterity; or in other words the good use of both hands for repetitive hand/finger actions. A significant limitation in the ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base. Carpal tunnel syndrome, arthritis, and other conditions are very important in assessing the extent of erosion of the sedentary unskilled occupational base.
Visual: Being able to see small objects is important in most sedentary unskilled work. If a person cannot see to work with small objects or to avoid ordinary hazards in the workplace, the unskilled sedentary occupational base will be significantly eroded.
Communication: Basic communication is all that is needed for unskilled work. But a significant limitation in the ability to hear and understand simple oral instructions or communicate simple information may erode the unskilled sedentary occupational base.
Environmental: The ability to tolerate a noisy work environment must be evaluated on a case-by-case basis. Restrictions to avoid exposure to odors or dust must also be evaluated on an individualized basis to determine the extent of the restriction and whether or not even a small amount of dust must be avoided, for example.
Mental: The following mental activities are usually required by competitive work:
1) Understanding, remembering and carrying out simple instructions,
2) Making judgments commensurate with the functions of unskilled work,
3) Responding appropriately to supervision, co-workers and usual work situations,
4) Dealing with changes in a routine work setting.
The adjudicator may consider vocational resources, such as authoritative publications. They are typically the Dictionary of Occupational Titles and its companion volumes, the Occupational Outlook Handbook, or County Business Patterns.
At the hearing level, we also see the use of Vocational Experts (VEs) more often than not.
I have now posted on all of the nine so-called Process Unification Rulings, or SSRs 96-1p through 96-9p, in postings from October 15, 2014 through today. I will post on some of the important practical takeaway tips and pointers from these rulings in the near future.
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.