The Trimiar case
One thing I enjoy about working on disability cases is learning about the kinds of work that are out there in the national economy. In a very large and diverse economy such as ours, there is always new information to be gleaned.
Social Security uses a five-step sequential process in determining whether or not a person is disabled. Because these steps are sequential, they must be followed in order or the analysis does not work. If at any step in the process a person can be found “disabled” or “not disabled”, then the inquiry stops.
Social Security uses Medical-Vocational Guidelines to assist in making this determination. These guidelines are also called “the grids” because they are set forth in tables with rows and columns that can be used to input information. Once a Judge has determined a person’s medical limitations, or “residual functional capacity”, he can plug in their age, education, and work experience into the appropriate table to determine an appropriate result. There are tables for the five work categories of sedentary, light, medium, heavy and very heavy.
However, a claimant’s profile may not always fit precisely within the grids. For example, the grids deal only with exertional limitations. The exertional demands of a job are the seven strength demands of a job; namely: sitting, standing, walking, lifting, carrying, pushing and pulling. The grids do not account for non-exertional limitations, such as postural limitations or environmental limitations. Campbell v. Bowen, 822 F.2d 1518, 1523 (10th Cir. 1987). Moreover, a person may not be able to perform the full range of a category of work. In cases where a claimant’s characteristics do not precisely match the grids, the grids do not direct a result, but are used as a framework for making a decision. Channel v. Heckler, 747 F.2d 577, 579 (10th Cir. 1984). In cases where the grids do not direct a particular result, a vocational expert will almost always be used to assist the Judge in making a decision. Id. at 580.
The kind of work that exists in the national economy comes into play at step five of the five-step analysis. If the inquiry makes it to step five, there is a limited burden on the Social Security Administration to show that there are jobs existing in significant numbers in the national economy that the claimant could still perform despite his or her medical limitations, and considering his or her age, education, and work experience. As discussed above, because claimants’ profiles will not always fit neatly within the grids, there will almost always be a vocational expert at the hearing in order to assist the Judge in making this determination.
So the question arises, how to define “significant numbers” of jobs? The federal Circuit Court case of Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992) provides guidance on this point for practitioners in the 10th Circuit. There are no hard and fast rules for what constitutes significant numbers. Rather, the fact finder must make an individualized determination in each case, applying certain factors set forth in the Trimiar Case.
In Trimiar, the claimant was a fifty-three year old bus driver residing in Oklahoma who was claiming permanent disability as a result of injuries to his right arm. After a hearing, a Judge determined that there was work existing in significant numbers in the region that the claimant could still do despite his impairments.
The Judge first determined that the claimant was capable of a range of “light” work without the use of his right arm. Light work is defined as work that requires lifting a maximum of 20 lbs., as well as lifting and carrying 10 lbs. “frequently”, or up to two-thirds of the work day. The Judge found that Mr. Trimiar did not have any non-exertional limitations.
Non-exertional limitations are defined as medical restrictions on activities that do not involve one of the seven strength demands of a job. These can be things such as hearing or visual limitations, environmental limitations, postural limitations, skin impairments, epilepsy, manipulative limitations, and the like.
Mr. Trimiar’s profile did not fit precisely within the grids. This is because he could not perform a full range of light work due to his non-functional right arm. Social Security has determined that persons who have lost the use of an upper extremity have a potential occupational base between the sedentary and light work grids. Social Security Ruling 83-12p. See also my post from March 6, 2015. Sedentary work is work that requires lifting no more than 10 lbs., whereas light work requires lifting up to 20 lbs. While individuals who have experienced the loss of use of an upper extremity have been known to perform work at all exertional levels, the total occupational base is less that that represented by a full range of light work. Id. Because they have lost bilateral manual dexterity, such individuals are not expected to perform sedentary work that requires the use of both hands.
In making the determination that there was a significant number of jobs the claimant could still do, the Judge elicited testimony from a vocational expert, who gave examples of such jobs. These examples included the jobs of escort driver, recreational facility attendant, and telephone solicitor. The expert stated there were 50 to 100 escort drivers, 600 ticket takers, ushers or attendants at recreational facilities and 200 telephone solicitors in Oklahoma. This was found to constitute significant numbers.
At the heart of the case, the Court quoted from a case in the Eighth Circuit, which stated as follows:
A judge should consider many criteria in determining whether work exists in significant numbers, some of which might include: the level of claimant’s disability; the reliability of the vocational expert’s testimony; the distance claimant is capable of travelling to engage in the assigned work; the isolated nature of the jobs; the type and availability of such work, and so on.
The court found that the Judge had adequately considered all of these, and other relevant, factors. For example, the vocational expert was asked questions regarding the distance of travel to the jobs, the percentage of jobs, the location of jobs that were within the claimant’s capacity, the type and availability of work, whether claimant’s skills were transferable to these jobs, whether and to what extent he would require training for these jobs, and whether other people with similar physical limitations performed these jobs. The Court therefore upheld the Judge’s decision denying benefits.
The Eight Circuit case of Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) found that 500 relevant local jobs constituted a significant number. But again, there are no set-in-stone mathematical rules for determining what constitutes “significant numbers.” Each case must be decided on its own individual merits.
It is almost always very helpful for claimants in a disability to retain an attorney to assist them in preparing for a hearing. This is because the process can be technical and confusing. As just one example, the testimony of a vocational expert can be bewildering to a lay person and the attorney can cross-examine her in ways that would not occur to the average person.
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.