Tiffany Elsenpeter v. Social Security Administration

Minneapolis, Minnesota social security disability lawyer represented the Plaintiff seeking review of the denial of her application for Social Security: SSID Tit. XVI by HHS.



SSA's Sequential Evaluation

Process for Assessing Disability



By



Tom Johns



Branch Chief, Disability Quality Branch

Office of Quality Performance, Dallas



Step 1: Is the individual working above

SGA level?

z At the first step, we consider an individual's work

activity, if any.

z SGA stands for Substantial Gainful Activity and the

amount changes each year. For 2009 it is $980 for the

non-blind and $1640 for the blind.

z If an individual is working and his or her earnings

average more than the SGA limit a month, then he or

she is found not disabled.

z If an individual is not working or his or her earnings

are less than SGA, the adjudicator goes to step two.



Step 2: Is the individual's physical and/or

mental condition severe?

z At the second step, we consider the medical severity of an individual's

impairment(s).

z An individual must have a medically determinable physical or mental

impairment (or a combination of impairments) that is severe and meets

the duration requirement.

z To be severe an impairment or impairments must interfere with basic

work-related activities.

z To meet the duration requirement the impairment(s) must be expected

to last twelve months or to result in death

z If the impairment(s) are not severe or do not meet the duration

requirement, the individual is found not disabled.

z If the impairment(s) are severe and meet the duration requirement, the

adjudicator goes to question three.



Basic Work-Related Activities

z Physical:

– lifting, carrying, standing, walking, sitting, pushing, pulling, plus

the "nonexertional” activities rated in the Selected

Characteristics Of Occupations Defined in the Revised

Dictionary of Occupational Titles (SCO).

z Mental:

– Ability to understand, carry out, and remember simple instructions

– Make simple, work-related judgments and decisions

– Respond appropriately to supervision, coworkers and work

situations

– Deal with changes in a routine work setting





Step 3: Does the individual's medical condition

meet or equal the severity of a Listing?

z At the third step, we also consider the medical severity of an

individual's impairment(s).

z SSA maintains a listing of medical criteria that are considered to be so

severe that an individual is found to be disabled if his or her medically

determinable physical or mental impairment(s) matches them.

z An individual's impairment(s) can be found to meet the listed criteria

exactly or to be of equal severity.

z If an individual has an impairment that meets or equals one of the

listings and meets the duration requirement, he or she is found to be

disabled.

z If an individual does not have an impairment that meets or equals one

of the listings or the duration requirement is not met, the adjudicator

goes to Step 4.

z However, before going from step three to step four, the individual's

residual functional capacity (RFC) is assessed. This RFC assessment

is then used at both step four and step five.



What is Residual Functional Capacity

or RFC?

z Ordinarily, RFC is a function-by-function

assessment of an individual's maximum

ability to do sustained work-related physical

and mental activities on a regular and

continuing basis (8 hours a day, for 5 days a

week) despite the limitations and restrictions

resulting from his or her medically

determinable impairments.

z In short, it is an accounting of an individual's

capacity for full-time work.



Limitation vs. Restriction

z Limitations: Define activity levels beyond

which an individual is physically unable to

perform on a sustained basis.

z Restrictions : Define activity levels beyond

which it would be medically ill-advised for an

individual to perform on a sustained basis.



Residual Functional Capacity (RFC)

z For the physical RFC (PRFC) an individual's

medical condition is evaluated in terms of the

physical demands of work used in the

Dictionary of Occupational Titles (DOT) and

SCO.

z Mental RFC (MRFC) is evaluated in terms of

the mental demands of work set out in the

Code of Federal Regulations (CFR).

z The sole purpose of assessing RFC is to

determine an individual's ability to work at

steps 4 and 5.



Keep in Mind

z SSA's RFC assessments are limited in scope:

z An RFC only assesses the impact of medically

determinable impairments (MDIs) – including the

impact of any related symptoms.

z An RFC does not consider factors such as sex, age,

natural body build, or physical conditioning.

z In the absence of any medically determinable

impairment, an individual is considered to be of

unlimited physical and mental capacity.



he Basis for Steps 4 and 5 from The

Social Security Act:

An individual shall be determined to be under a disability only if his

physical or mental impairment or impairments are of such severity

that he is not only unable to do his previous work but cannot,

considering his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in the national

economy, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists for

him, or whether he would be hired if he applied for work. For

purposes of the preceding sentence (with respect to any individual),

"work which exists in the national economy” means work which

exists in significant numbers either in the region where such

individual lives or in several regions of the country.



Step 4: Can the individual do any of

his/her Past Relevant Work?

z At step 4 a function-by-function comparison

of the individual's RFC and past relevant

work (PRW) is completed.

z If an individual retains the physical and

mental capacity to perform any PRW, he/she

Is found not disabled.

z If no PRW can be done, or the individual has

no relevant work, the adjudicator goes to step

Five.



z At this step SSA does not consider a

claimant's:

– Age;

– Education;

– Body Habitus;

– Employability; or

– Whether PRW exists in significant numbers in the

national economy



STEP 4 HAS TWO PARTS

z Does the individual retain

the capacity to perform

PRW as he or she actually

performed it?

z Does the individual retain

the capacity to perform

PRW as generally

performed in the national

Economy?



WHAT IS PAST RELEVANT WORK?

Three-part test. The work

must have been:

z Substantial Gainful Activity

(SGA);

z Performed in the fifteen

year relevant period; and

z Performed long enough to

learn it (reach average

performance).



PRW vs. RFC

Ability to Perform PRW Always

Overcomes RFC

Limitations/Restrictions.

No matter how restrictive the limitations or

restrictions of an RFC/MRFC are, an individual

will always be found not disabled at Step 4 if

the RFC does not preclude the performance of

any PRW as the individual has described it.



THE BURDEN OF PROOF IS AN

INDIVIDUAL'S THROUGH STEP 4

z An individual is responsible for

submitting evidence showing

that he or she has an

impairment which prevents the

performance of past relevant

work.

z If this is shown at step 4, the

adjudicator goes to

step 5.



Step 5

At step 5 the "burden of proof” shifts to SSA to

show that work, other than what the

individual performed in the past, exists in

significant numbers in the national economy

that he or she can make an adjustment to,

considering the limiting effects of the

individual's impairment, age, education, and

work experience.



Step 5: Can the individual make an

adjustment to any other work?

z At the fifth and last step, an individual's RFC and

age, education, and work experience are

considered to see if he/she can make an adjustment

to other work.

z If an individual can make an adjustment to other

work, he or she is found to be not disabled.

z If an individual can not make an adjustment to other

work, he or she is found to be disabled.



THE SPECIAL MEDICAL-VOCATIONAL

PROFILES

z At step 5, the adjudicator first considers the Special Medical-

Vocational Profiles.

z These Profiles are specific combinations of severity and the

vocational factors of age, education and work experience.

z In essence, the Special Medical-Vocational Profiles are

exceptions to the Medical-Vocational Guidelines.

z If the criteria of a profile is met, an individual is found to be

disabled without any further evaluation.

z If no profile is met, then the adjudicator goes on to consider

the Medical-Vocational Guidelines ("The Grids”).



The Profiles

"Arduous Unskilled Work” profile –

- 35 years or more of heavy or very heavy work

- Severe impairment that prohibits performing this work

- 6th grade or less education

"No Work Experience” profile -

- Severe impairment

- No PRW

- Age 55 or older

- 11th grade or less education

"Lifetime Commitment to a Field of Work” Profile -

- 30 years or more in a field of work

- Severe impairment prevents performing this work

- Age 60 or older

- 11th grade or less education

- Work was unskilled or was skilled or semiskilled but skills do not transfer



The Medical-Vocational Guidelines

(or Tables, Grids, or Rules)

z Are based only on exertional limitations or restrictions.

z Cross reference a claimant's RFC exertional level with

his/her age, education, and work experience and

provide an outcome backed by a significant number of

occupations.

z Give administrative notice of the number of unskilled

sedentary (200), light (1400), and medium (900)

occupations available in the national economy – these are

considered to be "significant numbers”.



Medical Vocational Rules of Appendix

2

z Each numbered rule in the appendix resolves the issue of

capability to do other work by addressing specific

combinations of factors (exertional level, age, education,

work experience)

z The vocational rules are based only on the existence of

unskilled jobs throughout the national economy at the

various exertional levels (sedentary, light, medium, etc.)

z The "Decision” column of the rule resolves the issue of

"Disabled” or "Not Disabled.”



RFC Exertional Levels in the Rules

z Sedentary – lifting/carrying less than 10 lbs occasionally,

a negligible amount frequently; standing/walking at least

2 hours – 201.00

z Light – lifting/carrying up to 20 lbs occasionally, 10 lbs

frequently; standing/walking 6 hours – 202.00

z Medium – lifting/carrying up to 50 lbs occasionally, 25 lbs

frequently; standing/walking 6 hours – 203.00

z Heavy – lifting/carrying up 100 lbs occasionally, 50 lbs

frequently; standing/walking 6 hours – 204.00

z Very Heavy – lifting/carrying over 100 lbs frequently;

standing/walking 6 hours – 204.00What do we mean by "age?”

z Age means chronological age.

z SSA considers age to be an increasingly

limiting factor in the ability to adjust to

other work.





Age Categories

z Younger Individual, 18 - 49

z Closely Approaching Advanced Age, 50 - 54

z Advanced Age, 55 and Older

Subcategories

z Younger Individual, 18 – 44 (Table 1)

z Younger Individual, 45 – 49 (Table 1)

z Closely Approaching Retirement Age,

60 or Older (Table 3)



EDUCATION

z In general, the numerical grade

level of formal schooling

completed is used.

z However, strong evidence that

educational achievement is higher

or lower than the last grade

completed will be considered.



Education Categories

z Illiteracy in English or Inability to communicate in

English or Both (All three possibilities are treated

the same.)

z Marginal Education (6th grade or less)

z Limited Education (7th - 11th grade)

z High School Education and Above (including GED

high school equivalent diplomas)



Work Experience at Step 5

z Work Experience in the grids is expressed in

terms of the skill level of PRW.

z SSA derives skill level from the Specific

Vocational Preparation (SVP) ratings in the

DOT.

– Unskilled: SVP 1-2

– Semi-Skilled: SVP 3-4

– Skilled: SVP: 5-9



Meeting a Rule

z In order for a rule to be met, all of the findings of fact must

coincide with the rule's specific criteria.

z An individual must:

– be able to perform substantially all of the strength demands

defining the level of exertion, and

– meet the education criteria, and

– meet the age criteria, and

– meet the work experience criteria.

z If a rule is met, it directs the finding of disabled or not disabled

and must be cited in the determination or decision.

z If the rule directs a finding of disabled, no occupations are

cited – the rule provides administrative notice of the existence of

sufficient numbers of occupations.



Using Rules as a Framework

z Where any one of the findings of fact does not

coincide with the corresponding criterion of a rule,

the rule is not met and does not direct the

determination or decision.

z The rule must be used as a framework to guide the

determination or decision.

z If the claim is denied, then three occupations

available in the national economy (DOT) that are

Representa



What is Remaining Occupational

Base?

"Remaining occupational base” is the range

of work to which an individual can adjust,

given his or her RFC (including all

exertional and nonexertional limitations and

restrictions), age, education, and work

experience.



Narrowing the Occupational Base

z Nonexertional limitations/restrictions on the

RFC can reduce the occupational base. E.g.:

– Restrictions in handling, fingering, stooping and

crouching can reduce a medium occupational base

to light or sedentary; or

– A MRFC that permits only unskilled work will

preclude transferring any skills from PRW to other

work.



Expanding the Occupational Base

z To start, an occupational base is made up of

all unskilled occupations within an

individual's exertional RFC.

z The occupational base increases if an

individual has gained skills from work

experience that can be transferred to other

work, or has gained skills from recent

education or training that allows for direct

entry into skilled or semi-skilled work.



Transferability of Skills

z Transferable skills can only be derived from

past relevant work.

z The past relevant work must be semi-skilled

or skilled – SVP 3 and above.

z Skills are never transferable to unskilled work

– SVP 1 or 2.

z A transferability of skills analysis (TSA) is

only done when it makes a difference in the

determination or decision.



Transferring Skills

z An individual has transferable skills when the skilled or

semi-skilled job functions performed in past work can be

used to meet the requirements of other work within an

individual's RFC.

z Transferable skills should be a vocational advantage that

outweighs RFC, age and education when competing in

the labor market.

z As age increases, the likelihood of successfully adjusting

to other work decreases.



Steps in TSA

z Identify an individual's PRW (or work similar to

the PRW) in the DOT to provide guidance on skill

and exertional levels.

z Use the claimant's own description of PRW to

identify work tasks, processes, judgment, tools,

materials used, work setting, industry.

z Search for other occupations in the DOT at or

below the SVP of PRW and within the claimant's

RFC according to: similar occupational group,

similar GOE code, etc.

Steps in TSA (cont.)

z With the list of possible occupations, compare the DOT

description of the job tasks, tools, materials, skills, with

the claimant's description of PRW.

– Are the tasks, tools, etc. and skill requirements

similar?

– Is the job within the claimant's RFC?

– Is the SVP the same or less than the claimant's PRW?

z Generally, we cite three occupations that are a match.

z If no, or too few, matches are found, an individual is

determined to have no transferable skills.



Transferable Skills Always Trump

Age and Education

No matter how old or poorly educated an

individual is, he or she will always be found not

disabled at Step 5 if skills are retained that are

transferable to other work.



Summary of Allowance and Denial

z At step 1, a claim can be denied but not

allowed.

z At step 2, a claim can be denied but not

allowed.

z At step 3, a claim can be allowed but not

denied.

z At step 4, a claim can be denied but not

allowed.

z At step 5, a claim can be allowed or

denied.

09/08/2023 23 ORDER denying Plaintiff's 17 Motion for Summary Judgment and granting the Commissioner's 20 Motion for Summary Judgment. The Commissioner's Decision is AFFIRMED and Plaintiff's 1 Complaint is DISMISSED WITH PREJUDICE.



LET JUDGMENT BE ENTERED ACCORDINGLY.



(Written Opinion) Signed by Magistrate Judge Dulce J. Foster on 9/8/2023. (JC) (Entered: 09/08/2023)