Transferability of Skills Analysis

• Author: Thomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken
• Pages: 566-584

18-566

Chapter 18

Transferability of Skills Analysis

§1800 Introduction

§1801 Transferability: Historical Origins and Reliability

§1801.1 Practice Tip: Transferability — Statutory and Regulatory Origins

§1802 Transferability — Statutory and Regulatory Origins

§1803 Step-Four Issues

§1804 Classifying a Claimant’s Previous Work Experience as Past Relevant Work (PRW)

§1805 Assigning SVP Levels to Past Relevant Work

§1805.1 Sources of Specific Vocational Preparation

§1805.1.1 Practice Tip: Blurred SVP Levels and Unsupported Findings of Skill Levels

§1805.2 Assigning SVP Levels to PRW “As Performed” and “As Usually Performed”

§1805.3 Example: Assigning SVP Levels to PRW “As Performed” and “As Usually Performed”

§1805.4 Classifying PRW as Unskilled, Semi-Skilled, and Skilled

§1805.5 Transferable Skills Versus Skills Acquired in Recent Education

§1806 The Role of Non-Severe and Severe Mental Impairments in the Transferable Skills Analysis

§1807 Strategies to Avoid Adjudication of Past-Work Skill Levels — Non-Severe Impairments

§1808 SVP, MTEWA, and MPSMS as Tools to Defeat a Finding of Transferability

§1809 Example, Using SVP, MTEWA, and MPSMS to Defeat a Finding of Transferability

§1809.1 Machines, Tools, Processes, Raw Materials, Products, Subject Matter or Services

§1810 Using “Advanced Age” and a Sedentary RFC to Defeat a Finding of Transferability

§1811 Using “Approaching Retirement Age” and a Sedentary or Light RFC to Defeat a Finding of Transferability

§1812 Using “Approaching Retirement Age” Rules and a Medium RFC to Defeat Transferability in SSI Claims of

Individuals Aged 65 and Older

§1813 Transferability Terms of Art

§1813.1 Definitions and Technical Concepts: What Is a “Skill”?

§1813.2 Worker Traits (Aptitudes or Abilities) Distinguished From Acquired Work Skills

§1813.3 Classifying Jobs as Unskilled

§1813.4 Classifying Jobs as Semi-Skilled

§1813.5 Documentation of Skills and Skill Levels

§1813.6 What Is “Transferability”?

§1813.7 When Transferability of Work Skills Is at Issue

§1813.8 How Is “Transferability” Applied?

§1813.9 RFC and Transferability

§1813.10 Specialized Skills and Isolated Vocational Settings

§1813.11 Special Provisions for Transferability Based on Age and RFC

§1813.12 Special Transferability Provisions — Claimants Aged 55 Through 59 Limited to Sedentary Work

§1813.13 Special Transferability Provisions — Claimants Aged 60 Through 64 Limited to Light Work

§1813.14 Transferability Provisions — Title XVI Claimants Aged 65 or Older

§1813.15 Required Findings of Fact in Determinations or Decisions Involving Transferability of Skills

§1813.16 DOT/SCO as Primary Source of Vocational Information

§1813.17 Resolution of Conflicts Between VE Testimony and DOT/SCO

§1813.18 Reasonable Explanations for Conflicts (Or Apparent Conflicts) in Occupational Information

§1813.19 Skill Level

§1813.20 Skills Do Not Transfer to Unskilled Work

§1813.21 The Responsibility to Ask About Conflicts

§1814 Sample Cross-Examination of Vocational Expert (Transferability of Skills From Low-Level, Semi-Skilled Jobs Based

on SSR 82-41 Criteria)

§1815 General Principles of Transferability

567 TRANSFERABILITY OF SKILLS ANALYSIS §1802

§1800 Introduction

Under the existing regulations, the methodology for identifying

skills and addressing their transferability has remained a relatively

obscure subject, overshadowed by a history of misinformation on

one hand and the absence of information on the other. This has been

due in large part to SSA’s own failure to identify the resources and

clearly explain the methodology used by the Department of Labor

itself to identify skills and address their transferability.

Moreover, the Social Security Administration has never identified

a scientific vocational theory in a Regulation or Ruling which would

support a belief that its transferability techniques, as codified in its Reg-

ulations and Rulings, has a scientific basis in fact, or that it is reliable.

In recognition of the challenges presented by the foregoing, this

chapter’s objective is threefold:

1. To identify vocational resources claimants’ representatives

may use to identify a claimant’s acquired work skills;

2. To explain and illustrate specific techniques for addressing the

transferability of work skills based on SSA’s regulatory criteria; and

3. To suggest strategies by which claimants’ representatives

may either:

a. Avoid the issue of transferability of skills altogether, or

b. Defeat a finding of transferability of skills once poten-

tial occupations to which a claimant’s skills may be

transferred have been identified.

§1801 Transferability: Historical

Origins and Reliability

A 1980 study of the Social Security Administration’s use of the

Dictionary of Occupational Titles by the National Academy of Sci-

ences reveals this about the theoretical foundations of transferability

analysis at SSA:

The underlying principle employed in the evaluation

process is that if the disability is not incapacitating — be-

cause the physical, mental, and skill levels of the disabled

individual are sufficient to meet the physical, mental, and

skill demands of his or her previous employment — dis-

ability benefits are not allowed. If the individual cannot

perform his or her past occupation, a determination is

made as to whether there exist other jobs in the nation-

al economy that the disabled person could perform (i.e.,

work similar to previous employment but perhaps re-

quiring a lesser amount of exertion). This determination

of the transferability of skills between past and poten-

tial employment is made by referring to the information

on worker trait groups, industry designation, physical

demands, working conditions, and the GED and SVP

training time specifications, all of which are employed to

develop a vocational profile of the claimant. The worker

function (DATA, PEOPLE, and THINGS) scales as well

as the GED and SVP codes are used as rough measures of

the skill level of an occupation. According to BDI [Bureau

of Disability Insurance] practice, in order for an occupa-

tion to be recommended as alternative employment to a

disabled client, it must not have a skill level higher than

the client’s previous occupation. A second set of charac-

teristics taken into account in recommending alternative

employment includes the physical demands and working

conditions of the job. These characteristics of recommend-

ed jobs can be compared with the job profiles developed

for the claimant’s previous occupation in order to find

matches at lower levels of exertion that the individual

might be able to perform given his or her disabilities.

Critical Review, at 69. See Chapter 14 for a discussion of the

Critical Review.

Insider complaints at the Social Security Administration included

concerns that some job definitions in the 3rd Edition of the DOT

(SSA had not started to use the 4th Edition because its Selected

Characteristics were not available) had understated physical exer-

tion requirements. Two examples were Nurses Aide, which was a

light job, and Motorman in a mine, which was “light” and suspected

to really be “medium.” Critical Review, at 257.

The dubious reliability of the occupational definitions and select-

ed characteristics of the Dictionary of Occupational Titles research

and publications are discussed in detail in Chapter 14. Obviously,

if the DOT is not reliable or valid, any transferability analysis based

upon the DOT is also not reliable or valid.

As a side note, the Critical Review notes the BDI [now SSA]

staff were worried in the late 1970s and early 1980s that if the DOT

were discontinued “their judgments regarding the determination

of disability would be more speculative and unrealistic: adjudica-

tors would have to make decisions solely on the basis of medical

evidence without giving appropriate weight to the vocational back-

ground of the claimant.” Critical Review, at 257. Now that the DOT

is more than a decade out of date, those worries have come to pass,

yet the SSA clings to the old, bad data, because that is all they have.

See Chapter 14.

§1801.1 Practice Tip:

Transferability — Statutory and Regulatory Origins

Chapter 14 discusses the history of the DOT, and the

underlying data limitations (which are numerous). If the vo-

cational expert in your case is using DOT-related data for

transferability skills analysis, you should challenge the VE’s

knowledge of the DOT, its history, and its data limitations.

Review Chapter 14, purchase your own copy of the Critical

Review, from the national Academies Press at www.nap.edu/

catalog/92.html and be prepared to discuss the DOT’s limita-

tions with the decision maker in the case at hand.

§1802 Transferability — Statutory and

Regulatory Origins

The Social Security Act provides that to be found disabled, “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, consid-

ering his age, education, and work experience, engage in any other

kind of substantial gainful work which exists in the national econo-

my, 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 signif-

icant numbers either in the region where such individual lives or in

several regions of the country.” (42 U.S.C. § 423 (d)(2)(A) (2013).)

Although not explicit in the statutory definition of disability, skills

and their transferability are issues only at step five of the sequential

evaluation. In this context, and in terms of the statutory definition of

“disability,” an individual’s skills and their transferability relate both

to “work experience” and to an individual’s ability to “engage in any

other kind of substantial gainful work,” i.e., to perform occupations

different from those the individual performed in the past.

In spite of the complexity of adjudicating step-five medical-vo-

cational issues, from 1954, when Congress amended the Social

Security Act to provide for disability benefits, through 1977, the

agency failed to promulgate regulations specifying the weight to be

given to the vocational factors in the statutory definition of disability

(age, education, and work experience).

In the face of such agency inaction, Congress “repeatedly…

suggested that the Secretary promulgate regulations defining the

criteria for evaluating disability.” Heckler v. Campbell, 103 S.Ct.

1952, 1957 n.10 (1983). Finally heeding the Congressional pleas, in