Vocational Evidence at Step Five of the Sequential Evaluation Process

AuthorThomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken
Chapter 17
Vocational Evidence at Step Five of
the Sequential Evaluation Process
§1700 Introduction
§1701 The Statutory Definition of “Disability”
§1702 The ALJ Cannot Use a VE to Beat the Medical-Vocational Guidelines
§1703 Inconsistency and the Medical-Vocational Guidelines
§1704 Key Concept: Nonexertional Impairments
§1705 The “Significant Numbers” Problem and the Medical-Vocational Guidelines
§1705.1 Structure of the Medical-Vocational Guidelines
§1706 Exertion and Full-Ranges of Work
§1707 Work Which Exists in Significant Numbers
§1708 Is a “Significant Number” of Jobs a Conceptual Definition?
§1708.1 “Significant Number” of Jobs as a Fact
§1708.2 “Significant Number” of Jobs and Age
§1709 The “Occupational Bases” Underlying the Medical-Vocational Rules
§1710 The Issue of Work Adjustment
§1711 “Work Which Exists in Significant Numbers” — The Two-Step Process Built Into the Medical-Vocational Guidelines
§1711.1 “Work Which Exists in Significant Numbers” Example
§1711.2 “Work Which Exists in Significant Numbers” — Claimants With Transferable Skills
§1712 What Is This “Vocational Advantage” Bestowed by Transferable Skills?
§1713 Determining the Remaining Occupational Base — Five Rulings and a Regulation
§1713.1 The Regulation
§1713.2 Five Rulings
§1713.2.1 Case on Point: “Significant Number of Jobs” and the Grids
§1713.3 Fast and the Seventh Circuit’s Rejection of the Grids as a Framework for Solely Nonexertional Limitations
§1714 Mastering the Technical Language of the Medical-Vocational Guidelines
§1714.1 Borderline-Age Situations and the Medical-Vocational Guidelines
§1714.2 Residual Functional Capacity (RFC)
§1714.3 Sedentary Work
§1714.4 Light Work
§1714.5 Medium Work
§1714.6 Heavy Work
§1714.7 Very Heavy Work
§1714.8 Age
§1714.8.1 An Important Proposed Regulation Regarding Age Categories Has Been Abandoned
by the Commissioner
§1714.9 Education
§1714.9.1 Inability to Communicate in English
§1714.9.2 Illiteracy
§1714.9.3 Marginal Education
§1714.9.4 Limited Education
§1714.10 High School Graduate or More — Does Not Provide for Direct Entry Into Skilled Work
§1714.11 High School Graduate or More — Provides for Direct Entry Into Skilled Work
§1714.12 Previous Work Experience
§1715 Using the Grid Rules to Direct a Finding of “Disabled” or “Not Disabled”
§1715.1 Social Security Ruling 83-11
§1715.2 Using the Grid Rules as a Framework for Evaluating Exertional Limitations Within a Range of Work
or Between Ranges of Work
§1716 Social Security Ruling 83-12
§1716.1 Applying the Medical-Vocational Rules as a Framework: SSR 83-12 Example
§1716.2 Social Security Ruling 83-12 — Summary
§1717 Social Security Ruling 83-14
§1717.1 Social Security Ruling 83-14 — Summary
§1718 Social Security Ruling 85-15
§1718.1 Social Security Ruling 85-15 — Summary
§1719 SSR 96-9p and the Occupational Base for Individuals Under Age 50
§1720 The Effect of Transferable Skills on the Occupational Bases
§1721 Transferable Skills for Individuals of Advanced Age — Equitable Considerations
§1722 Table of Occupational Base Sizes and its Relevance to “Advanced Age”
§1723 Taking This to the Hearing
§1724 The Framework of the Medical-Vocational Guidelines and Vocational Expert Cross-Examination: Claimants Aged 50
and Older
§1725 The Framework of the Medical-Vocational Guidelines and Vocational Expert Cross-Examination: Claimants Under
Age 50
§1700 Introduction
The end-point of most disability claims that are adjudicated at
the Social Security Administration are resolved for better or worse
at step five of the sequential evaluation process.
Fortunately, step five offers the greatest opportunity to convince
the Social Security Administration that the claimant cannot work,
and the claim should be paid.
NOTE: This chapter is intended to be used in conjunction with
Chapter 18 — Transferability of Skills Analysis.
§1701 The Statutory Definition of “Disability”
The starting point for any discussion of step five is the regulatory
framework because step five requires an amalgam of age, education,
work experience, and residual functional capacity, which all flow
from the definition of disability. This amalgam is presented in step-
five adjudication in a variety of complex ways.
The Social Security Act provides that certain individuals who are
“under a disability” shall receive disability benefits. 42 U.S.C. § 423
(a)(1)(E) (2012). Under the Act, “disability” is defined in terms of both
a medical element and a two-part vocational element. Pursuant to the
medical element, “disability” is defined in the following general terms:
(d) Disability defined.
(1) The term “disability” means —
(A) inability to engage in any substantial gainful ac-
tivity by reason of any medically determinable
physical or mental impairment which can be ex-
pected to result in death or which has lasted or can
be expected to last for a continuous period of not
less than 12 months; or
(B) in the case of an individual who has attained the age
of 55 and is blind (within the meaning of “blind-
ness” as defined in section 216 (i)(1) [42 U.S.C. §
416 (i)(1)]), inability by reason of such blindness to
engage in substantial gainful activity requiring skills
or abilities comparable to those of any gainful activ-
ity in which he has previously engaged with some
regularity and over a substantial period of time.
42 U.S.C. § 423 (d)(1)(A)-(B) (2012) Compare with § 1382c (a)(3)
(A) (2011) (For SSI claims, note the differences in the requirements
regarding blindness and age).
The Act elaborates upon the foregoing general definition of
“disability” by juxtaposing the medical element upon the two-part
vocational element, as follows:
An individual shall be determined to be under a
disability only if his physical or mental impairment or im-
pairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, ed-
ucation, 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 signifi-
cant numbers either in the region where such individual
lives or in several regions of the country.
42 U.S.C. §§ 423 (d)(2)(A); 1382c (a)(3)(B) (2012) (emphases added).
Note that if alcoholism or drug addiction are material to the find-
ing of disability, the claimant is not disabled. 20 C.F.R. § 404.321
(d)(2) (2012) and 20 C.F.R. § 404.1535 (2012). This is a but-for
standard. For example, it is difficult to imagine that alcoholism
would be material to a finding of disability in a case in which the
disabling impairments claimed flowed from an industrial crushing
injury of both legs resulting in amputation. It is therefore careful to
consider the context of the alcoholism or drug addiction within the
context of the case as a whole.
Since 1978, SSA has implemented the foregoing definition of
“disability” by conducting a five-step sequential inquiry into wheth-
er an applicant for benefits should be considered “disabled” and thus
eligible for benefits. See 20 C.F.R. §§ 404.1520 and 416.920 (2012).
Known as “sequential evaluation,” through a five-step process, this
inquiry addresses both the medical and vocational elements of the
foregoing definition of “disability.” Five questions are posed se-
quentially until a question is answered affirmatively or negatively
in such a way that a decision can be made that a claimant either is
“disabled” or is “not disabled.” The claimant bears the burden of
proof at steps one through four. At step five, the burden shifts to the
agency to come forward with evidence that jobs exist in significant
numbers in the national economy which the claimant can perform,
when considering the claimant’s residual functional capacity (RFC),
age, education, and previous work experience. See §302.
The Social Security Administration determines, at step one,
whether the claimant is engaged in substantial gainful activity
(SGA); at step two, whether the claimant has a severe impairment(s);
at step three, whether the severe impairment(s) meets or equals a
listed impairment from 20 C.F.R. Part 404, Subpart P, Appendix 1;
at step four, whether the claimant can return to past relevant work;
and at step five, whether the claimant can perform other work which
exists in significant numbers in the national economy, consider-
ing the claimant’s residual functional capacity, age, education, and
work experience. See §302.
In 2012, the Commissioner published new rules affecting the
evaluation of past work at steps four and five of the sequential
evaluation process, and adding an additional step to the evaluation
of disabilities for cessation cases. These changes are discussed in
§§1600.2 and 1303.1 of this Handbook.
Properly addressing the step-five disability issues requires a two-
part inquiry, as explained most explicitly in the following excerpt
from SSR 86-8:
Capacity to Do Other Work — If an individual
cannot perform any past relevant work because
of a severe impairment(s), but the remaining
physical and mental capacities are consistent
with meeting the physical and mental demands
of a significant number of jobs (in one or more
occupations) in the national economy, and the
individual has the vocational capabilities (consid-
ering age, education, and past work experience)
to make an adjustment to work different from
that performed in the past, it shall be determined
that the individual is not disabled. However, if
an individual’s physical and mental capacities in
conjunction with his or her vocational capabilities
(considering age, education and past work expe-
rience) do not permit the individual to adjust to
work different from that performed in the past, it
shall be determined that the individual is disabled.
SSR 86-8 www.ssa.gov/OP_Home/rulings/di/01/SSR86-08-di-01.
html (emphasis added).
§1702 The ALJ Cannot Use a VE to Beat the
Medical-Vocational Guidelines
Reflecting their column-and-row structure, the Medical-Vocation-
al Guidelines became known as “the grids.” The Medical-Vocational
Guidelines are comprised of one general rule and 82 separate rules

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