Vocational Evidence at Step Five of the Sequential Evaluation Process

• Author: David Traver
• Pages: 73-127

17-1

Chapter Seventeen

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

Social Security Disability Advocate’s Handbook 17-74

§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

17-75 Introduction §1701

§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 sequen-

tial evaluation process.

Fortunately, step five offers the greatest oppor-

tunity 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 con-

junction 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 ex-

perience, 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 de-

fined in the following general terms:

(d) Disability defined.

(1) The term “disability” means —

(A) inability to engage in any substan-

tial gainful activity by reason of any

medically determinable physical or

mental impairment which can be

expected 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 “blindness”

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 requir-

ing skills or abilities comparable

to those of any gainful activity 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 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, en-

gage 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.

42 U.S.C. §§ 423 (d)(2)(A); 1382c (a)(3)(B) (2012)

(emphases added).

Note that if alcoholism or drug addiction are ma-

terial to the finding 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 result-

ing 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.