Will I qualify for Social Security disability benefits if I cannot perform my prior job?

Under Step 4 of the sequential evaluation process, a Social Security disability claimant in Montana and elsewhere must show that he or she is unable to perform any “past relevant work” to qualify for benefits.  Proving inability to perform past relevant work is a difficult challenge, and can be one of the tougher hurdles for a claimant and his Social Security attorney to overcome.

What is past relevant work?

“Past relevant work” has a particular definition under the Social Security regulations and rulings. A job is past relevant work if:

  • you performed the job within the past 15 years (or, if your Social Security disability insured status has lapsed, 15 years prior to the date you were last insured);
  • the job qualified as substantial gainful activity; and
  • the job lasted long enough for you to develop the facility needed for average performance.

A part-time job can be past relevant work, as long as the job was substantial gainful activity.

If we serve as your Montana Social Security attorney, we will need to identify your easiest full-time or part-time past relevant job, and then will try to figure out why you cannot still do that job. If during the past 15 years you had an easy job that you can still perform today, then you will probably be found not disabled under Step 4 of the sequential evaluation process. Therefore, as your Montana Social Security lawyer, we will need to prove that you cannot do your easiest past relevant job, even if that job no longer exists in the economy.

Many of the rules regarding past relevant work operate so that a claimant will not qualify as disabled. If you can do a past relevant job as it is ordinarily done, you will be found not disabled even though your actual past job required greater exertion and you are unable to do that particular job. Similarly, if your own past work was easier than the way the job is ordinarily done, the Social Security Administration will examine the actual job tasks as you used to perform them (not as they are ordinarily done today) in determining whether you can perform past relevant work. Furthermore, your past job need not exist today. The Social Security Administration’s position is that if a claimant is capable of performing a particular past relevant job, the claimant is not disabled. The Social Security Administration will not look at the issue of whether that past job exists at all, let alone whether it exists in significant numbers.

We will need to understand all the jobs you did for the past 15 years. The dates are important for proof that the job was done more than 15 years ago, or that it was not done long enough to learn the job – both of which are reasons to exclude the job from consideration as past relevant work. The amount of earnings is important. If a job was not done at the substantial gainful activity level, it does not count as past relevant work. The exertional and skill levels of the jobs are important both for proof of inability to do the job now and for use of the Medical-Vocational Guidelines.

Anticipating the testimony of the government’s expert witness

Managing vocational issues in Social Security disability is one of the key ways in which a knowledgeable Montana Social Security attorney helps applicants get through the administrative process.  In a case in which past relevant work is an issue, it is likely that the government’s vocational expert will testify at the hearing before the administrative law judge.

The vocational expert’s testimony concerning your past relevant work can create two common problems. First, the vocational expert can say that, despite your limitations, you are capable of performing your past relevant work. Second, the vocational expert could say that the exertional level of your past occupation, as generally required by employers throughout the national economy, is less than the level at which you performed your past job.

One other past relevant work issue arises in a few cases. When this comes up, vocational expert testimony can help the administrative law judge conclude that past work is not “relevant.”

Making sure your prior job really was relevant work

If we serve as your Montana Social Security disability attorney, we will want to determine whether or not your past jobs actually qualify as “relevant” work, as defined above. There are numerous considerations in evaluating a case. For example, an unskilled job held by a worker for 30 days, ten years ago, would be such a brief work experience that the Social Security Administration will not consider it to be relevant. The regulations provide that a claimant who has “worked only ‘off-and-on’ or for brief periods of time during the 15-year period” may be considered to have no relevant work experience. The Social Security Administration has an informal rule of thumb that requires that unskilled work be done for three months or more to be considered relevant. Many administrative law judges use a three- to six-month standard.

Semi-skilled and skilled jobs must be done for a longer period to be vocationally relevant.

The regulations state that “Work experience means skills and abilities . . . acquired through work” which show the type of work a claimant may be expected to do. Under a ruling applicable to claimants age 55 and over, a claimant has no relevant work experience if “the work activity performed within this 15-year period does not (on the basis of job content, recency, or duration) enhance present work capability.” In many circumstances, a talented Social Security disability attorney will be able to apply these principles to cases involving claimants of any age.

Questioning the vocational expert at the Montana Social Security disability hearing

During the hearing before the administrative law judge, we may ask the government’s vocational expert the following questions:

  • On the basis of job content, recency and duration, how did that particular job enhance the claimant’s present work capability?
  • As a result of that particular job, does the claimant have any greater skills and abilities than a person with no work experience?
  • How does a brief job show the type of work an individual may be expected to do?

The vocational expert’s answers may lead to a brief sedentary or light job being found not relevant, even if that job was done for a longer time than the informal Social Security Administration rule of thumb usually allows.

The functional demands and job duties of the occupation as generally required by employers throughout the national economy

If your prior job qualifies as past relevant work, we will check the Dictionary of Occupational Titles to see how this job is classified. If the Dictionary of Occupational Titles exertional level is consistent with your description of your job, we should not have a problem with vocational expert testimony on the issue of past relevant work. Vocational expert testimony contrary to the Dictionary of Occupational Titles on the exertional level of a job is rare; and when it happens, it should not control the outcome of the case.

If a vocational expert testifies contrary to the Dictionary of Occupational Titles, we will submit pages from the Dictionary of Occupational Titles in rebuttal; or we may establish from the vocational expert’s testimony the exertional level of the job in the Dictionary of Occupational Titles. Once this is established, we may not need anything more. If we do need to proceed with cross-examination, we will focus on this issue: How does the vocational expert know the Dictionary of Occupational Titles is wrong about how this job is required by employers to be performed throughout the national economy?

Sometimes, the vocational expert is not testifying about the right job in the right industry. Also, some jobs are hybrid jobs. Your past job may look like a combination of two jobs which appear in the Dictionary of Occupational Titles, one classified as medium and the other classified as light. But you may have done neither of these jobs. You may have done a different job, one which includes elements of two jobs which appear in the Dictionary of Occupational Titles. Such a composite job may have different exertional requirements.

When a vocational expert testifies that you can do your former job as you performed it

There are four possibilities when a vocational expert testifies, in response to an administrative law judge’s hypothetical question, that a claimant can do his or her past relevant work: (1) the claimant really can do this job; (2) the judge’s hypothetical question does not include all of the claimant’s limitations; (3) the vocational expert does not understand the limitations stated in the hypothetical question; or (4) the vocational expert is a hostile vocational expert. (A hostile vocational expert is one who has made up his or her mind that the claimant can work, so that no matter what elements are included in a hypothetical question, the vocational expert will answer that the claimant can do a past job or can do a lot of other jobs.)

If the first possibility applies, the claimant loses the case. If the second possibility explains the vocational expert’s answer, the solution is simple: we propose a hypothetical question to the vocational expert including all of the claimant’s limitations. If neither of the first two possibilities appear to apply, we determine whether the vocational expert simply doesn’t understand the limitations stated by the administrative law judge or if the vocational expert is refusing to apply them—the hostile vocational expert. We would ask:

  • Are there some abilities that are so essential to competitive employment that without them the claimant would be unable to work?

Then, we take what the vocational expert says (e.g., reliability, regular attendance, the ability to deal with routine work stress, etc.), to fashion a line of questioning coupled with the elements of the administrative law judge’s hypothetical question. Also, we might ask:

  • Assuming that everything that you heard the claimant testify to today is true, do you think the claimant is capable of performing past work?

Furthermore, we can compare specific parts of the judge’s hypothetical question to the claimant’s former job duties. For example, we might ask the vocational expert:

  • Didn’t the claimant’s former job involve occasionally lifting up to 30 lbs.?
  • Didn’t the administrative law judge ask you to assume that this hypothetical individual was incapable of lifting over 20 lbs.?

Expert help available from Montana Social Security disability attorneys

Proving that a person cannot perform past relevant work is one of the most important ways in which an experienced Montana Social Security attorney can help you obtain disability benefits. If you cannot perform your past work, you are not already represented by a Montana Social Security attorney, and you would like an expert evaluation, complete the Claim Evaluation Form to your right or contact us at:

Bulman Law Associates
Montana Social Security disability attorneys

E-mail us
Phone: 406-721-7744
Toll-free: 800-272-7744
Fax: 406-728-9362

416 East Pine Street
Missoula, Montana 59802