Past Relevant Work “As Performed” and “As Generally Performed”
Social Security Ruling 82-61 sets out the agency’s policy for determining whether a claimant retains the residual functional capacity to perform the physical and mental demands of the claimant’s past relevant work. As noted above, however, the regulations at 20 C.F.R. §§404.1520(e)(2006) and 416.920(e)(2006) cast this step-four issue in terms not of whether the claimant can perform past relevant work as actually performed, but in terms of whether the claimant can perform “this kind of work.” Accordingly, pursuant to SSR 82-61, a claimant will be found to be “not disabled” when it is determined that he or she retains the RFC to perform:
- The actual functional demands and job duties of a particular past relevant job, or
- The functional demands and job duties of the occupation as generally required by employers throughout the national economy.
SSR 82-61 www.ssa.gov/OP_Home/rulings/di/02/SSR82-61-di-02.html.
As discussed in detail below, SSR 82-61 permits adjudicators and claimants to rely upon the Dictionary of Occupational Titles (DOT) — for jobs that are listed in the DOT — to define a job as it is usually or generally performed in the national economy. The following short introduction explains how to use the DOT to define a job as it is usually or generally performed in the national economy.
SSR 82-61 and Past-Relevant “Kind of Work”
Although the regulatory concept of past relevant “kind of work” appears quite broad, SSR 82-61 attempts to confine it within specific (albeit elastic) boundaries. Elasticity notwithstanding, however, the concept cannot be so broad as to be synonymous with “similar work” or there would be no practical difference between the step-four inquiry and the step-five inquiry. Accordingly, in applying SSR 82-61, the challenge claimants’ representatives face is in keeping the step-four inquiry sufficiently narrow so that it does not overlap the step-five inquiry. SSR 82-61 assists in this endeavor only minimally by rejecting the idea of classifying past relevant work on the basis of generic occupational classifications:
Finding that a claimant has the capacity to do past relevant work on the basis of a generic occupational classification of the work is likely to be fallacious and unsupportable.
While “delivery jobs,” or “packaging jobs,” etc., may have a common characteristic, they often involve quite different functional demands and duties requiring varying abilities and job knowledge.
SSR 82-61 www.ssa.gov/OP_Home/rulings/di/02/SSR82-61-di-02.html.
The foregoing evidences that even among “similar” occupations the agency distinguishes between past relevant “kind of work” and step-five “other work” where at least the following differences occur:
- The occupations involve quite different functional demands;
- The occupations involve quite different duties requiring varying abilities; and
- The occupations involve quite different duties requiring varying job knowledge.
The foregoing point is readily illustrated by referring to the discussion of the seven basic parts to a DOT occupational definition. See Chapter 14. Recall that the first three digits of the 9-digit occupational code number identify a particular occupational group. In our example of GUARD, SECURITY DOT # 372.667-034, the second digit (7) located the occupation of GUARD, SECURITY in the PROTECTIVE SERVICE OCCUPATIONS division. The third digit (2) located the occupation in the SECURITY GUARDS AND CORRECTION OFFICERS, EXCEPT CROSSING TENDERS group.
Finally, recall that the last three digits of the 9-digit occupational code number served to differentiate a particular occupation from all others. Although several occupations may have the same first six digits, no two can have the same nine digits. Where there is more than one occupation with the same first six digits, the final three digits are assigned in alphabetical order of titles in multiples of four (010, 014, 018, 022, etc.). In our example, GUARD, SECURITY was the seventh of eight occupations having the same first six digits, (372.667) and it was assigned a final three digit code of 034 so as to distinguish it from all other occupations.
In the context of SSR 82-61’s prohibition against generic classification of past relevant work, the eight occupations having the same first six digits would fall within the generic classification of security guards. An even broader generic classification would be designated by the third digit (2) of the 9-digit DOT occupational code number which would place the occupation in a generic Security Guard And Correction Officer classification. Finally, a still broader generic classification would be designated by the second digit (7) of the 9-digit DOT occupational code number which would place the occupation in a generic “Protective Service Occupation” classification.
All of the occupations within these generic classifications are distinctly separate occupations. They range from sedentary to medium level in terms of exertional demands, and they range from unskilled, SVP 2, occupations to skilled, SVP 7, occupations. As SSR 82-61 notes, they do “involve quite different functional demands and duties requiring varying abilities and job knowledge.” Accordingly, as SSR 82-62 cautions, in finding a claimant can return to past relevant work, it would be “fallacious and unsupportable” to find that a claimant could return to a generic “security guard/correction officer” job or a generic “protective service occupation.”
Exceptions to Using the DOT to Define Jobs “As Usually Performed”
Although SSR 82-61 permits using the DOT to define a job as it is usually performed in the national economy, there are at least two readily recognizable types of jobs which have no DOT counterpart:
- Composite jobs, and
- Certain jobs performed in a foreign country.
Composite Jobs
SSR 82-61 acknowledges that past relevant work of some claimants will have consisted of composite jobs. “[C]omposite jobs have significant elements of two or more occupations and, as such, have no counterpart in the DOT.” SSR 82-61.
Accordingly, where a claimant’s past relevant work has been in a composite job, the DOT will not control the determination of how the job is “generally performed.” Nor is it likely that other vocational publications will define such jobs.
Facts in individual cases may establish that a claimant’s “composite job” was unique and that there is no counterpart in the general economy. In such circumstances, the two concepts of the job “as performed” and “as generally performed” merge into a single standard. If available documentation and vocational resource material are not sufficient to determine how a particular job is usually performed, “it may be necessary to utilize the services of a vocational specialist or vocational expert.” SSR 82-61.
Past-Relevant Work Performed in a Foreign Country
Some occupations performed in a foreign country have no counterpart in the United States’ economy. Accordingly, when evaluating a claimant’s ability to perform past relevant occupations performed in a foreign country, it may not be possible to address the functional demands and job duties of such occupations “as generally performed.”
Using the DOT to Define Past-Relevant “Kind of Work”
As noted above, SSR 82-61 permits both agency adjudicators and claimants to rely upon the DOT “descriptions—for jobs that are listed in the DOT—to define the job as it is usually performed in the national economy.” SSR 82-61.
As above, here too, reference to the discussion of the seven basic parts of a DOT occupational definition will guide the application of this policy statement. See Chapter 14. In this context, however, it is not possible to define a job “as it is usually performed in the national economy” without first knowing what job is being defined. Accordingly, at this stage of the step-four inquiry, the past relevant job “as performed” first must be defined so it can be used as the touchstone, or reference point, for the DOT comparison. This requires gathering data about the “functional demands and job duties” peculiar to the individual job as the claimant actually performed them.
Sources of Information About Functional Demands and Job Duties “As Performed”
In the absence of an impairment which interferes with the claimant’s memory or ability to communicate, the claimant is the best source of job information about past-relevant work “as performed.” SSR 82-41 recognizes this fact and also identifies other sources of job information, as follows:
Sources of job information. A particular job may or may not be identifiable in authoritative reference materials. The claimant is in the best position to describe just what he or she did in [past-relevant work,] how it was done, what exertion was involved, what skilled or semiskilled work activities were involved, etc. Neither an occupational title by itself nor a skeleton description is sufficient. If the claimant is unable to describe [past-relevant work] adequately, the employer, a coworker or a member of the family may be able to do so.
SSR 82-41 www.ssa.gov/OP_Home/rulings/di/02/SSR82-41-di-02.html.
The claimant’s claim file may also contain information about the claimant’s past-relevant work. SSR 82-61 provides that a “properly completed SSA-3369-F6, Vocational Report, may be sufficient to furnish information about past work.” The Ruling also notes that apparent variations between a claimant’s description and the description shown in the DOT may result from an incomplete or inaccurate description of past work, and that it may be necessary to contact either the claimant or the employer to resolve such a conflict. SSR 82-61.
Properly completed or not, the various vocational reports used by Social Security frequently do not provide sufficient information to permit accurate identification of a claimant’s past relevant work. Often forms are completed by either the claimant or a family member who does not take the time to accurately complete it. In a given case, the information provided may be distorted by the claimant’s puffery, or it may be too skeletal because the claimant was either ill while completing it or failed to appreciate its importance and provided inaccurate or inadequate information. Apart from these considerations, the forms do not request information regarding the mental demands of past relevant work, and they do not request sufficiently detailed information to permit a thorough comparison with the DOT and SCO worker trait data. In other words, the information requested does not permit a function-by-function comparison of RFC with the corresponding functional demands of a given job.
Note: Because no vocational resources detail the mental demands of occupations, it is generally impossible to use such resources to define the mental demands of an occupation either “as performed” or “as generally performed.” Accordingly, where a mental impairment reduces a claimant’s RFC it may be necessary to obtain testimony from a vocational expert to assist in making the step-four determination.
