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Duration as an Element of Past-Relevant Work

Social Security Ruling 82-62 notes two circumstances under which duration of work activity will exclude it from being past relevant work. The first circumstance is where the length of time during which the claimant gained job experience was not “sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation.”

It is common for vocational experts to treat past work activity as relevant or not depending upon whether the claimant performed the job for the length of time represented by that occupation’s specific vocational preparation (SVP) level as classified by the DOT.

For example, assume the record shows that the claimant worked as a DOT # 379.362-014 PROTECTIVE-SIGNAL OPERATOR for 2 months. The vocational expert may testify that the claimant did not work long enough at this occupation to acquire the skills necessary to perform the job duties. This is so because the occupation is classified under the DOT as having an SVP of 5, i.e., it requires “over 6 months up to and including 1 year,” for a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in this job, and the claimant did the job for only 2 months.

While the foregoing may be an expeditious means of addressing a claimant’s past work activity, technically it is not correct. Under SSR 82-62, “duration” refers to the length of time during which the worker gained job experience.

It should have been sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work.

SSR 82-62 www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.

In contrast to the above definition, SVP is defined as the “amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.”

In SSR 82-62, the concept of “duration” as an element of past-relevant work is addressed, not in terms of what “a typical worker” does, but in terms of what the actual worker did. Accordingly, if the claimant did not learn the techniques, acquire information, and develop the facility needed for average performance in the job situation, then the worker did not satisfy the “duration” test of past relevant work, and the work activity is not past relevant work. The following account will illustrate the point.

Example — Duration

A few years ago, a very knowledgeable non-attorney representative referred an ALJ’s decision to attorney Wilborn to appeal to federal court. In the decision, the ALJ had found the claimant able to return to his past relevant work as DOT # 922.687-070 LUMBER STACKER. This is a heavy, unskilled job with an SVP of 2, requiring “anything beyond short demonstration up to and including 1 month.” The claimant’s representative had included in the record a report of contact with the claimant’s former employer which documented the following:

  • The claimant needed repeated instructions as to which stack to put the lumber on; not only when he started working there, but on an ongoing basis.
  • He never achieved mastery of the job in the year and a half he worked there.

Although the claimant performed the unskilled job of Lumber Stacker for 1½ years, that length of time was not “sufficient for the worker to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation.” Accordingly, pursuant to SSR 82-62, the ALJ incorrectly classified this occupation as past relevant work, and he committed reversible legal error in finding the claimant retained the residual functional capacity to perform this job.

Sporadic, “Off-and-On,” and Brief Work Attempts

The second circumstance under which SSR 82-62 permits the duration of work activity to exclude it from being past relevant work is where the individual has worked only sporadically or for brief periods of time during the relevant 15-year period. Such an individual may be considered to have no relevant work experience. SSR 82-62. This is consistent with 20 C.F.R. §§404.1565(a) and 416.965(a) which provide as follows:

If you have no work experience or worked only “off-and-on” or for brief periods of time during the 15-year period, we generally consider that these do not apply.

20 C.F.R. §§404.1565(a) and 416.965(a) (2009).

In the above context, neither the regulations nor SSR 82-62 define “brief periods of time.” Accordingly, a determination based on this concept is within the adjudicator’s discretion. Nevertheless, claimants’ representatives may successfully argue that “brief periods of time” should include periods of work activity lasting up to six months. Authority for this argument is derived from SSR 84-25, which disregards (as SGA) two classes of unsuccessful work attempts:

  • Those lasting 3 months or less, and
  • Those lasting between 3 and 6 months.

As noted above, the term “brief periods of time” mentioned in SSR 82-62 is derived from 20 C.F.R. §§404.1565(a) and 416.965(a). On the other hand, unsuccessful work attempts governed by SSR 84-25 are derived from 20 C.F.R. §§404.1574(c)(1)–(5) and 416.974(c)(1)–(5) for employees, and from 20 C.F.R. §§404.1575(d)(1)–(5) and 416.975(d)(1)–(5) for the self-employed.

There is no requirement in SSR 82-62 or 20 C.F.R. §§404.1565(a) and 416.965(a) that the work activity lasting only “brief periods of time” have ended due to the claimant’s impairment. In contrast, for unsuccessful work attempts, SSR 84-25 and 20 C.F.R. §§404.1574(c)(2)–(4) and 416.974(c)(2)–(4), and 20 C.F.R. §§404.1575(d)(2)–(4) and 416.975(d)(2)–(4) do impose such a nexus.

Unsuccessful Work Attempts

As explained in SSR 84-25, the unsuccessful work attempt (UWA) concept was designed as an equitable means of disregarding relatively brief work attempts that do not demonstrate sustained SGA. The Ruling notes that the UWA concept is embodied in the disability regulations:

Concerning employees, sections 404.1574(a)(1) and 416.974(a)(1) of the regulations state: “We will generally consider work that you are forced to stop after a short time because of your impairment as an unsuccessful work attempt and your earnings from that work will not show that you are able to do substantial gainful activity.” With respect to the self-employed, sections 404.1575(a) and 416.975(a) state: “We will generally consider work that you are forced to stop after a short time because of your impairment as an unsuccessful work attempt and your income from that work will not show that you are able to do substantial gainful activity.”

SSR 84-25 www.ssa.gov/OP_Home/rulings/di/03/SSR84-25-di-03.html.

Pursuant to SSR 84-25, for “SGA determination purposes, substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of the person’s impairment or the removal of special conditions related to the impairment that are essential to the further performance of work.” The UWA criteria are described in detail in SSR 84-25 and 20 C.F.R. §§404.1574(c)(1)–(5) and 416.974(c)(1)–(5) for employees, and 20 C.F.R. §§404.1575(d)(1)–(5) and 416.975(d)(1)–(5) for the self-employed. Accordingly, for current purposes, I will note only that the UWA criteria differ depending on whether the work effort was for “3 months or less” or for “between 3 and 6 months.” If a work attempt was “unsuccessful” pursuant to the criteria of SSR 84-25, it does not constitute SGA, and it does not constitute past relevant work.

The WWA concept is explored and explained in greater detail in SSR 05-02 www.ssa.gov/OP_Home/rulings/di/03/SSR2005-02-di-03.html.

Trial Work Periods

A trial work period is a period during which a disabled beneficiary may test his or her ability to work and still be considered disabled. During this period, the claimant may perform services in as many as 9 months (these months do not have to be consecutive) and SSA will not consider those services as showing that the claimant’s disability has ended until the claimant has performed services in at least 9 months.

After the trial work period has ended, however, the agency will consider the work the claimant did during the trial work period in determining whether the claimant’s disability ended at any time after the trial work period.

Furthermore, pursuant to 20 C.F.R. §404.1592(e)(3) (2009), SSA may find that a claimant’s disability has ended at any time during the trial work period if the medical or other evidence shows that the claimant is no longer disabled.

Trial work periods are problematic because only Title II claimants who “are disabled,” are entitled to them. Thus, an argument that work was not SGA for the purposes of denying a claim at step four would not be persuasive. See 20 C.F.R. §404.1592 (e) (“ . . .When the trial work period begins and ends. The trial work period begins with the month in which you become entitled to disability insurance benefits, to child’s benefits based on disability or to widow’s, widower’s, or surviving divorced spouse’s benefits based on disability. . .”) and Barnhart v. Walton, 535 U.S. 212, 224 (2002).