Monday, November 18, 2013

The Transferability of Skills Issue at Step 5 (SSR 82-41)

When a claimant is unable to do the work that he or she has performed in the past 15 years, Social Security must then determine whether the claimant will be able to transfer his or her skills to another occupation.  Social Security must review the issue of transferability of skills in light of a claimant's vocational abilities as well as age and education.  In order to provide a more uniform and fair adjudication of the question of transferability of skills, Social Security issued SSR 82-41.  This ruling sets forth some very detailed guidelines that must be used in order to determine whether a claimant, who can no longer perform past relevant work, can perform other jobs in the national economy. 
In this blog, I will to summarize some of the most important aspects of SSR 82-41.  In addition, I would like to point out some of the most important concepts that Social Security Disability Lawyers and their clients must keep in mind whenever the issue of transferability of skills comes up in a case.   
1.  Clearly explain the nature and the skills of all the jobs performed by the claimant in the past 15 years.  Go in depth and explain what the claimant was doing in each job and state what skills were used in the performance of this work.  Note that SSR 82-41 states: "job titles, in themselves, are not determinative of skill level."  Therefore, don't allow the vocational expert to make assumptions on skill level based on broad or imprecise job descriptions.
2. Skills can only be transferred to other jobs at the same skill level or a lesser skill level.  When a vocational expert testifies at the hearing, it is important to take down the DOT code numbers of any jobs identified as possible jobs that the claimant can perform.  Watch out, in some instances, the jobs identified by the VE are at a higher level of skill that the ones previously performed by the claimant.
3.  Skills can only be transferred to other occupations that use "similar tools and machines".  Therefore, it is a good idea to spend sometime asking the claimant about the type of equipment used at his former workplace.  Some very creative arguments can probably come out of such a line of questioning.
4.  Skills are generally transferable to jobs using "the same or similar raw materials, products, processes or services are involved."  However, SSR 82-41 states that an exact similarity of all these factors is not required. 
5.  Don't forget the medical factors. If factors such as cognitive problems and visual disturbances affect a persons ability to transfer to something new, make sure to point it out.  SSR 82-41 specifically states that these factors must be considered in making a determination of transferability.
6.  Age matters greatly.   For example, a 60 year old machinist (medium strength work) who no longer can perform his occupation will likely be found disabled even if he can still perform light strength work.  "For a finding of transferability of skills to light work for persons of advanced age who are closely approaching retirement age (age 60 or older), there must be very little, if any, vocational adjustment required in terms of tools, work processes, work settings, or the industry."  SSR 82-41