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

Hepatitis C and Social Security Disability

Applying for Social Security Disability Benefits due to the effects of Hepatitis C can be a frustrating process.  Hepatitis C is a viral infection affecting primarily the liver.  In many instances, the disease is asymtomatic.  However, when the condition becomes chronic, a person suffering from this disease can experience fatigue, anemia and nausea.  There is no cure for chronic hepatitis C and unfortunately, the treatment used to control it can be extremely debilitating.

 

The Social Security Administration Analyses applications for disability benefits from claimants suffering from Hepatitis C, under Section 5.05 of the Listing of Impairments.  Meeting the requirements for the listing can be very complicated.  Section 5.05 requires that a claimant prove the existence of one or more of the following conditions:

• excess fluid in the peritoneal cavity (called ascites) or the pleural cavity (called hydrothorax)
• spontaneous bacterial peritonitis
• esophageal or gastrointestinal hemorrhage
• hepatorenal syndrome
• hepatopulmonary syndrome, or
• hepatic encephalopathy.

If you have Hepatitis C and are thinking of applying for Social Security Disability Benefits, you should ask your doctor whether you meet any of the conditions listed in Section 5.00 of the Listing of Impairments.  You should also consider hiring a Social Security Disability Lawyer who can prepare a questionnaire for your doctor in order to fully ascertain whether you meet the listing requirements.

 

You might still be eligible for Social Security Disability Benefits, even if you do not meet the requirements in the listing.  Under those circumstances, you can argue that the condition imposes functional limitations that prevent you from working.  Proving these limitations is probably the hardest aspect of a Social Security Disability case dealing with Hepatitis C due to the fact that most of the symptoms of the disease are highly subjective. The best way to deal with this problem is by talking to your doctor and letting him or her know, as often as possible, of your symptoms.  Hopefully, you doctor will make notations on the medical record that you can use later on in the disability process.  You can also obtain statements from former co-workers and relatives attesting to your limitations.

 

Another important aspect to keep in mind is that Hepatitis C impacts your ability to perform physical work as well as your cognitive abilities.  Most claimants with Hepatitis C who are successful in obtaining disability benefits are able to show that the disease has adversely affected both of these areas of functioning.  However, if your past work experience involved mostly physical work and you are fifty or older, you might be able to win your disability case solely on your physical limitations, depending on your educational level. 

What is the Difference Between SSI and SSDI?

In reality, Social Security Disability Benefits are governed by two separate programs: SSI and SSDI.  What is the difference between the two?

• The Social Security Disability Insurance (SSDI) program pays benefits to you and certain family members, if you worked long enough and paid Social Security taxes.

·        Your adult child also may qualify for benefits on your earnings record if he or she has a disability that started before age 22.

·       The Supplemental Security Income (SSI) program pays benefits to disabled adults and children who have limited income and resources.

The definition of “disability” is the same under both programs and is determined by the same process.

          Who Qualifies for SSDI?

You must have worked long enough--and recently enough--under Social Security to qualify for SSDI.

Social Security work credits are based on your total yearly wages or self-employment income. You can earn up to four credits each year.

The amount needed for a credit changes from year to year.  In 2012, for example, you earn one credit for each $1,130 of wages or self-employment income.  When you've earned $4,520, you've earned your four credits for the year.

The number of work credits needed for disability benefits depends on your age when you become disabled.  Generally you need 40 credits, 20 of which were earned in the last 10 years ending with the year you become disabled.  However, younger workers may qualify with fewer credits.
The rules are as follows:

• Before age 24--You may qualify if you have 6 credits earned in the 3-year period ending when your disability starts.
• Age 24 to 31--You may qualify if you have credit for working half the time between age 21 and the time you become disabled.  For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27).
• Age 31 or older--In general, you need to have the number of work credits shown in the chart below.  Unless you are blind, you must have earned at least 20 of the credits in the 10 years immediately before you became disabled.

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Born after 1929, Became Disabled At Age:	Number of Credits You Need:
31 through 42	20
44	22
46	24
48	26
50	28
52	30
54	32
56	34
58	36
60	38
62 or older	40

          Who Qualifies for SSI?

Whether you can get SSI depends on your income and resources (the things you own).

Income Limits:

Income is money you receive such as wages, Social Security benefits and pensions.  Income also includes such things as food and shelter.  A person who is not blind and is just now applying for SSI disability benefits and earns more than $1,010 a month probably will not be able to get SSI benefits.

Social Security does not count all of your income when it decides whether you qualify for SSI. For example, the SSA does not count:

• The first $20 a month of most income you receive;
• The first $65 a month you earn from working and half the amount over $65;
• Supplemental Nutrition Assistance Program (SNAP) benefits, formerly known as food stamps;
• Shelter you get from private nonprofit organizations; and
• Most home energy assistance.

If you are married, the SSA also includes part of your spouse’s income and resources when deciding whether you qualify for SSI.  If you are younger than age 18, the SSA includes part of your parents’ income and resources.  And, if you are a sponsored noncitizen, the SSA may include your sponsor’s income and resources.

If you are a student, some of the wages or scholarships you receive may not count.

Limits on Resources:

Resources that the SSA counts in deciding whether you qualify for SSI include real estate, bank accounts, cash, stocks and bonds.

You may be able to get SSI if your resources are worth no more than $2,000.  A couple may be able to get SSI if they have resources worth no more than $3,000.  If you own property that you are trying to sell, you may be able to get SSI while trying to sell it.

Social Security does not count everything you own in deciding whether you have too many resources to qualify for SSI.  For example, the SSA does not count:

• The home you live in and the land it is on;
• Life insurance policies with a face value of $1,500 or less;
• Your car (only one car);
• Burial plots for you and members of your immediate family; and
• Up to $1,500 in burial funds for you and up to $1,500 in burial funds for your spouse.