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

Do I Automatically Get Medicare with SSDI?

...this is definitely one of the questions most often asked by my clients...  Clients also ask me a lot about whether they will get Medicaid.  I will address these questions separately below:

MEDICARE:

You will receive Medicare after you receive Social Security Disability Benefits for 24 months. When you become eligible for disability benefits, the Social Security Administration will automatically enroll you in Medicare. 

It is important to note that Social Security starts counting the 24 months from the month you were entitled to receive disability, not the month when you received your first check.  This two year period starts five months after your disability began.  (This is due to the fact that there is a five month waiting period to receive SSDI.)

However, special rules apply to:

End-stage renal disease (permanent kidney failure). People with permanent kidney failure get Medicare beginning:

• The third month after the month a regular course of renal dialysis begins; or
• The month of kidney transplantation.

Lou Gehrig's Disease (amyotrophic lateral sclerosis). People with amyotrophic lateral sclerosis get Medicare beginning with the month they become entitled to disability benefits.
Medicare has four parts:

• Hospital insurance (Part A) helps pay hospital bills and some follow-up care. The taxes you paid while you were working financed this coverage, so it's premium free.
• Medical insurance (Part B) helps pay doctors' bills and other services. There is a monthly premium you must pay for Medicare Part B and you have the option to refuse this coverage.
• Medicare Advantage (Part C) plans generally cover many of the same benefits a Medigap policy would cover, such as extra days in the hospital after you have used the number of days Medicare covers. People with Medicare Parts A and B can choose to receive all of their health care services through one of these provider organization under Part C. There might be additional premiums required for some plans; and
• Prescription drug coverage (Part D) helps pay for medications doctors prescribe for treatment. Anyone who has Medicare hospital insurance (Part A), medical insurance (Part B) or a Medicare Advantage plan (Part C) is eligible for prescription drug coverage (Part D). Joining a Medicare prescription drug plan is voluntary and you pay an additional monthly premium for the coverage.

MEDICAID:

In Connecticut and Massachusetts, if you are an SSI beneficiary, you may be automatically eligible for Medicaid; an SSI application is also an application for Medicaid.  Typically, SSDI recipients get Medicare and SSI recipients get Medicaid.  SSI recepients do not have to wait a 24 month period to receive Medicaid benefits.

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.