The Recency Element of Past Relevant Work

Social Security will deny a disability claim if they find the claimant can do “Past Relevant Work” (PRW), either as it was actually performed or as that type of work is generally performed based on the appropriate Dictionary of Occupational Titles code.[1] In order for a prior job to be PRW it must meet three elements: Substantial Gainful Activity (SGA), Duration and Recency.[2]

1. SGA

This element is satisfied if the work met the definition of SGA under 20 CFR Sections 404.1571-404.1575 and 416.971-416.975.

2. Duration

This element is satisfied if the job lasted long enough for the claimant to have learned the skills necessary to resume that type of work and achieve average performance without significant re-training.

3. Recency

This element is met if the job was performed within the 15 years prior to the date of adjudication or the Date Last Insured, whichever comes first. The scope of this period may be extended if there is a continuity of skills, knowledge and processes that can be established between such work and the claimant’s more recent work. However, the scope of this period may not be shortened.

In the interest of certainty, Social Security has formulated rules for decision-makers to follow. Some rules seem “black and white” and I often tell my clients “Social Security has to draw the line somewhere.” However, in certain cases, these rules would produce an unfair result when the exact language of the rule is not matched but the underlying rational behind the rule is present. For most of these rules Social Security has created exceptions that prevent unfair results. For example, there are several exceptions to the SGA guidelines, including the subsidized work environment[3] and the unsuccessful work attempt.[4] In the context of the Grid rules, Social Security acknowledges that in some cases it would be unfair for the rules to change overnight when the claimant reaches a certain age, so the borderline age situation was developed.[5] In the context of transferrable skills, Social Security recognizes that as a claimant gets older, obtaining employment would be increasingly more difficult unless only a minimal amount of adjustment is required, such that the claimant could be expected to perform “at a high degree of proficiency with a minimal amount of job orientation.”[6]

These concepts should be applied to the PRW 15 year rule. For example, take an individual of advanced age (55-60), who worked in manual labor for the last 14 years but is now reduced to the sedentary exertional level. The Grid rules would ordinarily direct a finding of disability.[7] However, if this individual worked as a telemarketer for three months 14.5 years ago, the Grid rules would direct a denial (unless other limitations prevent the claimant from doing that work). In this case, using the rational above, vocational analysis of PRW should address whether any significant changes have occurred in telemarketing work since the claimant last performed it. This might reveal two things: First, that there are currently comparable jobs available but in fewer numbers. Second, that despite the claimant’s prior work experience, telemarketing is so different now that the knowledge from this experience is obsolete and the claimant would need to be completely retrained. In this case, the rational behind the recency element is not met, and telemarketing should not be found to be PRW.

This could be a critical issue in your Disability case. Consider a free consultation with a disability attorney who is familiar with these rules and regulations.

 

By Charles Sagert

[1] 20 CFR § 404.1560; SSR 82-62.

[2] SSR 82-62.

[3] SSR 83-33.

[4] SSR 05-02.

[5] 20 CFR § 404.1563(b); HALLEX II-5-3-2.

[6] SSR 82-41.

[7] 20 CFR Part 404, Subpart P, Appendix 2.