Three Tests to Classify a Claimant’s Previous Work Experience as Past Relevant Work
By David F. Traver
Excerpted from Social Security Disability Advocate’s Handbook
The first step in a transferable skills analysis is to
identify which of a claimant’s previous work experiences are accurately
classified as past-relevant work (PRW). This is more complex than merely
identifying the jobs a claimant has performed. Claimants may engage in
work activity which, for a variety of reasons, is not
properly classified as past-relevant work. If a vocational
expert’s testimony regarding a claimant’s skills and their
transferability is based on a claimant’s previous work experience which
was not past-relevant work, an ALJ commits reversible legal error
by basing a decision on that testimony.
The fourth column of the grid tables pertains to the
classification of a claimant’s “previous work experience.” As explained in SSR
82-62, the “term ‘work experience’ means skills and abilities acquired through
work previously performed by the individual which indicates the type of work the
individual may be expected to perform.” SSR 82-62.1 The relevance
of such work experience is explained in 20 C.F.R. §§404.1565(a) and 416.965(a)
as follows:
We consider that your work experience applies [i.e., is
relevant] when it was done within the last 15 years, lasted long enough for you
to learn to do it, and was substantial gainful activity.
20 C.F.R. §§404.1565(a) and 416.965(a) (2006) (bracketed comment
added).
Social Security Ruling 82-62 interprets the foregoing
regulation as requiring a claimant’s previous work experience to satisfy the
following three tests before such work experience will be deemed to be
past-relevant work.
First, previous work experience must have
been substantial gainful activity (SGA) before it properly can be classified as
past-relevant work.
Substantial Gainful Activity (SGA)
The adjudicative criteria for determining whether a person has
done “substantial” and “gainful” work activity are explained in sections
404.1571–404.1575 and 416.971–416.975 of the regulations.
SSR 82-62
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
Second, previous work
experience must have satisfied a “duration” criterion before it properly can be
classified as past-relevant work.
Duration
Duration refers to the length of time during which the person
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
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
An individual who has worked only sporadically or for brief
periods of time during the 15-year period, may be considered to have no relevant
work experience.
SSR 82-62
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
Third, previous work
experience must have satisfied a “recency” criterion before it properly can be
classified as past-relevant work.
Recency
Recency refers to the time which has elapsed since the work was
performed. A gradual change occurs in most jobs in our national economy so that
after 15 years it is no longer realistic to expect that skills (or
proficiencies) and abilities acquired in these jobs continue to apply. The
15-year guide is intended to insure that remote work experience which could not
reasonably be expected to be of current relevance is not applied.
While the regulations provide that a claimant/beneficiary’s
work experience is usually relevant when the work “was done within the last 15
years,” in some cases work performed prior to the 15-year period may be
considered as relevant when a continuity of skills, knowledge, and processes can
be established between such work and the individual’s more recent occupations.
SSR 82-62
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
Except for the purpose of determining whether the
disability criteria of sections 404.1562 and 416.962 of the regulations are met,
work performed 15 years or more prior to the time of adjudication of the claim
(or 15 years or more prior to the date the title II disability insured status
requirement was last met, if earlier) is ordinarily not considered relevant.
SSR 82-62
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
Properly identifying a claimant’s past-relevant work
involves separately weighing each work experience against the tests of SGA,
duration, and recency. If a claimant’s previous work experience
was SGA, and if it lasted long enough for the claimant to have learned
the techniques, acquired information, and developed the facility needed
for average performance in the job situation, and if it occurred within
the relevant 15-year period, then it is past-relevant work — the
operative word being “relevant.”
On the other hand, if a claimant’s previous work experience
does not pass all three of the foregoing tests, then it is not past-relevant
work. When work experience is not past-relevant work, it is immaterial to a
transferable skills analysis.
1
http://www.ssa.gov/OP_Home/rulings/di/02/SSR82-62-di-02.html.
David F. Traver has represented hundreds of claimants at SSA and over 200 claimants in U.S. District Courts. He has bachelor and master degrees in vocational rehabilitation, and is the author of Social Security Disability Advocate’s Handbook, from which this article is excerpted.
