Proving You Can't Do Your Past Work at a Disability Hearing

You'll have to prove to Social Security that you don't have the RFC to be able to perform your past job as you performed it or as it's generally performed.

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If you were denied disability benefits because Social Security found that you could do your prior job, you'll have to appeal to get a hearing in front of a judge. At the appeal hearing, the administrative law judge (ALJ) may ask a vocational expert (VE) whether, based on your testimony about your prior jobs and how your impairment limits you, he or she thinks you can still do your old job.

This is an important part of your hearing because if the VE thinks you can do your past work despite your impairment, and the ALJ agrees, your claim will be denied. Fortunately, you or your lawyer may be able to challenge the VE's testimony by making sure the VE describes your past work accurately.

How Your RFC Determines Whether You Can Do Your Past Work

For the vocational expert to be able to say you can do your past job, you need to have the "residual functional capacity" to do it. A residual functional capacity (RFC) assessment is a detailed report that describes the most exertion you can do in a normal work setting on a regular and continuous basis. (For the basics, see our article on the RFC assessment.)

You'll need to prove that you no longer have the required RFC needed to do your past work. For example, if your last job was working for a pack and ship company where you were required to lift 25 pounds on a regular basis and up to 50 pounds occasionally, the exertional level of your job was medium. For the VE or Social Security to find you unable to do your past job, your RFC must demonstrate that you can no longer lift or carry 25 pounds on a regular basis and that you can never lift 50 pounds, meaning you can only do light or sedentary work.

In addition to comparing the exertional level of your past work to the level allowed in your RFC, the VE or ALJ must make a "function-by-function" assessment of the limitations in your RFC compared with the demands of your past work. If your RFC isn't consistent with the job requirements, you should be found disabled. 

In some cases, Social Security assigns a "less than sedentary" RFC. This happens when a claimant (applicant) is assigned a sedentary RFC with additional limitations that rule our most jobs. For instance, if you can't walk or stand even for one hour per day, you should get a less than sedentary RFC. If you have a less than sedentary RFC, unless your prior job was less than sedentary (which is rare, but possible for highly trained applicants), Social Security will find that you can't return to your prior job. For more information, see our article on the less than sedentary RFC.

Making Sure the VE Uses the Right Job

The details of what you did at your prior job are important because to show that you don’t have the RFC needed to still do the work, the vocational expert must understand the actual tasks and responsibilities you performed. The vocational expert at your hearing might be knowledgeable about your past job title as it is normally performed, but not about how you performed the job. This can make a difference, because the job you listed in your work history may be different than the job the VE thinks you had.

During your hearing, your disability attorney will ask you important details about your work, such as the job title, your main duties, and the physical requirements of the job, such as how much you were required to lift and how often, if the work involved pushing or pulling, how long you were on your feet, the number of hours you worked, and whether you were able to sit down or take a rest when needed. This is so the VE understands the actual requirements of your job as opposed to those listed in the Dictionary of Occupational Titles (DOT) for that job title.

How Job Titles Affect the Disability Decision

It's important that the job title the vocational expert uses to describe your job is correct. The VE relies on the DOT for the description of the educational qualifications, physical requirements, and job functions for any given position. However, similarly titled jobs may have different functions at different companies. What one company calls a “secretary with mail duties” may be a “shipping and receiving clerk” at another company.

The reason this is important is that even if the VE gives your past work a title that sounds accurate, the duties of the position as it is generally performed may be quite different from what you did. Make sure that you ask the VE to explain the duties of the job title he or she used to describe your past work. If the job title used to describe your past work includes job duties and functions that your job did not entail, you should advise the ALJ and the VE of this. The VE should choose the job title that best reflects your past work, including the skills you used on the job and the job duties you had.

For example, if your work history included a job as a secretary, and you're applying for disability because of severe spinal stenosis, the VE might conclude you could do your past work because the job of secretary entails typing, filing, answering phones, and other sedentary work. But if the VE knew that your job actually required you to daily route incoming mail, including heavy boxes that weighed at least ten pounds as they came in from delivery services throughout the day, and to prepare similar boxes for shipment, the VE would probably agree that you could no longer do the work. The VE should conclude that your job was more likely "shipping and receiving clerk," or perhaps a composite of "secretary" and "shipping and receiving clerk." The exertional level of a job including shipping and receiving is actually light or medium, not sedentary. Based on the revised exertional level of your old job, the VE would be more likely to decide that your impairment prevents you from being able to do that job. (However, in evaluating your ability to do "other work," if the VE determines you are able to do the job of "secretary" as it is generally performed, your claim would be denied.)

This scenario is not uncommon when a claimant has worked primarily for a small business. This is because small-scale employers generally rely on their employees to perform multiple functions. In one disability case, a disability claimant worked at a plant nursery in a position titled “secretary.” However, the claimant was routinely expected to help customers load their purchases and was on rotation to water the greenhouse plants. The actual exertional requirements of the position changed it from a sedentary to a light or medium exertional position because the claimant routinely lifted or carried at least 10 pounds, and occasionally up to 20 pounds. The claimant also spent most of her day standing and walking. The VE ultimately decided that because of the actual exertional level of the position, the claimant could no longer do her old job. (The VE also recognized that the claimant was not doing the job of secretary as she was doing some tasks of a horticultural worker, and that she could not do such a job as it was generally performed.)

Special Accommodations and Past Relevant Work

Even if your past employer gave you special accommodations because of your disability so that you could do your job, if you can still do your past work as you performed it (meaning with the special accommodations), your claim will be denied. Therefore, you must prove that even with the special accommodations, your disability prevents you from doing the work.

EXAMPLE:

Marta worked for many years as an apple sorter and packer. Because she had developed diabetic neuropathy, her employer allowed her to sit and stand as she needed, and no long required her to carry the crates she packed from the sorting line to the loading dock. This accommodation was necessary for Mary to do her job, and it was an accommodation not extended to other employees. Marta is still able to do the job with the special accommodations, but she can't find a job where the employer is willing to grant the same special accommodations. Social Security will find that Marta can still do her past work. 

In other words, if you can do your past work as you performed it or as the job is generally performed, you'll be denied disability benefits. However, there is a exception to this rule. If you worked at your job for six months or less, your employer provided you with special accommodations, and the job ended because of your disability (for example, because the special accommodations were taken away, your doctor said you couldn’t work anymore, or you just couldn’t keep up), Social Security will treat this as an unsuccessful work attempt and will not consider it when deciding your claim. If any of your past employment fits in this category, be sure to let the ALJ know. You should also provide letters from your doctor and employer that explain the accommodations provided to you and the reason the work ended. For more information, see our article on unsuccessful work attempts.

For More Help

To learn more about how to give an accurate picture of your past work, see our article about correcting the details of your past work. The article also discusses which of your past jobs the ALJ and VE can consider (past relevant work) and which they can't.

Because challenging a VE’s testimony about past work is difficult, it may be helpful to contact an attorney who specializes in representing disability claimants at Social Security disability hearings.

by: , Contributing Author

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