Challenging the Use of Past Work as Irrelevant at a Disability Hearing

Your work history is important to your disability claim because Social Security will use it to evaluate what job skills you have and whether those job skills could be transferred to another type of work that you could do.

At your disability hearing, the vocational expert (VE) will use your testimony about your past work to classify the skill level of the jobs and their physical requirements. The VE will then try to identify skills you learned at your past jobs that could be transferred to other positions. For these reasons, you must be specific and accurate when describing your past work so that the VE does not attribute skills or responsibilities to you that you do not have. (For more information, see our article on correcting the details of your past relevant work and how to challenge Social Security's assertion that you have the skills to do other work.)

In assessing your job skills, the vocational expert can consider only past relevant work that you did.

Past Relevant Work

The VE can consider your past jobs only if they can be classified as past relevant work (PRW). The criteria used to determine if work can be called PRW is:

• whether you did the job long enough to learn it (duration)
• whether you performed the job in the last 15 years (recency), and
• whether you performed the job at the substantial gainful activity level for the year worked (generally, this means full time, but not always).

In addition, volunteer jobs, illegal work (criminal activity), unsuccessful work attempts, or jobs done during a closed period of disability should not be accounted as past relevant work. However, seasonal work and part-time work can be counted as past relevant work.

At the beginning of your hearing, the ALJ will review your past jobs and ask you questions about them. Make sure and let the ALJ know if any of these jobs were short-lived, volunteer-based, or done more than 15 years ago. If the vocational expert refers to any jobs that don't qualify as PRW as evidence of your job skills, make sure to respectfully point out that the jobs are not PRW and ask that they not be included in the VE's analysis.

Examples of Work That Should Not Be Counted

Sometimes ALJs incorrectly classify past work as past relevant work. This can result in a denial. It's important to pay attention to the ALJ to make sure your past jobs are classified correctly. Here are some common types of work situations that ALJs sometimes wrongly classify as PRW:

• work that ended before you learned how to perform all the functions of your job (this will vary with each position)
• work you did more than 15 years ago (ALJs can make mistakes when calculating years)
• work done during a trial work period
• an unsuccessful work attempt
• work done below the SGA level (the SGA amount changes every year), and
• work you did only on and off or for short periods of time.

If you think that the ALJ has improperly defined an old job as PRW, you should respectfully ask the ALJ to explain the reason for his or her decision. If you have a reasonable basis for why you disagree, you can then present this to the ALJ.

Successfully Challenging the Use of Past Work

It is rare for an unrepresented disability claimant (applicant) to make a successful argument on his or her own that certain work shouldn't be included because it's not relevant. If you think this argument may help your case, speak to an attorney before you go to your hearing.