Identification Number:
DI 25005 TN 10
Intended Audience:See Transmittal Sheet
Originating Office:ORDP ODP
Title:Capacity to Do Past Relevant Work
Type:POMS Transmittals
Program:All Programs
Link To Reference:
 

PROGRAM OPERATIONS MANUAL SYSTEM
Part DI – Disability Insurance
Chapter 250 – Medical-Vocational Evaluation
Subchapter 05 – Capacity to Do Past Relevant Work
Transmittal No. 10, 12/07/2021

Audience

PSC: DE, DEC;
OCO-OEIO: CR, ERE, FDE, RECONE;
OCO-ODO: DE, DEC, DS, RECONE;
ODD-DDS: ADJ, DHU;

Originating Component

ODP

Effective Date

Upon Receipt

Background

This is a Quick Action Transmittal (QAT). These revisions do not change or introduce new policy or procedure.

Summary of Changes

DI 25005.015 Determination of Capacity for Past Work-- Relevance Issues

The primary purpose of this QAT is to clarify our current policy that the DDS must refer to the FO SGA determinations on self-employment past work material to the disability determination and that the FO finding be documented with an SSA-820 and SSA-823. To achieve this purpose, clarifying language and reorganization were applied to the subsection on SGA (now subsection C).

In addition, in subsection A the introduction of the recency, duration, and SGA requirements for past relevant work were reordered for consistency with the order in 20 CFR 404.1565(a) and 416.965(a). In accordance, the more detailed discussion of SGA was moved from subsection C to D and the discussion of duration from D to C. Finally, minor, non-substantive changes were made throughout the section to correct punctuation/grammatical errors and to improve readability.

DI 25005.015 Determination of Capacity for Past Work-- Relevance Issues

A. Determining if work experience is relevant

Do not consider past work at step 4 unless it is relevant. Past work is relevant if it meets all three relevancy requirements listed below.

The work must have:

  • been performed within the relevant period (recency);

  • lasted long enough for the claimant to learn to do it (duration); and

  • been substantial gainful activity (SGA).

If the claimant has only worked sporadically or for brief periods during the relevant period, make a reasoned judgment about whether the claimant’s past work was relevant. For additional information on applying this policy see 20 CFR 404.1565(a) and 416.965(a) and SSR 82-62. When finding sporadic or brief periods of work are not relevant, document your reasoning in the record so that a subsequent reviewer will know the basis for your judgment.

See DI 25001.001A.64 of the “Medical-Vocational Quick Reference Guide” for additional information about relevant work period.

B. Determining the relevant period

Generally, to be relevant, the past work the claimant performed must have been within 15 years prior to the date of adjudication (the date of the determination or decision at any level of review). However, for some title II claims, the relevant period may end prior to the date of adjudication. See DI 25001.001A.64 for instructions on how to determine the relevant period for different types of claims.

NOTE: When determining the relevant period for a concurrent title II or title II and title XVI claim, the relevant periods and the step 4 determinations for each claim may differ if the title II relevant period ended prior to adjudication.

When determining if work is within the relevant period, consider the relevant period to begin 15 years prior to its ending date (e.g., if the relevant period ended 12/20/14, it began on 12/21/99).

IMPORTANT: Do not consider the date that work was no longer relevant when establishing onset of disability.

EXAMPLE: A 60-year old, high school educated claimant filed a DIB claim alleging onset on 01/01/10. The claimant performed an SGA-level, unskilled job from 12/01/93 to 10/30/98. The physical and mental requirements of this work are within his RFC. All of his other work required greater lifting and carrying than his RFC allowed. The date of adjudication is 01/05/14 and the claimant has a future DLI of 12/31/15. The claimant has a prior denial dated 07/07/11 for ability to perform the past relevant work (PRW) he performed 12/01/93 to 10/30/98.

Summary of case facts:

  • Alleged onset date (AOD): 01/01/10

  • Date Last Insured (DLI): 12/31/15

  • Prior finding of PRW on work performed from 12/01/93 to 10/30/98

  • Current claim adjudication date: 01/05/2014

Based on an adjudication date of 01/05/14 and future DLI 12/31/15, the relevant period in the current claim is 01/05/99 to 01/04/14, the fifteen years prior to the date of adjudication. The job that is within the claimant's RFC would not be within the relevant period because the work ended 10/30/98, more than 15 years prior to the 01/05/14 date of adjudication. Therefore, the claimant had no PRW within his RFC at the time of adjudication

The adjudicator proceeded to step 5 of sequential evaluation. An allowance was appropriate based on the medical-vocational rules. The claimant met the disability requirements as of his AOD; however, it was not possible to reopen the prior denial determination of 07/07/11 because the DDS appropriately denied the claim based on an ability to perform PRW. The adjudicator awarded an established onset date as of 07/08/11, the day after the prior denial. We do not consider the date past work was no longer relevant when we establish onset. Therefore, the day after the prior denial date was the correct onset date even though the fifteen year period following the claimant’s past work ended on 10/29/13 (after his EOD).

IMPORTANT: Consider work performed prior to the relevant period to be PRW when there is a continuity of skills, knowledge, and work processes between the work outside the relevant period and PRW.

EXAMPLE: The claimant worked on an assembly line making appliance parts from 01/01/92 to 10/31/99. On 11/01/99, he became a line supervisor, and continued to supervise the assembly of appliance parts on the line until 11/20/06. Based on an adjudication date of 12/30/14 and the claimant having a future DLI, the assembly line job is no longer in the relevant period (the 15 years prior to the 12/30/14 adjudication date). However, the supervisor job is within the relevant period and is PRW. The claimant is no longer able to tolerate the level of interpersonal interaction required by his supervisor job due to his mental impairment. He is able to tolerate the level of interpersonal interaction required by his previous job working on the assembly line. Even though the assembly line job was prior to the relevant period, because there was continuity of skills, knowledge, and work processes between the supervisor job and the assembly line job, the adjudicator may find the assembly line job is PRW and determine that the claimant is capable of performing that PRW.

IMPORTANT: If any portion of the period the claimant performed past work extends into the relevant 15-year period, the work is in the relevant period. If it meets the other criteria for PRW, consider it at step 4 of the sequential evaluation.

EXAMPLE: The claimant worked as a cashier from 01/20/96 to 12/10/2000. If the DDS adjudicates the case on 01/20/15 and the claimant has a future DLI, the claimant’s cashier work is within the relevant period because a portion of the period of performance is within the 15-year period prior to the 01/20/15 adjudication date.

C. Determining if the claimant worked long enough to learn the job

Find that work lasted long enough for the claimant to learn the job if he or she learned the techniques, acquired information, and developed the facility needed for average performance of the job. The length of time this would take depends on the nature and complexity of the work. For more information, see SSR 82-62.

Consider the history the claimant provides when determining whether he or she did the work long enough to learn the job.

Use specific vocational preparation (SVP) information only as a guideline to help determine how long it would generally take to learn a particular job. SVP may not accurately reflect the requirements of the job as the claimant performed it. If the Dictionary of Occupational Titles (DOT) indicates a high SVP level for a particular job, consider the length of time the claimant did the job and the claimant’s education when determining if the work lasted long enough to be relevant. See DI 25001.001A.77 for additional information on evaluating SVP ratings.

If the claimant performed work that had a continuity of skills, knowledge, and work processes with another job, consider that work when determining if the claimant did the work long enough to learn it, even if the work was outside the relevant period.

EXAMPLE: The claimant worked from 01/02/88 to 12/20/99 as a machinist. Beginning 12/21/99, he became a lead machinist. He did this job until 02/01/01. The adjudication date for his claim was 01/01/15, at which time the claimant’s machinist job was no longer relevant. However, his lead machinist job was still in the relevant period. Although a little over one year may not have been long enough to learn the job of lead machinist, there was a continuity of skills from the claimant’s previous work such that he may have done his lead machinist work long enough to have learned the job.

D. Determining if past work was substantial gainful activity (SGA).

Although primary responsibility for development of work activity lies with the field office (FO), the Disability Determination Services (DDS) will need to determine if work before onset was SGA to determine if past work is relevant. In most cases, the DDS can determine whether past work performed as an employee was SGA without contacting the FO and can document that determination with a brief statement in the rationale. In other cases involving complex SGA issues, such as subsidies or self-employment work material to the disability determination, the DDS must contact the FO for assistance. For more information, see DI 10501.020 Special Development Situations and DI 10510.010 SGA Criteria in Self-Employment.

NOTE: The instructions in DI 24001.005A Work Activity Development Responsibilities, and DI 10505.003B.1.b. Evaluating and Developing Earnings that Clearly are or are not Substantial Gainful Activity (SGA) do NOT apply for determining if past work met the SGA requirement for relevancy purposes.

1. Past work as an employee

Resolve issues of SGA for claimants who were not self-employed as follows:

  • Use the SGA earnings level that corresponds to the year(s) of the claimant’s work to determine if the work was SGA (DI 10501.015). Do not use the yearly level for SGA earnings to determine if work was SGA unless the claimant worked all 12 months of the year.

  • If the claimant worked for less than 12 months, see DI 25001.001A.82 for SGA earnings levels for nonblind claimants based on the number of months worked. For blind claimants, see DI 10501.015.

  • If the claimant reports hours worked per week and pay per hour, multiply pay per hour by hours worked per week. Multiply the result by 13/3 (4.333) to determine a monthly rate.

  • Be alert for SGA issues in disability claims for military personnel. A claimant in the military service who has a severe impairment may continue to receive full pay. Active duty status or receipt of pay may not be SGA. FO assistance may be necessary to resolve SGA issues in disability claims for military personnel.

2. Self-employment past work

If there is self-employment past work for which the PRW finding is material to the disability determination, the DDS must refer the material SGA determination to the FO. To sufficiently document support for a finding on whether or not self-employment work was SGA, the DDS must obtain from the FO a completed SSA-820 (Work Activity Report – Self-Employment) and SSA-823 (Report of SGA Determination) (DI 10510.025).

a. Material to Potential Denial at Step 4

The issue of whether self-employment work was SGA is material to the disability determination when:

  • the Expedited Vocational Assessment at Steps 4 and 5 in DI 25005.005 do NOT apply;

  • the self-employment work meets the recency and duration requirements for PRW (see subsections B and C in this section);

  • the physical and mental requirements of the work do not exceed the claimant’s RFC; and

  • there is no other PRW the claimant can perform.

b. Material to Potential Denial at Step 5 Based on Transferable Skills

In addition, the issue of whether self-employment work was SGA is material if the work could potentially be PRW that would support a denial at step five through the application of a medical-vocational rule requiring a profile that includes transferable skills. In other words, this issue would be material if:

  • the claimant has the RFC to perform semiskilled and/or skilled work;

  • there is no PRW the claimant can perform, including the self-employment work at issue;

  • the self-employment work was skilled, and met the recency and duration requirements for PRW; and

  • the claimant acquired skills in this self-employment work that could transfer to an occupation(s) at the same or lesser skill level with physical and mental requirements not exceeding the claimant’s RFC.

For more information on transferable skills assessments, see DI 25015.017.

E. Examples of work that is not relevant

Do not consider the following types of work relevant:

  • Volunteer work (meaning the claimant did not receive any pay or in-kind support for the work),

  • Work that meets the requirements for an unsuccessful work attempt (see DI 24005.001 Unsuccessful Work Attempt (UWA));

  • Illegal work (work that was criminal activity), even if it resulted in SGA level earnings;

  • When adjudicating a Continuing Disability Review (CDR) case, work in the current period of disability (see DI 28005.015 CDR Evaluation Process—Step-by-Step Discussion); or

  • Work in a previous period of disability, if the claimant is applying for expedited reinstatement (see DI 28057.015 Medical Determination Criteria).

NOTE: Work performed during a previous period of disability, even work performed under TWP, EPE, or 1619 provisions could be relevant work for a new application, but would not be relevant in an expedited reinstatement determination.

F. Examples of work that may be relevant

Decide whether any of the following types of work are relevant by determining whether the work was in the relevant period, whether the work was at SGA level, and whether the claimant did it long enough to learn it:

  • Part time work,

  • Seasonal work,

  • Work performed in a foreign country, or

  • Work in a previous period of disability unless the claimant is applying for expedited reinstatement.

NOTE: If the claimant is filing a new claim and applying for expedited reinstatement, the work in the previous period of disability may be relevant for the new claim, but will not be relevant for the expedited reinstatement claim.


DI 25005 TN 10 - Capacity to Do Past Relevant Work - 12/07/2021