The Worn-Out Worker and Social Security Disability
The Social Security Administration’s sequential evaluation process includes an alternate provision for establishing the inability to perform other work for certain “worn out workers.” These workers are deemed disabled if a claimant:
- Has only a marginal education,
- Has at least 35 years of work experience performing arduous, unskilled physical labor, and
- Is unable due to a severe impairment to return to such labor.
20 C.F.R. §§ 404.1562, 416.962
The foregoing regulations provide that if a claimant has only a marginal education, a work experience of 35 years or more during which the claimant did arduous unskilled physical labor, and the claimant is not working and is no longer able to do the same kind of work because of a severe impairment(s), the SSA will consider the claimant unable to do lighter work and, therefore, disabled. However, if the claimant is working or has worked despite the impairment(s) (except where the work is sporadic or is not medically advisable), the SSA will review all the facts, and may find that the claimant is not disabled. In addition, the SSA will consider the claimant not disabled if the evidence shows that the claimant has training or past work experience which enables him or her to do substantial gainful activity in another occupation, either on a full-time or a reasonably regular part-time basis.
The regulations provide the following example to assist in the interpretation of the provision:
B is a 60-year-old miner with a fourth grade education who has a life-long history of arduous physical labor. B says that he is disabled because of arthritis of the spine, hips, and knees, and other impairments. Medical evidence shows a combination of impairments and establishes that these impairments prevent B from performing his usual work or any other type of arduous physical labor. His vocational background does not show that he has skills or capabilities needed to do lighter work which would be readily transferable to another work setting. Under these circumstances, we will find that B is disabled.
20 C.F.R. §§ 404.1520, 416.920
If a claimant has only a marginal education, and long work experience (i.e., 35 years or more) where the claimant only did arduous unskilled physical labor, and the claimant can no longer do this kind of work, the SSA applies § 404.1562 to evaluate whether the claimant is disabled.
20 C.F.R. Pt. 404, Subpt. P, App. 2, Medical-Vocational Guidelines
An individual with a marginal education and long work experience (i.e., 35 years or more) who is limited to the performance of arduous unskilled labor, who is not working and is no longer able to perform such labor because of a severe impairment(s), may still be found disabled even though the individual is able to do medium work.
Social Security Ruling 82-63
SSR 82-63 sets forth the required analysis for evaluating whether a claimant meets the requirements of sections 404.1562 and 416.962 of the regulations.
- An impairment must be severe and prevent the performance of arduous physical labor.
- An individual’s work history must have lasted for 35 years or more.
- The work must have been “arduous,” which is defined as primarily physical work requiring a high level of strength or endurance. While arduous work will usually entail physical demands that are classified as heavy, the work need not be described as heavy to be considered arduous. For example, work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending and lifting at a very fast pace.
- The work must also have been unskilled. Unskilled work consists of simple duties which require little or no judgment and may be learned in a short period of time. SSR 82-63 explains that employment in semiskilled or skilled work generally would rule out the application of sections 404.1562 and 416.962 of the regulations. Isolated, brief, or remote periods of experience in semiskilled or skilled work, however, would not preclude the applicability of these regulations when such experience did not result in skills which enhance the person’s present ability to do lighter work. Also, periods of semiskilled or skilled work may come within the provisions of these regulations if it is clear that the skill acquired is not readily transferable to lighter work and makes no meaningful contribution to the person’s ability to do any work within his or her present functional capacity.
- The person must have a “marginal education.” A person who has a marginal education may not have attained a level of development in reasoning, arithmetic, and language which would suggest a vocational potential for more than unskilled work. Generally, an individual is considered to have a marginal education if he or she has no more than a sixth grade elementary school education. However, the level of formal education is not conclusive of a person’s vocational competence. The responsibilities and tasks of past employment may demonstrate a higher level of competence than that indicated by his or her formal schooling. Conversely, a person may have attended school beyond the sixth grade, but other evidence may establish capability for reasoning, arithmetic, and language which does not, in fact, exceed the “marginal” criterion.
Although the hearing record did not reveal the ALJ’s reason for excluding evidence of the duration of the claimant’s employment, even if the ALJ did err, the error was harmless. Stewart v. Heckler, 594 F. Supp. 590, 593 (D. Me. 1984). The claimant did not qualify for the 35-year rule because his work experience was semi-skilled, as found by the ALJ and supported by substantial evidence, and not unskilled, as required by the 35-year rule. Id.
Where it appeared that the claimant might qualify for consideration as a person who had performed arduous, unskilled labor for a long period of time, who had little education, and who had no transferable skills, the ALJ should have considered the applicability of section 404.1562. Montgomery v. Schweiker, 529 F. Supp. 124, 129 (D.Md. 1981).
Although the claimant presented evidence that he fit within 20 C.F.R. § 404.1562, the Commissioner failed to make findings of fact relating to the claimant’s claim applicable thereto. Vasquez v. Heckler, 736 F.2d 1053, 1054 (5th Cir. 1984). The Commissioner made no finding as to the applicability of the regulation to the claimant, nor did she state the reason or reasons why she did not apply the regulation in reaching her decision. Id.
Where there was nothing in the record or testimony to show that the claimant was even a semi-skilled worker, the claimant was disabled pursuant to 20 C.F.R. § 404.1562. Miller v. Shalala, 825 F. Supp. 776, 782 (N.D. Tex. 1993). The claimant had only a marginal education, had a work experience of 35 years or more during which time he did arduous unskilled physical labor, and was no longer able to do this type of work because of severe impairments. Id.
Since the claimant worked in an arduous unskilled type of work for less than thirty-five years, section 404.1562 did not apply. Croom v. Harris, 512 F. Supp. 240, 245 (M.D. La. 1981).
In Regino Cavazos v. Apfel, 130 F. Supp.2d 1016 (N.D. Ind. 2000), the ALJ found that the claimant did not meet the “worn out worker” regulation set forth in 20 C.F.R. §§ 404.1562 and 416.962. Id. at 1020. The court noted that the definition of “arduous” work does not involve any “specific physical action or exertional level,” and while work classified as “heavy” is usually considered “arduous,” “work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending or lifting at a very fast pace.” Id. at1021, citing SSR 82-63. The court found that the ALJ “completely failed to take the repetitive, fast paced nature of the coal room work into account in considering whether it met the definition of ‘arduous work.’” Id. The court also agreed with the claimant that the ALJ failed to make specific findings that the work the claimant performed in Mexico both in a grocery store lifting 100 pounds stocking shelves and his farm work beginning at age 6 was not arduous. Id. The court noted that the VE testified that the farm work would require a great deal of stamina, and that “the only evidence in the record is that the plaintiff’s farm work constituted ‘arduous work.’” Id. at 1022. The court also held that the ALJ did not discuss the second prong of the “worn out worker” regulation which requires that a claimant have only a marginal education. Id.at 1022. Since the ALJ needed to reconsider whether the claimant qualified as a “worn out worker,” remand was required. Id.
The Eighth Circuit rejected the claimant’s arguments that he qualified as a worn-out worker under 20 C.F.R. § 404.1562. Smith v. Shalala, 46 F.3d 45, 46-47 (8th Cir. 1995). The Court reasoned that the claimant completed the eighth grade in school and testified that he could read and do simple calculations, precluding him from being classified as having a “marginal education.” Id. As stated by the Smith court, formal schooling at a sixth grade level or less is a “marginal education” and 7th through 11th grade is termed “limited education.” Id.
The Eighth Circuit rejected the claimant’s argument that the ALJ should have applied the “worn-out worker rule.” Mitchell v. Shalala, 25 F.3d 712, 715 (8th Cir. 1994). The court found that the ALJ “in effect did apply the ‘worn-out worker rule’ when he applied the Medical/Vocational Guidelines,” even though the ALJ found that the claimant had a “limited education.” Id. The court agreed, however, that if newly discovered evidence submitted to the district court supported a finding that the claimant had a “marginal education,” the “worn out” worker regulations would result in a finding of disability. Id.
Where the record indicated that the skilled and semi-skilled work the claimant performed resulted in no skills which were transferable either to work presently existing in the national economy or to work within the claimant’s present residual functional capacity, the ALJ erred in concluding that the claimant’s previous periods of skilled work precluded a finding of disability under section 404.1562. Walston v. Sullivan, 956 F.2d 768, 772 (8th Cir. 1992).
The court found that the ALJ was not required to expressly consider the application of 404.1562, where the claimant had not engaged in arduous work for 35 years or more. Tobias v. Heckler, 605 F. Supp. 233, 237 (N.D. Cal. 1985). Section 404.1562 permitted a finding of no disability where the work experience showed transferable skills even if they only permitted part-time work. Both job descriptions completed by the claimant showed supervisory duties and completion of reports or orders. Even assuming the claimant had a marginal education and the required work history, his work experience demonstrated his skills to do paperwork and supervise other workers and could have been held to be transferable. Id.
The Eleventh Circuit rejected the claimant’s contention that his past 35 years of work experience had been limited to arduous unskilled physical labor so that he met the requirements of 20 C.F.R. § 404.1562. Powell v. Heckler, 736 F.2d 633, 635 (11th Cir. 1984). Because the vocational expert testified that the claimant’s past work experience was semi-skilled and unskilled, the claimant was not entitled to be found disabled on this basis. Id.
In Street v. Barnhart, 340 F. Supp.2d 1289 (M.D. Ala. 2004), the court held 20 C.F.R. § 416.962 did not apply because the record showed that the claimant completed the sixth grade in 1961, and stopped working in 1992 and did not spend thirty-five years in the workforce. Id. at 1294. Furthermore, the court noted that the record also created some doubt as to whether all of the claimant’s work should be classified as arduous and unskilled, noting that the claimant’s work as a painter may have been semiskilled, and this regulation only applies “whenall of a claimant’s work for 35 years is arduous and unskilled.” Id.at 1294 n.4, citing 20 C.F.R. § 404.1056(a)(3)(i) and SSR 82-63.
The court held that the ALJ did not fulfill his obligation where he did not question the claimant’s length of employment and the potential applicability of 404.1562, “which was fairly obvious from the evidence in the record.” Maynor v. Heckler, 597 F. Supp. 457, 460 (D. D.C. 1984).