Final Regulation Allows Skipping Step Four

September 11, 2012

The September 2011 edition of the Disability Law News reported on a proposed regulation that would allow adjudicators to by-pass Step four of the sequential evaluation, relieving them of the obligation to develop evidence of the claimant’s “past relevant work” (PRW) in certain cases.  The proposed “Expedited Vocational Assessment” rule was finalized in record time, and became effective on August 24, 2012.  77 Fed. Reg. 43492 (July 25, 2012).  http://www.gpo.gov/fdsys/pkg/FR-2012-07-25/pdf/2012-17934.pdf.

In equally record time, SSA has made permanent its previous temporary instruction at POMS DI 25005.005 - Expedited Vocational Assessment at Steps 4 and 5.  The new instructions apply at the hearing and Appeals Council levels, as well as at DDS.  https://secure.ssa.gov/apps10/public/reference.nsf/links/08312012111555AM.

SSA “expect[s] that this new expedited process will not disadvantage any claimant or change the ultimate conclusion about whether a claimant is disabled, but it will promote administrative efficiency and help us make more timely disability determinations and decisions…”  SSA claims that the process of gathering work history is “time-consuming,” “labor-intensive,” leads to delays, and requires adjudicators to divert limited resources. Under the new regulation, if the claimant would be found not disabled at Step 5 of the sequential evaluation based solely on age, education, and residual functional capacity (the “grids”), the adjudicator has the discretion to skip over Step four.

On the other hand, if the claimant is unable to adjust to other work, the adjudicator must return to Step four and develop PRW and make a full determination.  The adjudicator must also consider SSA’s “special medical-vocational profiles” that show an inability to adjust to other work.  The profiles include claimants with no more than marginal educations who did only arduous, unskilled labor for 35 years or more; or claimants at least 55 years old, with no more than limited education and no PRW. 20 C.F.R. §§404.1562 & 416.962.

Comments to the proposed regulations expressed concern that the expedited process might give adjudicators too much discretion, and might lead to records that are not fully developed.  Advocates should be on the look out to make sure this is not happening under the new regulation.