SSA Issues New POMS on PRW

September 30, 2011

Author: Louise M. Tarantino| Catherine M. Callery (Kate)

Past relevant work is a hot topic at SSA.  In addition to the proposed regulations discussed  on page 6, SSA has issued new POMS covering a host of issues regarding Step four (Past Relevant Work - PRW) determinations:  https://secure.ssa.gov/apps10/public/reference.nsf/links/09192011023623PM.  Per SSA’s summary, the new sections are as follows:

DI 25005.001 Determination of Capacity for Past Relevant Work (PRW) -- Basics of Step 4 of the Sequential Evaluation Process - information about the basic policies for step 4 of sequential evaluation.

DI 25005.015 Determination of Capacity for Past Work-- Relevance Issues - details on how to determine if past work is relevant, and examples of work that SSA may consider or will never consider relevant.

DI 25005.020 Past Relevant Work (PRW) as the Claimant Performed It – evaluation of past relevant work (PRW) as the claimant performed it. The section includes information on how to evaluate composite jobs, work done in a foreign country, part time work, work with mandatory overtime, alternative work schedules, and work with employer accommodations.

DI 25005.025 Past Relevant Work (PRW) as Generally Performed in the National Economy – evaluation of PRW as generally performed in the national economy. It includes tips on how to locate an occupation in the Dictionary of Occupational Titles (DOT) and gives examples of types of work that may not have a DOT occupational counterpart.

DI 25005.050 Making the Past Relevant Work (PRW) Determination - how to make the step 4 determination. This section also addresses how to evaluate a not severe impairment that prevents PRW because of its unique features.

Significantly, the POMS mandate adjudicators to perform a function-by-function comparison of the claimant’s residual functional capacity (RFC) with the demands of the past work as actually performed or as generally performed. Among the highlights, the new POMS confirm SSA’s “policy” that illegal work (work that was criminal activity), even if it resulted in substantial gainful activity (SGA) level earnings, should not be considered PRW.  Nor should volunteer work, unsuccessful work attempts, or work done during a closed period of disability.  Part time work, seasonal work, and work done during certain periods of disability, however, might be relevant. The inability to obtain licensure because of physical/mental limitations might be relevant to a determination, even though the inability to obtain a license in and of itself would not be; the limitations themselves might preclude the ability to perform the past relevant work.

The guidance on how issues about past work as generally performed versus as actually performed should be adjudicated is also significant.  Adjudicators must obtain information from the claimant about how past work was actually performed, rather than try to determine it from the Dictionary of Occupational Titles (DOT). A “composite” job (i.e., a job with significant elements of two or more occupations and thus no counterpart in the DOT), cannot be considered “as generally performed.”  Additionally, assessment of a claimant’s RFC to perform PRW must take into account work that required more than forty hours per work as actually performed. The standards, however, for evaluating employer provided accommodations are convoluted at best.

More analysis to come, but these new POMS are very significant - check them out! While there are undoubtedly aspects that will be used to deny claims, there are many aspects that should prove useful to advocates. They became effective on September 20, 2011.