SSA Proposed Skipping Step 4 in Denial Cases

September 30, 2011

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

Under the sequential evaluation process that SSA employs in determining disability, evidence of past relevant work (PRW) is necessary at step 4 of the analysis.  Only if a claimant is unable to return to PRW may SSA go on to make a step 5 determination of disability using either the grid rules or vocational expert testimony.  Pursuant to proposed regulations issued September 13, 2011, SSA would give adjudicators the discretion to skip step 4 in cases where it has “insufficient evidence” to make PRW findings.  The agency noted that its proposed rules would “promote administrative efficiency” and help it to “make more timely determinations.” 76 Fed. Reg. 56357 (Sept. 13, 2011). Comments are due by November 14, 2011. http://www.gpo.gov/fdsys/pkg/FR-2011-09-13/pdf/2011-23396.pdf.
 
Under the proposed expedited process, if the adjudicator does “not have sufficient evidence about your past relevant work to make a finding at the fourth step, we may proceed to the fifth step of the sequential evaluation process.”  The adjudicator has the discretion to make the decision whether to use the proposed expedited process, i.e., deciding whether “sufficient evidence” regarding PRW exists.  SSA will “not require an adjudicator to make a reasonable effort to collect additional evidence [re PRW] if he or she could use this expedited process.”
 
The proposed rule would require the adjudicator to return to step 4 to further develop PRW information and determine whether the claimant can perform such work if a finding of disability was warranted at step 5 based on (1) the “special medical-vocation profiles,” (2) the Medical-Vocational Guidelines (the grids), either directly or as a framework, or (3) “an inability to meet the mental demands of unskilled work.”
 
On the other hand, if by proceeding to step 5, the adjudicator can determine that the claimant is not disabled based solely on age, education and RFC, then the adjudicator need not return to step 4.  According to SSA, the Social Security Act does not require a finding regarding past relevant work before it determines that the claimant is not disabled.
 
SSA says that the process to gather work history is “time-consuming,” “labor-intensive,” and leads to “delays” and “requires us to divert our limited resources.” SSA's current budget situation seems to now be driving policy changes that the agency believes could result in “administrative efficiency,” especially in expediting the denial of cases. However, we question SSA's statement that the proposed process “would not disadvantage any claimant.”

Please feel free to share your thoughts about these proposed changes so that we can submit timely comments that reflect DAP advocates’ concerns.