AR 90-3(4): Rescinded 9/25/2003 by 68 FR 51537
EFFECTIVE/PUBLICATION DATE: 07/16/90
Whether the Secretary may use a vocational expert or other vocational specialist in determining at step four of the sequential evaluation process whether a claimant can perform past relevant work.
Sections 223(d)(2)(A) and 1614(a)(3)(B) of the Social Security Act (42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B)); 20 C.F.R. 404.1566(e) and 416.966(e); SSR 82-61.
Fourth (Maryland, North Carolina, South Carolina, Virginia, West Virginia)
Smith v. Bowen, 837 F.2d 635 (4th Cir. 1987)
This Ruling applies to determinations or decisions at all administrative levels (i.e., initial, reconsideration, Administrative Law Judge hearing and Appeals Council).
To the extent inconsistent therewith, this Ruling supersedes Social Security Ruling 82-61 for cases arising in the Fourth Circuit only.
In January 1983, the plaintiff, Rachel T. Smith, filed an application for disability benefits under Title II of the Social Security Act (Act). Following denials of her application initially and on reconsideration, the plaintiff requested and received a hearing before an administrative law judge (ALJ). At the administrative hearing, the ALJ found that the plaintiff was suffering from a severe heart impairment. He concluded that this impairment, combined with several others, limited Smith's residual functional capacity to work at the light exertional level. After considering a vocational expert's testimony that if Smith could perform light work, she could perform her past job as an assembler/packager, the ALJ found that the plaintiff was not disabled.
The plaintiff sought judicial review of the Secretary's decision. The district court remanded the case with instructions for the Secretary either to explain how he considered plaintiff's testimony that her past job was beyond her exertional ability, or to find Smith unable to perform her past relevant work and to continue the sequential analysis to determine her eligibility for disability benefits.
On remand, the ALJ adhered to his earlier conclusion that Smith could return to her past relevant work. The district court, hearing the case for the second time, found that the actions of the Secretary on remand were in "substantial compliance" with its remand instructions and affirmed the denial of benefits. Smith appealed the decision of the district court to the United States Court of Appeals for the Fourth Circuit.
The court of appeals reversed the judgment of the district court and remanded the case to the Secretary for further proceedings. Relying on 20 C.F.R. 404.1566(e), the court of appeals concluded, among other things, that it was improper for the ALJ to rely on the vocational expert's testimony in determining that Smith could return to her past job. According to the court of appeals, "A vocational expert enters the sequential analysis for determining disability after a claimant is found unable to do her past relevant work. 20 C.F.R. 404.1566(e). (Emphasis added)."
Social Security regulations provide a sequential evaluation process for making determinations regarding disability. See 20 C.F.R. 404.1520, 404.1594, 416.920, 416.994 and SSR 86-8. At step four of the process (step seven in Continuing Disability Review cases) we consider the individual's capacity to perform past relevant work. See also SSRs 82-61 and 82-62.
20 C.F.R. 404.1566(e) and 416.966(e) provide that when evaluating vocational issues, adjudicators may use the services of a vocational expert or other vocational specialist to assist in determining the transferability of work skills and the specific jobs in which an individual's work skills can be used, or when a "similarly complex issue" arises. Although vocational expert testimony is principally used at step five of the process (i.e., to determine whether a claimant who is found unable to perform past relevant work can perform other work), the Social Security Administration believes that its regulations and policies do not prohibit adjudicators from using vocational expert testimony at step four. SSR 82-61 provides, for example, "For those instances where available documentation and vocational resource material are not sufficient to determine how a particular job is usually performed, it may be necessary to utilize the services of a vocational specialist or vocational expert."
The decision of the United States Court of Appeals for the Fourth Circuit in Smith holds that 20 C.F.R. 404.1566(e) authorizes use of a vocational expert or other vocational specialist only at step five of the sequential evaluation process, and therefore, that reliance on a vocational expert or other vocational specialist is improper in determining whether a claimant can return to past relevant work.
This Ruling applies only to cases involving an applicant for disability insurance benefits and/or Supplemental Security Income benefits based on disability who resides in Maryland, North Carolina, South Carolina, Virginia, or West Virginia. In such cases, in making a decision or determination at step four of the sequential evaluation process (step seven in Continuing Disability Review cases) about whether an individual can perform past relevant work, adjudicators may not use a vocational expert or other vocational specialist.
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