Proposed Rule2023-21557
Intermediate Improvement to the Disability Adjudication Process: Including How We Consider Past Work
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 29, 2023
Issuing agencies
Social Security Administration
Abstract
We propose to revise the time period that we consider when determining whether an individual's past work is relevant for purposes of making disability determinations and decisions. Specifically, we would revise the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years. This change would allow individuals to focus on the most current and relevant information about their past work, better reflect the current evidence base on changes over time in worker skill decay and job responsibilities, reduce processing time and improve customer service, and reduce burden on individuals.
Full Text
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<title>Federal Register, Volume 88 Issue 188 (Friday, September 29, 2023)</title>
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[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Proposed Rules]
[Pages 67135-67148]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21557]
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SOCIAL SECURITY ADMINISTRATION
20 CFR Parts 404 and 416
[Docket No. SSA-2023-0024]
RIN 0960-AI83
Intermediate Improvement to the Disability Adjudication Process:
Including How We Consider Past Work
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: We propose to revise the time period that we consider when
determining whether an individual's past work is relevant for purposes
of making disability determinations and decisions. Specifically, we
would revise the definition of past relevant work (PRW) by reducing the
relevant work period from 15 to 5 years. This change would allow
individuals to focus on the most current and relevant information about
their past work, better reflect the current evidence base on changes
over time in worker skill decay and job responsibilities, reduce
processing time and improve customer service, and reduce burden on
individuals.
DATES: To ensure that your comments are considered, we must receive
them by no later than November 28, 2023.
ADDRESSES: You may submit comments by any one of three methods--
internet, fax, or mail. Do not submit the same comments multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2023-0024 so
that we may associate your comment(s) with the correct regulation.
Caution: You should be careful to include in your comments(s) only
information that you wish to make publicly available. We strongly urge
you not to include in your comment(s) any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments(s)
via the internet. Please visit the Federal eRulemaking portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Use the Search function to find docket
number SSA-2023-0024. The system will issue a tracking number to
confirm your submission. You will not be able to view your comment
immediately because we must post each comment manually. It may take up
to one week for your comment to be viewable.
2. Fax: Fax comments to 1-833-410-1631.
[[Page 67136]]
3. Mail: Mail your comments to the Office of Legislation and
Congressional Affairs, Regulations and Reports Clearance Staff, Social
Security Administration, 6401 Security Boulevard, Mail Stop 3253,
Altmeyer Building, Baltimore, Maryland 21235-6401.
Comments are available for public viewing on the Federal
eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> or in person, during
regular business hours, by arranging with the contact person identified
below.
FOR FURTHER INFORMATION CONTACT: Mary Quatroche, Office of Disability
Policy, Social Security Administration, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401, (410) 966-4794, or <a href="/cdn-cgi/l/email-protection#4e3c2b293b222f3a2721203d0e3d3d2f60292138"><span class="__cf_email__" data-cfemail="2e5c4b495b424f5a4741405d6e5d5d4f00494158">[email protected]</span></a>.
For information on eligibility or filing for benefits, call our
national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or
visit our internet site, Social Security Online, at <a href="https://www.socialsecurity.gov">https://www.socialsecurity.gov</a>.
SUPPLEMENTARY INFORMATION:
Background
Statutory Definition of Disability
The Social Security Act (Act) defines disability as the inability
to engage in any substantial gainful activity (SGA) by reason of any
medically determinable physical or mental impairment (MDI) which can be
expected to result in death, or which has lasted or can be expected to
last for a continuous period of not less than 12 months.\1\ The Act
also states that, for adults,\2\ an individual shall be determined to
have a disability only if their physical or mental impairment or
impairments are of such severity that they are not only unable to do
their previous work but cannot, considering their age, education, and
work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which they live, or whether a specific
job vacancy exists for them, or whether they will be hired if they
apply for work.\3\ The Act defines work which exists in the national
economy as work which exists in significant numbers either in the
region where such individual lives or in several regions of the
country.\4\
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\1\ 42 U.S.C. 423(d)(1)(A) and 1382c(a)(3)(A)-(B).
\2\ The Act defines disability differently for individuals under
the age of 18. 42 U.S.C. 1382c(a)(3)(C).
\3\ 42 U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B).
\4\ Id.
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These proposed rules would not apply to disability benefits for
children applying under title XVI (Supplemental Security Income (SSI)).
These proposed rules focus on how we assess individuals' work histories
when adjudicating disability claims and have no effect on the required
quarters of coverage and payroll tax contributions to be insured for
Social Security Disability Insurance (SSDI).
Sequential Evaluation Process
As outlined in our current regulations, we use a five-step
sequential evaluation process to determine whether an individual is
disabled.\5\ The following is a general overview of the five-step
sequential evaluation process.
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\5\ 20 CFR 404.1520 and 416.920.
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At step one of the sequential evaluation process, we consider
whether an individual is working, and whether the work qualifies as
SGA.\6\ If the individual is performing SGA, we will find that the
individual is not disabled, regardless of their medical condition, age,
education, and work experience. If the individual is not performing
SGA, we go to the second step of the sequential evaluation process.
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\6\ 20 CFR 404.1520(a)(4)(i) and 416.920(a)(4)(i). We explain
substantial gainful activity at 20 CFR 404.1510, 404.1572, 416.910,
and 416.972. SGA is work activity that is substantial and gainful.
Substantial work involves doing significant physical or mental
activities. An individual's work may be substantial even if it is
done on a part-time basis or if you do less, get paid less, or have
less responsibility than when you worked before. Gainful means work
for pay or profit, or in work of a type generally performed for pay
or profit.
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At step two of the sequential evaluation process, we consider
whether an individual has any ``severe'' impairment(s), which
significantly limits their physical or mental ability to do basic work
activities,\7\ and whether the impairment(s) meets the statutory
duration requirement.\8\ If the individual's impairment(s) is not
severe or if it does not meet the duration requirement, we will find
that the individual is not disabled.\9\ If the individual has a severe
impairment(s) that meets the duration requirement, we go to the third
step of the sequential evaluation process.
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\7\ See 20 CFR 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and
(c). We explain what we mean by an impairment that is not severe in
20 CFR 404.1521 and 416.921. We use the term impairment(s) to mean
an impairment or combination of impairments in this NPRM.
\8\ 20 CFR 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). We explain
the duration requirement at 20 CFR 404.1509 and 416.909.
\9\ 20 CFR 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and
(c).
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At step three of the sequential evaluation process, we consider
whether an individual's impairment(s) meets or medically equals in
severity an impairment(s) in the Listing of Impairments.\10\ If the
individual's impairment(s) meets or medically equals in severity an
impairment in the Listing of Impairments, we will find that the
individual is disabled. If the individual does not have an
impairment(s) that meets or medically equals in severity a listed
impairment, we determine the individual's residual functional capacity
(RFC) before we go to the fourth step of the sequential evaluation
process.\11\ RFC is the most an individual can do despite limitations
caused by the individual's physical and mental impairments.\12\
Generally we assess RFC on a regular and continuing basis meaning 8
hours a day for 5 days a week, or an equivalent work schedule.\13\
These proposed rules would not affect how we evaluate steps one, two,
and three of the sequential evaluation process.
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\10\ 20 CFR 404.1520(a)(4)(iii), 404.1525, 416.920(a)(4)(iii),
and 416.925. The Listing of Impairments are found at 20 CFR part 404
subpart P, appendix 1, and they apply to title XVI under 20 CFR
416.925.
\11\ 20 CFR 404.1520(e) and 416.920(e).
\12\ See 20 CFR 404.1545 and 416.945.
\13\ See SSR 96-8p: Policy Interpretation Ruling Titles II and
XVI: Assessing Residual Functional Capacity in Initial Claims.
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At step four of the sequential evaluation process, we consider the
individual's work history and whether, given their RFC, the individual
can perform any of their past relevant work (PRW) either as the
individual actually performed it or as the work is generally performed
in the national economy.\14\ If we find that the individual can perform
any of their PRW, we will find that the individual is not disabled. If
the individual cannot perform any of their PRW, we go to the fifth step
of the sequential evaluation process.\15\
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\14\ 20 CFR 404.1520(a)(4)(iv) and (f), 404.1560(b)(2),
416.920(a)(4)(iv) and (f), and 416.960(b)(2).
\15\ We may use the expedited process described in 20 CFR
404.1520(h) and 416.920(h) to consider step five before step four
when applicable.
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At step five of the sequential evaluation process, we refer to an
individual's work history again to consider whether an individual's
impairment(s) prevents them from adjusting to other work that exists in
significant numbers in the national economy, considering their RFC and
the vocational factors of age, education, and work experience (which
may include conducting a transferable skills analysis).\16\ If we find
that the individual cannot adjust to other work, we will find that the
individual is disabled. If we find that the individual
[[Page 67137]]
can adjust to other work, we will find that the individual is not
disabled.
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\16\ 20 CFR 404.1520(a)(4)(v), 404.1568, 416.920(a)(4)(v), and
416.968.
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Once an individual is found disabled and receives benefits, we may
periodically conduct a continuing disability review (CDR) to determine
whether the individual continues to be disabled.\17\ Although the CDR
rules use a different sequential evaluation process, the final two
steps of the process used for CDRs (steps seven and eight in title II
cases and steps six and seven in adult title XVI cases) mirror the
final two steps used in the sequential evaluation process for initial
claims (steps four and five).\18\
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\17\ 20 CFR 404.1520(a)(5), 404.1594, 416.920(a)(5), and
416.994.
\18\ 20 CFR 404.1594(f)(7)-(8) and 416.994(b)(5)(vi)-(vii).
Title II benefits include disability insurance benefits, disabled
widow(er) benefits, and child disability benefits. Title XVI
benefits include supplemental security income.
[GRAPHIC] [TIFF OMITTED] TP29SE23.059
Definition of PRW and the Relevant Work Period
Our current rules define PRW as work an individual has done within
the past 15 years, that was SGA, and that lasted long enough for the
individual to learn how to do it.\19\ In initial claims, the relevant
work period usually begins 15 years prior to the date of our
determination or decision. However, in certain situations in claims
under title II of the Act, the relevant work period begins on an
earlier date.\20\ For example, when an individual's insured status for
title II disability benefits expired before the adjudication date, we
consider the relevant work period to begin 15 years
[[Page 67138]]
before the date last insured.\21\ As noted below in our discussion of
medical-vocational profiles, if we consider all of an individual's work
to be arduous and unskilled, and the individual has little education,
we may ask the individual to tell us about all of their work from the
time the individual first began working.\22\
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\19\ 20 CFR 404.1560(b)(1) and 416.960(b)(1). See also SSR 82-
62: Titles II and XVI: A Disability Claimant's Capacity to Do Past
Relevant Work, in General, in which we state that the work lasted
long enough for the individual to learn the job if they learned the
techniques, acquired information, and developed the facility needed
for average performance of the job. The length of time this would
take depends on the nature and complexity of the work.
\20\ See SSR 82-62: Titles II and XVI: A Disability Claimant's
Capacity to Do Past Relevant Work, in General. See also POMS DI
25001.001A.64 Medical and Vocational Quick Reference Guide,
available at: <a href="https://secure.ssa.gov/poms.NSF/lnx/0425001001">https://secure.ssa.gov/poms.NSF/lnx/0425001001</a>.
\21\ See POMS DI 25001.001A.64 Medical and Vocational Quick
Reference Guide, available at: <a href="https://secure.ssa.gov/poms.NSF/lnx/0425001001">https://secure.ssa.gov/poms.NSF/lnx/0425001001</a>.
\22\ 20 CFR 404.1565 and 416.965.
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In CDRs, the relevant work period includes work an individual has
done within 15 years prior to the date of the CDR determination or
decision.\23\ Individuals must report employment changes since the
initial decision or most recent CDR.
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\23\ 20 CFR 404.1594(f)(7) and 416.994(b)(5)(vi). At the last
two steps in the CDR sequential evaluation process, we do not
consider work an individual does while receiving disability benefits
to be past relevant work or past work experience; see 20 CFR
404.1594(i)(1) and 416.994(b)(8)(i).
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Step Five of the Sequential Evaluation Process Considers Work
Experience From PRW
At step five of the sequential evaluation process, we determine
whether other work exists in significant numbers in the national
economy that an individual can adjust to considering the individual's
RFC and vocational factors of age, education, and work experience.\24\
Work experience means skills and abilities an individual has acquired
through their PRW which may show the type of work they may be expected
to do.\25\ Our rules categorize work experience as follows: none,
unskilled, semi-skilled, or skilled.\26\
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\24\ 20 CFR 404.1520(a)(4)(v) and (g), 404.1512(b)(3),
404.1560(c), 416.920(a)(4)(v) and (g), 416.912(b)(3), and
416.960(c).
\25\ 20 CFR 404.1565 and 416.965.
\26\ 20 CFR 404.1568 and 416.968. We consider occupations with
specifical vocational preparation (SVP) levels one and two to be
unskilled. Occupations with SVPs of three and four are semi-skilled,
and occupations with an SVP of five or greater are skilled. See also
DOT Appendix C available at: <a href="https://www.occupationalinfo.org/appendxc_1.html#II">https://www.occupationalinfo.org/appendxc_1.html#II</a> and POMS DI 25015.015.B.1 Work Experience as a
Vocational Factor, available at: <a href="https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015015">https://secure.ssa.gov/apps10/poms.nsf/lnx/0425015015</a>.
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Our rules recognize that individuals with skilled or semi-skilled
work experience may have a vocational advantage if their skills are
transferable, meaning they can be used in other work.\27\
Transferability of skills depends largely on the similarity of
occupationally significant work activities among different work.\28\
The transferability of skills is most probable and meaningful among
jobs in which the same or a lesser degree of skill is required; the
same or similar tools and machines are used; and the same or similar
raw materials, products, processes, or services are involved.\29\ If
skills are so specialized or are acquired in such an isolated
vocational setting that they are not readily usable in other
industries, jobs, and work settings, they are not transferable.\30\ If
an individual is age 55 or older and limited to sedentary work, or age
60 or older and limited to light work, we consider skills transferable
only if they can be used in other work with very little, if any,
vocational adjustment in terms of tools, work processes, work settings,
or the industry.\31\
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\27\ 20 CFR 404.1568(d) and 416.968(d).
\28\ Id. See also SSR 82-41 Title II and XVI: Work Skills and
Their Transferability as Intended by the Expanded Occupational
Regulations Effective February 26, 1979.
\29\ See 20 CFR 404.1568(d)(2) and 416.968(d)(2).
\30\ See 20 CFR 404.1568(d)(3) and 416.968(d)(3).
\31\ See 20 CFR 404.1568(d)(4) and 416.968(d)(4).
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If the individual can adjust to other work that exists in
significant numbers in the national economy, considering their residual
functional capacity, age, education, and work experience, we find they
are not disabled. If an individual cannot adjust to other work that
exists in significant numbers in the national economy, we find that
they are disabled.\32\
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\32\ 20 CFR 404.1520(a)(4)(v) and 416.920(a)(4)(v).
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To support a determination or decision at step five of the
sequential evaluation process, we must evaluate whether there is other
work existing in significant numbers in the national economy that the
individual can do given their RFC and vocational factors.\33\ As part
of this evaluation, we use the medical-vocational profiles and the
medical-vocational guidelines, also commonly known as the ``grid
rules.'' \34\ We use three assessments to determine whether an
individual can perform work that exists in significant numbers at step
five of the sequential evaluation process (or at the final step in the
sequential evaluation process used in CDRs):
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\33\ 20 CFR 404.1560(c)(2) and 416.960(c)(2).
\34\ See 20 CFR 404.1560(c), 404.1562, 404.1569, 416.960(c),
416.962, and 416.969.
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1. Medical-vocational profiles;
2. Medical-vocational guidelines to direct a decision; and
3. Medical-vocational guidelines as a framework.
Medical-Vocational Profiles
We consider whether the individual's RFC and vocational factors of
age, education, and work experience match the criteria of a medical-
vocational profile. Each medical-vocational profile shows an inability
to make an adjustment to other work.\35\ If an individual's medical and
vocational factors match the criteria of a medical-vocational profile,
we find the individual disabled.\36\ If not, we consider the medical-
vocational guidelines in our disability finding.\37\
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\35\ See 20 CFR 404.1520(g)(2) and 416.920(g)(2).
\36\ See 20 CFR 404.1562 and 416.962.
\37\ 20 CFR 404.1569 and 416.969.
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The three medical-vocational profiles are:
1. If an individual has done only arduous unskilled physical
labor.\38\ This profile applies to an individual who has no more than a
marginal education (6th grade or less), has work experience of 35 years
or more during which the individual did only arduous unskilled physical
labor, is not working, and is no longer able to do this kind of work
because of a severe impairment(s). We call this the arduous unskilled
work profile and this profile considers 35 years of past work. Our
proposed changes to the definition of PRW will neither change this
profile nor affect the proportion of individuals found disabled through
this profile.
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\38\ 20 CFR 404.1562(a) and 416.962(a). See also SSR 82-63:
Titles II and XVI: Medical-Vocational Profiles Showing an Inability
to Make an Adjustment to Other Work. When we say ``not working,'' we
mean not engaging in substantial gainful activity.
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2. If an individual is at least 55 years old, has no more than a
limited education, and has no past relevant work experience.\39\ This
profile applies to an individual who has a severe MDI(s), is at least
55 years old, has no more than a limited education (11th grade or
less), and has no PRW experience. We call this the no work profile and
this profile considers 15 years of past work. As discussed below, our
proposed changes to the definition of PRW will increase the proportion
of individuals found disabled through this profile.\40\
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\39\ 20 CFR 404.1562(b) and 416.962(b). See also SSR 82-63:
Titles II and XVI: Medical-Vocational Profiles Showing an Inability
to Make an Adjustment to Other Work.
\40\ 20 CFR 404.1560(b)(1) and 416.960(b)(1).
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3. If an individual has made a lifetime commitment.\41\ This
profile applies to an individual who is not working at SGA level, is at
least 60 years old, has no more than a limited education (11th grade or
less), and has a lifetime commitment (30 years or more) to a field of
work that is unskilled, or is skilled or semi-skilled but with no
transferable skills, that the individual can no longer perform because
of a severe impairment(s). We call this the
[[Page 67139]]
lifetime commitment profile and this profile considers 30 years of past
work. Our proposed changes to the definition of PRW will neither change
this profile nor affect the proportion of individuals found disabled
through this profile.
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\41\ See POMS DI 25010.001B.3 medical-vocational profiles,
available at: <a href="https://secure.ssa.gov/poms.NSF/lnx/0425010001">https://secure.ssa.gov/poms.NSF/lnx/0425010001</a>.
Table 2--Medical Vocational Profiles
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Is this profile
Medical-vocational profiles Age Education (no more Past work affected under the
than) experience proposed rule?
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Arduous unskilled work profile.. No minimum age.... Marginal 35 years or more No.
(typically 6th in which the
grade or less). individual
performs only
arduous unskilled
physical labor.
No work profile................. 55 years or older. Limited (typically No PRW............ Yes, under the
11th grade or proposed rules
less). the relevant work
period would be
reduced from 15
to 5 years.
Lifetime Commitment profile..... 60 years or older. Limited (typically 30 years or more No.
11th grade or to a field of
less). work that is
unskilled (or if
skilled or semi-
skilled with no
transferrable
skills).
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Medical-Vocational Guidelines To Direct a Decision
If an individual's RFC and vocational factors do not match a
medical-vocational profile, we consider the medical-vocational
guidelines.\42\ The medical-vocational guidelines reflect the analysis
of vocational factors in combination with RFC. Where the findings of
fact made with respect to vocational factors and RFC coincide with all
of the criteria of a particular medical-vocational rule that rule
directs a decision as to whether the individual is disabled or not
disabled.\43\ When the medical-vocational guidelines are used to direct
a decision, there are some circumstances where the existence or non-
existence of transferable skills acquired from PRW is material to the
decision.\44\
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\42\ See 20 CFR part 404 Subpart P Appendix 2, 20 CFR 404.1569
and 416.969.
\43\ 20 CFR part 404 Subpart P Appendix 2 rule 200.00(a).
\44\ For example, rule 201.03 directs a decision of not disabled
for an individual with a certain specified RFC and vocational
factors who has transferable skills, while rule 201.02 directs a
decision of disabled for an otherwise similar individual who does
not have transferable skills.
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Medical-Vocational Guidelines as a Framework
We use the medical-vocational guidelines as a framework to guide
our decision-making when one or more of the findings of fact do not
coincide with all of the corresponding criteria of a rule.\45\ Because
the medical-vocational guidelines only consider exertional limitations,
we also use them as a framework when an individual's RFC includes only
nonexertional limitations.\46\ In addition, we use them as a framework
when an individual's RFC includes both exertional and nonexertional
limitations and the applicable medical-vocational rule, considering
only the exertional limitations, will direct a decision of ``not
disabled.'' \47\
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\45\ Id.
\46\ 20 CFR 404.1569a(c)(2) and 416.969a(c)(2).
\47\ 20 CFR 404.1569a(d) and 416.969a(d).
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When the medical-vocational guidelines are used as a framework,
there are some circumstances where the existence or non-existence of
transferable skills acquired from PRW is material to the decision.\48\
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\48\ For example, rule 201.03 directs a decision of not disabled
for an individual with a certain specified RFC and vocational
factors who has transferable skills, while rule 201.02 directs a
decision of disabled for an otherwise similar individual who does
not have transferable skills.
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Information We Request and Consider at Steps Four and Five of the
Sequential Evaluation Process
We ask individuals about their past work when we need the
information to make a determination or decision on their claim.\49\ In
most circumstances during the initial application, individuals will be
asked to complete the Adult Disability Report (form SSA-3368), which
includes a section on job history.\50\ On this form, individuals are
asked to complete work history information for up to 5 jobs they held
in the last 15 years before they became unable to work. The information
requested includes the job title and type of business; the dates when
work began and ended; and hours per day, days per week, and rate of
pay.\51\ If an individual only had one job in the last 15 years, they
provide additional detail about that job (these additional details are
the same as those collected on the SSA-3369 discussed below).
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\49\ 20 CFR 404.1565(b) and 416.965(b).
\50\ Available at: <a href="https://www.ssa.gov/forms/ssa-3368.pdf">https://www.ssa.gov/forms/ssa-3368.pdf</a>. The
initial application also collects basic information about a
claimant's work. For example, the form SSA-16 (Application for
Disability Insurance Benefits) prompts respondents to identify: the
name and address of any employers the applicant has worked for in
the current or past year; the length of employment with each
employer; whether the respondent was self-employed; the total earned
income from the current and past year. The form SSA-8000
(Application for Supplemental Security Income) prompts respondents
to identify: the name and address of employers who have provided
wages on or after the filing date of the application; the date last
worked, last paid, and next paid; the total monthly wages; the name
and address of any additional employers the respondent anticipates
working for in the next 14 months; whether the respondent was self-
employed; and this year's, last year's, and next year's expected
self-employment income. The information collected on the initial
application would not be changed as a result of this proposal.
\51\ See 20 CFR 404.1565(b) and 416.965(b).
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If the individual identifies more than one job in the past 15 years
on their Adult Disability Report, and we need additional information
about their work history, we will then re-contact the individual to ask
that they complete a separate Work History Report (form SSA-3369).\52\
SSA processes roughly 1.6 million Work History Reports annually, which
represents approximately 85 percent of all adult initial claimants.
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\52\ Available at: <a href="https://www.ssa.gov/forms/ssa-3369.pdf">https://www.ssa.gov/forms/ssa-3369.pdf</a>.
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The individual has the burden of proof to show that they cannot
perform PRW, and they are required to provide information about their
PRW if we request it.\53\ In some cases, we may request work history
information from an employer or a third party.\54\ For each job held
(regardless of how long the job was held for), we request information
regarding: the dates worked, rate of pay, hours per day and week; a
description
[[Page 67140]]
of the job including all of the duties performed; and any tools,
machinery, and equipment used.\55\ We also request information about
the amount of walking, standing, sitting, lifting, and carrying during
work each day and to recall, for each job, both the most weight ever
lifted as well as the heaviest amount of weight that was frequently
lifted. Individuals must also answer other questions about other
physical or mental demands of the work.\56\
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\53\ 20 CFR 404.1512(a)(1)(iv), 404.1560(b)(2), 404.1565(b),
416.912(a)(1)(iv), 416.960(b)(2), and 416.965(b).
\54\ 20 CFR 404.1565(b) and 416.965(b).
\55\ Id.
\56\ Id.
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Proposed Change
We propose to reduce the PRW period from the current 15 years to 5
years. In many cases, this revision will reduce the number of jobs in
an individual's work history that we will consider at step four of the
sequential evaluation process when we determine whether an individual
can perform their PRW. At step five, this revision will also change the
previous work experience that we will consider under the medical-
vocational guidelines. Because a step four finding can result in a
denial but not an allowance (in FY 2022, 5.8 percent of decisions for
adult claimants were denials at step four), we anticipate that we will
make proportionally fewer denial decisions at step four and
proportionally more decisions at step five. Because step five decisions
require us to also consider work in the national economy an individual
can perform based on their RFC and vocational factors, we expect that
shifting decisions from step four to step five with less past work
considered will result in more allowance decisions. We propose to make
this revision in 20 CFR 404.1560, 404.1565, 416.960, and 416.965.
We also propose to remove a current sentence in 20 CFR 404.1565(a)
and 416.965(a) that explains the intent of our work experience rules is
to ``ensure that remote work experience is not currently applied.'' We
propose to remove this sentence to reflect that the arduous unskilled
work profile and the lifetime commitment profile consider work history
for a period longer than the proposed five year relevant work period.
Justification for Change
We have long recognized that a gradual change occurs in most jobs
in the national economy, so that after a certain period of time it is
not realistic to expect that skills and abilities acquired in these
jobs continue to apply.\57\ In this rule, we propose a period of 5
years because it reflects the shorter collection cycles of occupational
surveys and data programs, which establish a frame of reference for
understanding changing occupational requirements.
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\57\ 20 CFR 404.1565(a) and 416.965(a); SSR 82-62 Titles II and
XVI: A Disability Claimant's Capacity to Do Past Relevant Work, in
General.
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Changing the PRW period from the current 15 years to 5 years will
better account for the diminishing relevance of work skills over time
and reduce the burden on individuals applying for disability. This
change will allow us to improve the quality of the information we
receive by eliminating the individual's need to recall and consistently
report detailed information about less recent work, reduce the time
spent filling out work history forms, and overall reduce waiting times.
Accordingly, this proposed change will improve customer service and
adjudicative efficiency.
1. The Proposal Will Allow Individuals To Focus on the Most Current and
Relevant Information About Their Past Work
We largely rely on individuals' self-reporting for information
about past work,\58\ and self-reported information is often incomplete.
Our adjudicative experience shows that individuals' self-reported work
information tends to be less accurate and complete for jobs that were
held in the more distant past. In many cases, individuals do not have
accurate or complete recall of each job they have performed during the
past 15 years, including detailed physical and mental requirements,
hours worked, and rates of pay. For example, under our current process,
if an individual served as a fast-food cook for 3 months 13 years ago,
we ask them to tell us details such as the number of hours spent
walking, standing, sitting, and carrying during the workday as well as
both the most amount of weight they ever lifted while on the job and
the heaviest weight frequently lifted.
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\58\ 20 CFR 404.1565(b) and 416.965(b). See also POMS DI
22515.001 Overview of Vocational Evidence Development, available at:
<a href="https://secure.ssa.gov/apps10/poms.nsf/lnx/0422515001">https://secure.ssa.gov/apps10/poms.nsf/lnx/0422515001</a>.
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In particular, individuals who struggle to maintain sustained
employment, such as those who change jobs frequently or who have gaps
in their work histories, may have difficulty remembering their past
jobs and specific details. As a result, individuals completing work
history questions on our forms, even with assistance, often leave many
sections blank or incomplete. We estimate that about 30 percent of
disability applications with 15 years of work history include
sufficient detail at the time of application. Often DDS examiners
request additional information before they can make a
determination.\59\ Ultimately, if an individual does not give us the
evidence we need or request, our regulations provide that we will have
to make a determination or decision based on the available
evidence.\60\ Because the individual must identify the functional
requirements of jobs they held, a lack of information regarding
functional requirements may impede our ability to determine if an
individual can do PRW. This proposal will reduce the likelihood of our
not having a complete work history.\61\
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\59\ In POMS DI 22505.014, we direct the DDS to allow a minimum
of 10 calendar days for response to initial outreach, and we direct
DDS to make a follow up once by telephone or letter and allow a
minimum of 10 additional calendar days to respond. We also provide
time to account for the mailing process. For claimants requiring
special handling, DDS must make a reasonable effort to identify and
involve a third party. See <a href="https://secure.ssa.gov/apps10/poms.nsf/lnx/0422505014">https://secure.ssa.gov/apps10/poms.nsf/lnx/0422505014</a>.
\60\ 20 CFR 404.1516, 404.1520b(b)(3), 416.916, and
416.920b(b)(3).
\61\ In FY 2022, 18% of Adult Initial claims were closed as
insufficient evidence, which includes missing information on the
SSA-3369 or other missing work history information, but also
includes claims that were closed for missing information unrelated
to work history.
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Relatedly, on May 16, 2023, in support of the White House Legal Aid
Interagency Roundtable led by the Department of Justice, we met with a
diverse panel of legal aid groups, community advocacy organizations,
and other claimant representative organizations to discuss multiple
Social Security issues of concern to them.\62\ During our listening
session, participants specifically referenced their experience that
their clients had difficulty remembering older work information and
reporting it accurately. Multiple participants particularly noted that
the claimants tire of the work history questions and do not provide the
detailed, accurate information that is critical for making decisions.
One participant in the listening session noted that ``for our client
base, there is just not enough memory to go back and remember all the
things they did, what different jobs they had and when they had them .
. . . [F]or a lot of my client base, the forms, they just get tired of
[[Page 67141]]
them. They're overwhelmed by them. They end up filling out something
sort-of not very thoroughly and not very thoughtfully.'' A separate
participant noted that claimants often forget the physical and mental
requirements of jobs, and are more likely to underestimate them than
overestimate them. Another participant provided an example of a job
that required a claimant to lift a box of copy paper that weighed 25
pounds. They said that claimants might not know the weight of an item
like that and might inadvertently report that they had to lift 10
pounds. As a result, participants noted that work history information
is often incomplete or inaccurate.
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\62\ Attendees included representatives from Legal Aid
Foundation of Los Angeles, Urban Justice Center, Tennessee Alliance
for Legal Services, Vermont Legal Aid, Legal Aid of Arkansas, New
Hampshire Legal Assistance, Disability Law Center (Massachusetts),
Coast to Coast Legal Aid (South Florida), Community Legal Services
of Philadelphia, Legal Counsel for Health Justice, The Arc, National
Association for Disability Representatives, Advocacy and Training
Center, Inner City Law Center, New York Legal Assistance Group,
Dallas Aging and Disability Resource Center, and Bay Area Legal Aid.
An excerpt of the relevant portion of the listening session will be
available upon request.
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In addition, we conducted an Adult Disability Applicant Survey that
concluded in June 2023, and we received feedback from more than 15,000
recent disability applicants about their experience with the disability
application process.\63\ Within the survey, we asked questions about
completing form SSA-3369-BK (Work History Report) and work history
reporting generally. Many respondents expressed difficulties
remembering and accurately reporting details about 15 years' worth of
work history. Some respondents said they did not maintain records for
that long and were unable to accurately report this information, while
other respondents said the request for 15 years' worth of information
took a long time to complete, particularly for individuals who may be
dealing with major life transitions or have more severe impairments.
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\63\ The Adult Disability Applicant Survey is qualitative in
nature, as it is rooted in applicants' perceptions and memory of the
application process. However, the use of a qualitative survey is
consistent with Executive Order 14058, which defines ``customer
experience'' as the public's perceptions of and overall satisfaction
with interactions with an agency, product, or service.
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Taken together, by considering only more recent job information,
which individuals are likely to recall in greater depth, we will
improve the quality of evidence on which our adjudicators base their
decisions.
2. The Proposal Will Reflect the Current Evidence Base on Changes Over
Time in Worker Skill Decay and Job Responsibilities
We propose to revise the definition of the relevant work period to
more accurately reflect how an individual's acquired skills and
knowledge may become less relevant over time after they have stopped
performing previous work. When we defined past work in our regulations
in 1978, we concluded that 15 years was an appropriate guide.\64\
Research indicates that skills not used over extended periods become
less recoverable when later called upon, meaning they provide less
vocational advantage. Most of the major surveys and data programs
concerning occupational requirements conducted in recent decades have
refreshed their data in collection cycles ranging from 5 to 10
years.\65\ We understand that the rate of skills decay and changes in
work requirements have a considerable impact on the workforce. A 2016
BLS report explains that changes in job skill requirements ``are a
function of shifts in skill requirements within occupations as well as
changes in employment shares between occupations.'' \66\ The report
acknowledges that any conclusions based on measurements of these two
aspects of job change will be inexact as the data continue to accrue,
and it goes on to point out that questions remain regarding ``the
magnitudes of within occupation changes along various dimensions, such
as physical demands . . . or specific cognitive skills.'' Nevertheless,
the report's author validated the use of data collection cycles between
five and ten years as a reasonable timeframe for measuring and
documenting changing occupational requirements. Accordingly, we also
propose that a past relevant work period of five years is reasonable.
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\64\ Handel, Michael J., Dynamics of Occupational Change:
Implications for the Occupational Requirements Survey, July 15, 2016
(Table 23), available at: <a href="https://www.bls.gov/ors/research/sample-design/pdf/dynamics-occupational-change-2016.pdf">https://www.bls.gov/ors/research/sample-design/pdf/dynamics-occupational-change-2016.pdf</a>.
\65\ Id.
\66\ Id.
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Two additional markers that illustrate significant occupational
change within a 5-10-year period are the frequency that the Standard
Occupational Classification (SOC) system is updated (i.e., 2000, 2010,
and 2018) and various state re-licensing, re-certification, and
continuing education requirements (typically once every 1 to 5 years,
depending on the profession).\67\ The SOC system is updated to reflect
changes in the economy and the nature of work,\68\ and the frequency at
SOC system is updated balances the need for an up-to-date taxonomy
against the ability to track occupational changes over time and the
desire to minimize disruption to survey collection processes and data
series.\69\ Collectively, the research and evidence suggest that
considering occupational change or skills decay warrants measuring or
ensuring currency over a 5-10 year period.
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\67\ The SOC is a Federal statistical standard used by Federal
agencies to classify workers into occupational categories for the
purpose of collecting, calculating, or disseminating data.
\68\ Revising the Standard Occupational Classification,
available at: <a href="https://www.bls.gov/soc/revising_the_standard_occupational_classification_2018.pdf">https://www.bls.gov/soc/revising_the_standard_occupational_classification_2018.pdf</a>.
\69\ See Monthly Labor Review: Revising the Standard
Occupational Classification system for 2010, available at: <a href="https://www.bls.gov/opub/mlr/2010/08/art3full.pdf">https://www.bls.gov/opub/mlr/2010/08/art3full.pdf</a>.
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Other research supports that unused manual work skills generally
diminish in less than 10 years. Using data from the Occupational
Information Network (O*NET),\70\ combined with a worker-level panel,
researchers in 2020 found that manual skills tend to erode quickly when
not used, with an estimated loss of 50 percent over 7.5 years.\71\ This
2020 study by Lise and Postel-Vinay also supports the premise that
manual skills developed in jobs held longer than 10 years ago likely
have diminished relevance and are unlikely to be well-retained by
individuals. By contrast, jobs held no more than five years in the past
provide a vocational advantage because the skills an individual learned
are more current, and the occupation is less likely to have changed.
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\70\ The Occupational Information Network (O*NET) is sponsored
by the U.S. Department of Labor. O*NET provides descriptive
information about occupations and helps people find the training and
jobs they need, and employers the skilled workers necessary to be
competitive in the marketplace. For more information, see: <a href="https://www.onetonline.org">https://www.onetonline.org</a>.
\71\ Lise, J., & Postel-Vinay, F. (2020). Multidimensional
Skills, Sorting, and Human Capital Accumulation. The American
Economic Review, 110(8), 2328-2376, available at: <a href="https://www.jstor.org/stable/26966333">https://www.jstor.org/stable/26966333</a>.
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3. The Proposal Will Reduce Processing Time and Improve Customer
Service
This revision will also help improve our customer service by
reducing our time burden to develop detailed work history for jobs
performed in the distant past that are less relevant for the reasons
stated above. Overall, we will be able to make determinations and
decisions more quickly, which also ultimately benefits the public we
serve. The U.S. Supreme Court previously recognized the ``need for
efficiency [in our adjudicative process] is self-evident'' and
important given that our hearing system is ``probably the largest
adjudicative agency in the western world'' because we adjudicate
millions of claims for disability benefits each year.\72\
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\72\ Heckler v. Campbell, 461 U.S. 458, 461, n.2 (1983).
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This proposal will reduce our burden associated with recontacting
individuals or other sources to fully develop evidence in some claims.
As stated above, we have found that individuals
[[Page 67142]]
have difficulty providing accurate and complete information about work
they have not done in many years. When an individual does not provide
complete information about all of the jobs they held in the past 15
years, we try to recontact them to obtain the additional
information.\73\ Our efforts to develop more complete information about
past work may also involve contacting third parties, such as former
employers.\74\ Our task of developing complete information about how a
particular job was performed can be difficult and time consuming
because individuals, past employers, and other third parties might not
recall the details of nor have records for work performed many years in
the past. This difficulty is further compounded when prior employers
are no longer in existence or otherwise not available to provide
evidence. Our efforts to help individuals obtain and provide complete
evidence slow our adjudication of their claims. Accordingly, we
anticipate this proposal will reduce individual wait times and our
total pending claims.
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\73\ 20 CFR 404.1565(b) and 416.965(b).
\74\ Id.
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4. The Proposal Will Reduce Burden on Individuals
This proposal will reduce the information collection burden on
individuals by reducing, on average, the number of jobs about which
they must provide us with information. This anticipated burden
reduction is supported by additional information collected during the
Adult Disability Applicant Survey. Respondents reported a wide range of
completion times for the SSA-3369-BK. SSA currently reports an average
time burden of 60 minutes. However, respondents indicated that based on
their own experiences and memories, the time it takes to complete the
entire process, including gathering the information and completing the
form, can take anywhere from fewer than 60 minutes up to several hours,
depending on an individual's work history. The median time burden
reported was 2 hours for individuals who reported a work history that
included work performed 6 years before the application and earlier, but
90 minutes for individuals who reported a work history that included
only work performed 1 to 5 years prior to application.
These results suggest that even if individuals report different
time burden associated with PRW, the data consistently show that a work
history ending at the 5-year mark is notably less burdensome than a
longer work history.
The table below indicates that a longer retrospective period
generally includes more jobs than a shorter one. As the Adult
Disability Applicant Survey suggests, fewer jobs to report may mean
less burden on individuals. The following table, which is based on a
sample of administrative data for research purposes, shows the median
number of employers individuals of various ages have had in the
previous 5, 10, and 15 years.\75\
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\75\ Sources: 2019 Longitudinal Employee-Employer Data (LEED)
1percent File, Disability Research File (Title II and Title XVI),
and Numident; N = 9,087. The LEED is a sample of administrative data
we use for research purposes. A unique employer is not necessarily
the same as a unique job. Individuals may have worked in multiple
jobs with the same employer over a number of years. For instance, an
individual could have started working for an employer in a lower-
skill job and later received a promotion to a higher-skill job. On
the other hand, individuals may have worked in the same type of job
for different employers. For example, an individual may have been a
cashier in more than one grocery store chain.
Median Number of Employers in Retrospective Time Periods, by Age Group
----------------------------------------------------------------------------------------------------------------
Age group Past 5 years Past 10 years Past 15 years
----------------------------------------------------------------------------------------------------------------
All (25-65)............................................ 2 3 5
25-29.................................................. 4 7 7
30-34.................................................. 3 5 10
35-39.................................................. 2 4 8
40-44.................................................. 2 4 7
45-49.................................................. 2 3 6
50-54.................................................. 2 3 5
55-59.................................................. 1 2 4
60-65.................................................. 1 2 3
----------------------------------------------------------------------------------------------------------------
Sources: 2019 Longitudinal Employee-Employer Data (LEED) 1 Percent File, Disability Research File (Title II and
Title XVI), and Numident.
Note: N = 9,087 (includes individuals with missing or unknown sex in the data set).
The table shows that, for adults ages 25-65, use of a 5-year
relevant work period will reduce the median number of past employers.
Among adults in that age group, the median number of employers for the
past 15 years is 5 and the median number for the past 5 years is 2.
Therefore, reducing the relevant work period to 5 years will reduce the
burden on individuals because many will need to report information
about fewer employers.
We use different forms to collect work history information
necessary for the type and level of adjudication of a claim. As the
information below demonstrates, using a 5-year relevant work period
will reduce the burden on individuals completing these forms.
At the time of application, individuals submit the SSA-3368 form
(Disability Report--Adult) online, through the mail, or in-person at a
field office, which we use to collect a wide range of information,
including medical and vocational information needed to adjudicate adult
disability claims.\76\ The form SSA-3368 requires detailed work history
information from the individual. It asks individuals to complete work
history information for up to 5 jobs they held in the last 15 years
before they became unable to work. The information requested includes
the job title and type of business; the dates when work began and
ended; and hours per day, days per week, and rate of pay.\77\ If the
individual only had one job in the last 15 years, they provide
additional detail about that job, including information regarding what
they did all day in that job, the machines or tools they used, the
knowledge or technical skills they acquired, and the job's specific
physical demands. The current time burden estimate for an individual to
complete form SSA-3368 is 90 minutes, which includes reading the
instructions, gathering facts, and answering the questions. We estimate
that, with the changes we propose, filling out form
[[Page 67143]]
SSA-3368 will reduce the time burden on an individual to complete the
form to 80 minutes on average, as explained below.\78\ The change to
form SSA-3368 will result in an estimated burden savings of 376,419
hours for individuals.
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\76\ We collect information on the form SSA-3368 in several
modalities. In addition to the standard paper form, which is
available in English and Spanish languages, we also offer an
internet-based modality. We collect this information for adult
initial claims and age-18 redeterminations.
\77\ See 20 CFR 404.1565(b) and 416.965(b).
\78\ See the Paperwork Reduction Act section, below.
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Generally, the State Disability Determination Services (DDS) use
form SSA-3369-BK to request detailed information from individuals
regarding any jobs they have held during the 15-year period and for
which they have not already provided detailed information on the form
SSA-3368.\79\ The DDSs typically sends this form to approximately 85
percent of adult initial claimants. The current time burden estimate
for an individual to complete form SSA-3369 is 1 hour, which includes
reading the instructions, gathering facts, and answering the questions
about each job the individual has performed in the last 15 years. We
estimate that, with the changes we propose, filling out form SSA-3369
will reduce the time burden on an individual to complete the form to 40
minutes on average, as explained below.\80\ The change to form SSA-3369
will result in an estimated burden savings of 530,650 hours for
individuals.
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\79\ We currently collect information on the form SSA-3369 using
a paper form, which is available in English and Spanish languages.
In certain instances, field offices collect information instead of
the DDS. For more information, see POMS DI 11005.025 Completing the
SSA-3369, available at: <a href="https://secure.ssa.gov/apps10/poms.nsf/lnx/0411005025">https://secure.ssa.gov/apps10/poms.nsf/lnx/0411005025</a>.
\80\ See the Paperwork Reduction Act section, below.
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At the hearings level, adjudicators may collect any additional or
changed work history using the form HA-4633 (Claimant's Work
Background). The current time burden estimate for an individual to
complete form HA-4633 is 30 minutes. We estimate that, with the changes
we propose, filling out the form HA-4633 will reduce the time burden on
an individual to complete the form to 20 minutes on average as
explained below. The change to HA-4633 form will result in an estimated
burden savings of 31,666 hours.
Overall, the total estimated burden savings on all three forms
(SSA-3368, SSA-3369, and HA-4633) is estimated to be 938,735 hours.
Conclusion: Improving the Balance Between Information Utility and
Burden Reduction
In developing this proposed rule, we sought to balance the need for
accurate work history information for our disability determinations
with the goals of obtaining only the most relevant information,
reducing burden on individuals, and decreasing the overall disability
determination time. Ultimately, we determined that work experience from
jobs performed more than 5 years ago may not be as relevant as work
experience from jobs performed 5 years ago or less. Also, based on our
research, it is significantly less burdensome for individuals to report
a job history of 5 years or less. Further, developing that job history
would save time and increase efficiency for our personnel. Based on
these factors (as outlined in greater detail above), we propose the 5-
year period as the best balance between obtaining an accurate work
history and ensuring optimal burden reduction and time savings.
How the Proposed Revisions Will Affect Our Decision Making at Step Four
of the Sequential Evaluation Process
Revising the relevant work period from the current 15 years to 5
years will reduce the number of jobs in an individual's work history
that we will consider at step four and at the corresponding step in the
evaluation process used in CDRs when we determine whether an individual
can perform their PRW. Because a step four finding can result in a
denial but not an allowance, we anticipate that a smaller proportion of
denial decisions will be made at step four and that a greater
proportion of all our decisions will be made at step five.
Under the proposed rule, some claims that would have been a step
four denial under the current rules would instead result in a step five
allowance. For example: A 53-year-old individual applying for SSI has a
high school education and an RFC consistent with unskilled sedentary
work. The individual last performed sedentary, unskilled work as an
order clerk 10 years ago. The work as an order clerk was SGA, and the
individual did it long enough to learn to do the job at an average
level. The individual has acquired no transferrable skills from other
work. Under current rules, the individual would be found ``not
disabled'' because they retain the RFC to perform their PRW as an order
clerk. With a five-year PRW period, however, the individual would be
found ``disabled'' because (1) the work as an order clerk would not
have been performed recently enough to qualify as PRW, and (2) at step
five, medical-vocational rule 201.12 directs a ``disabled'' finding for
a person with the individual's RFC, age, education, and work history.
However, other claims that would have a step four denial under the
current rules would still result in a step five denial under the
proposed rules. For example: Assume the same facts as the previous
example, except that the individual is 43 years old. Although the
individual's work as an order clerk would not qualify as PRW under the
rules we are proposing, the individual would still be found ``not
disabled.'' While the individual would be found unable to perform their
PRW, medical-vocational rule 201.27 would direct a denial at step five
given the individual's RFC, age, education, and work history.
How the Proposed Revision Will Affect Decision Making at Step Five of
the Sequential Evaluation Process
The proposed revision to reduce the relevant work period from 15 to
5 years will affect our decision making at the fifth step in the
sequential evaluation process we use in initial claims and at the
corresponding step in the evaluation process used in CDRs.
1. How the Change Will Affect Eligibility for the No Work Profile
Revising the relevant work period to five years will make it more
likely that an individual will meet the no work profile.\81\ The no
work medical-vocational profile directs a finding of disabled for any
individual 55 or older with no more than limited education, no PRW, and
a severe impairment. Revising the relevant work period from 15 to 5
years will increase the applicability of the no work profile because
any individual who had not worked during the relevant 5-year period
will be deemed to have no PRW. This effect will increase at each level
of the administrative review process because the relevant work period
is measured from the date of adjudication, in most cases, and will
shift as a case moves
[[Page 67144]]
through administrative review.\82\ As a result, work found to be PRW at
earlier administrative levels may cease to qualify as PRW at later
stages in the review process.
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\81\ Our Office of the Chief Actuary estimates that for old age,
survivors, and disability insurance (OASDI) and SSI combined, about
two percent of the total marginal increase in disability allowances
attributable to the assumed implementation of this proposed rule
would be additional claims allowed under the no work profile, with
the majority of this effect on SSI adult disability awards. This
translates to annual average increases of fewer than 50 OASDI
disability awards per year and 400 SSI adult disability awards per
year over fiscal years 2025 through 2033. Some of these additional
awards under the no work profile could otherwise be allowed under
other vocational rules. The proposed change will also likely result
in more instances in which an individual's RFC and vocational
factors align with a grid rule that directs a finding that the
individual is disabled because of a lack of any PRW. This situation
will occur if the individual's most recent work experience was 6-15
years prior to the determination or decision. For example, rule
203.03 directs a ``not disabled'' finding for an individual with
PRW, while rule 203.02 directs an allowance for an otherwise similar
individual with no PRW.
\82\ For more information, see section Definition of PRW and the
Relevant Work Period, above.
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2. How the Change Will Affect Outcomes Based on Medical-Vocational
Guidelines Using Transferable Skills
Revising the relevant work period to five years will make it more
likely that individuals will lack transferable skills. Some of the
rules under the medical-vocational guidelines direct different
decisions depending on whether individuals have acquired transferable
skills from their past work. Because work performed 6 to 15 years prior
to our determination or decision will no longer qualify as past work,
we will no longer consider skills acquired from such work to be
transferable to other skilled or semi-skilled work.\83\ Therefore, more
claims will be decided based on rules that direct a finding that the
individuals are disabled.\84\
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\83\ See 20 CFR 404.1568 and 416.968.
\84\ Our Office of the Chief Actuary estimates that for OASDI
and SSI combined, about 30 percent of the total marginal increase in
disability allowances attributable to the assumed implementation of
this proposed rule would be allowed due to additional awards for
individuals no longer being assessed to have transferable skills,
whereas they would have such skills under our current rule. This
translates to an average of about 7,500 additional OASDI disability
awards and 2,500 additional SSI adult disability awards per year
over fiscal years 2025 through 2033.
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Under the medical-vocational guidelines, the presence of
transferable skills has a material effect on the outcomes of
determinations and decisions for individuals age 50 or older in several
instances.\85\ Furthermore, because the relevant work period will shift
as a case moves through the administrative review process,\86\ work
found to provide transferable skills at earlier administrative levels
will often cease to qualify as PRW at later stages in the review
process.
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\85\ For example, rule 201.03 directs a decision of not disabled
for an individual with a certain specified RFC and vocational
factors who has transferable skills, while rule 201.02 directs a
decision of disabled for an otherwise similar individual who does
not have transferable skills.
\86\ For more information, see section Definition of PRW and the
Relevant Work Period, above.
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Effect on Current Subregulatory Guidance
If we adopt the proposed rule as a final rule, we will rescind
several current Social Security Rulings (SSRs) because they will be
inconsistent with the final rule. The list includes:
<bullet> SSR 82-61: Titles II and XVI: Past Relevant Work--The
Particular Job or the Occupation as Generally Performed. We will
rescind this SSR because we propose to revise how we consider past
relevant work.
<bullet> SSR 82-62: Titles II and XVI: A Disability Claimant's
Capacity to Do Past Relevant Work, In General. We will rescind this SSR
because we propose to revise how we consider past relevant work.
<bullet> SSR 82-63: Titles II and XVI: Medical-Vocational Profiles
Showing an Inability to Make an Adjustment to Other Work. We will
rescind this SSR because we propose to revise how we consider past
relevant work.
<bullet> SSR 86-8: Titles II and XVI: The Sequential Evaluation
Process. We will rescind this SSR because we propose to revise how we
consider past relevant work.
We plan to issue updated subregulatory guidance and will also
provide training to our adjudicators.
Solicitation for Public Comment
We are seeking public comment on this proposed rule. Questions the
public may wish to consider when evaluating this proposed rule:
<bullet> Is there data or other evidence supporting a relevant work
period other than 5 years that could be used to inform this rulemaking?
<bullet> Do you have any additional information about whether we
should revise the no work profile to maintain a 15-year period as it
exists under our current rules?
<bullet> Do you have any additional information about whether we
should end use of the medical-vocational profiles because they require
collection and development of more than 5 years of work history?
<bullet> The current time burden estimate to complete form SSA-
3369-BK (OMB No. 0960-0578) is 60 minutes for individuals. We are
estimating (see Paperwork Reduction Act of this preamble) the revised
form requiring only 5 years of work history will take 40 minutes for
individuals to complete. Do you agree with this new estimate? Why or
why not?
<bullet> Are there areas where we could further simplify this form
or other aspects of the information collection process while still
collecting all the information that is required to make an accurate
disability determination?
<bullet> We currently ask individuals to list all jobs they have
held during the relevant work period, regardless of the length of time
the job was held. Should we consider revising this requirement so that
respondents do not need to report jobs held for short periods of time
(e.g., one month)? If so, what threshold should we set and what
evidence supports this threshold?
Rulemaking Analyses and Notices
We will consider all comments we receive on or before the close of
business on the comment closing date indicated above. The comments will
be available for examination in the rulemaking docket for these rules
at the above address. We will file comments received after the comment
closing date in the docket and may consider those comments to the
extent practicable. However, we will not respond specifically to
untimely comments. We may publish a final rule at any time after close
of the comment period.
Clarity of This Rule
Executive Order 12866, as supplemented by Executive Orders 13563
and 14094, requires each agency to write all rules in plain language.
In addition to your substantive comments on this proposed rule, we
invite your comments on how to make the rule easier to understand. For
example:
<bullet> Would more, but shorter, sections be better?
<bullet> Are the requirements in the rule clearly stated?
<bullet> Have we organized the material to suit your needs?
<bullet> Could we improve clarity by adding tables, lists, or
diagrams?
<bullet> What else could we do to make the rule easier to
understand?
<bullet> Does the rule contain technical language or jargon that is
not clear?
<bullet> Would a different format make the rule easier to
understand, e.g., grouping and order of sections, use of headings, or
paragraphing?
When will we start to use this rule?
We will not use this rule unless we publish a final rule in the
Federal Register after evaluating the public comments. All final rules
we issue include an effective date. We will continue to use our current
rules until that date. If we publish a final rule, we will include a
summary of those relevant comments we received along with responses and
an explanation of how we will apply the new rule. If we adopt the
proposed rule as a final rule, we will begin to use it in all claims
awaiting a final determination or decision as of the effective date of
the final rules.
Regulatory Procedures
Executive Order 12866, as Supplemented by Executive Orders 13563 and
14094
We consulted with the Office of Management and Budget (OMB) and
[[Page 67145]]
determined that this rule is significant under Section 3(f)(1) of
Executive Order 12866, as supplemented by Executive Orders 13563 and
14094. Therefore, OMB reviewed it.
Anticipated Transfers to Our Program
The Office of the Chief Actuary (OCACT) estimates that
implementation of this proposed rule would result in an increase in
scheduled SSDI benefits of $22.9 billion, a net reduction in scheduled
old-age and survivors insurance (OASI) benefits of $6.5 billion, and an
increase in Federal SSI payments of $3.9 billion in total over fiscal
years 2024 through 2033, assuming implementation for all decisions made
on or after May 6, 2024. OCACT estimates that this rule would primarily
affect individuals ages 50 and older. These estimates assume that
because more people will be receiving SSDI until they reach full
retirement age, fewer people will be receiving OASI; this does not
reflect any change to OASI eligibility.
To develop this estimate, we conducted a case study of 1,024
disability determinations to determine the effect on determinations at
the DDS and hearings before administrative law judges (ALJ). Using a
stratified random sample of final denial decisions in FY 2016 and
appropriate available medical evidence, case reviewers evaluated the
effects on the medical determination of reducing the relevant work
period from 15 to 5 years. The sample included determinations of both
initial applications and CDRs for OASDI and SSI adults at the DDS and
ALJ hearings level. The sample also included both current rule step
four and step five denials.
OCACT's analysis of the study results indicates that for denials at
step four that are occurring under current rules, roughly 50 percent
would no longer be denied under the proposed rule and thus would
require a determination at step five. The study further indicates that
about one-third of these cases would be allowed at step five, so that
overall, about 17 percent of current step four denials would be allowed
at step five. For denials at step five under current rules, the study
indicates that the effects would be much smaller. The study found that
about four percent of the step five denial decisions studied would
change to an allowance. This is not equivalent to a four percent
decrease in step five denials overall, because the sub-sample of step
five denials in this study was stratified to include only the select
group of step five denials that would potentially be affected by the
proposed change in the relevant work period.
Using the case study results, OCACT estimates that on average over
the next 10 years, the proposed rule will increase the number of
disability awards per year by about 21,000 for OASDI and 10,000 for
SSI. Of these changes, for OASDI, OCACT estimates roughly:
<bullet> 13,500 new allowances for individuals who would be denied
at step four under current rules but under the proposed rules would be
determined eligible under the vocational rules at step five;
<bullet> 7,500 new allowances for individuals who would be denied
at step five under current rules because of transferrable skills from
PRW who are determined eligible due to no longer being assessed to have
transferable skills; and
<bullet> Less than 50 new allowances who would now be eligible
under the ``no work'' profile.
For SSI, OCACT estimates roughly:
<bullet> 7,100 new allowances would be denied at step four under
current rules but would be determined eligible under the vocational
rules at step five;
<bullet> 2,500 new allowances for individuals who would be denied
at step five under current rules because of transferrable skills from
PRW who would be determined eligible due to no longer being assessed to
have transferrable skills; and
<bullet> 400 new allowances under the ``no work'' profile.
Combining the impacts to OASDI and SSI, approximately two-thirds of
the increase in awards is due to new allowances under the vocational
rules at step five, 30 percent is due to individuals who would be
allowed due to no longer being assessed to have transferable skills,
and two percent is due to individuals who would now be eligible under
the ``no work'' profile.
Anticipated Net Administrative Savings to the Social Security
Administration
The Office of Budget, Finance, and Management estimates that this
proposal will result in net administrative savings of $1.05 billion for
the 10-year period from FY 2024 to FY 2033. The administrative savings
are primarily driven by time savings from evaluating work over a
shorter period for initial claims, reconsideration requests, and
hearings processed in our field offices, State disability determination
services, and hearings offices. In addition, due to a shorter PRW
period, we expect fewer disability re-applications, reconsiderations,
and hearings requests over the 10-year period, leading to sizeable
administrative savings. Savings are offset by administrative costs
stemming from systems updates and training costs upon implementation,
and post-eligibility actions for additional beneficiaries and non-
disabled dependents thereafter.
Anticipated Time-Savings and Other Qualitative Benefits to the Public
The proposed change will reduce the obstacles that individuals with
significant physical or mental impairments face in their efforts to
obtain the crucial benefits our disability programs provide. Our
experience indicates that individuals often find it difficult to gather
and provide accurate information about their work histories, and that
those difficulties tend to increase when they are asked to provide
detailed information about work performed in the more distant past.
Reducing individuals' need to gather and report information about work
performed beyond the proposed 5-year relevant period will increase the
likelihood we will have a complete and accurate work history report. We
estimate at a minimum this will result in at least 938,735 hours of
time savings in direct paperwork burden experienced by claimants as
well as additional time-savings associated with the overall process of
completing the relevant forms. As discussed in the Paperwork Reduction
Act section below, we estimate the opportunity costs of this time-
savings to be at least $59,733,733 annually.
The proposed change may also prevent the denial of benefits in
certain situations in which, under our current rules, an individual
might be found ``not disabled'' because of relatively distant work
experience.
Anticipated Costs to the Public
As discussed in the preamble, our process for determining if an
individual is disabled includes evaluating whether or not the
individual, given their RFC, can perform any of their past relevant
work. If an individual can perform their past work, then we will
determine they are not disabled. By limiting the review of past
relevant work to the previous 5 years, there are likely, on the
margins, individuals who held jobs longer than 5 years in the past who
may still be able to perform those jobs today. Those individuals would
be found not disabled under our current rules. Under the proposed
rules, these individuals may be allowed. A subset of these individuals
who would have been denied under the current rules would have worked in
the absence of benefits. This reduction in labor force
[[Page 67146]]
participation imposes some social costs on the public.
Previous research has found that, among claimants on the margin, an
additional 16 to 17 percent would have worked above SGA in the absence
of benefits three years later.\87\ Although this margin is different
than the one that would be invoked by the proposed change in rules, it
provides a useful reference point.. One study found that 35 percent of
those denied at step four (and above age 50) worked above SGA in at
least one of the five years after the decision.\88\ Further, the study
found that 17 percent of this group had any earnings in the second year
after the decision.\89\ Therefore, the evidence indicates that there
will be some instances of newly-allowed beneficiaries who would have
worked--some of them above SGA--if they had been denied on the basis of
the ability to do past work. This is also consistent with OCACT's
preliminary estimate that the increase in the number of individuals who
would be receiving disability benefits would reduce OASDI payroll tax
revenue over the next 10 years by a total between $200 million and $300
million.
---------------------------------------------------------------------------
\87\ Maestas, Nicole, Kathleen J. Mullen, and Alexander Strand.
2013. ``Does Disability Insurance Receipt Discourage Work? Using
Examiner Assignment to Estimate Causal Effects of SSDI Receipt.''
American Economic Review, 103 (5): 1797-1829.
French, Eric, and Jae Song. 2014. ``The Effect of Disability
Insurance Receipt on Labor Supply.'' American Economic Journal:
Economic Policy 6(2): 291-337
\88\ Hyde, Jody Schimmel, April Yanyuan Wu and Lakhpreet Gill,
2018, The Benefit Receipt Patterns and Labor Market Experiences of
Older Workers Who Were Denied SSDI on the Basis of Work Capacity,
DRC Working Paper Number 2018-01. Available at <a href="https://www.mathematica.org/publications/the-benefit-receipt-patterns-and-labor-market-experiences-of-older-workers-who-were-denied-ssdi">https://www.mathematica.org/publications/the-benefit-receipt-patterns-and-labor-market-experiences-of-older-workers-who-were-denied-ssdi</a>. See
page 24. Small sample sizes in the Health and Retirement Study
preclude giving estimates for individual years.
\89\ Ibid, see Table C1.
---------------------------------------------------------------------------
Executive Order 13132 (Federalism)
We analyzed this proposed rule in accordance with the principles
and criteria established by Executive Order 13132 and determined that
the proposed rule will not have sufficient federalism implications to
warrant the preparation of a federalism assessment. We also determined
that this proposed rule will not preempt any State law or State
regulation or affect the States' abilities to discharge traditional
State government functions.
Regulatory Flexibility Act
We certify that this proposed rule will not have a significant
economic impact on a substantial number of small entities because it
affects individuals only. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
SSA already has existing OMB PRA-approved information collection
tools relating to this proposed rule: Claimant's Work Background (HA-
4633, OMB No. 0960-0300); Work History Report SSA-3368, OMB No. 0960-
0578); and Disability Report--Adult (SSA-3368, OMB No. 0960-0579). The
proposed rule, once implemented in final, provides for a shorter work
history requirement than we previously required; therefore, we expect
the rule will significantly reduce public reporting burdens associated
with these forms. The sections below report our current public
reporting burdens for these existing OMB-approved forms, and project
the anticipated burden reduction and new burden figures after
implementation at the final rule stage. We will obtain OMB approval for
the revisions to the collection instruments simultaneously with the
publication of the final rule.
The following chart shows the time burden information associated
with the proposed rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated Anticipated
Current Current new burden estimated
Number of Frequency of average estimated per response total burden Estimated
OMB No.; Form No.; CFR citations respondents response burden per total burden under under burden
response (hours) regulation regulation savings
(minutes) (minutes) (hours)
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0300, HA-4633, (Paper Form) 32,300 1 30 16,150 20 10,767 5,383
410.1560; 416.960......................
0960-0300, HA-4633, (ERE) 410.1560; 157,700 1 30 78,850 20 52,567 26,283
416.960................................
0960-0578, SSA-3369, (Paper Form) 1,553,900 1 60 1,553,900 40 1,035,933 517,967
410.1560; 416.960......................
0960-0578, SSA-3369, (EDCS Screens) 38,049 1 60 38,049 40 25,366 12,683
410.1560; 416.960......................
0960-0579, SSA-3368, (Paper Form) 6,045 1 90 9,068 80 8,060 1,008
410.1560; 416.960......................
0960-0579, SSA-3368, (EDCS Screens) 1,263,104 1 90 1,894,656 80 1,684,139 210,517
410.1560; 416.960......................
0960-0579, i3368, (Internet Screens) 989,361 1 90 1,484,042 80 1,319,148 164,894
410.1560; 416.960......................
---------------------------------------------------------------------------------------------------------------
Totals.............................. 4,040,459 .............. .............. 5,074,715 .............. 4,135,980 938,735
--------------------------------------------------------------------------------------------------------------------------------------------------------
The following chart shows the theoretical cost burdens associated
with the proposed rule:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Anticipated
estimated Average Average wait
total burden theoretical time in field Total annual
OMB No.; Form No.; CFR citations Number of under hourly cost office or opportunity cost
respondents regulation amount teleservice (dollars) ***
from chart (dollars) * centers
Above (hours) (minutes) **
--------------------------------------------------------------------------------------------------------------------------------------------------------
0960-0300, HA-4633, (Paper Form) 410.1560; 416.960................. 32,300 10,767 * $12.81 ............... *** 137,925
[[Page 67147]]
0960-0300, HA-4633, (ERE) 410.1560; 416.960........................ 157,700 52,567 * 29.76 ............... *** 1,564,394
0960-0578, SSA-3369, (Paper Form) 410.1560; 416.960................ 1,553,900 1,035,933 * 12.81 ............... *** 13,270,302
0960-0578, SSA-3369, (EDCS Screens) 410.1560; 416.960.............. 38,049 25,366 * 12.81 ** 21 *** 495,529
0960-0579, SSA-3368, (Paper Form) 410.1560; 416.960................ 6,045 8,060 * 12.81 ** 21 *** 130,355
0960-0579, SSA-3368, (EDCS Screens) 410.1560; 416.960.............. 1,263,104 1,684,139 * 12.81 ** 21 *** 27,236,942
0960-0579, i3368, (Internet Screens) 410.1560; 416.960............. 989,361 1,319,148 * 12.81 ............... *** 16,898,286
------------------------------------------------------------------------------------
Totals......................................................... 4,040,459 4,135,980 .............. ............... *** 59,733,733
--------------------------------------------------------------------------------------------------------------------------------------------------------
* We based this figure on the average SSDI payments based on SSA's current FY 2023 data (<a href="https://www.ssa.gov/legislation/2023factsheet.pdf">https://www.ssa.gov/legislation/2023factsheet.pdf</a>); on the
average U.S. citizen's hourly salary, as reported by Bureau of Labor Statistics data (<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>).
** We based this figure on the average FY 2023 wait times for field offices and hearings office, as well as by averaging both the average FY 2023 wait
times for field offices and teleservice centers, based on SSA's current management information data.
*** This figure does not represent actual costs that SSA is imposing on recipients of Social Security payments to complete this application; rather,
these are theoretical opportunity costs for the additional time respondents will spend to complete the application. There is no actual charge to
respondents to complete the application.
SSA submitted a single new Information Collection Request which
encompasses the revisions to all three information collections
(currently under OMB Numbers 0960-0300, 0960-0578, and 0960-0579) to
OMB for the approval of the changes due to the proposed rule. After
approval at the final rule stage, we will adjust the figures associated
with the current OMB numbers for these forms to reflect the new burden.
We are soliciting comments on the burden estimate; the need for the
information; its practical utility; ways to enhance its quality,
utility, and clarity; and ways to minimize the burden on respondents,
including the use of automated techniques or other forms of information
technology. If you would like to submit comments, please send them to
the following locations:
Office of Management and Budget, Attn: Desk Officer for SSA, Fax
Number: 202-395-6974, Email address: <a href="/cdn-cgi/l/email-protection#f1beb8a3b0aea284939c988282989e9fb19e9c93df949e81df969e87"><span class="__cf_email__" data-cfemail="5b1412091a04082e39363228283234351b343639753e342b753c342d">[email protected]</span></a>
Social Security Administration, OLCA, Attn: Reports Clearance Director,
Mail Stop 3253 Altmeyer, 6401 Security Blvd., Baltimore MD 21235, Fax:
410-966-2830, Email address: <a href="/cdn-cgi/l/email-protection#92ddc0bcc0f7e2fde0e6e1bcd1fef7f3e0f3fcf1f7d2e1e1f3bcf5fde4"><span class="__cf_email__" data-cfemail="bbf4e995e9decbd4c9cfc895f8d7dedac9dad5d8defbc8c8da95dcd4cd">[email protected]</span></a>
You can submit comments until November 28, 2023, which is 60 days
after the publication of this notice. However, your comments will be
most useful if you send them to SSA by November 28, 2023, which is 60
days after publication. To receive a copy of the OMB clearance package,
contact the SSA Reports Clearance Officer using any of the above
contact methods. We prefer to receive comments by email or fax.
List of Subjects
20 CFR Part 404
Administrative practice and procedure, Blind, Disability benefits,
Old-age, Survivors, and Disability insurance, Reporting and
recordkeeping requirements, Social Security.
20 CFR Part 416
Administrative practice and procedure, Reporting and recordkeeping
requirements, Supplemental Security Income (SSI).
The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D.,
M.S.W., having reviewed and approved this document, is delegating the
authority to electronically sign this document to Faye I. Lipsky, who
is the primary Federal Register Liaison for SSA, for purposes of
publication in the Federal Register.
Faye I. Lipsky,
Federal Register Liaison, Office of Legislation and Congressional
Affairs, Social Security Administration.
For the reasons set out in the preamble, we propose to amend 20 CFR
part 404, subpart P, and part 416, subpart I, as set out below:
PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE
(1950- )
Subpart P--Determining Disability and Blindness
0
1. The authority citation for subpart P of part 404 continues to read
as follows:
Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a) and
(h)-(j), 222(c), 223, 225, and 702(a)(5) of the Social Security Act
(42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a) and (h)-(j),
422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110
Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42
U.S.C. 902 note).
0
2. Amend Sec. 404.1560 by revising paragraph (b)(1) to read as
follows:
Sec. 404.1560 When we will consider your vocational background.
* * * * *
(b) * * *
(1) Definition of past relevant work. Past relevant work is work
that you have done within the past five years that was substantial
gainful activity and that lasted long enough for you to learn to do it.
(See Sec. 404.1565(a)).
* * * * *
0
3. Revise Sec. 404.1565 to read as follows:
Sec. 404.1565 Your work experience as a vocational factor.
(a) General. Work experience means skills and abilities you have
acquired through work you have done which show the type of work you may
be expected to do. Work you have already been able to do shows the kind
of work that you may be expected to do. We consider that your work
experience applies when it was done within the last five years, lasted
long enough for you to learn to do it, and was substantial gainful
activity. We do not usually consider that work you did more than five
years before the time we are deciding whether you are disabled (or when
the disability insured status requirement was last met, if earlier)
applies. A gradual change occurs in most jobs so that after five years
it is no longer realistic to expect that skills and abilities acquired
in a job done then continue to apply. If you have no work experience or
worked only ``off-and-on'' or for brief periods of time during the
five-year period, we generally consider that these do not apply. If you
have acquired skills through your past work, we consider you to have
these work skills unless you cannot use them in other skilled or semi-
skilled work that
[[Page 67148]]
you can now do. If you cannot use your skills in other skilled or semi-
skilled work, we will consider your work background the same as
unskilled. However, even if you have no work experience, we may
consider that you are able to do unskilled work because it requires
little or no judgment and can be learned in a short period of time.
(b) Information about your work. Under certain circumstances, we
will ask you about the work you have done in the past. If you cannot
give us all of the information we need, we may try, with your
permission, to get it from your employer or other person who knows
about your work, such as a member of your family or a co-worker. When
we need to consider your work experience to decide whether you are able
to do work that is different from what you have done in the past, we
will ask you to tell us about all of the jobs you have had in the last
five years. You must tell us the dates you worked, all of the duties
you did, and any tools, machinery, and equipment you used. We will need
to know about the amount of walking, standing, sitting, lifting and
carrying you did during the workday, as well as any other physical or
mental duties of your job. If all of your work in the past five years
has been arduous and unskilled, and you have very little education, we
will ask you to tell us about all of your work from the time you first
began working. This information could help you to get disability
benefits.
PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND
DISABLED
Subpart I--Determining Disability and Blindness
0
4. The authority citation for subpart I of part 416 continues to read
as follows:
Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a),
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C.
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and
(p), and 1383b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L.
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423
note, and 1382h note).
0
5. Amend Sec. 416.960 by revising paragraph (b)(1) to read as follows:
Sec. 416.960 When we will consider your vocational background.
* * * * *
(b) * * *
(1) Definition of past relevant work. Past relevant work is work
that you have done within the past five years that was substantial
gainful activity and that lasted long enough for you to learn to do it.
(See Sec. 416.965(a)).
* * * * *
0
6. Revise Sec. 416.965 to read as follows:
Sec. 416.965 Your work experience as a vocational factor.
(a) General. Work experience means skills and abilities you have
acquired through work you have done which show the type of work you may
be expected to do. Work you have already been able to do shows the kind
of work that you may be expected to do. We consider that your work
experience applies when it was done within the last five years, lasted
long enough for you to learn to do it, and was substantial gainful
activity. We do not usually consider that work you did more than five
years before the time we are deciding whether you are disabled applies.
A gradual change occurs in most jobs so that after five years it is no
longer realistic to expect that skills and abilities acquired in a job
done then continue to apply. The five-year guide is intended to ensure
that remote work experience is not currently applied. If you have no
work experience or worked only ``off-and-on'' or for brief periods of
time during the five-year period, we generally consider that these do
not apply. If you have acquired skills through your past work, we
consider you to have these work skills unless you cannot use them in
other skilled or semi-skilled work that you can now do. If you cannot
use your skills in other skilled or semi-skilled work, we will consider
your work background the same as unskilled. However, even if you have
no work experience, we may consider that you are able to do unskilled
work because it requires little or no judgment and can be learned in a
short period of time.
(b) Information about your work. Under certain circumstances, we
will ask you about the work you have done in the past. If you cannot
give us all of the information we need, we may try, with your
permission, to get it from your employer or other person who knows
about your work, such as a member of your family or a co-worker. When
we need to consider your work experience to decide whether you are able
to do work that is different from what you have done in the past, we
will ask you to tell us about all of the jobs you have had in the last
five years. You must tell us the dates you worked, all of the duties
you did, and any tools, machinery, and equipment you used. We will need
to know about the amount of walking, standing, sitting, lifting and
carrying you did during the workday, as well as any other physical or
mental duties of your job. If all of your work in the past five years
has been arduous and unskilled, and you have very little education, we
will ask you to tell us about all of your work from the time you first
began working. This information could help you to get disability
benefits.
[FR Doc. 2023-21557 Filed 9-28-23; 8:45 am]
BILLING CODE 4191-02-P
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