Social Security Disability Five Step Sequential Evaluation-Transferable Skills
If you are over (or nearly over) age 50 and cannot do your past work, the judge may need to determine whether you developed transferable skills while working that would transfer to other jobs. To make this determination, the judge will seek the help of an expert witness who knows about vocational matters (a “vocational witness,” or VW). If the VW finds that you gained transferable skills from your past work, the judge may ultimately use that testimony to deny your claim. Therefore, it is important for you to understand how Social Security defines what a “skill” is and when a skill is transferable to other jobs.
Social Security Ruling (SSR) 82-41 describes a transferable skills as:
knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science or trade, combined with the ability to apply them in practice in a proper and approved manner.
This is a technical definition that does not necessarily describe how everyone thinks of a “skill.” During a recent hearing in front of an Administrative Law Judge (ALJ), the VW testified that skills that would transfer from the claimant’s past work included “receiving.” The VW was unable to explain what was required of a person who had developed the skill of “receiving.”
The problem with this testimony is that “receiving” does not rise to the level of “making precise measurements, reading blueprints, and setting up and operating complex machinery.” SSR 82-41. It is something a regular person might do in the course of a day and does not require over 30 days to learn. Transferable skills give “a special advantage over unskilled workers in the labor market.” Id. I receive mail at my home every day, but doing so does not give me a special advantage over any other workers.
Note that the ALJ must identify which skills would transfer to which other jobs; it is not enough to simply declare that the claimant has transferable skills. “When an ALJ makes a finding that a claimant has transferable skills, he must identify the specific skills actually acquired by the claimant and the specific occupations to which those skills are transferable.” Dikeman v. Halter, 245 F.3d 1182, 1185 (10th Cir. 2001).
If the ALJ does find the claimant acquired skills, she then has to determine whether they would transfer into other work the claimant could do.
Transferability is most probable and meaningful among jobs in which (i) The same or a lesser degree of skill is required; (ii) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved.
20 C.F.R. § 404.1568(d)(2). For example, the ALJ may determine that a claimant who had worked for the U.S. Postal Service acquired skills from that work. Those skills would be specific the Postal Service, and to the job the claimant performed within the Postal Service. The most significant criteria in determining whether those skills would transfer are likely to be whether other jobs use similar machines and similar processes or services. There is only one U.S. Postal Service. There are a handful of private parcel delivery services, but they are commercial enterprises. Their procedures—including cost structure daily operations—are likely different than the government-run Postal Service. Commercial enterprises may have newer or more advanced equipment. A person who has developed a skill related to the Postal Service’s procedures or equipment may not know anything about FedEx’s procedures or equipment. They would have no special advantage over unskilled workers, so their skills would not be transferable.
Tags: Social Security Law