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PAST RELEVANT WORK: SSA’S NEW 5 YEAR RULE

WHAT COUNTS AS PAST RELEVANT WORK?

Past relevant work (PRW) is an important concept in the SSA review process. And, the SSA has their own definition of what it is. Just like the have their own definition of work being “substantial gainful activity (SGA).” If you have read other articles on this blog, then you know that work must be SGA. That means for you to be working you must earn $1550 a month gross. Once you earn over the SGA amount, then you are working.

In a similar fashion, past relevant work also has its own definition. One thing to remember is that not all of your jobs qualify as “past relevant work.”

First, according to the SSA, to be past relevant work, the work must be relevant. The SSA will not consider past work at step four unless it is “relevant.” Past work is relevant if it meets all four requirements below.

The work must have:

  • been performed within the relevant period (recency);
  • not started and stopped in fewer than 30 calendar days (30 calendar days);
  • lasted long enough for you to learn to do it (long enough to learn); and
  • been substantial gainful activity (SGA).

These four requirements make any past job in the last five years past relevant work.

five year rule for past relevant work written on the keyboard button

UNDERSTANDING SSA’S NEW 5 YEAR RULE FOR PAST RELEVANT WORK 

For years, SSA’s definition of “past relevant work” has included all the jobs you have done in the last 15 years. But this week, the SSA made a significant change to their rules.

On June 22, 2024, the SSA announced that now past relevant work is work done in the last 5 years, instead of the past 15 years. This is a welcome change that benefits the SSA and those who file for SSDI and SSI benefits.

If you are filing an application for SSDI or SSI benefits, then do so online at the Social Security’s website. When the SSA asks you to list your past jobs, you only need include jobs you have done in the last 5 years. Writing down what work you have done in the past 5 years is easier than trying to recall the past 15 years. The new rule also highlights the fact that many skills which are over 5 years old are no longer current in the job market.

Additionally, the new rule affects how the SSA reviews your claim at steps four and five of the five step SSA evaluation process. The SSA considers your past relevant work at both of these steps. At step four, the SSA decides if you can perform your past jobs. At step five the SSA decides whether you have skills from your past work that will transfer to other work. Having fewer jobs to review under these steps is more efficient for the SSA.

Another new development in the rules is also important. The new rule states that the SSA will not consider work to be past relevant work if your job started and stopped in fewer than 30 calendar days. This means if you had a job that was less than 30 days it will not count as a job that you can do. Likewise, it will not count as past work to which you could return.

PAST RELEVANT WORK AT STEP FOUR

At step four of the SSA evaluation process, the SSA considers your work history to decide if you can return to any of your past jobs. They are trying to see if you can work at a job you know, despite your medical condition. They do this by using your medical records to define your residual functional capacity.

Your RFC is what you can physically do during an eight hour work day. Therefore, once the SSA determines your RFC, then they decide if your RFC allows you to return to your past relevant work. You may be thinking, if I could return to one of my old jobs with my medical problems, then I would. However, the SSA is not looking at your past work only as you describe it.

They will also look at your PRW as it is generally performed in the national economy. This is where vocational expert (VE) testimony comes into play. The VE is at the hearing to discuss whether you can do your past job as you performed it. But, the VE is also there is describe the job as it is normally done in the national economy. Sometimes, how the job is normally done is easier than the way you did it. If that is the case, then a judge may find you can return to your old job.

STEP FIVE & SKILLS FROM YOUR PAST RELEVANT WORK

Under the SSA’s prior definition, PRW was SGA work that you did within the past 15 years. Additionally, it had to be work that lasted long enough for you to learn how to do it. Now, the SSA will only evaluate the jobs you have done in the last 5 years. However, if your date last insured has expired, then the five years goes back in time prior the the DLI.

If you can perform any of your PRW, then the SSA will find that you are not disabled. However, if you cannot perform any of your past relevant work, then the analysis moves to step five. At step five, the burden of proof shifts to the government. That is a big deal.

Prior to step five, you have the burden of proof. But at step five, it is the SSA who must prove there are other jobs in the national economy that you can do with your medical symptoms. Additionally, they must prove that those jobs exist in significant numbers.

At step 5, Social Security considers whether a person has job skills from past relevant work that transfer to a significant range of other jobs. Because the new rule narrows the number of jobs that can be PRW, it could mean it will be easier for you to win benefits.

EXAMPLES OF HOW THE NEW RULE IMPACTS STEP FIVE FINDINGS

Let’s look at an example to see how the new five year rule for past relevant work might apply. For example, if you are about to have a hearing, then your PRW will be an issue. Here is one example that might apply if you have not worked for a number of years. If you are still insured at the time of your hearing, but you haven’t worked since 2018, then it has been more than five years since your last job. Therefore, you have no past relevant work!

What that means is that at the hearing, the judge cannot claim you can return to any past jobs. Because you don’t have any jobs in the five year period. Additionally, the judge cannot claim that you have transferable skills, because to have skills you must have learned them from a job. With no past relevant work, you have no job to return to and no skills to use at a new job. Those are good facts for you. Therefore, the step five analysis might resolve in your favor.

To support a decision at step five of the SSD evaluation process, the SSA will use the medical vocational guidelines, known as the “Grid Rules.” The grid rules evaluate a number of factors, including your age, education, and skill level. If the grid rules state that can adjust to other work that exists in significant numbers in the national economy, then you will not win benefits. However, if you cannot adjust to other work, then the SSA will pay you benefits.  

PREPARATION IS THE KEY TO WIN YOUR SSD HEARING

At our law firm, we believe the key to winning your SSA hearing is the development of your medical record. You develop a case by getting the correct medical evidence. We also develop your case by learning information about your past jobs. We will prepare you to testify about your past work at your hearing.

You will need opinion evidence from your doctor. We help you obtain that opinion evidence. When we have your medical evidence and job information, then we can present a winning theory to the Judge.

All legal arguments must agree with the medical evidence. And, the medical evidence must show that you can no longer perform your past relevant work or any other work. An experienced SSD lawyer will present your case and show the judge that you cannot perform any work.

There are around 1400 ALJ’s in the United States.  These ALJ’s conduct 750,000 hearings per year. Some judges grant a high number of cases. However, some grant a very low number of cases. Most judges fall somewhere in the middle in terms of how many cases they grant. Your attorney should know what questions the judge will ask. Also, your attorney will know how to question the VE. If you prepare for your hearing, then you will have a better chance of winning benefits.

THE FIVE YEAR RULE ALSO IMPACTS CONTINUING DISABILITY REVIEW CASES

Once you are found disabled and receive benefits, the SSA may conduct a continuing disability review (CDR) to see if you still qualify for benefits. Although the CDR rules use a different evaluation process, the final two steps of the process used for CDRs mirror steps four and five. 

Under the prior rule, the relevant work period for CDRs was work done within 15 years prior to the date of the CDR decision. The new rule changes the past relevant work period the SSA uses for CDRs to 5 years. That aligns with the changes being made to the evaluation process. The new five year rule is especially helpful to those that have been on SSDI and SSI benefits for many years.

THE VOCATIONAL EXPERT AT THE SSA HEARING

The ALJ can also call a vocational expert to testify about your past work and other work that you could do. VEs have training in types of jobs, jobs skills, and the number of jobs that exist in the national economy. Also, most VEs have experience placing people in jobs.

If the VE does not have the appropriate experience, then you can object to them as a witness. This is what an attorney does at the hearing. Also, it is another good reason to hire an attorney with experience dealing with the SSA.

The VE answers the ALJ’s questions while considering your physical and mental conditions. They will also consider any skills you have from past work, your age, and your level of education. Learn more about what happens with the VE testimony when you are over 50 years old.

Although VE’s are paid by the SSA, they are supposed to testify as to their opinion and not worry about who pays them. This means they are there to answer questions. But, they are not in favor of either side of the case. The VE uses the Dictionary of Occupational Titles to prove their testimony is factual. Read to learn more about job testimony.

WE OFFER A FREE REVIEW OF YOUR SSD BENEFITS

As you can see, even the concept of past relevant work can be complex. Our SSD law firm believes you should hire us because we have the experience to obtain all of your benefits. We also offer a free review of your case. But, what does this mean?

For most people who want to become clients, it means we will talk to you about your case over the phone. We will not charge you to examine the merits of your case. Most lawyers charge an attorney fee to review your case. We do not.

Please understand, however, that giving you a free review of your case is not the same thing as hiring our law firm. First, we examine the merits of your case based upon the facts you give us. Second, we might ask that you send us medical records or a copy of your SSA paperwork. We do this so we can understand the details of your case. Even if we ask for more information, it does not mean we accept your case.

You will know if you hire our legal team because we will send you our contract. We will also send you other SSA paperwork to fill out. You must return your paperwork to us as quickly as possible. If you do not sign and send the paperwork back, then you have not yet hired us.

OUR FIRM CAN WIN YOUR SSDI & SSI BENEFITS

If you want to learn more about the lawyers and staff at our firm, then read our About Us page. There you will find more information. For example, Andria Summers can help you with your Medicare plan. She has over 20 years of experience with our law firm.

Dianna Cannon has many years of experience helping clients who are seeking SSDI benefits. She has been an attorney for thirty years. Brett Bunkall also has years of experience helping people obtain their SSI and SSD benefits. We are experts at what we do. You can trust us to help you win your SSD and SSI benefits.

In the past 30 years, we have won over 20,000 SSDI and SSI cases for our clients. Also, we help our clients make sure they are getting all of their benefits, including Medicaid and Medicare benefits.

Likewise, if you need an appeal, then we can help you do that too. There are also many forms you will need to fill out. If you have questions about these forms, then we will answer them. You can learn more about SSA’s appeal forms. Call us today for your free review of your case. Let us help you win SSD benefits and prepare you to discuss your past relevant work at your hearing.

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