AR 90-3(3): Rescinded

AR 90-3(4): Rescinded 9/25/2003 by 68 FR 51317

EFFECTIVE/PUBLICATION DATE: 07/16/90

ISSUE:

Whether the Secretary may use a vocational expert or other vocational

specialist in determining at step four of the sequential evaluation

process whether a claimant can perform past relevant work.

STATUTE/REGULATION/RULING CITATION:

Sections 223(d)(2)(A) and 1614(a)(3)(B) of the Social Security Act (42

U.S.C. 423(d)(2)(A) and 1382c(a)(3)(B)); 20 C.F.R. 404.1566(e) and

416.966(e); SSR 82-61 .

CIRCUIT:

Fourth (Maryland, North Carolina, South Carolina, Virginia, West

Virginia)

Smith v. Bowen , 837 F.2d 635 (4th Cir. 1987)

APPLICABILITY OF RULING:

This Ruling applies to determinations or decisions at all administrative

levels (i.e., initial, reconsideration, Administrative Law Judge hearing

and Appeals Council).

To the extent inconsistent therewith, this Ruling supersedes Social

Security Ruling 82-61 for cases arising in the Fourth Circuit only.

DESCRIPTION OF CASE:

In January 1983, the plaintiff, Rachel T. Smith, filed an application for

disability benefits under Title II of the Social Security Act (Act).

Following denials of her application initially and on reconsideration, the

plaintiff requested and received a hearing before an administrative law

judge (ALJ). At the administrative hearing, the ALJ found that the

plaintiff was suffering from a severe heart impairment. He concluded that

this impairment, combined with several others, limited Smith's residual

functional capacity to work at the light exertional level. After

considering a vocational expert's testimony that if Smith could perform

light work, she could perform her past job as an assembler/packager, the

ALJ found that the plaintiff was not disabled.

ff was suffering from a severe heart impairment. He concluded that

this impairment, combined with several others, limited Smith's residual

functional capacity to work at the light exertional level. After

considering a vocational expert's testimony that if Smith could perform

light work, she could perform her past job as an assembler/packager, the

ALJ found that the plaintiff was not disabled.

The plaintiff sought judicial review of the Secretary's decision. The

district court remanded the case with instructions for the Secretary

either to explain how he considered plaintiff's testimony that her past

job was beyond her exertional ability, or to find Smith unable to perform

her past relevant work and to continue the sequential analysis to

determine her eligibility for disability benefits.

On remand, the ALJ adhered to his earlier conclusion that Smith could

return to her past relevant work. The district court, hearing the case for

the second time, found that the actions of the Secretary on remand were in

"substantial compliance" with its remand instructions and affirmed the

denial of benefits. Smith appealed the decision of the district court to

the United States Court of Appeals for the Fourth Circuit.

HOLDING:

The court of appeals reversed the judgment of the district court and

remanded the case to the Secretary for further proceedings. Relying on 20

C.F.R. 404.1566(e), the court of appeals concluded, among other things,

that it was improper for the ALJ to rely on the vocational expert's

testimony in determining that Smith could return to her past job.

According to the court of appeals, "A vocational expert enters the

sequential analysis for determining disability after a claimant is

found unable to do her past relevant work. 20 C.F.R. 404.1566(e).

(Emphasis added)."

STATEMENT AS TO HOW SMITH DIFFERS FROM SOCIAL SECURITY

POLICY:

or the ALJ to rely on the vocational expert's

testimony in determining that Smith could return to her past job.

According to the court of appeals, "A vocational expert enters the

sequential analysis for determining disability after a claimant is

found unable to do her past relevant work. 20 C.F.R. 404.1566(e).

(Emphasis added)."

STATEMENT AS TO HOW SMITH DIFFERS FROM SOCIAL SECURITY

POLICY:

Social Security regulations provide a sequential evaluation process for

making determinations regarding disability. See 20 C.F.R. 404.1520,

404.1594, 416.920, 416.994 and SSR 86-8 . At step four of

the process (step seven in Continuing Disability Review cases) we consider

the individual's capacity to perform past relevant work. See also SSRs 82-61 and 82-62 .

20 C.F.R. 404.1566(e) and 416.966(e) provide that when evaluating

vocational issues, adjudicators may use the services of a vocational

expert or other vocational specialist to assist in determining the

transferability of work skills and the specific jobs in which an

individual's work skills can be used, or when a "similarly complex issue"

arises. Although vocational expert testimony is principally used at step

five of the process (i.e., to determine whether a claimant who is found

unable to perform past relevant work can perform other work), the Social

Security Administration believes that its regulations and policies do not

prohibit adjudicators from using vocational expert testimony at step four. SSR 82-61 provides, for

example, "For those instances where available documentation and vocational

resource material are not sufficient to determine how a particular job is

usually performed, it may be necessary to utilize the services of a

vocational specialist or vocational expert."

ts regulations and policies do not

prohibit adjudicators from using vocational expert testimony at step four. SSR 82-61 provides, for

example, "For those instances where available documentation and vocational

resource material are not sufficient to determine how a particular job is

usually performed, it may be necessary to utilize the services of a

vocational specialist or vocational expert."

The decision of the United States Court of Appeals for the Fourth Circuit

in Smith holds that 20 C.F.R. 404.1566(e) authorizes use of a

vocational expert or other vocational specialist only at step five of the

sequential evaluation process, and therefore, that reliance on a

vocational expert or other vocational specialist is improper in

determining whether a claimant can return to past relevant work.

EXPLANATION OF HOW SSA WILL APPLY THIS DECISION WITHIN THE

CIRCUIT:

This Ruling applies only to cases involving an applicant for disability

insurance benefits and/or Supplemental Security Income benefits based on

disability who resides in Maryland, North Carolina, South Carolina,

Virginia, or West Virginia. In such cases, in making a decision or

determination at step four of the sequential evaluation process (step

seven in Continuing Disability Review cases) about whether an individual

can perform past relevant work, adjudicators may not use a vocational

expert or other vocational specialist.