In September, the Social Security Administration (SSA) issued an Advance Notice of Proposed Rulemaking in the Federal Register, soliciting public comment on how the vocational factors of age, education and work experience should be considered when making disability determinations in claims for benefits under the Social Security Act.  SSA has received congressional and public criticism in recent years regarding the current validity of the medical-vocational guidelines used in making disability determinations.  SSA is stating that it is undertaking this review because since these guidelines were published in the regulations in 1978, there have been significant changes in technology use and workforce demographics and they want to ensure the ongoing relevance of their disability determination criteria.

The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any physical or mental impairment 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.”  The Act further sets forth that to be considered disabled for the purpose of disability benefits, an individual must be unable to perform their past relevant work, but must also be unable to engage in any other kind of substantial gainful work in the national economy, taking into consideration that person’s “age, education and work experience.”  The Social Security Act did not set forth how to apply the factors of age, education and work experience, and therefore, to ensure consistent outcomes in claims for disability benefits, SSA promulgated regulations on how the agency will apply these factors (under the Administrative Procedures Act, federal agencies have broad discretion in enacting regulations to execute the obligations given to them by Congress).

In making disability determinations, agency adjudicators follow a sequential evaluation process, culminating in making a determination of whether, despite their impairments, an individual can adjust to other work (unlike private disability insurance, which often will find that an individual is disabled if they are unable to perform the job duties of their current occupation).  As indicated above, they must take into consideration that individual’s age, education and work experience in making that determination.  Toward this end, SSA issued the medical-vocational guidelines (commonly known by the agency and advocates as the “grid rules” or “grids” based on their matrix-like appearance in the published regulations) which adjudicators must follow when making determinations.

In sum, before applying the medical-vocational guidelines, an adjudicator must determine the individual’s residual functional capacity, that is, their maximum sustained exertional work capability as result of severe medically determinable impairments (sedentary, light, medium, or heavy, each defined in the regulations).  Age is categorized four ways: younger individual (18-44), younger individual (45-49), closely approaching advanced age (50-54), and advanced age (55+).  Education is categorized into whether an individual graduated from high school, their proficiency in English, and whether their education allows for direct entry into skilled work.  Finally, their work experience is considered as to whether the work was skilled or unskilled and whether those skills are transferrable to other occupations (because these are detailed vocational assessments, adjudicators frequently consult vocational experts to ensure the accuracy of their determination).  Each combination of these factors is found on the guidelines and directs either a finding of disabled or not disabled.  It’s worth noting that the guidelines are only applicable to exertional limitations, and do not directly apply to non-exertional limitations (e.g., mental impairments that impact concentration, persistence, or pace).

In practice, the medical vocational guidelines do not change the overall outcome of a determination until an individual is 50 years old.  In other words, if an adjudicator concludes that an individual has the ability to perform other work and they have not yet reached the age of 50, their age, education, and work experience will not change the conclusion that they are not disabled.  However, individuals over the age of 50, limited to sedentary work, and without transferrable job skills to other occupations will be found disabled.  If an individual is over the age of 55, and limited to light work, and does not have skills that would transfer directly without the need for additional training, they will be found disabled when applying the grid rules.

The Advanced Notice of Proposed Rulemaking does not set forth any contemplated changes, however, it is commonly believed that they intend to adjust the age categories up by five years.  If that comes to pass, the above examples would not result in a finding of disabled until the ages of 55 and 60, respectively.  An Advance Notice of Proposed Rulemaking is a document an agency may choose to issue before issuing a Notice of Proposed Rulemaking.  The intent is typically to obtain public participation in the administrative rulemaking process.  Before SSA can change the current regulations, they will have to issue a formal Notice of Proposed Rulemaking as required by the Administrative Procedures Act, in which they will have to seek comments from the public and respond to them accordingly.

Nothing in this post is intended as advice or a suggestion to elect or not elect to claim benefits of any kind, including Social Security benefits, nor is it intended as financial advice in any way.  The decision to claim benefits is a personal one that is contingent upon each individual’s unique circumstances.