Social Security Administration Finalizes Revised Regulation on Redefining Past Relevant Work for Disability Determinations by Reducing Work Period

WASHINGTON, April 19 -- The Social Security Administration has issued a rule (20 CFR Parts 404 and 416), published in the Federal Register on April 18, 2024, entitled "Intermediate Improvement to the Disability Adjudication Process, Including How We Consider Past Work."

The rule was issued by Faye I. Lipsky, Federal Register Liaison, Office of Legislation and Congressional Affairs.

Here are excerpts:

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SUMMARY:

We are finalizing our proposed regulation to revise the time period that we consider when determining whether an individual's past work is relevant for the purposes of making disability determinations and decisions. We are revising the definition of past relevant work (PRW) by reducing the relevant work period from 15 to 5 years. Additionally, we will not consider past work that started and stopped in fewer than 30 calendar days to be PRW. These changes will reduce the burden on individuals applying for disability by allowing them to focus on the most current and relevant information about their past work. The changes will also better reflect the current evidence about worker skill decay and job responsibilities, reduce processing times, and improve customer service. This final rule also includes other minor revisions to our regulations related to PRW.

DATES:

This final rule will be effective on June 8, 2024.

FOR FURTHER INFORMATION CONTACT:

Mary Quatroche, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, 3rd Floor (East), Altmeyer Building, Baltimore, MD 21235-6401, (410) 966-4794. 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 https://www.ssa.gov.

SUPPLEMENTARY INFORMATION:

Background

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 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,[3] 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 would be hired if they applied for work.[4]

We use a five-step sequential evaluation process to determine whether an individual who has filed an initial claim for Supplemental Security Income (SSI) or Old-Age, Survivors, and Disability Insurance (OASDI) benefits is disabled.[5] At step one of the sequential evaluation process we consider whether an individual is working, and whether that work qualifies as SGA.[6] At this step, if an individual is performing at SGA levels, they are not considered disabled.[7] At step two of the sequential evaluation process, we consider whether an individual has any "severe" impairment(s), which means that the impairment(s) significantly limits their physical or mental ability to do basic work activities,[8] and whether the impairment(s) has lasted or is expected to last for a continuous period of at least 12 months or result in death.[9] 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) does not meet or medically equal in severity a listed impairment, we determine their residual functional capacity (RFC). RFC is the most an individual can do despite the limitations caused by their impairment(s).[11] This final rule will not affect how we evaluate the first three steps of the sequential evaluation process.

This final rule will affect how we evaluate disability claims at steps four and five of the sequential evaluation process because we consider the individual's PRW at both of these steps. At step four of the sequential evaluation process, we consider the individual's work history and whether, given their RFC, they could perform any of their PRW either as they actually performed it or as it is generally performed in the national economy.[12] Under our prior definition, PRW was work an individual did within the past 15 years, that was SGA, and that lasted long enough for the individual to learn how to do it.[13] This final rule revises the PRW definition. If the individual can perform any of their PRW, we will find them not disabled. If the individual cannot perform any of their PRW, we go to the next step.

At step five of the sequential evaluation process, we again refer to an individual's work history to determine 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. To support a determination or decision at step five of the sequential evaluation process, we use the medical-vocational profiles[14] and medical-vocational guidelines,[15] commonly known as the "grid rules," to consider whether an individual can adjust to other work. If the individual can adjust to other work that exists in significant numbers in the national economy, considering their RFC, 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.[16] We are not changing our rules regarding RFC, age, or education in this rulemaking.

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 OASDI cases and steps six and seven in adult title XVI SSI cases) mirror the final two steps used in the sequential evaluation process for initial claims (steps four and five).[18] Under the prior rule, the relevant work period for CDRs included work an individual did within 15 years prior to the date of the CDR determination or decision.[19] This final rule changes the relevant work period we use for CDRs to 5 years to align with the changes being made to the initial disability sequential evaluation process.

Proposed Rule

On September 29, 2023, we published a notice of proposed rulemaking (NPRM) in the Federal Register entitled Intermediate Improvement to the Disability Adjudication Process: Including How We Consider Past Work .[20] In the NPRM, we proposed to revise our regulatory definition of PRW and to make another minor revision to our regulatory text about the vocational factor of work experience. Specifically, we proposed to define PRW as work an individual has done within the past 5 years, which was performed at SGA level, and that lasted long enough for the individual to learn how to do it. Additionally, we proposed to revise the relevant work period for CDRs to include work an individual has done within 5 years prior to the date of the CDR determination or decision.

We also proposed to remove a sentence in 20 CFR 404.1565(a) and 416.965(a) that explained that the intent of our work experience rules is to "insure that remote work experience is not currently applied." The NPRM included a full discussion of how the proposal would affect steps four and five of the sequential evaluation process, rationale for the proposed revisions, and an analysis of its effects.

In this final rule, we are adopting the NPRM's proposed revisions, discussion, rationale, and analysis in full, with the modifications described below.

Modifications From NPRM

We are adopting our original proposal with some modifications. The regulatory text in this final rule differs slightly from the regulatory text we proposed in the NPRM, due to: (1) an inadvertent error; and (2) public feedback submitted in response to our questions in the NPRM. We detail these changes below.

In the NPRM, we proposed to remove a sentence in 20 CFR 404.1565(a) and 416.965(a) that explains that the intent of our work experience rules is to "insure that remote work experience is not currently applied." However, the sentence inadvertently remained within the proposed regulatory text in 20 CFR 416.965(a). We published a correction document on December 1, 2023, affirmatively removing that sentence from the proposed regulatory text of the NPRM.[21]

In the NPRM we solicited feedback on whether we should revise our requirements so that individuals completing the work history forms do not need to report jobs held for a short period of time.[22] Following the thoughtful feedback we received from commenters in support of a range of different time periods, we have decided that we will not consider PRW to include work an individual started and stopped in fewer than 30 calendar days. We are revising the language in 20 CFR 404.1560(b)(1) and 416.960(b)(1) by removing the definition of PRW from paragraph (b)(1), adding the definition as a new paragraph (b)(1)(i), and adding the new regulatory text for the minimum threshold of 30 calendar days for PRW in a new paragraph (b)(1)(ii). In addition, we revised a sentence in 20 CFR 404.1565(a) and 416.965(a) to explain how we will consider work that started and stopped in fewer than 30 calendar days. These changes are discussed in detail below.

- The final rule language for 20 CFR 404.1560(b)(1) and 416.960(b)(1), now reads: "Definition of past relevant work."

- We are adding 20 CFR 404.1560(b)(1)(i) 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)). We will not consider work to be past relevant work if you started and stopped it in fewer than 30 calendar days (see Sec.404.1560(b)(1)(ii)). We are making parallel revisions in 20 CFR 416.960(b)(1)(i).

- We are adding 20 CFR 404.1560(b)(1)(ii) When we state that we consider past relevant work and work experience (see Sec.404.1565), 30 calendar days means a period of 30 consecutive days, including weekends, starting from the first day of work. When we consider whether work lasted 30 calendar days, we generally do not consider the total number of hours or days worked during that period, or whether the work was full-time or part-time. The 30 calendar days requirement is separate from the consideration of substantial gainful activity or whether you worked long enough to learn how to do the work, although the work performed during the 30 calendar days may count toward the time needed for you to learn to do the work. The 30 calendar days requirement also applies if you were self-employed or an independent contractor; we will consider whether you were engaged in the same type of work for 30 calendar days, even if individual work assignments or contracts each lasted fewer than 30 calendar days. We are making parallel revisions in 20 CFR 416.960(b)(1)(ii).

- We are revising in 20 CFR 404.1565(a) from the prior text, "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," to read in the final rule as, "If you have no work experience or you did work that started and stopped in a period of fewer than 30 calendar days (see Sec.404.1560(b)(1)(ii)) during the five-year period, we generally consider that these do not apply." We are making parallel revisions in 20 CFR 416.965(a).

We are adding this minimum 30-calendar-day threshold in response to feedback we solicited in the NPRM. To clarify our intent with this addition to the rule, we are providing two examples.

Example 1: On March 1, 2023, an individual began working a job that requires only a brief demonstration to learn. The individual's last day of work was March 30, 2023. The individual worked at the job for 30 calendar days because they started work on March 1, 2023, and their last day of work was on March 30, 2023. In this situation, the job would qualify as PRW if it was performed at the SGA level and during the 5-year relevant work period.

Example 2: On February 1, 2023, an individual began working a job that requires only a brief demonstration to learn. The individual's last day of work was February 28, 2023. Although the individual held the job long enough to learn to do it, the work started and stopped in fewer than 30 calendar days. In this situation, the job would not qualify as PRW, even if it was performed at the SGA level and during the 5-year relevant work period.

Severability

In the event of an invalidation of any part of this rule, our intent is to preserve the remaining portions of the rule to the fullest possible extent. In particular, we intend the revision of the reduction of the relevant work period for PRW in 20 CFR 404.1560, 404.1565, 416.960, and 416.965 from 15 to 5 years to be severable, as that revision explains our new rule and functions independently of the other changes reflected in this final rule. We also intend the addition of the sentence in 20 CFR 404.1560(1)(i) and 416.960(1)(i) that: "We will not consider work to be past relevant work if you started and stopped it in fewer than 30 calendar days" along with the revision of the sentence in 20 CFR 404.1565(a) and 416.965(a) that accounts for the new 30 calendar day period ( i.e., the sentence containing the words "you did work that started and stopped in a period of fewer than 30 calendar days") to be severable, as these changes explain our new rule and function independently of the other changes reflected in this final rule.

Finally, we intend the removal of the sentence in 20 CFR 404.1565(a) and 416.965(a) that explains the intent of our work experience rules is to "insure that remote work experience is not currently applied" to be severable, as that revision clarifies our rule and functions independently of the other changes reflected in this final rule.

Justification for Changes

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 an individual acquired while performing these jobs continue to apply.[23] In this rule, we are changing the relevant work period to 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.

Changing the relevant work period from the prior 15 years to 5 years and setting a minimum time period of 30 calendar days for performing work 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 or work performed for less than 30 calendar days, reduce the time spent filling out work history forms, and reduce wait times for a determination or a decision. Accordingly, this change will improve customer service and adjudicative efficiency.

This final rule will achieve several goals. First, this final rule will allow individuals to focus on the most current and relevant information about their past work.[24] We largely rely on individuals' self-reporting for information about their past work. In our adjudicative experience, information tends to be less accurate and less complete for jobs that individuals held in the distant past. We expect this final rule will result in our receiving more complete work history forms and reduce the need for our staff to follow up for additional work history information. Second, this final rule will better account for current evidence on the diminishing relevance of work skills and changes in job requirements over time. Third, this final rule will reduce processing time and improve customer service. As we discussed in the NPRM, each year we adjudicate millions of claims for disability benefits, and our ability to make determinations and decisions more quickly will ultimately benefit the public we serve.[25] Fourth, this final rule will lessen the information collection burden on individuals by reducing, on average, the number of jobs about which they must provide us with information.[26]

In summary, by eliminating an individual's need to recall and report detailed information about less recent work, we anticipate this final rule will allow us to improve the quality of the information we receive; will significantly reduce burden on the individual from filling out work history forms; and will reduce case processing and waiting times. These outcomes will overall offer a better customer experience for individuals applying for disability and will increase our adjudicative efficiency. For a more detailed explanation of how we expect this final rule to achieve these objectives, please refer to the Justification for Change section in the NPRM.[27]

Comment Summary

We solicited comments on the proposed rule and received 99 public comments on our NPRM from September 29, 2023, through November 28, 2023. Of the total comments, 89 are available for public viewing at https://www.regulations.gov/document/SSA-2023-0024-0001. We excluded three comments that were exact duplicates, one comment that was out of scope, and six comments submitted by one of our employees in their official capacity. The publicly available comments were from:

- Individuals;

- Over 20 groups submitting comments on behalf of their organizations, such as (but not limited to) the Center on Budget and Policy Priorities, Homeless Action Center, International Association of Rehabilitation Professionals, National Association of Disability Representatives, National Council of Disability Determination Directors, and National Organization of Social Security Claimants' Representatives; and

- Ranking Congressional Members from the Subcommittee on Social Security and Subcommittee on Worker and Family Support.

The vast majority of commenters supported the proposal in the NPRM. Some commenters agreed with the proposal but recommended changes, either in this final rule or in future rulemakings. Several other commenters disagreed with the proposal. We carefully considered these comments, which we summarize and respond to below. We addressed only issues raised by comments that were within the scope of this rulemaking.

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[FR Doc. 2024-08150 Filed 4-17-24; 8:45 am]

BILLING CODE 4191-02-P

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The document was published in the Federal Register: https://www.federalregister.gov/documents/2024/04/18/2024-08150/intermediate-improvement-to-the-disability-adjudication-process-including-how-we-consider-past-work

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