The ARDUOUS WORK provision i.e.,. 20 CFR § 404.1562; 416.962.

You have a 52 year old worker, disabled and the disability prevents him from working in his prior occupation, which was heavy construction.  He started working when he was 18 years of age and continued until he could no longer work.  This situation brings to mind a seldom used provision of the law.  The  ARDUOUS WORK provision i.e.,. 20 CFR § 404.1562;  416.962.

The foregoing regulations provide that if a claimant has only a marginal education, a work experience of 35 years or more during which the claimant did arduous unskilled physical labor, and the claimant is not working and is no longer able to do the same kind of work because of a severe impairment(s), the SSA will consider the claimant unable to do lighter work and, therefore, disabled.  

What is unique is the provision of law, allows the review to stop at step four, i.e. if he can’t return to prior work, he is disabled without any consideration to lighter work.

There are a number of considerations to the use of this provision of the law.  What is only a marginal education, 20 CFR 404.1564(b)(2).  There is a need for a long work experience (i.e., 35 years or more) and a showing that the claimant only did arduous unskilled physical labor. Does it really apply only to a claimant who has done only unskilled work? (consider SSR 82-63 and Walston v Sullivan, infra)  Lastly, the claimant can no longer do this kind of work in which he was employed in the past 15 years. ( SSA applies § 404.1562 to evaluate whether the claimant is disabled, see 20 C.F.R. §§ 404.1520, 416.920)

In addition to the foregoing there are other considerations.  If you have a hard working individual, suffering but trying to keep food on the table, i.e.  claimant is working or has worked despite the impairment(s) (except where the work is sporadic or is not medically advisable), SSA may review all the facts, and could find that the claimant is not disabled.

Further, the SSA will consider the claimant not disabled if the evidence shows that the claimant has training or past work experience which enables him or her to do substantial gainful activity in another occupation, either on a full-time or a reasonably regular part-time basis.

20 C.F.R. Pt. 404, Subpt. P, App. 2, Medical-Vocational Guidelines, section 202

An individual with a marginal education and long work experience (i.e., 35 years or more) who is limited to the performance of arduous unskilled labor, who is not working and is no longer able to perform such labor because of a severe impairment(s), may still be found disabled even though the individual is able to do medium work.

“ (c) However, for individuals of advanced age who can no longer perform vocationally relevant past work and who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual's functional capacity, or who have no work experience, the limitations in vocational adaptability represented by functional restriction to light work warrant a finding of disabled. Ordinarily, even a high school education or more which was completed in the remote past will have little positive impact on effecting a vocational adjustment unless relevant work experience reflects use of such education.

(d) Where the same factors in paragraph (c) of this section regarding education and work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability (i.e., closely approaching advanced age, 50-54) and an individual's vocational scope is further significantly limited by illiteracy or inability to communicate in English, a finding of disabled is warranted.

(e) The presence of acquired skills that are readily transferable to a significant range of semi-skilled or skilled work within an individual's residual functional capacity would ordinarily warrant a finding of not disabled regardless of the adversity of age, or whether the individual's formal education is commensurate with his or her demonstrated skill level. The acquisition of work skills demonstrates the ability to perform work at the level of complexity demonstrated by the skill level attained regardless of the individual's formal educational attainments.”

SSR 82-63 sets forth the required analysis for evaluating whether a claimant meets the requirements of sections 404.1562 and 416.962 of the regulations.

1. An impairment must be severe and prevent the performance of arduous physical labor.
2. An individual’s work history must have lasted for 35 years or more.
3. The work must have been “arduous,” which is defined as primarily physical work requiring a high level of strength or endurance. While arduous work will usually entail physical demands that are classified as heavy, the work need not be described as heavy to be considered arduous. For example, work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending and lifting at a very fast pace.
4. The work must also have been unskilled. Unskilled work consists of simple duties which require little or no judgment and may be learned in a short period of time.
5. The person must have a “marginal education.” A person who has a marginal education may not have attained a level of development in reasoning, arithmetic, and language which would suggest a vocational potential for more than unskilled work. Generally, an individual is considered to have a marginal education if he or she has no more than a sixth grade elementary school education. However, the level of formal education is not conclusive of a person’s vocational competence. The responsibilities and tasks of past employment may demonstrate a higher level of competence than that indicated by his or her formal schooling. Conversely, a person may have attended school beyond the sixth grade, but other evidence may establish capability for reasoning, arithmetic, and language which does not, in fact, exceed the “marginal” criterion.

Note: SSR 82-63 explains that employment in semiskilled or skilled work, which is not isolated, brief and does not result in skill enhancement,  generally would rule out the application of sections 404.1562 and 416.962 of the regulations.

The Eighth Circuit has looked at this issue.  It rejected the claimant’s arguments that he qualified under the ARDUOUS WORK provision under 20 C.F.R. § 404.1562. Smith v. Shalala, 46 F.3d 45, 46-47 (8^th Cir. 1995). The Court reasoned that the claimant completed the eighth grade in school and testified that he could read and do simple calculations, precluding him from being classified as having a “marginal education.” Id. As stated by the Smith court, formal schooling at a sixth grade level or less is a “marginal education” and 7th through 11th grade is termed “limited education.” Id.

The Eighth Circuit rejected the claimant’s argument that the ALJ should have applied the ARDUOUS WORK provision.  Mitchell v. Shalala, 25 F.3d 712, 715 (8^th Cir. 1994).. The court agreed, however, that if newly discovered evidence submitted to the district court supported a finding that the claimant had a “marginal education, the ARDUOUS WORK provision would result in a finding of disability.

The fact that claimant may have performed skilled or semi-skilled work may not preclude the use of the ARDUOUS WORK provision.  Consider Walston v. Sullivan, 956 F.2d 768, 772 (8^th Cir. 1992).Where the record indicated that the skilled and semi-skilled work the claimant performed resulted in no skills which were transferable either to work presently existing in the national economy or to work within the claimant’s present residual functional capacity, the ALJ erred in concluding that the claimant’s previous periods of skilled work precluded a finding of disability under section 404.1562.