Step 5: Can You Perform Any Other Work in the National Economy
Disclaimer: The information below is not legal advice and is intended for informational purposes only. Information on this website may not constitute the most up-to-date legal or other information. Please contact us directly to discuss any specific, particular legal matter.
Step 5 is is the last step in the sequential evaluation process. If you cannot competitively perform any work that exists in significant numbers in the national economy, then you will be found “disabled” under the SSA regulations. Most disability claims are decided at this step. Up until this point, you have had the burden of proof at each step. At the fifth step, Social Security has the burden to demonstrate that there are jobs that exist in significant numbers that you could perform. This step is far from cut and dry. There are many ins and outs to understand, which is why we always recommend consulting an attorney about your specific case.
What does Social Security mean by “any other work?” What if I’ve never done anything else?
“Any work” means just what it says. For younger individuals, those under 50-years old, Social Security does not only look at jobs you have done in the past, but the administration also considers whether you would be able to perform some job in the nation given your age, education, work experience, and remaining physical and mental abilities, which is called your residual functional capacity (“RFC”). For example, a 40-year-old person with call-center experience, an 11th-grade education, and an RFC that allows for sedentary work but is limited to no no interaction with the general public due to anxiety would not be able to do the call center work anymore. The inability to interact with the general public/strangers would stop that person from being successful at a call center. However, it would not stop that person from doing a different job, like bench assembly where you can sit to do the job and there is no requirement to interact with the general public/strangers.
Another common example is younger workers whose entire work history involved heavy labor. Often times those in physically demanding work get injured or the wear-and-tear on their bodies takes its toll in their 30’s or 40’s, making it so they cannot do the heavy labor they once did. Sometimes, those in these types of jobs have limited education as well. Unfortunately, Social Security does not care that heavy labor is all the person knows, even if it is highly skilled well-paid heavy labor. SSA expects younger individuals to retrain and do something else, sometimes something completely different, like office work, assembly work, call center work, and other types of positions that would be nothing like what the person has done before. There is no consideration at all as to whether the person can make as much money as he or she made before doing heavy labor.
Keep in mind the amount of money an individual made in the past versus what they might be able to make now is not relevant at all. SSA only cares whether the person is capable of doing any other work, even if it is minimum wage work. This is particularly hard for professionals who have physical or mental ailments that prevent them from doing their skilled trades. For example, a 40-year-old skilled accountant with a graduate degree, 25-years experience in an multi-million dollar accounting firm, and an RFC that allows for light work who suffered a traumatic injury making it difficult to learn new information would still be able to clean hotels, or bag groceries, or work as an office helper. Because that person could do other types of work, even though it is not her trade, SSA would find her not disabled.
In general, anyone with any education level or even no education at all can do unskilled, SVP 1 (and usually SVP 2) work, assuming their physical and mental RFC otherwise allows for it. It doesn’t matter if that person has never worked a day in his or her life. Unskilled work is considered entry level work and available to virtually everyone.
Bear in mind though that there are some exceptions to the above considerations when someone is over 50-years old and even more for those over 55-years old. This will be discussed below in greater detail under the GRID Rules section.
What do they mean by “significant numbers?”
SSA often will consult a vocational expert or jobs expert to learn what jobs a person may or not be able to perform. These experts are asked to give examples of jobs that can be performed considering someone’s age, education, experience, and RFC. When the vocational expert identifies any given job, he or she will also state how many of those jobs are estimated to exist in the national economy. The law allows the ALJ to consider the number of jobs either in the region where you live or in “several regions of the country,” 42 U.S.C. § 423(d)(2)(A), so most of the time, the ALJ will simply consider the number of jobs that exist in the national economy, because that is usually the demographic data most readily available to vocational experts. There is no “bright-line” rule of how many jobs constitute a “significant number;” this determination is left to the judge’s discretion. Every Federal Circuit has somewhat different rulings on how many jobs are required to constitute significant numbers.
Further, this number does not mean job openings; it means job positions that exist that someone is or could be doing. The Social Security Administration will not help you obtain a job. SSA also does not care whether you live close any given named job or could even get any given named job. The administration only considers whether you could theoretically perform any given named job competitively.
What if I can’t get to a job for practical reasons, or have some other barrier to employment?
Social Security is only concerned with barriers to employment caused by mental or physical medical impairments. Other barriers, such as difficulties with transportation, past felonies, inability to obtain a professional license, where you live, or any other barrier not directly attributable to mental or physical disability, are not part of the equation. Again, the Social Security Administration is not a job agency. It will not assist you in obtaining a job; nor will it consider the practicalities of working. The only question considered at Step Five is whether you could theoretically perform the physical and mental demands of any given named job, all other considerations being equal.
In other words, if someone gave you a job without interviewing you or checking your background, waved a magic wand each morning to bring you to work and each evening to send you home, and fed and clothed you, could you maintain the job? If so, SSA will find that you are not disabled.
I’ve heard of “Grid Rules.” What are those?
The Medical-Vocational Guidelines, or “Grid Rules,” are a set of charts that serve as a shorthand for some assumptions that Social Security makes about the kind of work that people of different ages, educational experiences, and work backgrounds can perform at different exertional levels. If your impairments affect your physical strength, it can get easier to prove disability as you age. This is because Social Security assumes that older people have a more difficult time adjusting to other work. Remember, if the Grid Rules come into play, you have already proven that you cannot perform your past relevant work at Step Four. The importance of the Grid Rules is much greater for individuals over 50-years old, and at age 55, the Grid Rules become even more favorable for those with certain physical/exertional limitations.
For example, under the Grid Rules, if you are age 50 or older (a person “closely approaching advanced age”) and have a high school education or greater, skilled or semi-skilled past relevant work, an RFC for sedentary work (that is, standing/walking only occasionally and lifting up to 10 pounds only occasionally), and no skills that transfer to other jobs within your RFC, you will be found disabled even though there are plenty of sedentary jobs out there. Similarly, if you are in the same situation but age 55 or older (an “individual of advanced age”) with a light RFC (that is, lifting 20 pounds occasionally and 10 pounds frequently, and/or standing/walking most of the day), you will be found disabled even though there are many light and sedentary jobs in the national economy that you could possible be retrained to do.
The nuances of the Grid Rules in different situations can be very complicated to understand and to apply correctly. This is an area where it is very helpful to have an attorney’s assistance to advocate for you before the Social Security Administration. The Grid Rules or Medical Vocational Guidelines are found in the Code of Federal Regulations Title 20 Appendix 2 to Subpart P of Part 404.
