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GridLite
Last Updated October 3, 2000
What Happened to the
Medical-Vocational Guidelines? Significant
Numbers as Absolute Number
@Eric Schnaufer
The
Social Security Act (Act) provides that a claimant for Social Security
Disability Insurance Benefits[Footnote
1: For the sake of simplicity, reference and
citations are to Title II of the Social Security Act and its implementing
regulations at 20 C.F.R. Part 404 and not to Title XVI or its implementing
regulations.] is disabled if she
is not only unable to do
[her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists
in the national economy, . . . . For purposes of the preceding sentence . . .
, "work which exists in the national economy" means work which
exists in significant numbers either in the region where such individual lives
or in several regions of the country.
42 U.S.C. §
423(d)(2)(A). This provision
corresponds to steps four and five of the well-known five-step sequential
evaluation. 20 C.F.R. §
404.1520(e)-(f) (2000). These
remarks address the long-standing
tension at step five between case law and Social Security Administration
(agency) regulations and rulings about what constitutes “work which exists in
significant numbers.” These
remarks also address how administrative law judges (ALJs) reach incorrect
outcomes at step five for a distinct group of claimants.
The
Act provides no guidance about the meaning of “work which exists in
significant numbers” other than 42 U.S.C. § 423(d)(2)(A).
In 1978, the agency promulgated the now-familiar Medical-Vocational
Guidelines (Grid), 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2000), effective in
early 1979. 43 Fed. Reg. 55,349
(1978). The Grid consists of three
tables and explanatory regulations that correlate adjudicative results –
“disabled” or “not disabled” – with several important characteristics
– a claimant’s residual functional capacity, age, education, and work
experience. 20 C.F.R. Pt. 404,
Subpt. P, App. 2 (2000). The three
Grid tables correspond to residual functional capacities for
“full range[s]” of “sedentary,” “light,” and “medium
work.” 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00, Tables 1-3
(2000); 20 C.F.R. § 404.1545 (2000) (defining “residual functional
capacity”); 20 C.F.R. § 404.1567 (2000) (defining “sedentary,”
“light,” and “medium” work); SSR 83-10 (further defining the
requirements of “sedentary,” “light,” and “medium” work); SSR 83-11
(defining a “full range” of work). As
a general matter, within each Table, disability is easier to establish for a
claimant who is older, who has less education, and who has less vocationally
relevant past work experience. Also
as a general matter, between the Tables, disability is easier to establish for a
claimant who is more physically limited, i.e., for a claimant who has a lower
residual functional capacity.
Consider
three claimants, Ms. Sedentary, Ms. Limited-Light, and Ms. Light.
Ms. Sedentary, Ms. Limited-Light, and Ms. Light all are 50 to 54 years
old, have high school educations, and have unskilled past work experience.
In other words, Ms. Sedentary, Ms. Limited-Light, and Ms. Light have
identical vocational profiles. They
do not, however, have the same residual functional capacities.
Ms. Sedentary has the residual functional capacity for a full range of
sedentary work. Ms. Limited-Light
has the residual functional capacity for a limited range of light work.
And Ms. Light has the residual functional capacity for a full range of
light work.
When a claimant’s vocational characteristics and residual functional capacity
correspond precisely to a Grid rule, the Grid “directs” a conclusion of
“disabled” or not “disabled.” 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a) (2000).
Therefore, Rule 201.12 “directs” a finding of “disabled” for Ms.
Sedentary. 20 C.F.R. Pt. 404,
Subpt. P, App. 2, Table 1, Rule 201.12 (2000).
Any claimant such as Ms. Sedentary who reaches step five is disabled as a
matter of law because she has the residual functional capacity for a full range
of sedentary work, is 50 to 54 years old, has a high school education, and has
unskilled past work experience. Id.
There is another way of understanding Rule 201.12.
According to the Grid, there are about 200 “separate unskilled
sedentary occupations.” 20 C.F.R.
Pt. 404, Subpt. P, App. 2, § 201.00 (2000).
Rule 201.12 means that Ms. Sedentary is disabled even though she can
perform each and every of the 200 unskilled sedentary occupations.
(In footnote 5 of SSR 96-9p, the agency noted that the regulatory
estimate of unskilled sedentary occupations was still valid even though the most
recent edition of the Dictionary of Occupational Titles enumerates 137
unskilled sedentary occupations. For
a list of the 137 unskilled sedentary occupations, go to
<http://www.ssas.com/137sed.htm>.)
While
Rule 201.12 directs a finding of “disabled” for Ms. Sedentary, Rule 202.13
“directs” a finding of “not disabled” for Ms. Light.
20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2, Rule 202.13 (2000).
Any claimant such as Ms. Light who reaches step five is not disabled as a
matter of law because she has the residual functional capacity for a full range
of light work, is 50 to 54 years old, has a high school education, and has
unskilled past work experience. Id.
As
you may expect, there is a parallel way of understanding Rule 202.13.
The Grid specifies that there are 1,600 “separate sedentary and light
unskilled occupations” and thus obviously 1,400 unskilled light occupations in
addition to the 200 unskilled sedentary occupations. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00 (2000).
Manifestly the occupational base for Ms. Light is expansive compared to
the occupational base for Ms. Sedentary.
But
what about Ms. Limited-Light? She
can do more than is required of a full range of sedentary work, but she can do
less than is required of a full range of light work.
Therefore, a rule of the Grid cannot “direct” a finding of
“disabled” or “not disabled.” 20
C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(d) (2000).
Instead, the Grid is used as a “framework” for decision-making.
20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(e)(2) (2000); SSR 83-11;
SSR 83-12; SSR 83-14. There are two basic ways that the Grid is used as a
framework: with and without vocational expert testimony.
SSR 83-12; SSR 83-14. The
agency has not specified clearly when an ALJ must obtain vocational expert
testimony when using the Grid as a framework.
Fortunately, while agency policy is unclear, case law is relatively
clear. When a claimant’s ability
to perform a full range of work is significantly diminished at a specific
exertional level, an ALJ needs vocational expert testimony at step five to
determine whether the claimant is disabled.
See, e.g., Reddick v. Chater, 157 F.3d 715, 729 (9th Cir.
1998); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986).
[Footnote 2: After Sykes v. Apfel, ‑‑
F.3d ‑‑, No. 99‑5755 (3d Cir. Sept. 18, 2000), in the Third
Circuit, an ALJ may be required to obtain vocational expert testimony in any
case in which the Grid is used as a framework.
Sykes is a complex decision beyond the subject matter of this
article. Regardless of the correctness of Sykes, it is evidence
that a court can look at the Grid as a framework in a new way even twenty years
after the Grid was introduced.] Therefore,
there are three situations in which an ALJ must address whether vocational
expert testimony is needed at step five to accompany the use of the Grid as a
framework: when the facts are clear that the claimant’s ability to perform a
full range of work at a specific exertional level is not significantly
diminished; when the facts are unclear whether claimant’s ability to perform a
full range of work at a specific exertional level is significantly diminished;
and when the facts are clear that the claimant’s ability to perform a full
range of work at a specific exertional level is significantly diminished.
In the latter two situations, vocational expert is obviously needed,
either to determine whether vocational expert testimony is needed at all or for
the vocational expert testimony itself.
Assume
that Ms. Limited-Light’s ability to do a full range of light work is
significantly diminished. Therefore, an ALJ adjudicating Ms. Limited-Light’s claim at
step five must obtain vocational expert testimony.
Typically an ALJ will obtain vocational expert testimony regarding
whether Ms. Limited-Light can
perform any occupation in the regional economy given her residual functional
capacity and vocational characteristics and regarding how many individual jobs
exist for each occupation in the regional economy.
See SSR 83-12 (“Whenever vocational resources are used, . . .
the . . . decision will include (1) citations of examples of occupations/jobs
the person can do functionally and vocationally and (2) a statement of the
incidence of such work in the region in which the individual resides or in
several regions of the country.”). Consider
the vocational expert’s testimony in Moore v. Apfel, 216 F.3d 864 (9th
Cir. 2000), as though it were for Ms. Limited-Light:
Regional Incidence Data
Occupation
(Number of Jobs)
ticketer/labeler
1,500
production assembler 5,000
garment sorter
1,200
Moore,
216 F.3d at 869. Typically, then,
an ALJ will conclude that Ms. Limited-Light is not disabled at step five given
that she can do jobs that exist in “significant numbers” in the region in
which she lives. Because Ms.
Limited-Light can do 7,700 jobs in the regional economy in three occupations,
she is not disabled at step five. Id. In
support of this outcome, an ALJ may cite, for example, Barker v. Secretary of
Health and Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989), for the
proposition that “1,266 jobs are within the parameters of `significant
number.’” Thus, according to the ALJ, Ms. Limited-Light is not disabled at
step five because she can perform jobs that exist in significant numbers
understood as an absolute number of jobs in the regional economy.
But what
about the Grid as a framework? If
the Grid must be used as a framework, see 20 C.F.R. Pt. 404, Subpt. P,
App. 2, 200.00(e)(2) (2000); SSR 83-12; SSR 83-14, how did the ALJ’s
conclusion that Ms. Limited-Light was not disabled at step five reflect the Grid
as a framework? The answer is that
the ALJ’s conclusion does not reflect the use of the Grid as a framework, but
in fact is detached from the Grid as a framework.
Social
Security Ruling 83-12 is central guidance for application of the Grid as a
framework. SSR 83-12.
This ruling focuses attention on the relevant “occupational base.”
SSR 83-12. To use the Grid
as a framework for Ms. Limited-Light, the ALJ must compare the vocational
expert’s occupation and job incidence data to the relevant Grid rules.
The ALJ knows that Ms. Limited-Light is disabled if she can perform each
and every one of the 200 unskilled sedentary occupations (and thus each and
every job within all those occupations). 20
C.F.R. Pt. 404, Subpt. P, App. 2, Table 1, Rule 201.12 (2000).
Here Ms. Limited-Light can do only 3 occupations total.
Therefore, standing alone, it would appear that Ms. Limited-Light can do
fewer occupations than would be needed to warrant a finding of
disability under Rule 201.12. She
is disabled if she can do all 200 unskilled sedentary occupations and thus would
be disabled if she could do only three unskilled (sedentary or light)
occupations. This is to some degree
a guess. Yet the ALJ does not need
to guess, and SSR 83-12 does not counsel guessing.
The ALJ should have obtained additional job incidence data from the
vocational expert about the size of the unskilled sedentary occupational base.
Assume that the vocational expert testified that the entire unskilled
sedentary occupational base for the regional economy comprised 100,000 jobs,
i.e., all the jobs for all the unskilled sedentary occupations.
With that data, the ALJ would know that Ms. Limited-Light is disabled
even if she can do 100,000 (unskilled sedentary) jobs.
Therefore, the ALJ’s finding that Ms. Limited-Light was not disabled
based on her ability to do a total of 7,700 jobs in the regional economy cannot
be reconciled with the Grid as a framework.
Ms. Limited-Light can do far fewer jobs than a claimant who has the
residual functional capacity for a full range of sedentary work and that
claimant is disabled.
Using
the Grid as a framework in this manner is not only mandated by the Grid and its
implementing Social Security Rulings, but also is necessary to avoid arbitrary
decision-making. The Grid itself is
a model regulation for treating claimants for disability benefits fairly.
Only when the Grid as a framework is applied properly is fair treatment
extended to claimants for whom a Grid rule cannot be used to direct an outcome.
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