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PRACTICAL IMPLICATIONS OF THOMAS
Last Updated November 25, 2003
I. INTRODUCTION
II. BACK TO STEP-FOUR BASICS
_A. SSR 82-40 – NOW IN A REGULATION
_B. SSR 82-61 – NOW IN A REGULATION
III. VALIDITY OF AUP AFTER THOMAS PROXY RATIONALE
IV. EXISTENCE OF AUP AFTER THOMAS
I. INTRODUCTION
This message concerns the Supreme Court’s November 12, 2003 decision in Thomas.
See Barnhart v. Thomas, 124 S. Ct. 376 (2003). The message focuses on the practical implications for everyday disability practice. As with anything I present, this message is merely one of many possible perspectives. I have no involvement with the
Thomas case, but am familiar with its course after the Commissioner filed her cert petition. I cite below Title II law only.
Thomas documents and links are found at
http://www.schnaufer.com/thomas.htm
http://www.abanet.org/publiced/preview/briefs/
II. BACK TO STEP-FOUR BASICS
Thomas does not affect directly the basic analysis of step four in the vast majority of routine disability determinations. But the main lesson of
Thomas is to return to step-four basics. During the first Reagan administration, the Agency issued 3 main SSRs about step four: SSR 82-40, SSR 82-61, and SSR 82-62. The Thomas litigation and related developments concern primarily SSR 82-40 and SSR 82-61. (I will mention SSR 82-62 in passing.)
A. SSR 82-40 – NOW IN A REGULATION
Under SSR 82-40, a claimant may be found not disabled at step four based on her ability to do PRW in a foreign country even if there is no analogue for that PRW in the United States. SSR 82-40 (“The proper test in the fourth step of the sequential evaluation process is whether the individual can do his or her previous work, whether in the U.S. or in a foreign economy.”). SSR 82-40 is thus authority that PRW need not exist at all in the United States. SSR 82-40 (“A job in a foreign economy need not have a counterpart in the U.S. economy”). SSR 82-40 was one of the main authorities upon which the Commissioner relied in the
Thomas litigation. (The Supreme Court did not mention SSR 82-40.) To bolster its litigation position in Thomas that SSR 82-40 is general authority that PRW need not exist, the Agency made the principle of SSR 82-40 part of the regulations while
Thomas was pending. See 68 Fed. Reg. 51,163 (2003) (to be codified at 20 C.F.R. § 404.1560(b)(3) (2004)). (These regulations were effective September 25, 2003.) After Thomas, the validity of SSR 82-40 is likely unassailable. The Supreme Court did not uphold the validity of SSR 82-40 in Thomas, but it should be impossible to distinguish Thomas in any challenge to the validity of SSR 82-40.
Because SSR 82-40 is unassailable, an advocate with a claimant with past work in a foreign country needs to focus on proving that the claimant’s past work was not SGA and thus not PRW,
see SSR 82-62; SSR 96-8p; POMS DI 10505.02, and/or that the claimant lacks the RFC to perform any PRW in a foreign country. There is no argument that past work in a foreign country cannot as a matter of law be PRW and the basis for a finding of non-disability at step four. Thus, before and after Thomas, advocates have the ordinary task of proving that the claimant’s past work in a foreign country was not SGA and/or that given her residual functional capacity the claimant cannot perform PRW in a foreign country.
B. SSR 82-61 – NOW IN A REGULATION
Under SSR 82-61, a claimant is not disabled at step four if she can do her PRW as actually performed (AAP) and/or as generally/usually performed (AUP). (SSR 82-61 apparently uses the term “generally” and “usually” as synonyms. I am unaware of any authority resting on a distinction between PRW as “generally” performed and as “usually” performed.) In every case reaching step four, an advocate must know why the claimant is unable to do PRW AAP and AUP. Thus, an advocate must know the demands of any PRW AAP and AUP. See SSR 82-62.
In the Thomas litigation, the ALJ did not distinguish between PRW AAP and PRW AUP. (The ALJ’s decision is in the SG’s appendix to his cert petition.) The Third Circuit did not distinguish between AAP and AUP. Nor did the Commissioner (through the SG) or the Supreme Court. Thus the relevant agency adjudication and judicial findings did not address the fundamental distinction between AAP and AUP. Even if the distinction did not matter, the fact that it did not matter should have been addressed. (As implied below, it might have mattered.)
Although unnecessary for the Thomas litigation, the Commissioner put the main rule of SSR 82-61 into a regulation.
See 68 Fed. Reg. 51,163 (2003) (to be codified at 20 C.F.R. § 404.1560(b)(2)
(2004)). Thus, in all pending claims before the Agency, the amended regulation, not SSR 82-61, is the main authority for allowing step-four findings of non-disability based on PRW AAP and AUP. The only reason SSR 82-61 matters today for its main rule is that the amended regulation embodies it.
In sum, before and after Thomas, advocates have the ordinary task of proving that a claimant cannot do her PRW AAP and AUP.
III. VALIDITY OF AUP AFTER THOMAS PROXY RATIONALE
There is an argument that SSR 82-61 and 20 C.F.R. § 404.1560(b)(2) (2004) are invalid in part. I have described this argument several times before. According to the Commissioner, age, education, and work experience are irrelevant at step four. With respect to education and work experience for AUP, education and work experience must matter in some cases or the AUP rule itself is invalid. I will use an example. Assume that the claimant’s PRW AAP is unskilled. Assume that the claimant’s PRW AUP is skilled. Assume that the claimant has only unskilled work experience. Assume that the claimant has the physical and mental ability do to PRW AUP but not AAP. According to the Commissioner, the claimant is not disabled at step four based on her ability to do PRW AUP despite the fact that the Commissioner admits that the claimant could never in reality do PRW AUP given her lack of job skills. The argument goes that this is an invalid interpretation of 42 U.S.C. § 423(d). The statute refers to “previous work,” but mentions age, education, and work experience in the context of what the regulations call step five. Id. Congress never dreamed that the Agency would find a claimant not disabled based on her ability to do her “previous work” that the claimant never did, i.e., her PRW AUP Thus, the price of expanding the definition of PRW to include AUP, is allowing consideration of education and work experience at step four for AUP.
This argument hits a brick wall in Thomas. The rationale of Thomas is that the Agency is permitted to rely on a “proxy” rule at step four to assess disability. Under Thomas, at step four, the Agency need not make accurate determinations for all claimants, but may use rough rules that necessarily find claimants not disabled based on their abilities do previous work when, e.g., there is no previous work that the claimants can do (because it no longer exists). The main challenge to the validity of AUP is its manifest unfairness by denying benefits to claimants based on their abilities to do their previous work when everyone agrees that they could not do their previous work.
Can the validity of AUP be reasonably challenged after Thomas? The argument is not frivolous, just unpersuasive. The Commissioner in
Thomas successfully used a power play: seeking ratification of a rule that is unfair and inaccurate. After
Thomas, the mere unfairness and inaccuracy of AUP is likely not enough.
IV. EXISTENCE OF AUP AFTER THOMAS
There is one benefit to the failure of the parties to address in Thomas the fundamental distinction between AAP and AUP. In theory, the argument that AUP must exist survives Thomas. This argument is likely to be unpersuasive this year and next year simply because Thomas is so fresh.
The argument: According to the Commissioner, a claimant may be found not disabled based on AAP or AUP. According to the Commissioner, AUP is how previous work is “generally performed in the national economy.” 68 Fed. Reg. 51,163 (2003) (to be codified at 20 C.F.R. § 404.1560(b)(2) (2004)). Work that does not exist in the national economy is not “generally performed” in the national economy. Not only is it not generally performed in the national economy, it is not performed in the national economy at all. The Commissioner’s own rule is that AUP must exist. Under Thomas, the Commissioner has broad authority to fashion step-four rules. The Commissioner has made the rational choice to require work that is generally performed in the national economy to be performed in the national economy. Therefore, any AUP finding must be based the existence of AUP in the national economy. (I have intentionally left vague the question of how AUP must exist in the national economy.)
These comments are not exhaustive.
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