Eric Schnaufer posts the latest take on PRW in an answer to a question on the Connect board this morning. I reproduce it here, uneditted (except for the addition of links), only because Peter Young no longer archives posts on the board:
The Old Regulation and the Old Ruling
By regulation, not all work is PRW. Some work is not PRW by virtue of the fact that it is too remote in time. See 20 C.F.R. § 404.1565(a) (2003) (“We do not usually consider that work you did 15 years or more before the time we are deciding whether you are disabled (or when the disability insured status requirement was last met, if earlier) applies.”). Thus, the 15-year guideline of § 404.1565(a) is not an absolute cutoff, but the usual rule. SSR 82-62 also does not characterize the recency guideline as absolute. SSR 82-62 (“Except for the purpose of determining whether the disability criteria of sections 404.1562 and 416.962 of the regulations are met, work performed 15 years or more prior to the time of adjudication of the claim (or 15 years or more prior to the date the title II disability insured status requirement was last met, if earlier) is ordinarily not considered relevant.”). Thus, work more than 15 years from the relevant date is usually or ordinarily not PRW.
The New Regulations
On August 26, 2003, the Agency published final step-four rules. 68 Fed. 51,153 (2003). The final rules talk about the 15-year guideline in absolute terms, not as an ordinary or usual rule. 68 Fed. Reg. 51,163 (2003) (“Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it. (See § 404.1565(a).)”) (to be codified at 20 C.F.R. § 404.1560(b)(1) (2004)). Unfortunately, the new regulations cross-reference § 404.1565(a), so claimants cannot reasonably argue that the 15-year guideline is now an absolute cutoff.
Pauline Thomas Litigation
In the Reply Brief for the Petitioner, the SG states that the “15-year cut-off establishes a limited, bright-line presumption….” This is very nice. If the 15-year rule operates as a presumption, then a claimant should not need to do more than come within the presumption. If the claimant’s past work is PRW notwithstanding not having been performed within the relevant 15 years, then the Agency arguably has to show something additional. A claimant does not need to show that work was outside of the 15-year guidelines and something else. The full quote from the SG’s reply brief is:
“Respondent’s reliance (Br. 12-13) on the ‘relevance’ requirement articulated in SSR 82-62 is similarly misplaced. That Ruling provides that past work will not be considered-it will be deemed `not relevant’ as an evidentiary matter in determining the claimant’s capacity for work-if performed more than 15 years ago. The 15-year cut-off establishes a limited, bright-line presumption that makes claims resolution easier by eliminating the need to examine every job the claimant held during her potentially long life. SSR 82-62 (1982 WL 31386, at *2).”
The SG is the horse’s mouth. SSA OGC cannot reasonably argue that the SG representing the Agency in the Supreme Court misinterpreted Agency policy. In any case, SSA OGC management appears on the briefs in Thomas with the SG. Thus, don’t worry that a litigation brief is neither regulation nor a binding rule.
