Past relevant work

ALJ cannot consider past relevant work performed under special conditions

The ALJ erred in returning claimant to past relevant work performed under special conditions.

“When the SSA determines whether an individual is disabled for SSDI purposes, it does not take the possibility of ‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI. See Memorandum from Daniel L. Skoler, Associate Comm’r for Hearings and Appeals, SSA, to Administrative Appeals Judges, reprinted in 2 Social Security Practice Guide, App. § 15C[9], pp. 15-401 to 15-402 (1998). Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966 (1999). 20 C.F.R.  404.1573 (c) defines work performed under special conditions. The work you have done may be performed under special conditions when that work takes into account your impairment, such as work done in a sheltered workshop or as a patient in a hospital. If your work is performed under special conditions, courts may find that it does not show that you have the ability to do substantial gainful activity. Also, if you are forced to stop or reduce your work because of the removal of special conditions that were related to your impairment and essential to your work, we may find that your work does not show that you are able to do substantial gainful activity. However, work performed under special conditions may show that you have the necessary skills and ability to work at the substantial gainful activity level. Examples of the special conditions that may relate to your impairment include, but are not limited to, situations in which:

(1) You required and received special assistance from other employees in performing your work;

(2) You were allowed to work irregular hours or take frequent rest periods;

(3) You were provided with special equipment or were assigned work especially suited to your impairment;

(4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work;

(5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or

(6) You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer’s concern for your welfare.” 20 C.F.R.  404.1527(c).

In the present case, the claimant testified and the evidence demonstrated that the past relevant work to which the ALJ returned him in his decision was work performed under special conditions, namely that he was allowed to take additional 15 minute breaks every hour. The ALJ did not inquire whether these accommodations would be tolerated in routine competitive employment, and he did not discuss the need for these breaks in his analysis of the claimant’s residual functional capacity assessment.  Rather, the ALJ repeatedly related back to the claimant’s purported stipulation that he could have performed his past relevant work as a parking lot attendant and file clerk with a sit-stand option.  In reality, the claimant only agreed with the ALJ’s statement that he could do the parking lot attendant job with a sit-stand option after the ALJ told him had already stipulated to that condition.

The claimant’s one time stipulation in the midst of a litany of questions he could not have been expected to understand the consequences of answering cannot by itself overshadow all of the other evidence in the record, including the statement from the claimant’s employer that he no longer met the minimum standards of performing his past relevant work.  Given the weight of the evidence and the claimant’s consistent testimony that he needed to walk around to relieve pain, it is more likely that he misunderstood the ALJ’s questions.  It does not appear from the written transcript that the claimant meant to deviate from his answer that he needed to take walking breaks every hour to alleviate pain.  Because the claimant’s past jobs were performed with “special conditions” and were therefore not past relevant work, the ALJ committed reversible error in returning him to this work at step four of the sequential evaluation.  Accordingly, reversal of the decision is required to correct this deficiency.

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Created by Joe Whitcomb, Esq.

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