September 10, 2011 saw the second SSR issued for 2011 (effective September 12, 2011). You can also view and download the entire ruling as a PDF here.
SSR 11-2p deals with Documenting and Evaluating Disability in Young Adults. Much of the ruling is a summary of how Social Security should evaluate cases for claimants with ages between 18 and 25. However, there are several interesting items:
First, the ruling makes it clear that evidence generated during childhood (before the 18th birthday) can be relevant in an adult claim. The ruling describes how evidence such as IEPs, and performance in on-the-job training programs, and community based instruction can be helpful in evaluating disability:
A. Evidence Regarding Functioning From Educational Programs
As we discussed in section I.C above, we may have evidence about a young adult’s functioning from school programs, including IEPs. This evidence may indicate how well a young adult can use his or her physical or mental abilities to perform work activities. The following examples of school-reported difficulties might indicate difficulty with work activities:
- Difficulty in understanding, remembering, and carrying out simple instructions and work procedures during a school-sponsored work experience;
- Difficulty communicating spontaneously and appropriately in the classroom;
- Difficulty with maintaining attention for extended periods in a classroom;
- Difficulty relating to authority figures and responding appropriately to correction or criticism during school or a work-study experience;
- Difficulty using motor skills to move from one classroom to another.
B. Community Experiences, Including Job Placements
1. A young adult may receive services in a community setting(s) through a school or a community agency, such as a mental health center or vocational rehabilitation agency. These services may include:
- Community-based instruction (CBI), or instruction in a natural, age appropriate setting (for example, trips to the grocery store to develop math, sequencing, travel, and social skills).
- On-the-job training (OJT), or placement in various work sites in the community for vocational training and experience, frequently in an ”˜’enclave” (small group) of students with a job coach (for example, placement in an enclave in a motel to learn housekeeping tasks such as bed-making and vacuuming).
- Work experience, or supervised part-time or full-time employment to assist a young adult in acquiring job skills and good work attitudes and habits.
2. A young adult may participate in several””or even many””OJT or work experience placements that are unpaid, paid at SGA levels, or paid at less than SGA levels. Some young adults have multiple placements as part of a transition plan that expose them to a variety of work settings. Other young adults have multiple placements because of unsatisfactory performance.
Regardless of whether the work was SGA, information about how well a young adult performed in these placements can help us assess how the young adult functions. For example, a young adult who was unable to sustain OJT placements may have limitations in the ability to understand and remember instructions or to persist at work-related tasks. In contrast, a young adult who performed OJT placements successfully may have a good ability to respond appropriately to supervision. In addition, information about the degree to which a young adult needs special supports in order to work (such as in supported or transitional employment programs) may also help us assess the young adult’s functioning. Emphasis added.
C. Psychosocial Supports and Highly Structured or Supportive Settings
As for all adults, psychosocial supports and highly structured or supportive settings may reduce the demands on a young adult and help him or her function. However, the young adult’s ability to function in settings that are less demanding, more structured, or more supportive than those in which people typically work does not necessarily show how the young adult will be able to function in a work setting. We will consider the kind and extent of support or assistance and the characteristics of any structured setting in which the young adult spends his or her time when we evaluate the effects of his or her impairment(s) on functioning.
D. Extra Help and Accommodations
Working requires a person to be able to do the tasks of a job independently, appropriately, effectively, and on a sustained basis. In this regard, the analysis for adult disability determination purposes is similar to our ”˜’extra help” rules for children. If an adult with an impairment(s) needs or would need greater supervision or assistance, or some other type of accommodation, because of the impairment(s) than an employee who does not have an impairment, the adult has a work-related limitation.
We consider how independently a young adult is able to function, including whether the young adult needs help from other people or special equipment, devices, or medications to perform day-to-day activities. If a young adult can function only if he or she receives more help than would generally be provided to people without medical impairments, we consider how well the young adult would function without the extra help. The more extra help or support of any kind that a young adult receives because of his or her impairment(s), the less independent he or she is in functioning, and the more severe we will find the limitation to be.
a. Accommodations are practices and procedures that allow a person to complete the same activity or task as other people. Accommodations can include a change in setting, timing, or scheduling, or an assistive or adaptive device.
b. Some young adults with impairments need accommodations in their educational program in order to participate in the general curriculum or in a transitional program. The fact that a young adult receives or has received accommodations as a part of his or her IEP or Section 504 plan, may be an indication that he or she has a work related limitation. For example, evidence showing that a student requires an audiotape recording of oral directions for replay at school because he cannot remember more than a one-step instruction might indicate that the student will have the same inability to remember more than a one-step instruction without special assistance in a work setting.
c. Some accommodations may indicate an impairment(s) that meets or medically equals a listing. For example, the need for an augmentative or alternative communication or AAC device (for example, an electronic picture board or an electrolarynx) might indicate a speech impairment that meets listing 2.09 or an impairment that meets one of the neurological listings in section 11.00 of the listings.
d. When we determine whether a person can perform his or her past relevant work, we do not consider potential accommodations unless his or her employer actually made the accommodation. This means that we cannot find that a young adult can do past relevant work with accommodations unless the young adult actually performed that work with those same accommodations and is still able to do so now.
e. When we determine whether a person can do other work that exists in significant numbers in the national economy, we do not consider whether he or she could do so with accommodations, even if an employer would be required to provide reasonable accommodations under the Americans with Disabilities Act of 1990.
2. Effects of Treatment, Including Medications
Treatment, including medications, can have a positive effect on a person’s ability to function in a work setting. For example, a young adult who takes an antidepressant medication may be able to interact appropriately with supervisors and co-workers. Treatment, however, may not resolve all of the functional limitations that result from an impairment(s). Medications or other treatment may cause side effects that affect the mental or physical ability to work. For example, an anti-epileptic medication may cause drowsiness that affects the ability to concentrate; daily chest percussion therapy for cystic fibrosis may cause fatigue because of the physical effort involved in the therapy. The frequency of a young adult’s treatment may preclude him or her from maintaining a full-time work schedule; that is, 8 hours a day, 5 days a week on a sustained basis.
E. Work-Related Stress
1. Working involves many factors and demands that can be stressful. For example, some people may experience stress related to the demands of getting to work regularly, having work performance supervised, or remaining in the workplace for a full day, 5 days a week on a sustained basis. Moreover, one person’s reaction to stress associated with the demands of work may be different from another’s, even among people with the same impairments.
2. Sources familiar with the young adult may provide insight about the effect of stress on his or her physical or mental functioning and what, if any, psychosocial supports or structure he or she would need when experiencing work-related stress. We consider impairment-related limitations created by a person’s response to the demands of work when we assess RFC.
The ruling also discusses how Social Security should determine if the work performed by a younger individual is Substantial Gainful Activity (SGA). The ruling provides the general rule that reporting earnings are presumed to have been fully “earned” by the younger individual without a subsidy. However, this presumption can be rebutted.
IV. Determining Disability
A. Determining Whether a Young Adult’s Work Activity is SGA
When we determine a young adult’s earnings for SGA purposes, we count only those earnings that are attributable to his or her own productivity. We assume that a young adult’s reported earnings are attributable to his or her own productivity unless there is evidence indicating that those earnings are greater than would be attributable to his or her productivity.
The ruling goes on to discuss instances where earnings my have been subsidized — which might mean that the work was not a Substantial Gainful Activity.
1. Work Activity
Many young adults with disabilities have worked. The work experience may have been (or may be, if the person is still working) subsidized, in a sheltered setting, or performed under special conditions. As for any adult, we exclude subsidized earnings. In addition:
- Some young adults whose impairments arose during military service continue on active duty and receive full pay while they are in treatment for their impairments. They may also receive payments while working in a designated therapy program or on limited duty. Active duty status or receipt of pay (for example, sick pay) by a member of the military does not indicate by itself that the service person has demonstrated the ability to do SGA. We will consider the actual work activity, not the amount of pay the service person receives or the duty status of the service person, when we determine whether the work is SGA.
- Young adults may have impairment-related work expenses; that is, expenses for an item or service that directly enables a person to work and that the person necessarily incurs because of an impairment(s). We deduct impairment-related work expenses from a person’s wages or self-employment income before we determine whether the wages or self-employment income constitute SGA.
2. Volunteer Service Young adults with disabilities may participate in government-sponsored programs for volunteer activity, such as AmeriCorps VISTA. We do not count as earnings payments a person receives from some of these programs.
3. Unsuccessful Work Attempts Some people have brief periods of work with earnings at the SGA level. We will consider the possibility that a brief period of work was an unsuccessful work attempt when we are determining whether the work was SGA. If a period of work is an unsuccessful work attempt, we will not consider that work to be SGA when we determine if the young adult is under a disability. However, as we noted in section III.A, covered wages or self-employment income from an unsuccessful work attempt may provide work credits that establish disability insured status under title II.
The ruling also deals with younger individuals at Step 5 of the sequential evaluation process: ability to adjust to “other work.” Generally, younger individuals have the most difficulty proving disability:
2. When a young adult has only exertional (strength) limitations and has an RFC and vocational factors that match the criteria of a rule in the Medical-Vocational Guidelines in appendix 2 of subpart P of the Regulations No. 4 (grid rules), the grid rules always direct a decision of ”˜’not disabled” for young adults.
Fortunately, it is a rare case that only results in exertional limitations. And the rule acknowledges that non-exertional limitations (from limitations on the use of the hands and arms, to bending and stopped, and even an inability to work a 40 hour week) can erode the job base and allow an individual to be found disabled.
For cases with non-exertional limitations due to mental impairments (including psychological, developmental, and cognitive), the ruling is instructive in that it indicates the criteria Social Security should most focus on:
c. If a young adult has a substantial loss of one or more of the basic mental demands of competitive, remunerative, unskilled work, the occupational base will be significantly eroded, despite vocational factors that we would ordinarily consider favorable (for example, young age, college education, and skilled work experience). The basic mental demands of competitive, remunerative, unskilled work include the abilities to:
- Understand, remember, and carry out instructions;
- Make simple work-related judgments typically required for unskilled work;
- Respond appropriately to supervision, coworkers, and work situations; and
- Deal with changes in a routine work setting.
Of course, this is not a complete list of possible limitations. However, it is interesting to see what Social Security recommends that its adjudicators focus on.
The ruling also reminds Social Security that since younger individuals are more likely to be coming fresh from school (high school or college), they are more likely to be able to step into skilled jobs.
d. Adjudicators must remember that young adults are more likely to have recent educational experience that provides for direct entry into skilled work; some will also have vocational experiences (see section C. above) that provide them with skills they can use in skilled or semiskilled work.
One adjustment consideration with skilled work is how much has the the industry changed since the skills were acquired. The more the tools and techniques have changed, the greater the adjustment required. For example: the skills acquired in a business assistant program 20 years ago are dated and would likely result is some adjustment to work in today’s office. However, a recent graduate would have minimal adjustment. The greater the adjustment, the less likely the individual is actually able to perform the duties required.
The ruling reminds Social Security not to rule out skilled work as the basis of a possible denial (even without no prior job experience) due to recent training, internships and/or job placement.
Also valuable is the discussion of evaluating inconsistencies in the evidence. One example is the possibility of a “good day” during a consultative examination:
5. An apparent inconsistency is not always a true inconsistency. For example, the record for a young adult with attention-deficit/hyperactivity disorder may include good, longitudinal evidence of hyperactivity at home, in the classroom, and on work experience placements in the classroom, but show a lack of hyperactivity during a consultative examination (CE). The observations during the CE may represent a ”˜’good” day, rather than the overall level of functioning or the effect of an unusual setting. In this case, there would be only a normal variation in functioning at the time of the CE.
Thanks to David Traver for bringing the ruling to my attention.
Photo by Patty Maher