Framework of the Medical-Vocational Guidelines

How disability advocates can reduce the occupational base.

by David F. Traver

Excerpted from Social Security Disability Advocate’s Handbook

The Social Security Administration has revealed the size of the unskilled, sedentary, light, and medium occupational bases of which the grid tables take administrative notice. SSA has not revealed the number of individual jobs in those occupations. That is one of the pieces of information we must extract from the VEs. In most framework cases, our primary goal will be to establish that the claimant’s restrictions reduce the occupational base so that the size of the claimant’s remaining occupational base is little more than, the same as, or less than the size of the occupational base remaining to an individual who has the same vocational profile of our claimant and for whom a finding of “disabled” is directed by a specific grid rule. This is established through a two-step cross-examination of the VE.

To prepare for this, first, define the claimant’s vocational profile — age, education, and previous work experience. Using this vocational profile, find the highest exertional level grid table — sedentary, light, or medium — which contains a grid rule directing a finding of “disabled” for an individual having the same vocational profile as the claimant. Write the number of this grid rule on a notepad.

In framework cases, any occupational base equal to or smaller than the base represented by this grid rule is, as a matter of law, a disabling occupational base for a claimant with the identical vocational profile. Moreover, any occupational base which is little more than the base represented by this grid rule also justifies a finding of “disabled,” under the equitable application of the grid rule as a “framework.” Accordingly, you will use this grid rule as the conceptual framework for determining the size of the occupational base under which the claimant must also be found “disabled.”

In step one of the cross-examination, ask the VE the following two “touchstone” questions:

• First, establish the VE’s general competence by asking the VE to identify the number of unskilled sedentary, light, and medium occupations in the national economy. (See the table.)

• Second, ask the VE to state the total incidence of individual jobs which exist in each of the unskilled sedentary, light, and medium occupational bases.

The VE’s answers to the above two questions will establish the size of the occupational base or bases which will serve as the touchstone by which you will determine whether the claimant is “disabled” based on the VE’s answers to the following step-two questions.

In step two of the VE’s cross-examination, using the claimant’s function-by-function RFC restrictions, ask the VE the following three “comparison” questions:

• First, ask the VE to assume a hypothetical claimant with the age, education, and previous work experience identical to the claimant’s who has functional restrictions identical to the claimant’s. (Here, you would enumerate for the VE’s consideration the claimant’s hypothetical, function-by-function, exertional and/or nonexertional restrictions, and you may wish to do this in more than one vocational hypothetical question.)

• Second, ask the VE to identify all occupations the hypothetical claimant with the above-stated restrictions can perform. (Ascertain that the VE has identified all appropriate occupations. Do not accept vague testimony that the identified occupations are merely “representative.” Determine specifically how much of the relevant occupational base or bases they represent.)

• Third, ask the VE to state the incidence of individual jobs which exist in each of the identified occupations in the regional and national economies.

Using the VE’s answers to the above three “comparison” questions, and using your previously selected grid rule as a touchstone, compare the size of the claimant’s occupational base to the size of the occupational base identified by the VE in response to your “touchstone” questions in step one.

If the size of the “comparison” occupational base is little more than, the same as, or less than the size of the “touchstone” occupational base, you should argue that the claimant is “disabled” using the previously identified grid rule (written on your notepad) as a “framework” for decisionmaking.

§1725     The Framework of the Medical-Vocational Guidelines and Vocational Expert Cross-Examination: Claimants Under Age 50

For claimants under age 50 whose restrictions are not the same as any restriction enumerated in SSR 96-9p, the policies in SSR 96-9p can be used to establish disability whenever the claimant’s restrictions reduce the occupational base so that the size of the remaining occupational base is little more than, the same as, or less than the size of the occupational base remaining to a claimant who has a restriction identical to one of those enumerated in SSR 96-9p.

Whether the foregoing situation is present is established through a two-step cross-examination of the VE. In step one, ask the VE the following three “touchstone” questions:

• First, ask the VE to assume a hypothetical claimant who is limited to sedentary, unskilled work and who also has one of the restrictions enumerated in SSR 96-9p, for example, a complete inability to stoop.

• Second, ask the VE to identify the occupations the hypothetical claimant with the above-stated limitations can perform.

• Third, ask the VE to state the incidence of individual jobs which exist in those occupations in the regional and national economies.

The VE’s answers to the foregoing questions will establish the size of the occupational base which, pursuant to the policy set out in SSR 96-9p, is deemed to represent such a significant erosion of the “full range” sedentary, unskilled occupational base that it warrants a finding of “disabled.” This is the touchstone by which you will determine whether the actual claimant is “disabled” based on the VE’s answers to the step-two questions set out below.

In step two, using the actual claimant’s RFC, ask the VE the following three “comparison” questions:

• First, ask the VE to assume a hypothetical claimant who is limited to sedentary, unskilled work and who also has the claimant’s exertional and nonexertional restrictions. (Here, you would enumerate the claimant’s actual RFC restrictions as hypothetical restrictions.)

• Second, ask the VE to identify the occupations the hypothetical claimant with the above-stated limitations can perform.

• Third, ask the VE to state the incidence of individual jobs which exist in those occupations in the regional and national economies.

If the VE’s testimony establishes that the size of the “comparison” occupational base (as determined by RFC) is the same as or smaller than the “touchstone” occupational base, you should argue that the claimant is disabled because, in terms of the medical-vocational rules, the agency has taken administrative notice that the unskilled sedentary occupational base available to that claimant is significantly eroded, and that, in terms of the framework of the medical-vocational rules (which provide the conceptual definition of work which exists in significant numbers in the national economy), the remaining occupational base does not provide the claimant a reasonable opportunity to make the “work adjustment” to work which exists in significant numbers in the national economy.

If the VE’s testimony establishes that the size of the “comparison” occupational base (as determined by RFC) is little more than the size of the “touchstone” occupational base, you should argue that the claimant is, nevertheless, disabled because the unskilled, sedentary occupational base still is significantly eroded, and, in terms of the framework of the medical-vocational rules, the remaining occupational base does not provide the claimant a reasonable opportunity to make the “work adjustment” to work which exists in significant numbers in the national economy. (This argument appreciates that the SSR 96-9p “sub-sedentary grid rules” are the floor, not the ceiling, for a finding of “disabled” using the sedentary Medical-Vocational Guidelines as a framework.)

David F. Traver has represented hundreds of claimants at SSA and over 200 claimants in U.S. District Courts.  He has bachelor and master degrees in vocational rehabilitation, and is the author of Social Security Disability Advocate’s Handbook, from which this article is excerpted.