Overturn the Thomas decision

“The ‘automation bomb’ could destroy 45 percent of the work activities currently performed in the United States,” David Ignatius in the Washington Post stated this week, citing a study completed by McKinsey & Co. https://www.washingtonpost.com/opinions/the-brave-new-world-of-robots-and-lost-jobs/2016/08/11/e66a4914-5fff-11e6-af8e-54aa2e849447_story.html?utm_term=.8438c964d9ec

Ignatius concluded:  “Politicians need to begin thinking boldly, now, about a world in which driverless vehicles replace most truck drivers’ jobs, and where factories are populated by robots, not human beings. The best way to cushion this future is to start planning for how Americans will be able to take care of their families — and find meaningful work — in a world where most traditional jobs have vanished.”

One way this “automation bomb” currently impacts Social Security disability claimants, the most fragile members of the workforce, should be corrected now.

Two of the five steps in the Social Security disability evaluation involve jobs.  The fourth step concerns the job(s) that the disabled claimant used to do, and the fifth step, the potential jobs that the claimant might be able to do.

Social Security finds that if you can do your prior relevant work, you are not disabled.  The Supreme Court has endorsed the Social Security administration’s position that even if your job no longer exists, you are not disabled.  See, Barnhart v. Thomas, 540 U.S. 20 (2003).  In that case Thomas had been an elevator operator (prior to the time her job was eliminated), and at the time her case was considered by Social Security (she applied in 1996), very few elevator operators’ jobs existed.  See http://disabilitydisability.blogspot.com/2014/02/the-grammatical-rule-of-last-antecedent.html

When the sequential analysis moves on to the fifth step, Social Security considers whether there are a “significant” number of other jobs the claimant can do.  Social Security projects a 2019 start date for a new system of jobs analysis.  See https://www.ssa.gov/disabilityresearch/occupational_info_systems.html

Given the automation crisis, we are now experiencing and will experience in the future, Social Security law has to change to overturn the Thomas decision and provide that if a claimant can do his or her past relevant work, but that the job no longer exists, the disability evaluation must proceed to the fifth step, rather than there be an automatic denial at step four.