TN 36 (09-15)

Citations:

20 CFR §404.1594(d)(2) and §416.994(b)(3)(iii)

A. Group I vocational therapy exception

Vocational therapy (related to the individual's ability to work) includes any additional education or training that improves the individual's ability to meet the vocational requirements of more jobs.

The mechanisms for relating medical improvement (MI) to the ability to work described in DI 28015.001, do not apply to relating vocational therapy to the ability to work. In the vocational therapy exception, vocational concepts apply rather than the medical concepts to relate MI to the ability to work.

This section explains how to relate vocational therapy to the ability to work. This discussion intends to prevent substitution of judgment of the prior adjudicator when the individual’s vocational profile is essentially unchanged.

B. Policy on when to use the vocational therapy exception

This exception applies when an individual receives additional education, training, or work experience, since the Comparison Point Decision (CPD), which has enhanced the individual’s vocational profile. The additional education or training is focused on a specific job type or sufficient to apply a different vocational rule.

C. Procedures to apply the vocational therapy exception

1. Development

• Obtain documentation of the type of vocational education, training or work experience the individual received since CPD.

• Include information about the nature, extent, type, and relevance of the education or training.

• Include consideration of any vocational therapy in progress at the time of the CPD.

2. Decision

Apply this exception if additional vocational education or training, or work experience occurred since the CPD, which has enhanced the individual’s vocational profile and the education or training is:

• Focused on a specific type of job(s); or

• Sufficient to apply a different vocational rule

D. Additional considerations for vocational therapy exception

• When this exception applies, it is not sufficient by itself, to find an individual is capable of engaging in substantial gainful activity (SGA). Continue to the next step of sequential evaluation for CDRs.

• Do not confuse this exception with the 301 work incentives provisions. Under the 301 provision, if the individual is participating in an approved vocational rehabilitation (VR) program, then disability benefits may continue even though the disability has ceased.

• If disability continues but the individual is currently receiving training or education, consider a vocational diary described in DI 26525.050.

• Do not substitute judgment over the CPD adjudicator when the individual’s vocational profile is essentially unchanged.

E. Exclusions to Group I vocational therapy exception

This exception does not apply to:

• Certain Title II claims for disabled widow(er)s or surviving divorced spouses prior to January, 1991;

• Title XVI claims where the recipient is eligible under section 1619;

• In cases where the individual has been eligible under section 1619 within the last 12 months, which in concurrent Title II and Title XVI cases, could result in cessation on Title II and simultaneous continuance in Title XVI;

• Title XVI child cases; or

• Cases where the CPD determination was based on meeting or equaling the Listing of Impairments and there has been no MI related to ability to work.

F. Examples of vocational therapy exception

1. Vocational exception applies

CPD: An illiterate individual was an allowance based on medical and vocational factors.

CDR: The individual obtained additional education and now is able to read and write.

Explanation: The additional education is sufficient to apply a different vocational rule. For the medical-vocational guidelines see DI 25025.005.

2. Vocational exception applies

CPD: The individual's impairment limited the individual to a sedentary level of exertion. Past work was at a medium level of exertion. Considering the individual’s age and education, a sedentary RFC resulted in an allowance.

CDR: The current evidence shows no MI. The individual can still do only sedentary work. Since the CPD, the individual completed a specialized training course in data processing as a computer programmer.

Explanation: The additional education has an impact on the individual's vocational profile and is focused on a specific type of job. Therefore, the vocational therapy received is related to the ability to work and this exception applies.

3. Vocational exception does NOT apply

CPD: Benefits for an individual with a high school education were allowed based on medical and vocational considerations.

CDR: After the CPD, the individual attended a technical school and received an associate degree in business. The education covered multiple subjects in a relatively short period. This broad and general training program does not significantly affect the individual’s ability to transfer directly to skilled work.

Explanation: This exception does not apply because the additional education is not related to the ability to work. The education is not focused on a specific type of job and does not result in application of a different vocational rule.

Reference:

DI 28020.100, Advances in Medical or Vocational Therapy or Technology