Thursday, July 12, 2018

The Claimant May Need a Cane for Long Distances

Look at enough ALJ decisions or go to enough hearings and we eventually see/hear/read a finding and hypothetical question that includes "may" and/or "long distance."  I have no idea what "may need a cane for long distances" means in the context of a complete residual functional capacity finding or hypothetical question to a vocational expert. 

MAY:

"I may use a cane today."  That means that I may not use a cane today.  When the ALJ directs the vocational expert that the claimant "may" need a cane or "may" need to engage in a certain activity, that "may" permits the ALJ to have the position of having considered the limitation and permits the vocational expert to assume that it never happens or happens so rarely as to be insignificant.  Tell the ALJ that you "may" attend the hearing tomorrow.  Right, "may" means nothing and sucks all meaning out of everything that follows. 

Q:  What does "may" need a cane mean to you?
A:  That may or may not need to use a cane.
Q:  Assume that the person will need to use a cane occasionally when walking is required on the job.  Does that change your answer?
A:  Of course it does.  I identified medium work. 
Q:  Needing a cane occasionally during the walking required of a medium job would eliminate that kind of work, right?
A:  Yes. 
Q:  And it eliminates light work that involve walking as well, right?
A:  Yes. 

Now you have to work on the stationary jobs that require no walking, if they indeed exist. 

LONG DISTANCE:

Q:  How far can you walk?
A:  Not a long distance.
Q:  I don't know what that means.  How far is a "long distance" for you?
A:  About a half block. 

Or the claimant might testify that a long distance is a mile -- about a 20 minute walk for a healthy person.  We would not let our client get away with vague testimony.  We drill down to the specific.  That's our job. 

When the ALJ asks the witness to assume something with "long distance" in the question, the ALJ puts on the cloak of having considered the testimony of a half-block and the vocational expert can assume that the phrase means over an hour of continuous walking. 

Q:  When the ALJ asked you to assume "no long distance" walking, what did you think that meant in time and distance?

The ALJ may interrupt and clarify with some intermediate distance.  But we now get clarity. 

Q:  The ALJ defined long distance as more than 15 minutes or two blocks.  Is that what you thought it meant? 
A:  Oh yes, of course I did. 
Q:  How did you know that "long distance" meant 15 minutes or two blocks?
A:  Experience.
Q:  Assume that the person needs a cane occasionally when walking 15 minutes or more in an hour.  Does that change the answers that you gave here today?
A:  Yes. 

Vagueness is the empowering facet of unfettered discretion.  Concreteness and clarity strip away the ability of the ALJ to exercise that unfettered discretion. 

Wednesday, July 11, 2018

Declaring Victory in the Numbers Game

 Some have asked me, "do you win at the numbers game?"  The answer in the past has been, "sometimes."  I announce today that we are well on our way to winning the numbers game.

The Social Security Administration issued a Vocational Expert Handbook effective August 2017.  In that Handbook, the Commissioner tells the vocational experts that testified that they “should be prepared to cite, explain, and furnish any sources” that the vocational expert relies on to support “testimony.”  Handbook, p. 3.  The Handbook directs the vocational expert to use, know how to use, and be able to use the DOT, County Business Patterns, and the Occupational Outlook Handbook.  Handbook, pages 8-9.  The Handbook states that the vocational expert should “be prepared to cite, explain, and furnish any sources upon which” the vocational expert relies for the testimony.”  Handbook, p. 19.  The Handbook emphasizes with an “again” statement directing the vocational expert to “be prepared to cite, explain, and furnish any sources” relied upon in support of the testimony given.  Handbook, page 20.  The Handbook reiterates with the “as noted above” statement that the vocational expert should be “prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 28.  In the discussion of work experience, the vocational expert must “be prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 31.

 The Handbook permits the vocational expert to include data not found in the DOT.  Handbook, pages 38.  When the vocational expert relies upon data outside of the DOT, the vocational expert must “be prepared to explain why [the] sources are reliable.”  Id.  The Commissioner continues, noting that the vocational expert should “maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources.”  Handbook, page 38.  Bayliss v. Barnhart is contrary to agency policy.

 In opposing certiorari before the Supreme Court in Biestekv. Berryhill, the Solicitor General writes:
           
SSA has recently issued updated policy guidance expressing the agency’s expectation that vocational experts testifying at ALJ hearings should be prepared to identify and describe the factual bases for their testimony.  In 2017, SSA updated its Vocational Expert Handbook, which sets forth the agency’s expectations as to how vocational experts should prepare for ALJ conducted disability hearings. SSA, Vocational Expert Handbook (Aug. 2017), [https://www.ssa.gov/appeals/public_experts/Vocational_ Experts_(VE)_Handbook-508.pdf] (Handbook). The Handbook instructs vocational experts that they “should be prepared to provide a complete explanation for [their] answers to hypothetical questions”; that they “should have available, at the hearing, any vocational resource materials [on which they] are likely to rely”; and that they “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.” Id. at 37. The Handbook further advises vocational experts that “[i]n some cases, the ALJ may ask [them] to provide relevant portions of materials [they] rely upon.” Ibid.

The revised Handbook, which had not yet been issued at the time of petitioner’s ALJ hearing, will help guide the agency’s handling of vocational expert testimony in future cases, so that any disagreement among the courts of appeals may be of limited prospective importance. At a minimum, the Handbook and the regulations cited above (see pp. 8-9, supra) underscore that Social Security disability claimants are already able under current law to challenge the reliability of vocational expert testimony. Petitioner cannot show that imposing the novel mandatory rule he urges, which is not grounded in the statutory or regulatory text, is necessary to provide such an opportunity.

The Solicitor General speaks for the United States, including the Social Security Administration.  The ALJ cannot rely on Bayliss to the exclusion of the requirements of the Handbook because the SG imposes that obligation on the VE and the ALJ.  

The pregnant question implicit in the SG brief  is one of deference.  Does the Handbook warrant deference as a constructions of the administrative notice and vocational expert regulations.  If the Handbook warrants respect deference under Skidmore, then the obligation to turn over the foundational data applies.  If the Handbook gets no deference, then the courts' interpretations that vocational expert testimony needs no foundation would remain the law of the law. 
This is the merger of my two favorite legal topics -- vocational expert testimony and the concept of deference to sub-regulatory pronouncements of the Commissioner.  On the latter, the philosophy is plain -- don't print it and make it available if it isn't true, don't lie to the public. 

Friday, June 29, 2018

Helpers - Production Workers Overwhelmingly Require Medium and Heavy Exertion


The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  Of that 553 occupations, 12 unskilled sedentary; 157 unskilled light; 172 unskilled medium; 105 unskilled heavy; and 6 unskilled very heavy.  The other 101 require skills.  The OOH describes the group:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education
High school diploma or equivalent
Work experience in a related occupation
None
On the job training
Short-term on-the-job training
Number of jobs, 2016
426,000
Employment Projections


We really need to know how many of these occupations require light and sedentary exertion. For that, we turn to the OccuCollect compilation of the Occupational Requirements Survey.
Series ID: ORUP1000030A00000663
Not seasonally adjustedSeries Title: % of helpers--production workers; strength is medium work
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: strength is medium work
YearPeriodEstimate
2017Annual74.6
https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000663
Almost three quarters of the jobs require medium exertion even though a third of the DOT codes suggest medium exertion as the typical requirements. Let's run down the rabbit hole a bit further:
Series ID: ORUP1000030A00000664
Not seasonally adjustedSeries Title: % of helpers--production workers; strength is heavy work
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: strength is heavy work
YearPeriodEstimate
2017Annual15.2
https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000664
This incidence of heavy work brings the total to 89.8%. We have not accounted for very heavy exertion but the amount of light and sedentary work cannot exceed 10.2% of the occupational base.

We can examine standing/walking to get more insight:
Series ID: ORUP1000030A00001004
Not seasonally adjustedSeries Title: helpers--production workers; % of day standing/walking is required (10th percentile)
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: % of day standing/walking is required (10th percentile)
YearPeriodEstimate
2017Annual75
https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001004
At the 10th percentile, helpers - production workers stand/walk about 6 hours per day or less. Remember that the percentile describes everything below that point in line. How about lifting/carrying:
Series ID: ORUP1000030A00000234
Not seasonally adjustedSeries Title: helpers--production workers; pounds maximum weight lifted/carried (10th percentile)
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: pounds maximum weight lifted/carried (10th percentile)
YearPeriodEstimate
2017Annual20
https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000234
If the maximum weight lifted is 20 pounds, does that make the occupation light? No. If the maximum weight is lifted frequently during the day, the work is medium. If the maximum weight lifted is lifted constantly during the day, the work is heavy. A constant exertion of negligible force constitutes light exertion, if the frequent lifting/carrying is less than or equal to 10 pounds and occasional lifting/carrying is less than or equal to 20 pounds.
Series ID: ORUP1000030A00000261
Not seasonally adjustedSeries Title: % of helpers--production workers; lifting/carrying negligible weight is required, constantly
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: lifting/carrying negligible weight is required, constantly
YearPeriodEstimate
2017Annual20.6
https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000261
This data suggests that at least half of the constant lift/carry of negligible weight require medium or greater exertion.

There are fewer than 43,000 jobs that require sedentary, light, and very heavy jobs within this classification. The 10th percentile marks the cutoff for standing/walking six hours in an eight-hour day. The ORS reports the mean, 25th, and 10th percentiles for sitting. This data suggests very few sedentary jobs and any identifiable light occupation would represent very few jobs.

Thursday, June 28, 2018

Steam Presser and 20,000 Jobs -- Wholly Unreliable

Following up on the Mary Jesko-garment sorter kerfuffle, this time we look at Steam Presser.   To recap and make this post complete, the hypothetical question:

Case #1:  Assume younger individual with limitation to light work; occasional postural activities; no crouching; limited to simple repetitive tasks defined as one- and two-step instructions; no fast paced work; at an observably slower pace. 

Assuming less than a 10% loss of productivity measured over a day, Jesko identified:
Steam Presser 789.687-166
Light SVP 1
28,000 jobs
Jesko did not have the SOC codes, claimed that she used the OES codes, and did not have those either.  Jesko appeared by phone at the hearing wholly unprepared to submit to cross-examination. 

Using the easiest way to garner the information about the SOC/OES codes, I run to OccuCollect  From OccuCollect's DOT full report, the first five lines:

DOT Code: 789.687-166
SOC Code: 51-9198.00
O*NET URL: https://www.onetonline.org/link/summary/51-9198.00
DOT-O*NET Crosswalk: https://www.onetonline.org/crosswalk/DOT?s=789.687-166 &g=GO
DOT Name: Seam steamer (garment)

Steam presser is not the name of the occupation, nor is it the alternate title, pipe steamer.  Using the non-title of the occupation serves the useful purpose of confusing the representative and masking the deception of the vocational expert.  Moving on.  Seam steamers have two very important commonalities with garment sorters:  they are in the same occupational group and in the same industry designation.  Any aggregate analysis will capture both.  So we look back at the Occupational Outlook Handbook and Employment Projections that we looked at for garment sorter. 

SOC 51-9198 are the helpers production workers.  The OOH provides:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education
High school diploma or equivalent
Work experience in a related occupation
None
On the job training
Short-term on-the-job training
Number of jobs, 2016
426,000
Employment Projections

The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  That XLSX link in the OOH box opens up the Employment Projections for this group. The DOT narrative identifies the industry as garment; knitting.  The EP state the job numbers:
CodeTitleEmployment
313-40Textile mills and textile product mills5.9
315-60Apparel, leather and allied product manufacturing3.2

The employment numbers are in thousands:  9,100 jobs in the textile and apparel manufacturing industry subsectors.  Our friends at Job Browser Pro identify industry groups 313200, 315100, and 315200.  The EP does not have a separate listing for 313000.  But we have basic math skills and take the 5,900 for 313-40 and subtract the number of jobs in 314000.  
CodeTitleEmployment
314000Textile product mills2.6
That leaves 3,300 jobs that belong to the group 313000.  The EP captures the other two industry groups (315100 and 315200) in the subsector (315000):

Code                Title                                                                                                   Employment

315000Apparel manufacturing2.6

Now we are down to 5,900 jobs in the nation.  Aggregation takes Jesko down from 20,000 to 5,900 and that is not a valid end point for the statistical analysis.  Chasing the rabbit down the hole requires use of JBP, the OES, and CBP. 

JBP lists 40 helpers - production workers that exist in the textile mills industry (313200); 8 that exist in apparel knitting mills (315100), and 21 that exist in apparel manufacturing (315200).  JBP estimates 75 seam steamers in the nation.  

/The OES sinks Jesko.  The current OES numbers as of May 2017 state that employment of helpers - production workers has declined to 402,140 jobs in the nation.  The top industry employing helpers is employment services (NAICS 561300) at 129,160 jobs.  The next highest employer of helpers is animal slaughtering and processing (NAICS 311600) at 24,210.  None of the next three industries amount to 20,000 jobs and none of them touch on the garment industries.  The OES does not throw a bone to Jesko, not even a sliver.  

County Business Patterns will pour cement in the testimonial trap.  CBP now has the 2016 data.  For our two industry subsectors for this occupation:

NAICS code         Name                                          Paid Employees March 12, 2016

313                       Textile mills                               101,952
315                       Apparel manufacturing               96,791

The EP provides the percentage of helpers in the industries:  2.6% and 2.0%. The OccuCollect aided analysis would lead to a gross conclusion of about 4,000 helpers - production workers that includes seam steamer in the nation in these two industry subsectors. 

JBP does not identify the textile mills subsector; it identifies the fiber, yarn, and thread mills industry group.  Nor does JBP identify the three industry groups inside of 315000.  JBP identifies 315100 and 315200.  We know that there is at least one more (315900) from our look at garment sorter.  CBP describes those industries: 

NAICS code         Name                                          Paid Employees March 12, 2016

313100                  Fiber, Yarn, and Thread Mills    25,170
315100                  Apparel Knitting Mills               12,014
315200                  Cut and Sew Apparel Mfg.         5,430

Those aren't the helper jobs, those are ALL the jobs in the industry.  Take a slice out of 35,600 industry jobs.  Three percent gives a number larger than JBP reported and does not account for the 8, 21, and 40 other DOT codes that are both in the industry and are helpers - production workers.  

Wednesday, June 27, 2018

Garment Folder Represents 57,000 Jobs: How Do You Know That?

In two separate hearings, Mary Jesko testified as a vocational expert.  In neither case was Jesko prepared for cross-examination.  That puts the cases in post for interrogatories and possible supplemental hearings.  

Case #1:  Assume younger individual with limitation to light work; occasional postural activities; no crouching; limited to simple repetitive tasks defined as one- and two-step instructions; no fast paced work; at an observably slower pace.  Assuming less than a 10% loss of productivity measured over a day, Jesko identified:
Garment folder – 789.687-066 Light SVP 2
57,000 jobs
 Gluer – 795.687-014
Light SVP 2
20,000 jobs
 Steam Presser 789.687-166
Light SVP 1
28,000 jobs
When asked for the Standard Occupational Classification codes, Jesko said she didn't have them but would have to look them up on a crosswalk.  

When asked how she estimated the job numbers, Jesko testified that she used the Occupational Employment Statistics as the base and then considered the industries to get the job numbers.  
Q: Well, then you must have the OES numbers since you used the OES statistics. 
A: No, I would have to use the crosswalk to get the OES numbers.   
That is actually a good answer because the OES numbers and the SOC codes are the same six-digit codes.   Your intrepid examiner looked up the occupational groups on OccuCollect and posed them to Jesko.  Nope, she wouldn't acknowledge the easily ascertained information.  From OccuCollect's DOT full report, the first five lines:

DOT Code: 789.687-066
SOC Code: 51-9198.00
O*NET URL: https://www.onetonline.org/link/summary/51-9198.00
DOT-O*NET Crosswalk: https://www.onetonline.org/crosswalk/DOT?s=789.687-066 &g=GO
DOT Name: Garment folder (garment)

SOC 51-9198 are the helpers production workers.  The OOH provides:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education
High school diploma or equivalent
Work experience in a related occupation
None
On the job training
Short-term on-the-job training
Number of jobs, 2016
426,000
Employment Projections
The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  That pesky XLSX link in the OOH box opens up the Employment Projections for this group. The DOT narrative identifies the industry as garment; knitting.  The EP state the job numbers:
Code Title Employment
313-40 Textile mills and textile product mills 5.9
315-60 Apparel, leather and allied product manufacturing 3.2
The employment numbers are in thousands:  9,100 jobs in the textile and apparel manufacturing industry subsectors.  Our friends at Job Browser Pro identify industry groups 314900, 315200, and 315900.  The EP for those applicable subsectors:
CodeTitleEmployment
314000 Textile product mills 2.6
315000 Apparel manufacturing 2.6

Now we are down to 5,200 jobs in the nation.  JBP lists 30 helpers - production workers that exist in the textile product mills industry; 21 that exist in apparel manufacturing (315200); and 23 that exist in the second apparel manufacturing industry group (315900).  JBP estimates 63 garment folders in the nation.  

Jesko's affinity with the OES will not save her.  The current OES numbers as of May 2017 state that employment of helpers - production workers has declined to 402,140 jobs in the nation.  The top industry employing helpers is employment services (NAICS 561300) at 129,160 jobs.  The next highest employer of helpers is animal slaughtering and processing (NAICS 311600) at 24,210.  None of the next three industries amount to 57,000 jobs and none of them touch on the garment industries.  The OES does not throw a lifeline to Jesko.  

County Business Patterns will pour cement in the testimonial trap.  CBP now has the 2016 data.  For our two industry subsectors for this occupation:

NAICS code         Name                                          Paid Employees March 12, 2016

314                       Textile product mills                   113,013

315                       Apparel manufacturing               96,791

The EP provides the percentage of helpers in the industries:  2.2% and 2.0%.  

With a hotspot and computer or internet enabled phone everything presented here is available on the fly.  How does Mary Jesko know that there are 57,000 jobs as a garment folder in the national economy?  She doesn't.  There is no statistical support for that testimony.  

Is the Treating Physician Rule Dead for Cases Filed After March 27, 2017?

The Commissioner amended the regulations on the weighing of medical opinion evidence for cases in process (sec. 404.1527) and for cases filed after March 27, 2017 (sec. 404.1520c).  Some have suggested that the treating physician rule is dead, that the new regulations treat all opinion evidence in one basket, and that the sky is falling.  When we look at 404.1520c, we will not find a controlling weight regulation.  But that does not put the treating physician, the consultative examiner, and the non-examining physicians on the same plane.  We start with paragraph (c)(3), the weight factors as they pertain to dividing the sources. 
(c) Factors. We will consider the following factors when we consider the medical opinion(s) and prior administrative medical finding(s) in your case:
[...]
(3) Relationship with the claimant. This factor combines consideration of the issues in paragraphs (c)(3)(i) through (v) of this section.
(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).
(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).
(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).
(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.
We can start at the bottom.  The factor of examining relationship weighs against the state agency physician and the testifying medical expert.  They have no examining relationship.  

Subparagraphs (i) - (iv) give weight to a treating source.  These are the regulatory weight factors. They do not apply to the examining or non-examining physician.  All things being equal in terms of specialty and supportability, the tie goes to the treating physician under (c)(3).  

The claimant has a gait disturbance and some lower extremity weakness.  The CE and DDS opine that the person can stand/walk for four hours in a day.  The treating physician offers the opinion of two hours.  The person is 53 and the amount of standing/walking makes the difference in the case.  The representative should argue that under (c)(3) the recognition by all the physicians that some limitation in standing/walking applies requires more weight to the longer treatment relationship, the more frequent doctor-patient interaction, the purpose of the visits (to cure and relieve), and the extent of the relationship (advice, therapy, medication, and referrals), as well as the repeated examinations all point weight to the treating physician.  

Is the treating physician opinion different?  Yes.  Is the treating physician rule and the extra weight to the treating physician dead?  No.  It is still breathing under (c)(3).