Thursday, July 30, 2020

Postmortem on Goode v. Commissioner -- the Court Got Half the Story

The Eleventh Circuit reversed in a huge win for claimants on the reliability of vocational expert testimony. Goode v. Commissioner of Soc. Sec. The court called out the vocational expert and ALJ (but neither by name). Goode v. Berryhill. The decisions are a good read and available to everyone to read for themselves. Today we pull back the curtain to disccover that the vocational expert was reckless, tried to cover his tracks, and I think I know why. 

We start with the district court decision:
Plaintiff notes that the VE testified that he got these job numbers from the Occupational Employment Quarterly ("OES), which does not provide job numbers by Dictionary of Occupational Title numbers, but by Specific Occupational Code (SOC) group. (Doc. 22 p. 8).
We continue with the circuit court decision: 
the vocational expert must look to other sources like the Occupational Employment Quarterly (OEQ), which is compiled by a private organization called U.S. Publishing, to find employment statistics. See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Brault v. Soc. Sec. Adm., 683 F.3d 443, 446 (2d Cir. 2012). The OEQ database, however, does not compile data by DOT codes, but rather through the Standard Occupational Classification (SOC) system. See Brault, 683 F.3d at 446; Occupational Employment Statistics, Bureau of Labor Statistics, https://www.bls.gov/oes/ (last visited April 30, 2020).
Both courts reference the OEQ.  Neither quotes the VE referencing the OEQ.  

Assuming that the VE did rely on the OEQ to identify bakery worker (bakery worker, conveyor line) as belonging to SOC 51-3099, there is a huge problem for the veracity of the VE.  In no publication of OEQ has US Publishing ever listed food processing workers, all other (SOC 51-3099) as an occupational group.  Why would the OEQ omit SOC 51-3099?  As Goode argued successfully to the circuit court, the Department of Labor does not assign any DOT codes to SOC 51-3099, none.  

The question has to turn to the VE's source for the idea that bakery workers belong in SOC 51-3099.  That honor belongs exclusively to Job Browser Pro.  JBP does list bakery worker, conveyor line (DOT 524.687-022) as belonging to SOC 51-3099.  JBP did so in 2014 and does so today.  Why not confess to use of JBP as the source for the job numbers?  As the circuit court found, the VE aggregated the occupational group identifying all the jobs in the group, not just bakery worker.  JBP states now and in 2014 that bakery worker, conveyor line represents fewer than 500 jobs.

Goode argued and the circuit court found that bakery worker belongs to production workers, all other (SOC 51-9199).  For the 2010 SOC, that is true.  Bakery worker is one of 1,590 DOT codes and one of 405 light unskilled DOT codes that belong to production workers, all other.  None of those occupations represent 43,000 jobs in the nation.  

One final point for the day is warranted.  Labor lists the titles of occupations that belong to food processing workers, all other (SOC 51-3099).  They are:
  1. Olive Pitter
  2. Pasta Press Operator
  3. Poultry Hnager
  4. Yeast Maker
The VE did not honestly identify the source for his testimony.  If the VE did, it would have been easy to check the job numbers against the source to prove them wrong.  But the VE corps needs to please the ALJ to remain on the rotation.  Not identifying significant numbers of jobs will lead to removal from the rotation.  The VE and ALJ got slammed in this case but their deceit rests just below the surface.  

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Suggested Citation:

Lawrence Rohlfing, Post Mortem on Goode v. Commissioner -- the Court Got Half the Story, California Social Security Attorney (July 30,  2020) 

Monday, July 13, 2020

ALJ Relies on Occu Collect Data to Find VE Unpersuasive

Counsel for the claimant submitted the Occupational Requirements Survey data about standing and walking showing that waiters and waitresses stand/walk more than six hours in an eight hour day.  Vocational expert says nay nay, waiters and waitresses sit down to fold napkins and fill salt shakers.  Here is what the ALJ said about the conflict in the evidence:

At the June 2020, the vocational expert testified that the claimant had transferable skills from her previous work as a Cocktail Waitress that would transfer to work as an Informal Waitress, DOT 311.477-030, which is also considered light, semi-skilled work with an SVP of 3 and of which there are 7,500 full-time jobs in the national economy. According to the vocational expert, individuals performing this work often work split shifts and do not stand and/or walk for more than six hours in an eight-hour workday. However, the claimant's representative challenged the accuracy of this testimony, as it appeared inconsistent with accepted vocational resources (Ex. B22E; Hearing Testimony). In weight and evaluating the vocational expert's testimony, the undersigned finds the vocational expert's testimony that the claimant could perform work as an Informal Waitress but not her very similar past relevant work as a Cocktail Waitress inconsistent.  
According to the vocational expert's own testimony, an Informal Waitress must perform set up such as folding napkins and filling condiments that could be performed seated, but there is insufficient evidence that this would occupy a sufficient amount of time to accommodate the claimant's exertional limitations. The vocational expert's testimony did not adequately satisfy the requirements of SSR 00-4p to resolve these inconsistencies. Accordingly, the undersigned finds the claimant does not have any transferable skills within the residual functional capacity defined above.
Relying on statistical evidence to rebut VE folly wins again.

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Suggested Citation:

Lawrence Rohlfing, ALJ Relies on Occu Collect Data to Find VE Unpersuasive, California Social Security Attorney (July 13, 2020)

Tuesday, June 30, 2020

Counter and Rental Clerks (SOC 41-2021) and the Simple Problem

Labor puts 11 DOT codes in the group of counter and rental clerks (SOC 41-2021).  The DOT classifies seven of those codes as requiring reasoning level 3; four with reasoning level 2.  In the simple versus complex debate, reasoning level 3 is typically enough to remove that level of work from the step 5 analysis.  The other four occupations, indeed all 11, require multiple significant worker functions in data, people, or things, except furniture-rental consultant.  The entire occupational group:

DOTCode DOTTitle STRENGTH DATA PEOPLE THINGS GEDR
249.366-010 COUNTER CLERK L 3S 6S 6S 2
290.477-010 COUPON-REDEMPTION CLERK L 4S 7S 7N 3
295.357-018 FURNITURE-RENTAL CONSULTANT L 3N 5S 7N 3
295.367-014 BABY-STROLLER AND WHEELCHAIR RENTAL CLERK L 3S 6S 7N 3
295.367-026 STORAGE-FACILITY RENTAL CLERK L 3S 6S 7S 3
295.467-010 BICYCLE-RENTAL CLERK L 4S 6S 7N 2
295.467-014 BOAT-RENTAL CLERK L 4S 6S 7S 3
295.467-018 HOSPITAL-TELEVISION-RENTAL CLERK L 4S 6S 7N 2
369.477-010 CURB ATTENDANT M 4S 7S 7N 2
369.677-010 SELF-SERVICE-LAUNDRY-AND-DRY-CLEANING ATTENDANT M 6N 7S 7S 3

All counter and rental clerks require dealing with people as a significant worker function.  That is the common thread running through group.  The O*NET OnLine describes counter and rental clerks as having constant contact with others in 91% of jobs and frequent contact with others in 9% of jobs.  Dealing with external customers is fairly important in 18% of jobs; important or very important in 1% of jobs, each; and extremely important in 80% of jobs.  Counter and rental clerks face conflict situations in 99% of jobs.  Counter and rental clerks work with a group or team in all jobs.  Counter and rental clerks work part-time in 40% of jobs.  

The O*NET OnLine describes counter and rental clerks as having 30 days or less of training time in less than 14% of jobs.  The Occupational Requirements Survey assigns SVP 2 to 68.7% of jobs.  The O*NET is based primarily on incumbent surveys.  The ORS is based on human resource surveys.  

The ORS reports that counter and rental clerks have their workload controlled by people in 99.5% of jobs and work at a varying pace in 89.8% of jobs.  Counter and rental clerks require basic people skills in 50.4% of jobs and more than basic people skills in 49.6% of jobs.  Counter and rental clerks interact with the public in 100% of jobs and telework is never available.  

The DOT data set confirms that counter and rental clerks are not simple work.  That confirmation is supported by the findings of the O*NET and ORS.  

Of the reasoning level 2 occupations within the group of counter and rental clerks, counter clerk is the most often cited.  Vocational experts cite counter clerk in response to the light exertion; simple work; occasional reaching, handling, and fingering; and intact for contact with the public.  Counter clerk requires significant worker functions in all three data-people-things categories:
Data: 3 - Significant
Compiling: Gathering, collating, or classifying information about data, people, or things. Reporting or carrying out a prescribed action in relation to the information is frequently involved.
People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.
Things: 6 - Significant
Feeding Off Bearing: Inserting, throwing, dumping, or placing materials in or removing them from machines or equipment which are automatic or tended or operated by other workers.
 The DOT narrative is descriptive of varied duties, broken down:
249.366-010 COUNTER CLERK (photofinishing)
1. Receives film for processing,
2. loads film into equipment that automatically processes film for subsequent photo printing, and
3. collects payment from customers of photofinishing establishment:
4. Answers customer's questions regarding prices and services.
5. Receives film to be processed from customer and
6. enters identification data and printing instructions on service log and customer order envelope.
7. Loads film into equipment that automatically processes film, and routes processed film for subsequent photo printing.
8. Files processed film and photographic prints according to customer's name.
9. Locates processed film and prints for customer.
10. Totals charges, using cash register, collects payment, and returns prints and processed film to customer.
11. Sells photo supplies, such as film, batteries, and flashcubes.
Counter clerk has one temperament: dealing with people beyond receiving work instructions.  

Counter clerk carries two work field designations (use the DOT/SCO summary report from OccuCollect).  The first listed work field:
232 NUMERICAL RECORDING-RECORD KEEPING
Systematizing information on transactions and activities into accounts and numerical records through the application of arithmetic. bookkeeping, statistics, and other quantitative procedures (including paying and receiving money). Distinguish from Verbal Recording-Record Keeping (231), in which the primary activity is the keeping of records without computation.
The second work field:  
202 DEVELOPING-PRINTING
Reproducing records of data and designs by chemical means.
The presence of two work fields, the required temperament for dealing with people, the presence of significant worker functions in the three categories measured, and the list of 11 serial job duties suggest strongly that this is not simple, routine, and repetitive work that viewing reasoning alone would suggest.   

The integrated use of the entire DOT data set is often necessary to understand the nature and requirements of a specific occupation as it is typically performed in the national economy.  

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SUGGESTED CITATION:

Lawrence Rohlfing, Counter and Rental Clerks (SOC 41-2021) and the Simple Problem, California Social Security Attorney (June 30, 2020)

Monday, June 29, 2020

Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with Data as a Significant Worker Function

This is one of those questions where the circuits are split:  simple work and the reasoning level distinctions.  Hackett v. Barnhart found reasoning level 3 incompatible with simple routine work (call-out operator and surveillance systems monitor). Renfrow v. Astrue found no conflict between reasoning level 3 and simple work (telephone quotation clerk and charge account clerk). Terry v. Astrue found no conflict between reasoning level 3 and simple instructions in light of a high school diploma, training as a certified nurse's assistant, and capacity to follow simple instructions. Zavalin v. Colvin found reasoning level 3 in conflict with simple routine work (surveillance systems monitor and cashier). This is a view of the circuit split. Today we look at worker function and dealing with data. 

The DOT classifies four DOT codes (in four different occupational groups) as light, unskilled, reasoning level 2, and have significant worker functions with data: 
Data: 3 - Significant
Compiling: Gathering, collating, or classifying information about data, people, or things. Reporting or carrying out a prescribed action in relation to the information is frequently involved.
Compiling requires decision-making in at least the collating or classifying of information and in performing prescribed action in response to data.  The key work here is frequently.  Simple work with occasional decision-making should be excluded.    

The DOT classifies 11 DOT codes (in eight occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with data: 
Data: 4 - Significant
Computing: Performing arithmetic operations and reporting on or carrying out a prescribed action in relation to them. Does not include counting.
Computing requires the manipulation of data.  It does not include simple counting.  Computing requires either reporting or taking prescribed action.  

The DOT classifies 32 DOT codes (in 15 occupational groups) as sedentary, light, or medium work; unskilled; reasoning level 2; and have significant worker functions with data: 
Data: 5 - Significant
Copying: Transcribing, entering, or posting data.
Copying is incompatible with off-task and making errors 5% of the workday.  A BFOQ of having the data correct is reasonable.  

The DOT classifies 165 DOT codes (in 32 occupational groups) as sedentary, light, medium, or heavy work; unskilled; 140 reasoning level 2; 25 reasoning level 1; and have significant worker functions with data: 
Data: 6 - Significant
Comparing: Judging the readily observable functional, structural, or compositional characteristics (whether similar to or divergent from obvious standards) of data, people, or things.
 Comparing requires judgment.  The presence of judgment as an important worker function takes the work out of basic work functions.  

Next we address significant worker functions of in more than one category in reasoning level 2 work.  

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with Data as a Significant Worker Function, California Social Security Attorney (June 29, 2020) 

Monday, June 22, 2020

Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function

This is one of those questions where the circuits are split:  simple work and the reasoning level distinctions.  Hackett v. Barnhart found reasoning level 3 incompatible with simple routine work (call-out operator and surveillance systems monitor). Renfrow v. Astrue found no conflict between reasoning level 3 and simple work (telephone quotation clerk and charge account clerk). Terry v. Astrue found no conflict between reasoning level 3 and simple instructions in light of a high school diploma, training as a certified nurse's assistant, and capacity to follow simple instructions. Zavalin v. Colvin found reasoning level 3 in conflict with simple routine work (surveillance systems monitor and cashier). This is not an exhaustive list, but a broad view of the circuit split. Today we look at dealing with people.

The DOT classifies three DOT codes (all actors) as light, unskilled, reasoning level 2, and have significant worker functions with people:
People: 4 - Significant
Diverting: Amusing others, usually through the medium of stage, screen, television, or radio.
The DOT classifies five DOT codes (all door-to-door sales workers) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 5 - Significant
Persuading: Influencing others in favor of a product, service, or point of view.
The DOT classifies 29 DOT codes (in 19 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.
The DOT classifies 39 DOT codes (in 17 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 7 - Significant
Serving: Attending to the needs or requests of people or animals or the expressed or implicit wishes of people. Immediate response is involved.
None of those worker functions appear to be simple. Diverting, persuading, communicating, or serving people is to address the multi-factored character of human beings. This observation gives life to the second half of the reasoning level 2 definition:
Deal with problems involving a few concrete variables in or from standardized situations.
Skilled work may require dealing with people at a high level of complexity. 20 CFR § 404.1568(c). Significant worker functions with people, even in unskilled work, reflect a low level of complexity that exceeds the boundaries of simple. In this regard, we uncover the problem with Renfrow, it isn't the frequency of dealing with people, it is the that the work requires dealing with people.
 
The DOT defines 76 occupations as reasoning level 2 that deal with people as a significant worker function. Addressing that observation at the hearing with the vocational expert provides fodder for productive cross-examination.

Next we address worker functions of data as a basis for differentiating reasoning levels 1 and 2 work as not simple and routine.

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SUGGESTED CITATION:

Lawrence Rohlfing, Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function, California Social Security Attorney (June 22, 2020) edited (June 29,2020)

Friday, June 5, 2020

BLS Releases the 2019 ORS Data Set

The Bureau of Labor Statistics released the 2019 Occupational Requirements Survey on May 28, 2020. It is always good to have new data describing the national economy that meets OMB standards.  The problem is that Labor changed the Standard Occupational Classification system in 2018.  The ORS is the first Labor publication to use the structure on data.  That leads to some awkward incompatibility problems.  Awkward, not impossible.  We have the crosswalks as part of O*NET OnLine. 

Because Labor has divided, combined, and otherwise rearranged about 100 SOC codes, the 2018 data set is not usable in the 2018 SOC system.  The 2019 data started over.  The 2019 data set is back to 2016 as a first round of data collection, BLS started over.  The 2019 data set covers fewer occupational groups compared to the 2018 data set.  The 2019 data set did reinsert the cognitive category so it now addresses that contact with others category.  

Going forward, representatives should use the 2019 data set when it speaks to an occupational group.  Any use should carry the caveat that presentation uses the 2019 ORS data set based on the 2018 SOC system for occupational requirements and 2018 job numbers incidence found in the 2018 Occupational Outlook Handbook and/or the 2019 Occupational Employment Statistics based on the 2010 SOC system.   This process will take about a year or two to level out as the rest of BLS catches up to the ORS in using the 2018 SOC system.  

The Employment and Training Administration should follow suit in the next year in updating the O*NET to follow the 2018 SOC system.  The O*NET has announced that version 25.1 slated for release in November will report data using the 2018 SOC system. (For those with long memories or research skills, the Employment and Training Administration is the same arm of Labor that published the DOT).  

One quick highlight:  Stock Clerks and Order Fillers (SOC 43-5081) has changed its designation to 53-7065.  The O*NET detailed groups for Stock Clerks, Sales Floor (O*NET 43-5081.01), Marking Clerks (O*NET 43-5081.02), Stock Clerks - Stockroom, Warehouse, or Storage Yard (O*NET 43-5081.03), and Order Fillers, Wholesale and Retail Sales (O*NET 43-5081.04) will retire.  The expected 2020 O*NET release in November will report occupational characteristics for Stock Clerks and Order Fillers but not for the four detailed groups.  This is the occupational group that contains marker.  The new ORS data does not support the existence of 200,000 markers in the category of marking clerks.  Those jobs require medium and heavy exertion.  Look for that dissection coming here, soon.  

One quick low point: major group of Production Occupations contains 110 detailed occupations in nine minor groups.  The 2019 ORS reports the summary category of Production Occupations and three detailed occupations.  OccuCollect recommends using the 2018 data set for the analysis of characteristics of work in those detailed occupations.  Lumping supervisors in the data set with helpers makes the data to divergent for tiered or layered analysis.

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SUGGESTED CITATION:

Lawrence Rohlfing, BLS Releases the 2019 ORS Data Set, California Social Security Attorney (June 5, 2020) 

Thursday, June 4, 2020

A Step Five Finding of Transferable Skills -- Flawed for Three Reasons

The claimant resides within the boundaries of the Ninth Circuit.  The claimant is advanced age on the alleged onset date and closely approaching retirement age before the date of decision.  The claimant has past relevant work as a production materials coordinator (DOT 221.387-046) and operations manager (DOT 186.137-014).  The ALJ found that the claimant could not perform past relevant work.  The ALJ relied on a vocational expert that an individual of the claimant's age, education, work experience, and residual functional capacity could perform the work of sales records clerk (DOT 216.382-062) and sales associate (DOT 299.357-014).  The vocational expert testified that in terms of adjustment, it would take the claimant a minimal amount of time to learn the other work.  This fact pattern raises three issues. 

1.  The amount of time does not dictate the amount of adjustment.  20 CFR 404.1568(d).  The regulation requires that any transferability of skills meet the requirements of the other work.  There is never a significant amount of time to learn the other work.  If it did take a significant amount of time, then the person does not have the pre-existing skill set to meet the requirements of the other work.  This person wins at age 60.  

2. Two occupations is not a range of occupations for transferability of a person of advanced age and limited to light semi-skilled or skilled work.  Appendix 2, 202.00(c); Lounsburry v. Barnhart.  Two district court cases disagree on whether two occupations represent a range.  Daniel v. Colvin and Susan M. v. Berryhill, 2018 WL 4692468 (D. Or. Aug. 24, 2018). A set of two is not a range.  It is a set of two.  A range covers a span with two end points.  A range requires a third point.  

3.  The work skills do not transfer to at least one of the occupations.  Transferability is based on Work Fields (WF) and Materials, Products, Subject Matter, and Services (MPSMS) codes as the ambiguous regulation is explained in POMS.  POMS also lists GOE codes, first three digits of the DOT code, and industry.  Those categories apply to adjustment, not plain transferability according to OIDAP.  

 DOT  WF MPSMS
 production materials coordinator221387046 231 898
 operations manager 186137014 232 894
 sales records clerk 216382062 232 891
 sales associate 299357014 292     888

Sales associate (telephone solicitation clerk) does not have a similar WF or MPSMS code.  Sales records clerk has the same WF as operations manager and same first two digits (similar) MPSMS code as both prior occupations.  This person wins at age 55 based on Lounsburry.  

A brief on this issue would need to break out the Revised Handbook for Analyzing Jobs available as a free download from your google play store.  


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SUGGESTED CITATION:

Lawrence Rohlfing, A Step Five Finding of Transferable Skills -- Flawed for Three Reasons, California Social Security Attorney (June 4, 2020) revised (June 8, 2020)