Tuesday, August 15, 2017

A Rough Index of Blogs on the Site

I have gotten to the point where I tell someone that I wrote about a certain subject, see my blog.  But it isn't necessarily easy to find.  So I created a very rough topical index to help, until I get more ambitious.

Index of the California Social Security Attorney Blog

I. Vocational Expert Cross-Examination

Achilles Heel, Vocational Expert Cross-Examination, NOSSCR June 2017
Shameless Plug - Vocational Expert Cross-Examination - at NOSSCR June 2017
Vocational Expert Cross -- Slides from Vegas
Serial Hypothetical Questions - Makes Cross Impossible
Minimal or Superficial Contact with Coworkers and Supervisors -- A Debilitating Limitation
How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

II. Numbers

The numbers game
The Vocational Expert is Not a Statistician
It Really is Time to Object to Vocational Experts Giving Numbers Testimony -- Always
Vocational Experts, Trains, Automobiles, and Lies

III. Vocational Resources

 1. Production Workers, All Other, SOC 51-9199
Production Workers, all other SOC 51-9199
Understanding Production Workers, All Other -- SOC 51-9199
Production Workers, All Other -- List of DOT Industries and Number of Occupations
Production Workers, All Other, and the Occupational Employment Quarterly
Production Workers, All Other -- Are There Significant Numbers of Unskilled Jobs?
Production Workers, All Other and the Existence of Any Sedentary Work
Final Assembler, Lens Inserter, and the Optical Goods Industry
Production Workers, All Other and the Optical Goods Industry
How Much of Production Workers, All Other, Requires Medium Exertion?
2. Packing Jobs
There are No Sedentary Packing Jobs in the Economy
3. Cashiering
Cashier II and the Sit-Stand Option
Sedentary Cashier Jobs -- Don't Exist per the BLS
4. Clerical and Clerks
Call-Out Operator (DOT 237.367-014) No Longer Exists
Counter Clerks -- DOT 249.366-010
Furniture Rental Consultants 295-357-018
Furniture Rental Consultants part II
Investigator, Dealer Accounts, 241.367-038
Order Clerk, Food and Beverage, 209.567-014
Vocational Experts Will Say Anything
5. Sewing Machine Operators
A Follow-Up on Sample Maker
6. Inspectors
Film Touch-Up Inspector, DOT 726.684-050, Occasional Decision-Making - You Can't Be Serious
7. Surveillance Systems Monitor
The Nail in the Coffin - Surveillance Systems Monitor

VI. Policy, Ethics, and Professionalism

Chiclets, Poverty, and Policy
Is the Attorney Representative All that AND a Bag of Potato Chips?
Test Your Knowledge of How the Disability Insurance Benefit Program Works
How Did You Do on the Test?
Rules Matter -- Cuevas v. Hartley and Kozinski's Dissent
Rudolph Patterson, NOSSCR founder, has passed
What Happens When Allowance Rates Drop ... to the Public Fisc
Brief Writing Tips in SS cases
Senator Coburn's Suggestions for SS Disability as He Leaves Congress
I answer the questions from the NOSSCR conference in Las Vegas
Recent Spate of Disability Fraud Discussions
How to Find a Lawyer
Social Security Disability Adjudcation -- Get Real
SSA Makes its Own Case for the Disability Program
An Open Letter from Former Commissioners of the Social Security Administration
Wall Street Journal and Binder & Binder
The Eastern District of California - Fresno Division
More on Judges that Vary from the Norm
Administrative Law and the Lottery
Some Judges Can't Say No, but Others Can't Say Yes
Trust Fund Exhaustion One Year Sooner -- 2036 !!!
Retirement Program Broke in 2037
Medicare and a Partial Solution
Social Security and Paternity

VII. Agency Policy – The Regulations, Rulings, POMS, and HALLEX

Social Security Rulings 16-3p and 96-7p
Social Security Rulings 96-7p and 16-3p
The Treating Physician Rule Will Die, Now What?
The Treating Physician Rule
Shapiro v. Social Security Administration -- ALJ firing upheld
ODAR Hasn't Vetted POMS ... So What?
Subsequent Applications -- Just Do It
Subsequent Applications and Fees -- Oh My
Social Security Ruling 11-1p
NOSSCR Conference in Baltimore - May 2011

VIII. EAJA Fees

EAJA Timeliness and Prematurity

The EAJA Offset and 406(b) Fees
EAJA Offset
Hardisty v. Astrue-- EAJA and Unreached Issues
Court Scrutiny of EAJA Settlements with a Federal Agency
Notes on McLean v. Colvin — and EAJA Case
When the Commissioner Stipulates to Remand, the Plaintiff Always Gets EAJA Fees
The Court Orders the Payment of Benefits and SSA Drags Its Feet

IX. Contingency Fees

The Fallacy of the Labor Value Matrix - Contingency Fees
1. Fee Petitions and Travel Time in Social Security Cases
2. May a Representative Charge for Time After the Favorable Decision in Social Security Cases?
3. May a Representative that Worked on a Case and Subsequently Appointed Annotate on the Itemization Services Provided Before the Actual Appointment?
EM-13024 And Fees to Representatives that Waive Direct Payment
OPINION LETTER ON REFERRAL FEES
NOSSCR Conference in Baltimore - May 2011

X. Agency Policy

The Five-Day Rule
Electronic Folders ... the New SSA
Electronic Banking and Social Security
SSA announces top baby names

XI. Court Decisions

Hey Courts -- Apply the Law in Effect at the Time of Decision
The Limited Utility of Unpublished Opinions
A Dangerous Trend -- Re-Writing the ALJ Decision
Attmore v. Colvin - Medical Improvement Standard
Notes on McLean v. Colvin — and EAJA Case
Notes on Finnegan-Crews v. Colvin
Turning Down the Heat on the "Remand for the Payment of Benefits"
Dominguez v. Colvin -- the CAT and Award of Benefits
Remand for Further Proceedings in Esparza v. Colvin
Sheridan v. Colvin ... another unpublished opinion
Harshaw v. Colvin
Phillips v. Colvin/Commissioner
Young v. Colvin
McLeod or Chaudhry -- the Duty to Develop
Beltran v. Astrue
Hardisty v. Astrue-- EAJA and Unreached Issues
Taylor v. Commissioner of SSA
Carrillo Yeras v. Astrue
Aarestad v. Commissioner
Scalia Prepares to do a 360?
Keyser v. Commissioner of SSA
Bassett v. Astrue
Roberts v. Commissioner of SSA
Lockwood v. Astrue
Strauss v. CSSA
Pending at the Supreme Court

Friday, August 11, 2017

Occupational Requirements Survey, SSA, and Proof of Work

We are likely to get some push back from the ALJ corps when submitting ORS data sheets.  BLS provides a list and links to ORS Production Materials.  One of those materials is the Social Security Administration endorsement letter.  Let's check the content of that letter out.  On SSA letterhead:

Dear Participant:
Thank you for taking part in the Occupational Requirements Survey. The information that you
provide in thi s survey will he lp us, the Social Security Administration, make correct decisions in
our disabil ity programs, which currently provide financi al help to more than 14 million di sabled
individuals, and 2 million eligible dependents.

When deciding ifan individual qualifies for di sa bility benefits, we look at a person's work
hi story, medical condition, physical and mental abi lity to perform work-related tasks, and if a
significant number of jobs exist in the economy that they could still perform . The information
you provide in thi s survey will help us to better define the jobs that exist in our nati onal
economy, and accordingly, the types of work that someone might be able to do.

In an effort to compile a comprehensive li sting of the jobs that someone may be able to do, we
collaborated with the Department of Labor's Bureau or Labor Statistics to develop a new
Occupationallnlormation System. This system will house information on the skill requirements,
the environmental conditions, and the phys ical and mental demands of all of the di fterent types
of work available in our national economy.

We greatly value your cooperation in providing us with information about the occupations
available in your organi zation. For more information about this project, and how we use the
information that you provide to inform the disabi lity program and help the American people,
please visit our website at

http://www.socialsecurity.gov/disabilityresearch/occupational_info_systems.html.

Thank you again for your time in taking part in this important survey.

Sincerely,

Carolyn W. Colvin
Acting Commissioner

My comfort level in using the ORS data just reached orbit.

Production Workers, All Other and the Existence of Any Sedentary Work

Continuing with the recurring theme of production workers, all other, we examine the amount of standing and walking required of SOC group 51-9199.  BLS/OES data tells us that 251,670 jobs in exist the occupational group as of May 2015.  The Occupational Outlook Handbook gives us 236,200 jobs as of May 2014.  The O*NET OnLine repeats the OOH number of jobs and affirms that the group is a residual basket for occupations that don't fit within any group and that it lacks consistency within the group.

The inquiry focuses on the 1,590 or 1,526 of occupations -- just how many of the jobs might permit sedentary exertion?  The sedentary unskilled range represents 52 occupations.  Even big numbers are countable.  This one is not too big.

Labor continues to work on better data for the replacement to the DOT.  BLS Data Finder now provides access to current data through the Occupational Requirements Survey.  By clicking on the Data Finder button, we start the process.  We look for production AND worker; select Occupational Requirements as the survey; Occupation Requirements as the characteristics; Physical Requirement as the characteristic category; and Sitting/Standing/Walking as the characteristic category detail.  This gives 282 data reports form occupations containing the words production AND worker.

I find the reports on the second page, sorted by relevance, and showing 20 results per screen.  Production workers, all other and BLS provides date for the percent of the day standing or walking for the 25th, 50th, 75th, and 90th percentiles; hours of standing/walking for the 10th, 25th, 50th, 75th, and 90th percentiles; as well as the mean for both percentages and hours of standing/walking.

The focus remains on the search for evidence of sedentary work.  BLS already told us that 82.2% of the production workers, all other jobs require medium exertion.  The hallmark of sedentary work remains the sitting.  The 50th percentile will capture all those medium jobs, but let's look at that report anyway:

          Data extracted on: Aug 11, 2017 (9:35:30 AM)

Occupational Requirements Survey

Series Title : Civilian workers; production workers, all other; hours of standing/walking (50th percentile - median)
Series ID : ORUP1000031A00000128
Seasonality : Not Seasonally Adjusted
Survey Name : Occupational Requirements Survey
Measure Data Type : Hours
Industry : All workers
Occupation : Production Workers, All Other
Class of Worker : All workers
Requirements : Physical Requirement
Type of cases : Standing/walking

Latest Observation: 
Annual 2016 
  7.25

Annual 2016 - Annual 2016 
  Minimum Value: Annual 2016 
  7.25

Maximum Value: Annual 2016 
  7.25

Data Availability: 
  2016 - 2016

Alright, serendipitous to chip away at the six hours of standing/walking as allowing medium work but there it is.  Now let's drop to that 10th percentile to see where the quest for sedentary work takes us:

          Data extracted on: Aug 11, 2017 (9:39:46 AM)

Occupational Requirements Survey

Series Title : Civilian workers; production workers, all other; hours of standing/walking (10th percentile)
Series ID : ORUP1000031A00000126
Seasonality : Not Seasonally Adjusted
Survey Name : Occupational Requirements Survey
Measure Data Type : Hours
Industry : All workers
Occupation : Production Workers, All Other
Class of Worker : All workers
Requirements : Physical Requirement
Type of cases : Standing/walking
Latest Observation: 
  Annual 2016 
  6.00

Annual 2016 - Annual 2016 
  Minimum Value: Annual 2016 
  6.00

Maximum Value: Annual 2016 
  6.00

Data Availability: 2016 - 2016

That result is clearly in the light range.  This means that 90% of all production workers, all other stand/walk for six hours or more during a typical workday.  How fast does the data string spread out to get down to less than three hours in a day for this group?  These data do not answer that question.  

For the broader classification of production occupations, a group of occupations that includes production workers, all other, the data report 96% of the occupations require heavy, medium, or light work.  We will discuss those reports another day but it is probably safe to assume that the sedentary work in production workers, all other represents less than 5% of the occupational base -- unskilled, skilled, and semiskilled.  



Thursday, August 10, 2017

Production Workers, All Other and the Optical Goods Industry

Back in SOC 51-9199 -- List of DOT Industries and Number of Occupationswe looked at the huge occupational group of production workers, all other, and listed the number of DOT codes applicable to individual industries as listed in the DOT itself.  The blog set out the proposition that there existed 20 different DOT codes that Labor lists as nestled inside of SOC/O*NET group 51-9199.  

For an original look and feel to the Dictionary of Occupational Titles presentation, I continue to like the GovtUSA website.  Final assembler is one of those sedentary and simple occupations that vocational experts love to identify.  The GovtUSA version of the DOT sets out the occupation:

713.687-018 FINAL ASSEMBLER (optical goods)
    Attaches nose pads and temple pieces to optical frames, using handtools: Positions parts in fixture to align screw holes. Inserts and tightens screws, using screwdriver.
GOE: 06.04.23 STRENGTH: S GED: R1 M1 L1 SVP: 2 DLU: 77
Looks like I was reading the hardback original presentation.  Just a little nostalgic but I like the crisp original feel.  Notice the parenthetical expression, "(optical goods)."  That is the industry designation.  One of the indexes in the DOT was and is the industry designation.  We lose that separate index in the electronically published versions of the DOT, probably as redundant.  Again, I like that original-style presentation.  Here, it confirms the industry designations.  The GovtUSA website doesn't present the index.  It hyperlinks to the United States Department of Labor Office of Administrative Law Judges Law Library.  That oozes authenticity.  

So we ctrl-F down to optical goods industry.  The first thing that the appendix tells us is that optical goods industry is different than instruments and apparatus industry. File that in the good to know category.  Makers of other medical products have their own industry designation.  The appendix defines the optical goods industry:
optical goods--OPTICAL GOODS INDUSTRY: This designation includes
occupations concerned with grinding lenses and manufacturing and
repairing optical goods. The major products are spectacles,
eyeglasses, goggles, eyeglass frames, lenses, prisms, opera and
field glasses, microscopes, and telescopes.
Counting the formal titles presented in ALL CAPS, I get 87 DOT codes that the DOT says are unique to the optical goods industry.  The 20 that belong to 51-9199 are:

713.687-018 FINAL ASSEMBLER (optical goods)
713.687-026 LENS INSERTER (optical goods)
716.685-014 DRILLER (optical goods)
713.684-034 MULTIFOCAL-LENS ASSEMBLER (optical goods)
711.684-014 CEMENTER (optical goods)
713.684-014 ASSEMBLER, MOLDED FRAMES (optical goods)
713.687-014 CONTACT-LENS-FLASHING PUNCHER (optical goods)
739.687-154 POLISHING-PAD MOUNTER (optical goods)
713.687-038 SALVAGER (optical goods)
713.687-042 SUNGLASS-CLIP ATTACHER (optical goods)
713.384-010 ASSEMBLER, GOLD FRAME (optical goods)
713.684-010 ASSEMBLER, CLIP-ON SUNGLASSES (optical goods)
713.684-018 BENCH WORKER (optical goods)
716.687-010 DEBLOCKER (optical goods)
713.684-022 EMBOSSER (optical goods)
713.684-042 WASHER (optical goods)
716.685-010 BLOCKING-MACHINE TENDER (optical goods)
713.684-026 EYEGLASS-FRAME TRUER (optical goods)
716.684-010 BLOCKER, HAND (optical goods)
716.360-010 SIZER, MACHINE (optical goods)

And remember that County Business Patterns reports that the ophthalmic goods industry represents less than 25,000 jobs in every occupational classification, not just production workers. 
And please don't forget that the employment projections describe production workers, all other, as making up 1.1% of industry employment in the medical goods industry group. 

Sort Order Code Title Employment Percent of industry
123 339100 Medical equipment and supplies manufacturing 3.5 1.1

If the industry has less than 25,000 jobs and production workers, all other, make up 1.1% of industry employment, then the 20 occupations listed make up fewer than 275 jobs.  Paint that insignificant for all of them.


Wednesday, August 9, 2017

Cashier II and the Sit-Stand Option

A recent case drove me to ask the question whether cashiers exist with a sit-stand option.  The O*NET OnLine lists cashiers at 41-2011.00.  Cashier II is an obnoxious favorite of vocational experts for the sit-stand option.  

The BLS Data Finder 1.0 for the Occupation Requirements Survey is where we start.  I select occupational requirements under characteristics; I include characteristics occupation and the sub-category of sales and office occupations. I select sitting/standing/walking as my physical requirement detail.  That gives me a long list of reports.  But there it is:

Data extracted on: Aug 9, 2017 (9:26:49 AM)

Occupational Requirements Survey


Series Title:Civilian workers; % of cashiers; sitting vs. standing/walking at will is not allowed
Series ID:ORUP1000066700000140
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Cashiers
Class of Worker:All workers
Requirements:Physical Requirement
Type of cases:Sitting vs. standing/walking at will
Latest Observation:Annual 201693.0 

Annual 2016 - Annual 2016Minimum Value: Annual 201693.0
Maximum Value: Annual 201693.0
Data Availability:2016 - 2016

The job can't be sedentary, we figured that one out.  Some of them might allow a sit-stand option -- but 93% of them do not.  

There are a lot of cashiers out there and the Occupational Outlook Handbook describes the lot of them as unskilled.  Of the 3.4 million cashier jobs, 7% is still 238,000 jobs is still significant.  But generally unskilled does not mean that all of them are unskilled, just most.  Turns out that 81.3% of cashiers have training time of one month or less.  I doubt that it would be valid to assume 7% of the light base has the SSO.  Nor would I assume that the 18.7% of skilled/semi-skilled jobs are scattered evenly among the ranges of exertion.  If the vocational expert said that there were in excess of 190,000 SSO jobs as an unskilled cashier, probably can't beat that with this data.  Give me a limitation to simple repetitive tasks, manipulative limitation, or a public contact limitation and we can still knock this occupation out.  

Sedentary Cashier Jobs -- Don't Exist per the BLS

A recent case drove me to ask the question whether cashiers exist in the sedentary range of exertion.  The O*NET OnLine lists cashiers at 41-2011.00.  Here are the 18 DOT codes that exist in that SOC group:

Dictionary of Occupational Titles (DOT)
211.367-010    Paymaster of Purses
211.462-010    Cashier II
211.462-014    Cashier-Checker
211.462-018    Cashier-Wrapper
211.462-026    Check Cashier
211.462-030    Drivers'-Cash Clerk
211.462-034    Teller
211.462-038    Toll Collector
211.467-010    Cashier, Courtesy Booth
211.467-014    Money Counter
211.467-018    Parimutuel-Ticket Cashier
211.467-022    Parimutuel-Ticket Seller
211.467-026    Sheet Writer
211.467-030    Ticket Seller
211.482-010    Cashier, Tube Room
211.482-014    Food Checker
249.467-010    Information Clerk-Cashier
294.567-010    Auction Clerk
Check the crosswalk from the custom report for the occupational group.  My handy dandy copy of Job Browser Pro confirms that five of these 18 occupations require sedentary exertion.  So I would expect some some healthy percentage of the jobs would fall into the sedentary range of exertion especially since four of the sedentary codes are semi-skilled and one is skilled.  Let's check.

The BLS Data Finder 1.0 for the Occupation Requirements Survey is where we start.  I select occupational requirements under characteristics; choose physical requirements, choose detail strength; then I included characteristics occupation and the sub-category of sales and office occupations.  The list still had too many reports to wade through so I searched for cashiers.  I got a list of four reports.

How many jobs as a cashier require heavy exertion:

Data extracted on: Aug 9, 2017 (9:04:25 AM)

Occupational Requirements Survey


Series Title:Civilian workers; % of cashiers; strength is heavy work
Series ID:ORUP1000066700000664
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Cashiers
Class of Worker:All workers
Requirements:Physical Requirement
Type of cases:Strength
Latest Observation:Annual 201610.1 

Annual 2016 - Annual 2016Minimum Value: Annual 201610.1
Maximum Value: Annual 201610.1
Data Availability:2016 - 2016


Data extracted on: Aug 9, 2017 (9:04:33 AM)

Occupational Requirements Survey


Series Title:Civilian workers; % of cashiers; strength is medium work
Series ID:ORUP1000066700000663
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Cashiers
Class of Worker:All workers
Requirements:Physical Requirement
Type of cases:Strength
Latest Observation:Annual 201667.9 

Annual 2016 - Annual 2016Minimum Value: Annual 201667.9
Maximum Value: Annual 201667.9
Data Availability:2016 - 2016

How many of the jobs require light exertion:

Data extracted on: Aug 9, 2017 (9:04:46 AM)

Occupational Requirements Survey


Series Title:Civilian workers; % of cashiers; strength is light work
Series ID:ORUP1000066700000662
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Cashiers
Class of Worker:All workers
Requirements:Physical Requirement
Type of cases:Strength
Latest Observation:Annual 201622.0 

Annual 2016 - Annual 2016Minimum Value: Annual 201622.0
Maximum Value: Annual 201622.0
Data Availability:2016 - 2016

Always curious about math -- 10.1 + 67.9 + 22.0 = 100.  

If 100% of the jobs require heavy, medium, or light exertion, then I deduce that none permit sedentary exertion.  








Sunday, August 6, 2017

When the Commissioner Stipulates to Remand, the Plaintiff Always Gets EAJA Fees

Sample statement from the Court:
The problem: the Court knows nothing about this case. The government stipulated to a voluntary remand of the action to the agency for further proceedings on the disability benefits application – without any substantive court involvement. (Docket # 21.) As a result, the Court has no insight into the agency’s litigation position during proceedings with the ALJ or on appeal. That’s a prerequisite to a finding that Plaintiff is entitled to fees under EAJA. And it’s not addressed anywhere in Plaintiff’s form brief.

Response -- or should be in the fee petition if it gets that far:
The Commissioner stipulated to the remand of this matter.  The Court did not have the opportunity to determine the reasonableness of the Commissioner's position.  The Court should not hear the Commissioner's assertions of reasonableness now.  The Court does not weigh the reasonableness of the issues that the Court did not address on the merits.  Hardisty v. Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010).
 The Court cannot find substantial justification in this case because to do so would require the inquiry into the merits of the Commissioner's position administratively and in forcing the matter into Court.  Hardisty precludes that inquiry.  Therefore, the Commissioner cannot sustain her burden of proof.  Floresv. Shalala, 49 F.3d 562, 569 (9th Cir. 1995). 


I submit that the upshot of the analysis is simple -- when the Commissioner stipulates to the remand of the matter, the plaintiff always prevails in the quest for reasonable fees and expenses.  This argument is tailored to Ninth Circuit caselaw.