Friday, May 19, 2017

The Five-Day Rule

Taking a break from the  vocational issues that have dominated this blog lately.  On May 5, 2017, the five-day rule for the admission of evidence became effective.  We explore the boundaries and implications of the rule. 

20 CFR §§ 404.935(a) and 416.1436(a) provide in relevant part that:
Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in §404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.
SSA states the obligation in the alternative.  Either submit the evidence five business days before the hearing or inform the ALJ of the existence of the evidence five business days before the hearing.  If the representative learns of new evidence and promptly informs the ALJ within five days of the hearing while contemporaneously making the request for records, the representative and the claimant has complied with the regulation. 

The regulations address the failure to comply with the five-day rule to inform or submit.  Subsection (b) states:
If you have evidence required under §404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: ...
This subsection confirms the reading of subsection (a).  The ALJ will accept the evidence after the passage of the deadline if the ALJ has not issued a decision and the claimant/representative did not inform the agency about the evidence before the deadline.  We don't get to the conditions for considering the late evidence if the predicate of the syllogism does not apply. 

The solution is self-evident.   Get a list of care providers from the claimant and submit that list to SSA a month or two before the hearing.  If the representative hits a snag in the collection of evidence, the informing the ALJ of the existence of the evidence 45 days ago protects the "late submission."  The regulation does not force an emergency record procurement with the attendant costs to the claimant.  Inform the ALJ of the care providers, all of them, well before the five days expires. 

Wednesday, April 26, 2017

Social Security Rulings 96-7p and 16-3p

The Commissioner published Social Security Ruling 96-7p to establish the bases on which the agency will assess the credibility of claimants on July 2, 1996.  The Commissioner entitles the interpretive ruling as, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an individual's Statements.  The ruling uses the words credibility, credible, or other form of the word 52 times. 

The Commissioner published Social Security Ruling 16-3p effective March 28, 2016. The purpose of the ruling appears under the heading -- Purpose:

We are rescinding SSR 96-7p: Policy Interpretation Ruling Titles II and XVI Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements and replacing it with this Ruling. We solicited a study and recommendations from the Administrative Conference of the United States (ACUS) on the topic of symptom evaluation. Based on ACUS's recommendations and our adjudicative experience, we are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.
(We discussed this last year.)  There it is -- credibility is a stranger to the regulations.  The character of the person, nestled at the heart of the credibility analysis, has no connection to the two-part analysis of the claimant's subjective perception of limitation on the ability to function.

The question heats up because the courts have thousands of cases pending where the ALJ corps used the credibility analysis from SSR 96-7p to trash the claimant's testimony.  The Commissioner now defends those decisions as compliant with SSR 96-7p and the SSR 16-3p does not apply to decisions made prior to March 28, 2016.  I call BS.

The rulings do not have force of law.  They warrant deference only to the extent that they interpret either the statute or the regulations.  When the rulings interpret the statute or regulations, they receive deference unless plainly erroneous or inconsistent with the statute or regulations.  Quang Han Van v. Bowen; Holohan v. Massanari   Because SSR 96-7p lacks force of law, any compliance with a discarded interpretation of the regulations or statute is irrelevant.  The court does not enforce the ruling; the court enforces the regulation as interpreted by the ruling under the doctrine of deference.  Auer v. Robbins ; see also Social Security Ruling 00-1c (Supreme Court defers to a policy memorandum).

 While the rulings bind the ALJ, a rescinded ruling does not bind anyone.  Because the Commissioner states as a matter of executive discretion that SSR 96-7p does not reflect an accurate reading of the regulation and is actually inconsistent with the regulation, no court should use it for guidance.  The Commissioner informs the public and the court that SSR 96-7p is wrong.  The proper inquiry turns on consistency with the medical evidence.  SSR 16-3p.  To the extent that an ALJ decision rejected limitation testimony based on credibility rather than consistency with the medical evidence, the ALJ erred.  The inquiry must turn to materiality. 

Monday, April 3, 2017

Production Workers, All Other -- Are There Significant Numbers of Unskilled Jobs?

We discuss, again, the often cited occupational group of production workers, all other.  This occupational group travels under the Standard Occupational Classification code 51-9199.  The O*NET lists 1,590 DOT codes in this group.  The Occupational Outlook Handbook moved 60 DOT codes to food processing workers, all other (SOC 51-3099) between 2010 and 2012.  We can prove that another day.  The focus of this article addresses the question of whether unskilled production worker, all other jobs exist in significant numbers.

We start with the concept of administrative notice.  The Commissioner "will take administrative notice" of the OOH.  20 C.F.R. §§ 404.1566(d)(5); 416.966(d)(5).  Because the Commissioner takes administrative notice of the OOH, we can use it to rebut vocational expert testimony.  Since the Commissioner takes administrative notice of the OOH, we need to examine what it says about this huge accumulation of DOT codes:

Production workers, all other
All production workers not listed separately.
  • 2014 employment: 236,200
  • May 2015 median annual wage: $27,950
  • Projected employment change, 2014–24:
    • Number of new jobs: 7,700
    • Growth rate: 3 percent (Slower than average)
  • Education and training:
    • Typical entry-level education: High school diploma or equivalent
    • Work experience in a related occupation: None
    • Typical on-the-job training: Moderate-term on-the-job training
  • O*NET:
The occupational group requires a high school diploma or equivalent.  That means that the majority of these occupations are unavailable to individuals with a limited or marginal education absent some factor that suggests a higher educational level capacity than achieved in school.  

The occupational group does not require experience.  These are entry-level jobs.  

The occupational group entails moderate-term on-the-job training.  These jobs are not unskilled.  

Are there some unskilled occupations and jobs inside of production workers, all other?  Maybe, but not very many.  The occupational group exists in industries not encompassed by the DOT.  The economy changed between 1977 when some of the DOT codes were last updated and changed again since 1991 when Labor last published the revised DOT.  The OOH is a source of administrative notice; it is listed on the Vocational Expert Handbook as mandatory familiarity for the vocational expert.  But when a vocational expert testifies to 30,000 sedentary unskilled and 100,000 light unskilled jobs in this occupational base, the responsible representative must ask for an explanation.  Ignorance of the OOH just means that the witness cannot provide a reasonable basis for resolving the conflict.  

Monday, March 27, 2017

Can We Refer to the O*NET in Disablity Cases?

In the discussion of final assembler and lens inserter, anonymous asked 
Do you know of legal authority that supports using O*NET job descriptions to show the VE's testimony presents an apparent conflict with the DOT?? I guess another way of asking it is what authority is there for relying on O*NET to show the government did not meet its step 5 burden?
Here is the complete entry for production workers, all other from the Occupational Outlook Handbook, Data for Occupations Not Covered in Detail.

Production workers, all other
All production workers not listed separately.
  • 2014 employment: 236,200
  • May 2015 median annual wage: $27,950
  • Projected employment change, 2014–24:
    • Number of new jobs: 7,700
    • Growth rate: 3 percent (Slower than average)
  • Education and training:
    • Typical entry-level education: High school diploma or equivalent
    • Work experience in a related occupation: None
    • Typical on-the-job training: Moderate-term on-the-job training
  • O*NET:
The OOH refers to the O*NET.  For every occupational group covered in detail, the OOH and the O*NET cross-link to each other.  The OOH refers uses to the O*NET “for more information.”  

For cashiers (SOC 41.2011) the OOH says:
Learn more about cashiers by visiting additional resources, including O*NET, a source on key characteristics of workers and occupations.
On the More Info tab, the OOH links:


The O*NET links back to the OOH:
Cashiers external site. Bureau of Labor Statistics, U.S. Department of Labor. Occupational Outlook Handbook, 2016-17 Edition.
More importantly, the regulations use the DOT, CBP, and OOH as examples –
For example, we will take notice of—
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
The valid question is whether the O*NET meets the prior clause’s requirements:
we will take administrative notice of reliable job information available from various governmental and other publications
Does the O*NET meet that test?  I submit that it does because it is reliable job information cross-linked to the OOH. 
In response to the question of "whether the O*NET could take the DOT's place in the disability adjudication process", the SSA has responded in the negative. See Soc. Sec. Admin., OIS ProjectFrequently Asked Questions: Why are you developing a new occupationalinformation system (OIS)? Why can't the Department of Labor (DOL) update theDictionary of Occupational Tiles (DOT), or why can't you use the OccupationalInformation Network (O*NET)  (noting the O*Net "does not describe the physical requirements of occupations at the level of detail needed for claims adjudication.")
 See Anders v. ColvinAnders is wrong. 

Saturday, March 25, 2017

Final Assembler, Lens Inserter, and the Optical Goods Industry

Building on our inquiry into the morass of standardless vocational expert testimony, this article focuses on the frequently cited occupations of final assembler and lens inserter.  These two sedentary unskilled jobs are favorites of vocational experts asked to identify simple, repetitive, work.  With reasoning, language, and math ratings of 1, these are the lowest rung of simplicity.  They are one- and two-step instruction occupations.  They meet all the criteria of a vocational expert bent on satisfying the ALJ's request for the identification of work that exists in the national economy in significant numbers.  The problem is that they don't.

Curious, both occupations exist in the optical goods industry -- per the DOT.  Both final assembler and lens inserter belong in the Standard Occupation Classification group for production workers, all other.  The O*NET describes production workers, all other in the same way that it describes every SOC group ending in 99:
"All Other" titles represent occupations with a wide range of characteristics which do not fit into one of the detailed O*NET-SOC occupations. O*NET data is not available for this type of title. For more detailed occupations under this title, see below.
The O*NET tells us that the SOC group contains 236,000 jobs in 2014.  A question from the gallery -- doesn't that leave wide latitude for the vocational expert to identify tens of thousands of jobs in the national economy?  That answer depends on one more factor -- how big is the optical goods manufacturing industry?  Optical Goods Manufacturing, NAICS code 339115, provides the starting point for the interim answer.   County Business Patterns informs us that this industry employs 24,935 people.  That is the entire industry, not just the final assembler and the lens insert, the entire industry.

The structure of the NAICS needs a refresher.  We use the concept of drilling down.  The manufacturing sector is 31-33.  Every industry code with more than two digits is a subset of 31, 32, or 33.  Optical Goods Manufacturing belongs to the manufacturing sector (31),  Adding interim digits gets the industry designation more and more specific.  All miscellaneous manufacturing belongs to the three-digit group 339.  Medical equipment and supplies manufacturing belongs to the four-digit group 3391 and the five-digit group 33911.  The five specific industries in that group are surgical and medical instrument manufacturing; surgical appliance and supplies manufacturing; dental equipment and supplies manufacturing; and ophthalmic goods manufacturing.

Now we turn to the employment projections from the Bureau of Labor Statistics.  BLS sorts the tables by industry or occupation.  The XLSX link for production workers, all other gives the data. So does the XLSX link for medical equipment manufacturing.   Production workers make up 3,500 of the employees in the medical equipment manufacturing industry or 1.1% of the workforce.  But the ophthalmic goods manufacturing industry employs 24,910 people.  That tells us that 274 production production workers have employment in the industry.

We already know that final assemblers and lens inserters are both production workers.  It gets better.  Production workers, all other contains 1,590 or 1,526 different DOT codes (depending on whether we use the 2010 allocations or the 2012 changes).  Twenty of them work in the optical goods industry.  Of the 274 production workers in the ophthalmic goods industry, those people work in 20 different occupations.

To testify that the occupations of final assembler or lens inserter comprise hundreds, thousands, or tens of thousands of jobs in the national economy requires either (1) overt prevarication of the witness; or (2) reckless disregard for the truth.  To believe that those occupations represent more than 274 jobs in the national economy takes either (1) a desire to deny benefits to people that cannot engage in identifiable work; or (2) complete naivete.  Pick 'em.

Wednesday, March 8, 2017

There are No Sedentary Packing Jobs in the Economy

Claimant limited to unskilled sedentary work with some additional limitations.  The vocational expert identifies work as a packers and packager, hand.  Can you rebut the vocational expert testimony identifying work as:

1. Ampoule Sealer, DOT 559.687-014, Sedentary, SVP 2
2. Hand Bander, DOT 920.687-030, Sedentary, SVP 2

Both occupations belong to SOC code 53-7064.

O*NET for ampoule sealer; and hand bander

According to the O*NET, the occupational group of packers and packager, hand have the following requirements for standing in the workday:

Spend Time Standing — How much does this job require standing?
92     Continually or almost continually
8     More than half the time
0    About half the time
0    Less than half the time
0    Never

As to these two occupations, the O*NET suggests that they no longer exist as sedentary work. 

The pharmaceutical industry employs about 2,800 packers and packager, hand

The tobacco industry employs about 300 packers and packager, hand.  The DOT has nine different codes that are classified in packers and packager, hand that work in the tobacco industry. 

The DOT lists three occupations that work in any industry, which means more than one.  The most important of those is Packager, Hand, DOT 920.587-018, medium exertion, SVP 2. 

The next time the vocational expert testifies that there are sedentary jobs in this group, pull out the O*NET and cross-examine.  While you are at it, the next time the ALJ limits the claimant to six hours of standing and walking in a day, ask whether 92% of these jobs require continuous or almost continuous time spent standing. 

Sunday, February 26, 2017

Serial Hypothetical Questions - Makes Cross Impossible

ALJ -- I will now ask you a series of hypothetical questions that will the same age, education, and work experience of the claimant. 

The ALJ goes on to ask anywhere from two to seven hypothetical questions.  Which one, if any, represents the eventual finding that will find its way into the ALJ decision denying the claim for benefits.  Does the ALJ know or have a pretty good idea which one of the hypothetical questions constitutes the most likely residual functional capacity?  Pretty sure that the ALJ has more going on mentally than to have a flaccid notion of which question will reflect the finding. 

How does the representative at the hearing cross-examine the vocational expert about the content of three hypothetical questions, each with the identification of jobs existing in the national economy?  The representative must pick apart the material components of the hypothetical questions, one at a time.  Each construct will take time. 

On occasion, the ALJ will announce that the finding will reflect a reduced range of standing and walking as opposed to the first question that assumed an unlimited standing and walking with normal breaks.  But if the ALJ does not favor the record and the claimant with a statement of which one will constitute the finding, the representative must cross on every question that did not result in a statement from the witness of "no jobs." 

In a civil or criminal trial under and adversarial process, no reasonable attorney would try to confuse the jury or judge with a blast of hypothetical questions to the expert.  The attorney would advocate the key factual finding urged and ask the expert to give an opinion about how that fact impacts the ultimate question of fact.  So why would an ALJ ask serial hypothetical questions? 

Part of that answer rests in the attempt to placate the claimant with the thought that the ALJ will pay the case.  After all, the vocational expert said that the claimant could not work in the third hypothetical question that assumed the limitations described by claimant's testimony.  It dampens any consternation of the claimant that the ALJ didn't listen to the testimony or understand what the claimant said.  The last hypothetical question is the placebo and rarely the ultimate finding of the ALJ. 

The rest of the answer rests in the preclusion of intelligent cross-examination.  The ALJ tries to anticipate the other hypothetical questions that the representative or claimant might ask.  But that wastes time.  The representative can ask the question and no representative needs the ALJ to recast the question into words and phrases that change the tenor of the question.  The ALJ asks one to five questions when none of them reflect the theory of the case; the representative would have asked one question; and now we are out of time. 

And that forms the core of the problem.  When an administrative hearing proceeds on the premise that the ALJ seeks to cross the t's and dot the i's to award the claim, that hearing takes about 15 minutes.  When the hearing proceeds on the premise that the ALJ will deny the claim, that case can and should take an hour and maybe two hours.  Most hearings get scheduled 30 to 45 minutes apart, depending on the ALJ.  When the ALJ dallies through hypothetical questions that have no bearing on the eventual disposition of the case, burning up precious time, the ALJ precludes intelligent examination on the bona fide occupational qualifications of the jobs identified, the statistical methods used for estimating the number of jobs, and what the sources of administrative notice say about jobs and numbers. 

The bottom line is simple.  Don't ask serial questions of the vocational expert.  The ALJ is wasting time, preventing cross-examination, and making the process unwieldy.  If the ALJ really does need or want to build a stick figure, one limitation at a time, then the ALJ should tell the representative or claimant which one should form the focus of the cross-examination.  Making representatives and claimants guess with five minutes left in the hearing does not constitute due process.