Sunday, January 14, 2018

The Worn Out Worker -- 35 Years of Arduous Work and the Inability to Adapt

Last week we looked at the adverse vocational profile of an individual of advanced age, no relevant work experience, and possessing a limited education as presenting a profile of a claimant lacking the ability to adjust to other work -- the person is disabled.  We stick in the same regulation but examine the profile of the worn out worker.  The regulation describes the elements of the person deemed disabled:
If you have no more than a marginal education (see § 404.1564) and work experience of 35 years or more during which you did only arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), we will consider you unable to do lighter work, and therefore, disabled.
The first element of marginal education looks at §404.1564.  Marginal generally means 6th grade or less.  Sixth graders can read and engage in math.  The regulation does not require illiteracy.  A claimant that reads the newspaper may nonetheless have a marginal education.  The actual grade entered or completed may not prove dispositive:
the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower.
Developing the evidence of the ability to perform at the 6th grade level or less may require testing by a qualified professional where the claimant attended school beyond that level. 

The second element, 35 years or more of only arduous unskilled physical labor, requires getting out of the box.  The ALJ mantra gets stuck at 15 years, the relevant period for past work most of the time.  If a claimant has arduous work experience for the past 15 years, that raises the flag and requires the representative to examine the other 20 or more years to capture 35 years of work experience exclusive of the period after work cessation. 

The third element uses the phrase, "you are not working."  This represents a linguistic difference from the "If you are doing substantial gainful activity" found in the fist step of the five-step sequential evaluation process.  The difference may be intentional to include non-substantial gainful activity or may represent an artifact from the 1960 regulations that never caught anyone's attention. 

The fourth element contains additional oddities that fall outside of the regulatory norm.  The regulation requires the "inability to engage in that past work because of a severe impairment."  The regulations require a medically determinable severe impairment at step two of the process but must consider severe and non-severe impairments after establishing that presence in assessing listings and residual functional capacity.  It does not require much to knock out the ability to perform arduous work so the presence of an impairment as opposed to an impairment that reaches "severe" may constitute different questions.  Because "severe" is a de minimis test, an impairment that eliminates the ability to engage in arduous work probably satisfies the test. 

This raises the question, "what does arduous mean?"  The word is clearly ambiguous.  Social Security Ruling 82-63 does not define the word.  It does caution that grid rule 203.01 does not capture this adverse profile for people under the age of 60.  POMS DI 25001.001 states:
No specific physical action or exertional level denotes arduous work. Such work may be arduous if it demands a great deal of stamina such as repetitive bending or lifting at a very fast pace. For additional information on arduous work see DI 25010.001B.1.
A great deal of stamina -- that is the sub-regulatory test.  The reference to POMS DI 25010.001 B.1 is completely unhelpful in defining the word arduous; it points back to POMS DI 25001.001 for the definitions of arduous, marginal education, and unskilled work.  Arduous probably includes heavy and very heavy work as well as medium work that requires frequent, very fast bending/stooping or frequent, very fast lifting.  Extract from the claimant testimony of abject exhaustion at the end of the day to meet the great deal of stamina test. 

One more observation about the 35-year test.  Assuming a claimant that stopped school around the age of 12 and went to work for socio-economic reasons, that person may have started objectively arduous work well before age 20.  This profile could prove useful in meeting the disability test for a claimant under the age of 55. Proving disability for a person capable of medium exertion and closely approaching advanced age -- now that is lawyering.  

Wednesday, January 10, 2018

Adverse Vocational Profiles -- The Inability to Adjust to Other Work

Is a person with a residual functional capacity for medium work ever disabled?  The answer is "yes," tell the ALJ to read the regulations.  We look at the policy changes that came about in 1975 with the advent of the SSI program -- people that don't have enough connection to the work force to have insured status. 

The statute requires consideration of age, education, and work experience in assessing the ability to engage in other work at step five of the sequential evaluation process.  This structure holds true for disability insurance benefits.  The inclusion of a federal SSI program meant that the agency would regularly decide the question of disability for people that lacked relevant work experience.  The regulations describe that adverse profile as calling for a finding of disability beginning at age 55:
If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) (see §§ 416.920(c)416.921, and 416.923), are of advanced age (age 55 or older, see § 416.963), have a limited education or less (see § 416.964), and have no past relevant work experience (see § 416.965), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to subpart P of part 404 of this chapter.
A claimant passing that bright line of age 55, having a limited education or less, with no past relevant work experience, and having a severe impairment has an entitlement to a finding of disability.  That's it, drop the mic and walk away. 

For disability insurance purposes, it is now common for work experience to buy a quarter of coverage and not qualify as past relevant work because the amount earned does not rise to substantial gainful activity.  In 1975, the agency defined SGA as more than $200 per month.  A quarter of coverage cost $250 per month.  A person earning the minimum for SGA needed to work in each quarter of the year to earn four quarters.  In 2018, the agency defines SGA as more than $1,180 per month.  A quarter of coverage costs $1,320 in 2018.  But the person need not work in every quarter; earnings are annualized so that $5,280 earned in five months purchases four quarters of coverage.  A claimant can work at non-SGA amounts for five months a year and earn four quarters of coverage.  It is now easier to purchase insured status without every accumulating PRW.  The adverse vocational profile comes up more often now even in disability insurance benefit cases. 

The keys that unlock the doors of relevance of work experience rest in the earning as we just discussed but also in the concepts of duration and recency.  Recency represents the most common problem of PRW in SSI cases.  When we see a finding of ability to perform PRW in SSI cases, we should always comb the earnings record for earnings and recency even for unskilled work experience. Nor do we have to look very hard; the vocational profile regulation tells us where to look for that three-part test of relevance of past work. 

We need to remain vigilant for the adverse vocational profiles for claimants over the age of 55 and having not more than a limited education.  Does the claimant have relevant work experience?  If  not, a step two finding of a medically determinable severe impairment terminates the inquiry with a finding of disability.  See also the medical-vocational guidelines, rules 201.01, 202.01, 203.01, 203.02, and 203.10 that direct the same findings for the adverse profiles at step five.  For a further explanation of the adverse profile case, see the Social Security Ruling

Sunday, December 31, 2017

The Occupation-Industry Matrix Gives a Labor Check on Census Numbers

We looked yesterday at the tobacco industry.  I know, some of you are saying, "but that was the last post of the year."  Changed my mind, fickle like that. 

The Census Bureau gave us 2015 job numbers for the tobacco industry of 13,872. 


BLS told us that there were 600 hand laborers and 100 hand packers.  To get those numbers, we used the employment projections sorted by occupation and scrolled to the line for NAICS 312200, tobacco manufacturing.  The BLS provides another useful tool that checks that 13,872 and tells us at a glance how the industry staffs itself:  the occupation-industry matrix by industry.  The industry sort has the line for tobacco manufacturing and the XLSX link to the data. 

BLS reports 2016 industry employment of 12,900 jobs.  That is less than 10% difference, looking at 2015 versus 2016.  BLS projects that the industry will continue to shrink to about 8,000 jobs in 2026.  BLS reports the data for the industry in red, to tell us without reading that this industry is going up in smoke. 

The industry sort gives additional data that makes sense of occupational data from the occupation sort and CBP.  By making sense of the data, I mean ripping the lies out of the vocational expert's mouth. 

Saturday, December 30, 2017

ALJ Says that Leaf Tier Exists in Significant Numbers -- Based on His Anecdotal Experience

The ALJ practiced in Kentucky and he knows that tobacco is a big industry.  There are a couple of problems with his personal opinion.  The first is that the ALJ is wrong. 

Agricultural jobs are seasonal.  The people that pull tobacco (yes, that is the right word, harvesting tobacco is pulling the leaves) do so when the plant is ready for harvest.  It isn't a permanent job that exists in March of any year when County Business Patterns establishes its statistics.  Seasonal work can be relevant.  But agricultural work rides the different harvesting cycles of different crops in different areas.  The Wiki, citing the New York Times, says that tobacco farms employ 30,000 workers annually.  This ranges from planting, cultivating, topping, suckering, and pulling.  The DOT lists the titles and alternate titles that exist in the tobacco farming industry:
TOBACCO CURER 523.682-038
Tobacco Farmworker 404.687-010
Tobacco Grader 409.687-010
Tobacco Grower 404.161-010
Tobacco Packer 920.687-134
TOBACCO-WAREHOUSE AGENT 259.357-038
Tobacco Weigher 222.387-074
TOBACCO BLENDER 790.381-010
TOBACCO-CLOTH RECLAIMER 589.686-050
None of these occupations work in the stemming and manufacturing of cigarettes, cigars, chewing tobacco. smoking tobacco, and snuff.  The Appendix for Occupational Titles Arranged by Industry Designation in the DOT lists 390 occupations involved in the tobacco manufacturing industry.  And no, I did not count them.  I copied and pasted into an excel spreadsheet and let software count for me.  

That long list includes hand bander and leaf tier.  

    Wraps trademark band around cigars: Moistens or applies paste to tip end of band and presses ends of band together around cigars. Places banded cigars aside for further processing. 
GOE: 06.04.38 STRENGTH: S GED: R2 M1 L1 SVP: 2 DLU: 77


    Ties tobacco leaves in hands (bundles) to facilitate processing: Selects loose leaves for hand and arranges leaves with butt ends together. Winds tie leaf around butts and pulls end of tie leaf into hand.  GOE: 06.04.28 STRENGTH: S GED: R1 M1 L1 SVP: 1 DLU: 77
 
So back to the ALJ and his personal experience living around the tobacco agricultural industry.  These two occupations are not in the agricultural industry.  These are manufacturing jobs per the DOT.  

County Business Patterns states that as of March 12, 2015, the entire tobacco manufacturing industry employed a grand total of 13,872 people.  



The OOH puts both of these groups into hand laborers and material movers.  The OOH says:
Hand laborers and freight, stock, and material movers move materials to and from storage and production areas, loading docks, delivery trucks, ships, and containers. Although their specific duties may vary, most of these movers, often called pickers, work in warehouses. Some workers retrieve products from storage and move them to loading areas. Other workers load and unload cargo from a truck. When moving a package, pickers keep track of the package number, sometimes with a hand-held scanner, to ensure proper delivery. Sometimes they open containers and sort the material.
Hand packers and packagers package a variety of materials by hand. They may label cartons, inspect items for defects, and keep records of items packed. Some of these workers pack materials for shipment and move them to a loading dock. Hand packers in grocery stores, also known as grocery baggers, bag groceries for customers at checkout.

Industry 2016
Code Title Employment        Percent of             industry Percent of occupation
TE1000 Total employment 2,628.40        1.7     100
312200
Tobacco manufacturing
0.6         5        0

All hand laborers in the tobacco manufacturing industry, from sedentary to heavy and from unskilled to skilled, represent 600 jobs.  

Industry 2016
Sort Order Code Title Employment Percent of industry Percent of occupation
1 TE1000 Total employment 710.8 0.5 100.0
25 312200
Tobacco manufacturing
0.1 0.9 0.0

All hand packers in the tobacco manufacturing industry, from sedentary to heavy and from unskilled to skilled, represent 100 jobs.

There are a lot of laborers and packers, just not in the tobacco industry.  

Hand laborers don't sit more than 40% of the day or about 3.2 hours.  

Hand packagers sit less, about 10% of the day or about 0.8 hours.  

The ALJ did concede that the tobacco manufacturing jobs probably weren't sedentary.  So he does have that right.  


 


Saturday, December 23, 2017

Defining Terms - Critical to Proving Disablity

Moderate, simple, routine ... these are just some of the terms that we read and hear in medical records and testimony.  I know what I mean when I use those words, but I am not sure what anyone else means when they use what are essentially terms of art.  The rescinded SSR 96-5p cautioned agency adjudicators against assuming that they know what witnesses meant when using banal terms like light.  The Commissioner promises to provide guidance later on that issue:
However, we are not revising our rules to add text about considering context or to provide examples because we intend to further clarify and provide examples, as appropriate, in our subregulatory instructions.

This draws into focus the need for the representative to demand that medical and non-medical sources define their terms.  Objective phrases need no definition -- 20 pounds.  Periodicity terms have context.  In California workers' compensation, occasional means up to 25% of the day; intermittent means up to 50% of the day; and frequent means up to 75% of the day.  Under that same regulation, a slight pain causes some handicap and a moderate pain causes a marked handicap in the activities percipitating the pain.  The terms have different meanings even though they sound the same that requires a great deal of care in assessing and ascertaining what the doctors meant.  I wrestled with this 20 years ago in Desrosiers v. Secretary of HHS.  The enduring concept of context and that context matters a great deal endures.  

The context bringing the matter to a boil today occurs in a hearing with an awful ALJ from San Francisco.  The ALJ calls a psychiatric medical expert.  ALJs call medical experts to either lock down a denial or to provide a basis to pay and the inherent bias of that ALJ dictates the reason.  The ALJ is looking for a way to deny.  The medical expert testifies to the conclusion that the person could perform simple, repetitive tasks.  If he had left it there, the claimant would have lost on SRT sedentary work.  That work doesn't exist anymore but it takes a Shaibi analysis to prove it.  

But this ALJ really wanted to lock it down, not knowing that he tied his own rope.  
By simple, repetitive tasks, do you mean one and two steps for unskilled work or do you mean three and four steps for semiskilled work?
The medical expert does not respond with unskilled.  The medical expert defines simple, repetitive tasks as one and two steps.  This took the case from eliminating reasoning level 3 work under Zavalin to eliminating reasoning level 2 work under Rounds.  Maybe not eliminating, but at least requiring a reasonable explanation.  Vocational experts rarely confess their deviation and cling to the idea that the DOT is soft and that anything other than a sit-stand option requires no explanation.  After all, "I have 30 years of experience."  

Here the ALJ in one question disclosed his patent bias and latent misunderstanding of the world of work.  I already knew he was a low paying, ready to deny, not a nice guy of an ALJ.  But now I know that he thinks that unskilled work is one- and two-step instructions and that anything beyond that is semi-skilled.  He hasn't read the DOT, is unaware of the world of work, and wants to deny anyone limited to one- and two-step work with identification of cashiers, furniture clerks, and others.  

This colloquy between an ALJ and medical expert racing down the track to hurry up and deny the claim reinforced the need to define the terms and just how important our job is to disabuse those ALJs of their misunderstanding of work and disability.  

Thursday, December 21, 2017

The Pincers of Limitations the Cut Out Unskilled Work

Vocational witnesses will concede the obvious ... sometimes.  This scenario exemplifies that cutting edges of limitations that cut off sedentary unskilled work.

1. No public contact.  A good substitute for no public contact is a limitation to simple repetitive tasks.

Either variation knocks out the ranges of clerical types of work.  Charge-account clerks, election clerks, order clerks, call-out operators, etc. all require reasoning level three and the temperament for dealing with people.  There are fourteen sedentary DOT codes with reasoning level 3 and most require dealing with people.

2.  A unilateral limitation to occasional handling and fingering.  A loss of dexterity substitutes for a loss of frequency but requires a good deal of cross-examination and research to get there.

Of the 137 unskilled sedentary DOT codes, 52 of them are production workers, all other.  These jobs require assembly.  Fourteen of the DOT codes work in quality control.  Twelve are helpers - production workers.  Ten are painting and coating workers.  Six occupations are hand laborers.

Two or more limitations that impact the world of work in different ways, each eliminating a different class of work can result in a concession from the vocational witness that competitive work does not exist for that person, regardless of age.  The problem takes on greater complexity at the light and medium ranges of exertion without an adversity of age because witnesses will rely on presumptive part-time work like ushers and ticket takers.



Wednesday, December 20, 2017

Judge Says He Has No Discretion to Roll Back Three Months

Yep, that is what the ALJ told me in a pre-hearing conference.  I was taken aback.  That isn't my recollection and I have a grasp of the regulations.   Client turned 55 some eight years ago, three months after the date last insured.  I expect a grid finding on the remote onset at the DLI so the judge's statement leaves me scratching my head.  My client was in the waiting room reviewing her E exhibit statements in this USDC remand. I pull out my Google Pixel phone and I do what every representative should do, google it. 

Tying it in:  Social Security Ruling ... no, that isn't right, it is in HALLEX.  Start over:  HALLEX borderline age.  Boom  Feeling like I might have missed something so I verbally dance while reading quickly on the first entry:  HALLEX I-2-2-42.  "Judge, the HALLEX says you have discretion at a few months before the age change to find disability as of the date last insured." 

Judge asks for the cite.  HALLEX I-2-2-42 paragraph B, 1, second bullet.  "You have it backwards counsel."  Deep breath.  Just read the pertinent parts out loud and the judge will get it:

ALJs will assess whether the claimant reaches or will reach the next higher age category within a few days to a few months after the:
 . Date last insured;

Judge reads along.  "Oh, I read that wrong before.  I stand corrected.  Go get your client." 

Win. 

Serendipity for the day:  HALLEX refers to POMS DI 25015.006 for additional guidance on the borderline age situation.  Need to remember that the next time an ALJ tells me that the corps is not bound by POMS.  

Lesson for the day, the ALJ will get it absolutely legally wrong.  Don't back down; correct the mistake.  Use your smartphone or other device.  It is impossible to anticipate every wrong thing a judicial officer or witness might say.  It is our obligation to correct on the fly and dance like a person possessed as we figure it out.