Friday, November 17, 2017

Markers -- Truly a Problematic Occupation -- Dissected with the ORS

Residual functional capacity for light work, the vocational expert identifies marker (DOT 209.587.034).  The DOT says:

209.587-034 MARKER (retail trade; wholesale tr.) alternate titles: marking clerk; merchandise marker; price marker; ticket maker
    Marks and attaches price tickets to articles of merchandise to record price and identifying information: Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket to article. May record number and types of articles marked and pack them in boxes. May compare printed price tickets with entries on purchase order to verify accuracy and notify supervisor of discrepancies. May print information on tickets, using ticket-printing machine [TICKETER (any industry); TICKET PRINTER AND TAGGER (garment)]. 
GOE: 05.09.03 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 77

The occupation clearly has a data-people-things issue that warrants exploration for a claimant with a limited or marginal education.  But that is not where the focus goes ... today.

Markers belong to the O*NET group labeled marking clerks (O*NET 43-5081.02).  The last two digits, the 02, tell us that this occupational group is a subset of a SOC group, in this case 43-5081.

A short digression is warranted here.  The SOC has 840 occupational groups that include 1,110 O*NET occupations.  The 840 SOC groups belong to major groups, minor groups, broad occupations, and then the detailed SOC occupations.  The O*NET provides 269 further refined detailed data by breaking out the detailed SOC codes.  If we are paying attention, the numbers don't add up -- there is one exceptional case.  That makes 1,110.  The exceptional case is biologists and we don't care about that kind of skilled work.

Back to markers -- O*NET 43-5081.02 is part of 43-5081.00, stock clerks and order fillers.  That group includes stock clerks, sales floor; marking clerks; stock clerks 0 stockroom, warehouse, or storage yard; and order fillers, wholesale and retail sales.  Stock clerks and order fillers is part of the broader group of material recording clerks per the OOH.  The other SOC codes in this group include production, planning, and expediting clerks; shipping, receiving, and traffic clerks; sock clerks and order fillers; and weighers, measurers, checkers, and samplers, recordkeeping.  All the occupations in this group have a typical entry-level education of high school diploma or equivalent.  This 2016 version of the OOH constitutes a change from the 2014 version where BLS took the position that stock clerks and order fillers had no educational requirement.  That goes in the back pocket.

Now that we have the basic information, we need to figure out if light work exists for markers.  Start with the BLS ORS  Go to the multi-screen data search.  In the text box, search for stock clerks.  Select stock clerks and order fillers (740).  On the next form, we select physical requirement.  Now we get to choose between physical activities.  Scroll to the bottom of the screen and select maximum weight lifted/carried.  The next screen gives six choices for the mean, the 10th, 25th, 50th, 75th, and 90th percentile.  We only need the 10th but we have to educate so select the 10th, 25th, and 50th percentiles by holding the CTRL key down and clicking on those choices.  Select next and on the next three screens select the only choice given, civilian workers and all workers.  We now have a screen with the three reports we want and the option to retrieve data -- do it.

We now have three reports: ORUP1000074000000234; ORUP1000074000000235; and ORUP1000074000000236. The maximum weight lifted by stock clerks and order fillers at the 10th percentile is 30 pounds; at the 25th and 50th percentiles is 50 pounds. Click on the XLSX link to pull the spread sheet report:


Occupational Requirements Survey
Original Data Value
Series Id: ORUP1000074000000234
Not seasonally adjusted
Series Title: Civilian workers; stock clerks and order fillers; pounds maximum weight lifted/carried (10th percentile)
Occupation: Stock Clerks and Order Fillers
Requirement: Physical Requirement
Category: Maximum weight lifted/carried
Estimate: Pounds maximum weight lifted/carried (10th Percentile)
Ownership: Civilian workers
Industry: All workers
Job Characteristic: All workers
Years: 2016 to 2016
Year Period Estimate Value Standard Error
2016 Annual 30.00 5.70

Now that we have the report numbers, we can go straight to the BLS Data Viewer and pull each report.

Of the 1,8 million to 2.0 million stock clerks and order fillers, less than 10% could ever lift less than 30 pounds maximum during the day. Given that the maximum weight didn't change from the 25th to the 50th percentile, how does the witness know where to draw the percentile line?

The four O*NET subgroups inside of stock clerks and order fillers contain 38 DOT codes. Of those 38 DOT codes, five are light and unskilled; three are sedentary and require skills; 17 are light and require skills; two are medium and unskilled; two are medium and require skills; one is heavy and unskilled; and four are heavy and require skills.

The data lead to a criticism of Job Browser Pro. When it cross-indexes markers to specific industries, it aggregates. Most of reported jobs are in the grocery store and general merchandise store industries. In the first group, JBP assumes that the light unskilled marker represents 25% of the intersection, or 106,755 jobs. In the latter, JBP assumes that the light unskilled marker represents 50% of the intersection, or 290,030 jobs. That aggregation is probably wrong. There are more stock clerks, meat clerks, and order fillers than markers -- a whole lot more of the medium and probably more of the semi-skilled order fillers.

When we dig deep into the data, we find holes in VE testimony and relied upon sources. Don't let the VE testify to hundreds of thousands of markers for a person limited to light work. Challenge everything. Our clients have a half million dollar case riding on it.

Wednesday, November 15, 2017

Presenting Evidence of Job Numbers and Waiver

On May 18, 2017, I argued Shaibi v. Berryhill to a panel of the Ninth Circuit.  That led to the panel decision.  The court found that:
We now hold that when a claimant fails entirely to challenge a vocational expert's job numbers during administrative proceedings before the agency, the claimant waives such a challenge on appeal, at least when that claimant is represented by counsel.
Shaibi isn't final.  Despite being issued on August 22, 2017, the mandate has not issued.  Shaibi filed a petition for rehearing and rehearing en banc that remains pending with the court.  The question is whether the Occupational Outlook Handbook and County Business Patterns have the same status as the Dictionary of Occupational Titles -- the claimant can bring that evidence in at the judicial review level for the first time.  While I think the answer is yes, I am not optimistic.

On November 14, 2017, I argued Holden v. Berryhill to a panel of the Ninth Circuit that included Judge Murguia, a member of the Shaibi panel.  Holden did not have an attorney representative at the hearing -- he had a non-attorney representative at the hearing.  The Commissioner argues that a non-attorney qualified for direct payment of fees passes a test, maintains insurance, and qualifies as counsel under the Shaibi and Meanel test.  The panel did not press OGC on that concept that "counsel" includes non-attorneys. 

This is your pre-decision warning and notice.  Shaibi will likely survive and Holden will likely expand the waiver doctrine to include non-attorneys that are eligible for direct payment.  Whenever the vocational expert gives job numbers and the representative thinks that there is a real possibility that the ALJ will accept the vocational expert testimony to deny the case, the representative must break out the books, fire up the computer, print the pages, and present the contrary data to the ALJ and to the Appeals Council. 

I am not addressing the clear loser case.  A younger individual capable of a limited range of light work but still capable of the full range of sedentary work -- the claimant loses on the sedentary grid table.  Likewise, a person closely approaching advanced age capable of a narrow range of medium work but still capable of a wide range of light and sedentary work -- the claimant loses.  We are concerned about those cases where if the claimant cannot perform the identified work, and work of the same ilk, that the claimant wins.  A limited range of sedentary work at all ages; a limited range of light work for a person 50-54; a person over 55 with a limited range of medium work -- those cases require the full-court press. 

I said this at NOSSCR in September -- if you don't want to press the job numbers on the cusp cases, don't take the cusp cases.  If you take the case and don't present evidence of VE fraud (yes, I used that word), then don't be surprised if the claimant gets his/her benefits through a civil action for malpractice.  We need to start taking the cusp cases seriously and not depend on the lottery that this claimant will get one of those ALJ's that understands the mendacity of the vocational experts or that the disability bar is not supposed to be a hike up Mount Everest.  Those judges are not in the majority -- they are in the increasingly small minority. 

Tuesday, November 7, 2017

Simple Unskilled Work with the Work Function of Persuading

As we persist through the agonal days of the Dictionary of Occupational Titles, time still exists to disassemble vocational expert testimony based on apparent conflict with the DOT.  The typical basis for establishing conflict with the testimony and the DOT focus on the trailer information described in Appendix C.  I have suggested at NOSSCR conferences that we use the Data-People-Things codes found in Appendix B.  This post looks at the 11 unskilled occupations and one semi-skilled occupation occasionally identified as transitioned to unskilled with the fifth digit, of 5. 

The middle three digits "reflect relationships to Data, People, and Things, respectively. These digits express a job's relationship to Data, People, and Things by identifying the highest appropriate function in each listing." The 5th digit of the DOT code reflects the people function. When that 5th digit is a 5, the DOT informs that the occupation requires persuasion.

                               DOT             Name                                                St  SVP   GED
291.457-010
Cigarette Vendor
L
   2   
    222
291.454-010
Lei Seller
L
2
   222
292.457-010
Newspaper Carrier
L
2
   222
295.357-018
Furniture-Rental Consultant
L
2
   322
342.657-010
Barker
L
2
   323
293.357-014
Fund Raiser II
L
2
   323
293.357-018
Goodwill Ambassador
L
2
   323
291.357-010
Sales Representative, Door-to-Door
L
2
   323
342.357-010
Weight Guesser
L
2
   323
291.457-014
Lounge-Car Attendant
M
2
   222
291.457-022
Vendor
M
2
   222
299.357-014
Telephone Solicitor
S
3
   333

Some of the usual suspects are on the list. Furniture-rental consultant, fund raiser II, and telephone solicitor. The two medium occupations have reasoning level 2 as do three of the light occupations. The common factor in these 12 DOT codes is that 5th digit -- a 5. Appendix B defines that worker function as persuading. Appendix B refines that definition:
5 Persuading: Influencing others in favor of a product, service, or point of view.
The Revised Handbook for Analyzing Jobs gives examples of persuading as a worker function.
5 Persuading: Influencing others in favor of a product, service, or point of view.
5: 1 Sells services of industrial psychology firms to management officials.
5:2 Calls on farmers to solicit repair business and to sell new milking equipment. Demonstrates milking machines.
5:3 Offers articles at auction, asking for bids, attempting to stimulate buying desire of bidders and closing sales to highest bidder.
5:4 Sells all types of life insurance by pointing out company programs that meet clients' insurance needs.
5:5 Solicits membership for club or trade association. Visits or contacts prospective members to explain benefits and cost of membership and to describe organization and objective of club or association.
5:6 Contacts individuals and firms by telephone and in person to solicit funds for charitable organization.
5:7 Sells home appliances to customer after pointing out salable features of merchandise.
5:8 Calls on retail outlets to suggest merchandising advantages of company's trading stamp plan.
5:9 Promotes use of and sells ethical drugs and other pharmaceutical products to doctors, dentists, hospitals, and retail and wholesale drug establishments.
5:10 Purchases merchandise or commodities for resale.

Worker functions that require persuading are not simple. They might be a skills that a worker has to learn over time to gain proficiency. It is well beyond the suggestive-sell of a fast food worker, "you want fries with that?"
The ALJ must adduce a reasonable basis for accepting vocational expert testimony that conflicts with the DOT.  Social Security Ruling 00-4p.  Cross-examination becomes key.
"Do you consider the art of persuasion something that workers learn over time?"  
"If reading from a script is all that is necessary for telemarketers, do they need to learn how to read it persuasively?
"Is communicating in a persuasive manner a skill?"
"Is there anything in the medical-vocational profile framed in the ALJ's hypothetical question that suggests to you the ability to perform work functions that require the person to be persuasive?"
Demonstrate fluid application of the DOT in its native format and that might put an end to the VE punking you -- or do for you what it has done for me, provide convincing anecdotal evidence that the VE corps do not put much if any thought into their testimony.

Be aggressive on these "5" jobs, they require persuasion.

Monday, November 6, 2017

Investigator, Dealer Accounts: Reasoning, Math, Language, and Compiling

While on the road this weekend, I posted about the reasoning level 4 occupation of information clerk.  The other reasoning level 4 occupation that the DOT lists as having an unskilled Specific Vocational Preparation code is Investigator, Dealer Accounts. 

    Visits dealers to verify purchases financed by bank against physical inventory of merchandise: Reviews computer printouts listing customer names, addresses, and descriptions of merchandise financed through bank credit and chattel mortgage accounts to plan itinerary of unannounced visits to dealer premises. Explains purpose of visit and locates merchandise in areas, such as showroom, storage room, or car lot. Observes features of merchandise, such as size, color, model, and serial number, to verify item against computer printout. Examines records and questions dealer to determine disposition of items missing from inventory and to elicit information on dealer arrangement for payment to bank for merchandise sold. Records findings on printout and notifies supervisor of unusual findings. 
GOE: 07.05.02 STRENGTH: L GED: R4 M3 L4 SVP: 2 DLU: 89

Nestled in the trailer is that reasoning level 4 code.  For the sake of completeness, the DOT defines reasoning level 4:
04 LEVEL REASONING DEVELOPMENT
Apply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, or schedule form. (Examples of rational systems include: bookkeeping, internal combustion engines, electric wiring systems, house building, farm management, and navigation.)
This occupation has that same first digit of 3 in the middle group -- it requires compiling.  Appendix B of the DOT defines compiling as:
Gathering, collating, or classifying information about data, people, or things. Reporting and/or carrying out a prescribed action in relation to the information is frequently involved.
That definition of compiling drags the occupation outside of a classification of work requiring "little or no judgment to do simple duties."  The occupation isn't simple and requires the exercise of judgment.  The Revised Handbook for Analyzing Jobs provides an example of compiling that fits this occupation to a "t."
3 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.
3:4 Summarizes details of transactions in separate ledgers and transfers data to general ledger to maintain records of financial transactions of an establishment.
This example fits the narrative job description contained in the DOT.  The investigator shows up to verify the existence of property on the lot, compares the property to lists, and makes reports.  Not a simple occupation. 

Investigator, dealer accounts also requires math and language skills that might be in the wheel house of a high school graduate (but probably not) and clearly beyond the scope of a claimant with a limited education.  Investigators need math level 3 and language level 4.  Appendix C defines these two GED components:
03 MATHEMATICAL DEVELOPMENT 
Compute discount, interest, profit and loss; commission, markup, and selling price; ratio and proportion; and percentage. Calculate surfaces, volumes, weights, and measures.
Algebra:
Calculate variables and formulas; monomials and polynomials; ratio and proportion variables; and square roots and radicals.
Geometry:
Calculate plane and solid figures; circumference, area, and volume. Understand kinds of angles and properties of pairs of angles.

04 LANGUAGE DEVELOPMENT

Reading:
Read novels, poems, newspapers, periodicals, journals, manuals, dictionaries, thesauruses, and encyclopedias.
Writing:
Prepare business letters, expositions, summaries, and reports, using prescribed format and conforming to all rules of punctuation, grammar, diction, and style.

Speaking:
Participate in panel discussions, dramatizations, and debates. Speak extemporaneously on a variety of subjects.
A claimant that did not take geometry or and upper level language class may not meet the educational requirements not only of reasoning level 4 but also math level 3 and language level 4.  The representative must ask the vocational expert to explain the part of the hypothetical question that permitted the inference that the claimant has those educational achievements and retains those capacities years or decades later.  This job is not simple despite the ease of learning the occupation on the base of a high school graduate that took algebra, geometry, and honors English. 

Sunday, November 5, 2017

Information Clerk, Reasoning Level 4, and Unskilled Work

The Dictionary of Occupational Titles lists 3,127 unskilled occupations.  The vast majority of those occupations require reasoning levels 1 and 2.  These levels of reasoning correspond with the regulatory recognition of unskilled work as generically simple.

There are 89 DOT codes that require reasoning level 3.  The cases have recognized that reasoning level 3 requires more than simple routine or repetitive work.  Today, we look at one of two occupations that require neither the simple range of reasoning levels 1 and 2 nor the non-simple range of reasoning level 4.

237.367-018 INFORMATION CLERK (motor trans.; r.r. trans.; water trans.) alternate titles: travel clerk
    Provides travel information for bus or train patrons: Answers inquiries regarding departures, arrivals, stops, and destinations of scheduled buses or trains. Describes routes, services, and accommodations available. Furnishes patrons with timetables and travel literature. Computes and quotes rates for interline trips, group tours, and special discounts for children and military personnel, using rate tables.
GOE: 07.04.04 STRENGTH: L GED: R4 M2 L3 SVP: 2 DLU: 77

The DOT defines reasoning level 4:
04 LEVEL REASONING DEVELOPMENT
Apply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, or schedule form. (Examples of rational systems include: bookkeeping, internal combustion engines, electric wiring systems, house building, farm management, and navigation.)

Dealing with a variety of concrete variables with limited standardization; understanding, remembering, and carrying out instructions provided in diagrammatic or schedule form in addition to the standard written or oral form fail the classification of simple, routine or repetitive.  That's the easy part.  Reasoning level 4 exceeds the complexity of reasoning level 3 and logically falls outside the pale of simple work as envisioned by the regulations.  

The middle three digits give more information beyond a distinguishing code.  The middle three digits signify the classification of data-people-things.  The first of the middle three digits, "3," denotes an occupational requirement of compiling.  Appendix B of the DOT defines compiling as:
Gathering, collating, or classifying information about data, people, or things. Reporting and/or carrying out a prescribed action in relation to the information is frequently involved.
That definition of compiling drags the occupation outside of a classification of work requiring "little or no judgment to do simple duties."  The occupation isn't simple and requires the exercise of judgment.  The Revised Handbook for Analyzing Jobs provides examples of compiling:
3 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.
3:1 Operates wire-drawing machine, observing operation of machine as work progresses and making adjustments to conform to written specifications.
3:2 Classifies aircraft flight data and submits data to Dispatcher for approval and flight authorization.
3:3 Collects, classifies, and records forest data, such as rainfall, stream flow, and soil moisture, to develop information tables.
3:4 Summarizes details of transactions in separate ledgers and transfers data to general ledger to maintain records of financial transactions of an establishment.
3:5 Collects and arranges flight arrival and departure times at specified points to construct flight schedule.
3:6 Receives telephone complaints from public concerning crimes or other emergencies, records complaints, and files them for future processing.
3:7 Catalogs library materials, such as books, films, and periodicals, according to subject matter.
3:8 Sells footwear, such as shoes, boots, overshoes, and slippers, in department store.
3:9 Sets up metal-stamping machines for other workers according to product specifications and prescribed procedures.
3:10 Prepares specialty foods, such as tacos and fish and chips, according to recipe using specific methods applicable to type of cookery.
3:11 Inspects precision optical and ophthalmic lenses at various stages of production to determine lenses meet company standards, according to work order and prescription specifications. using precision measuring instruments.
The examples of compiling belie the continued classification of this occupation as simple.  A person may be able to learn the occupation in less than 30 days only because education is a substitute for experience and training.  The intrepid representative should examine a vocational expert on education in general and reasoning in particular as well as hitting the occupational requirement for compiling.

Friday, November 3, 2017

Using Objective Findings as a Basis for Cross-Examination

"Counsel, you must frame your questions in vocationally relevant terms."

If a representative has cross-examined vocational experts, the representative has heard that admonition from the ALJ.  Sometimes it is just a bully tactic; sometimes it is because the representative is not asking questions that lead to useful information or are hopelessly vague.  Use of objective findings can provide a useful basis for extending the cross-examination into areas that lead to opinion testimony of no jobs. 

The client testifies to limited ability to bend and stoop.  The consultative examiner finds 45 degrees of forward flexion and opines that the claimant can occasionally bend and stoop.  The state agency doctor parrots the CE -- the claimant can occasionally bend and stoop.  The treating physician does not address the question.  Occasional stooping does not significantly impact the ability to perform light or sedentary work.  Social Security Ruling 85-15; Social Security Ruling 83-10.  Is the claimant toast or can the representative do more? 

Tiengo pregunta ... I have a question:
If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend or stoop beyond 45 degrees.  That means the person cannot bend or stoop enough to even put their hands below their knees.  Can that person perform any of the work that you described here today?  
The same mantra applies to limited flexion of the neck.  In my experience 25 degrees -- half the range of motion in the neck -- will wipe out the ability to perform unskilled production and clerical work. 
If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend the neck beyond 25 degrees.  That means the person cannot look straight down; he/she has lost half of the ability to look down and can only flex the head and neck down to 25 degrees occasionally during the day.  Can that person perform any of the work that you described here today?  
When a representative doesn't know how to frame a question, the representative should resort to reciting the objective findings contained in the medical evidence.  If the ALJ starts the "vocationally relevant terms," the representative must back up and ask the vocational expert:
As part of your education, training, and experience, did you study ergonomics?
Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as essential job functions? 
Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as bona fide occupational qualifications - how the job is typically performed?
If I ask you to assume not only a frequency but also a specific amount of motion in a particular joint(s) of the body, is that relevant to your education, training, and experience?
If the answer to those questions is "no," the VE isn't qualified and move to strike all testimony.  If the answer to those questions is "yes," ask the limited motion question again whether that question involves the back, neck, wrist, elbow, or other joint of the body.  I have not had an ALJ challenge this line of questioning ... yet. 


Thursday, November 2, 2017

The Ability to Communicate in English is an Incomplete Finding

After making a finding of an inability to perform past relevant work, the ALJ must assess the vocational factors -- age, education, and work experience.  The regulations use four steps of education:
(1) Illiteracy. Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
(2) Marginal education. Marginal education means ability in reasoning, arithmetic, and language skills which are needed to do simple, unskilled types of jobs. We generally consider that formal schooling at a 6th grade level or less is a marginal education.
(3) Limited education. Limited education means ability in reasoning, arithmetic, and language skills, but not enough to allow a person with these educational qualifications to do most of the more complex job duties needed in semi-skilled or skilled jobs. We generally consider that a 7th grade through the 11th grade level of formal education is a limited education.
(4) High school education and above. High school education and above means abilities in reasoning, arithmetic, and language skills acquired through formal schooling at a 12th grade level or above. We generally consider that someone with these educational abilities can do semi-skilled through skilled work.
In paragraph 5, the Commissioner addresses the ability to communicate in English.  A Ph.D. from the Sorbonne does not implicate the ability to speak, read, and understand English -- that person gets treated as illiterate.  The Commissioner concludes that paragraph:
(5) ... Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.
 An ALJ bent on finding a basis to deny could use the ability to communicate orally in English as a paragraph 5 finding of the ability to communicate in English.  But that oral capacity does not transform the ability to read and write in English into literacy at paragraph 1.  Nor does the ability to communicate orally in English erase an educational deficit from the native country.  A person with a sixth grade education from a foreign country that possesses basic language skills in a non-English language will not likely have achieved literacy in English for SSA purposes -- reading and writing inventory lists and directions.  When the ALJ finds the ability to communicate in English, the representative must look to see if the evidence suggests both oral and literate communication.  If there is no evidence of literacy, the representative should propound that question to the vocational expert.  If the ability to read and write is marginal, then the representative should include a marginal education component in the examination (reasoning, math, and language level 1).  A limited capacity to speak, read, and understand English with demonstrated proficiency should ask for GED level 2.

One word of reminder -- reasoning level is either equal to or higher than both language and math.  Reasoning is never lower than language or math.  See the Revised Handbook for Analyzing Jobs as the taxonomy for the DOT and its other companions.