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:

O*NET

Cashiers
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. 


Sunday, February 19, 2017

Glossary of Terms for the Occupational Outlook Handbook

The Occupational Outlook Handbook proves a glossary of terms.  The important terms and phrases for disability adjudication purposes are:  
Current Population Survey (CPS): a national survey that samples 60,000 households on a monthly basis and collects information on labor force characteristics of the U.S. civilian noninstitutional population; the CPS is conducted by the Census Bureau for the Bureau of Labor Statistics
CPS is an important concept because the Occupational Employment Quarterly uses it -- despite the fact that the employment side of the CPS is not readily available.  It is flawed because it uses a frank aggregation methodology.  See.  
Education: levels of education typically needed for entry into an occupation are classified as follows:
Doctoral or professional degree: degree awarded usually for at least 3 years of full-time academic work beyond a bachelor’s degree; e.g., lawyers,physicians and surgeons, and dentists
Master’s degree: degree awarded usually for 1 or 2 years of full-time academic study beyond a bachelor’s degree
Bachelor’s degree: degree awarded usually for at least 4 years of full-time academic study beyond high school
Associate’s degree: degree awarded usually for at least 2 years of full-time academic study beyond high school
Postsecondary nondegree award: usually a certificate or other award that is not a degree. Certifications issued by professional organizations or certifying bodies are not included in this category. Programs may last only a few weeks to 2 years. e.g., nursing assistants, emergency medical technicians (EMTs) and paramedics, and hairstylists
Some college, no degree: a high school diploma or the equivalent, plus the completion of one or more postsecondary courses that did not result in any degree or award
High school diploma or equivalent: the completion of high school or the equivalent, resulting in the award of a high school diploma or the equivalent
No formal educational credential: signifies that a formal credential issued by an educational institution, such as a high school diploma or postsecondary certificate, is not typically needed for entry into the occupation; e.g., janitors and cleaners, cashiers, and agricultural equipment operators
Work experience in a related occupation: the level of work experience in an occupation related to a given occupation; the work experience captures work experience that is commonly considered necessary by employers or is a commonly accepted substitute for other, more formal types of training or education
Five years or more: the number of years of experience in a related occupation typically needed for entry into a given occupation is more than 5 years
Less than 5 years: the number of years of experience in a related occupation typically needed for entry into a given occupation is less than 5 years
None: No work experience in a related occupation is typically needed for entry into a given occupation 
Education is one of four factors for consideration at step five of the sequential evaluation process.
Employment: the number of jobs in an occupation, including full-time jobs, part-time jobs, and self-employment
We can't establish the number of jobs if we don't have a number to start.
Work schedules: the number of daily hours, weekly hours, and annual weeks that employees in an occupation are scheduled to, and do, work. Short-term fluctuations and one-time events are not considered unless the change becomes permanent
Fixed work schedules: schedules under which employees who work those schedules do so on a continual basis, such as 9 a.m. to 5 p.m.
Flexible work schedules: schedules under which employees set their own hours within guidelines and with a fixed number of total hours
Nonfixed work schedules: schedules of employees who work different hours on one job; often utilized to accommodate particular traits of individual workers or because the work required varies by individual
Rotating work schedules: schedules that have a fixed number of hours and time off over a period of more than 1 week, but not the same set hours
Full time: between 35 and 40 hours, inclusive, of work per week
Greater than full time: more than 40 hours of work per week
Part time: Less than 35 hours of work per week
This may require SSA to rethink the definition of substantial gainful activity as requiring a capacity for an eight-hour workday, forty-hour workweek.  Social Security Ruling 96-8p.
Important qualities: characteristics and personality traits that are likely needed for workers to be successful in given occupations
Qualifications: personality traits, education, training, work experience, or other qualities workers need to enter an occupation 
Qualities: characteristics and personality traits that are likely needed for workers to be successful in given occupations 
Think occupational adjustment.  This forms the substitute for temperaments from the occupational characteristics found in the published versions of the DOT and its companion publications.  One of the unselected characteristics is the temperaments.
On-the-job training: training or preparation that is typically needed, once employed in an occupation, to attain competency in the occupation. Training is occupation specific rather than job specific; skills learned can be transferred to another job in the same occupation.
Internship/Residency: training that involves preparation in a field such as medicine or teaching, generally under supervision in a professional setting, such as a hospital or classroom. This type of training may occur before one is employed. Completion of an internship or residency program is commonly required for state licensure or certification in a number of fields, including medicine, counseling, architecture, and teaching. This category does not include internships that are suggested for advancement.
Apprenticeship: a formal relationship between a worker and sponsor that consists of a combination of on-the-job training and related occupation-specific instruction in which the worker learns the practical and theoretical aspects of an occupation. Apprenticeship programs are sponsored by individual employers, joint employer-and-labor groups, and employee associations. Apprenticeship programs usually provide at least 144 hours of occupation-specific technical instruction and 2,000 hours of on-the-job training per year over a 3- to-5-year period. Examples of occupations that utilize apprenticeships include electricians and structural iron and steel workers.
Long-term on-the-job training: more than 12 months of on-the-job training, or, alternatively, combined work experience and formal classroom instruction, that is needed for workers to develop the skills to attain competency in an occupation. This on-the-job training category also includes employer-sponsored training programs, such as those offered by fire academies and schools for air traffic controllers. In other occupations—nuclear power reactor operators, for example—trainees take formal courses, often provided at the jobsite, to prepare for the required licensing exams. This category also includes occupations in which workers typically need to possess a natural ability or talent—musicians and singers, athletes, dancers, photographers, and actors, among others—and that ability or talent must be cultivated over several years, sometimes in a nonwork setting. The category excludes apprenticeships.
Moderate-term on-the-job training: more than 1 month, and up to 12 months, of combined on-the-job experience and informal training that is needed for the worker to develop the skills to attain competency in the occupation; this on-the-job training category also includes employer-sponsored training programs.
Short-term on-the-job training: 1 month or less of combined on-the-job experience and informal training that is needed for the worker to develop the skills to attain competency in the occupation; this on-the-job training category also includes employer-sponsored training programs.
None: no additional occupation-specific training or preparation is typically required to attain competency in the occupation.
Think SVP.  If the focus is on unskilled work, then none and short-term on-the-job training fit the model.  Everything else requires an explanation.
O*NET: an online research source that provides detailed descriptions of occupations for use by jobseekers, workforce development and human resources professionals, students, and researchers. Created for the U.S. Department of Labor, Employment and Training Administration, by the National Center for O*NET Development
Until we get a replacement for the DOT, this is it.  A lot of the titles are 40 years since last updated.  Industries and occupations have changed.  The O*NET gives a wealth of information about the world of work -- including the sit-stand option.

There isn't a good substitute for examining the glossary personally.