Wednesday, July 19, 2017

Investigator, Dealer Accounts, 241.367-038

I participated in a Social Security disability hearing in which the vocational expert identified the occupation of Investigator, Dealer Accounts, 241.367-038 .  According to the DOT, the occupation occurs in the financial industry; requires light exertion; requires reasoning level 4, math level 3, and language level 4 -- but it is unskilled.

Reasoning level 4 is a problem for unskilled work.  There are two unskilled occupations that require reasoning level 4.  Most semi-skilled work doesn't get to that level of reasoning.  According to Appendix C of the DOT:
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.)
The hypothetical question to the witness assumed a limitation to simple work.  This ain't simple.

The Selected Characteristics describe the occupation as having occasional manipulative requirements; frequent talking and hearing; as well as visual functions and the exposure to weather.  The hypothetical assumed occasional contact with others as well as occasional use of the hands.  Unless the investigator spends a lot of time talking to himself, this work does not involve occasional contact with others.  The hypothetical did later assume no exposure to bright sunlight.  This work requires that function with the exposure to weather -- sunshine being part of weather.  See SCO Appendix D, para. 1.

This occupation doesn't fit the limitation on three grounds: simplicity; interaction with others; and exposure to sunlight.  The witness caved on the last requirement.  No need to beat the witness down with the first two.

At the administrative hearing, we stop there.  No need to go down the rabbit-hole of cross-examination at this point.  But just for fun, let's explore the occupation.

Investigator, Dealer Accounts, 241.367-038, belongs to Information and Record Clerks, all other.  SOC group 43-4199 is another trashcan of work:
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.
 The group belongs to the classification of Information Clerks in the Occupational Outlook Handbook.  That group contains 10 SOC groups.  The work requires at least a high school education and requires short-term training.

The OOH provides a link to the employment projections.  Information and record clerks have total employment of 188,500 jobs.  The finance and insurance sector (52) employs 9,900 information and record clerks.
Code Title Employment
520000 Finance and insurance 9.9

If we got this far, we would be able to ask the witness to explain numbers in excess of 25,000 jobs when the industry designated by the DOT does not employ even 10,000 clerks.  That figure assumes that every information and record clerk in the industry sector works in this solitary DOT code.  

Having fun, so why stop now?  Cross-checking with Job Browser Pro lends verification to the suspicions.  JBP restates the DOT narrative, trailer, SCO, and other data -- just like West Publishing does for the DOT.  There it is, a temperament for dealing with People.  
TEMPERAMENTS - (Personal Adaptability)
  (Situations to which the worker must adapt)

T - Situations requiring the precise attainment of set limits, tolerances, or standards.

P - Dealing with people beyond giving and receiving instructions.
Not appropriate for a person limited to occasional contact with others to have a core function of dealing with people.

JBP reports three industries for this occupation.  All of them are in sector 52.  JBP reports no other information and record clerks in the intersection of the SOC and NAICS codes.  JBP estimates 7,922 jobs as of 2017.

This occupation illustrates use of the DOT, SCO, unselected characteristics reported by JBP and West (for example), the OOH, employment projections, and JBP to lend credence to the observations about job numbers.  More importantly, this blog shows that having all those tools on the belt does not mean that the representative needs to use all of them.  Yesterday, we stopped at the SCO requirements to avoid sunlight.  The representative needs to know when to drop the mic.  

Friday, June 30, 2017

Social Security Ruling Warrants No Deference

Social Security Ruling 00-4p warrants no deference concerning the content of the Dictionary of Occupational Titles (DOT).  The ruling states in relevant part that:
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.
It all started in 1995 with the Eighth Circuit decision in Jones v. Chater. The court said:
In other words, in our view, the reference book gives the approximate maximum requirements for each position, rather than their range.
Several courts (in about 30 cases) cite to Jones for that proposition.   The Commissioner published SSR 00-4p with the statement we looked at above.  The question is whether the DOT lists the maximum requirements or something else.  Examining the DOT answers that question: 
Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.
See DOT Appendix D.   Typical does not imply maximum.  Typical implies the average.  Don't take my word for it, use the dictionary.  Merriam Webster defines typical:
1. a :  combining or exhibiting the essential characteristics of a group typical suburban housesb :  conforming to a type a specimen typical of the species
By defining the DOT descriptions as typical and using the English language to do so, the Department of Labor set forth the naked proposition that the DOT characteristics set forth the essential characteristics of the work set forth in the DOT itself.

When the Commissioner or a court says that the DOT describes the maximum requirements of the occupations defined, put on the brakes and cite to the DOT Appendix D.  The DOT does not belong to SSA and the SSA does not get to construe the DOT contrary to the construction provided by Labor.  The ruling gets no deference in defining the content of the DOT.  The ruling defines the concept of administrative notice.  On that latter point, the Commissioner gets deference.  

Thursday, June 29, 2017

High School Education in Another Language is Irrelevant

Recent hearing, a claimant over the age of 50 and limited to light work lacking the ability to communicate in English -- ALJ says that claimant has a high school education in Mexico.  So what, right?  Let's look at the regulations and explanations found in POMS/HALLEX.

20 C.F.R. §§ 404.1564(b)(5); 416.964(b)(5) provides:
Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. 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.
Hmm, regardless of the amount of education that the person may have and it doesn't matter what language the person is fluent in.


Accordingly, a finding of “disabled” is warranted for individuals age 45-49 who:
(i) Are restricted to sedentary work,
(ii) Are unskilled or have no transferable skills,
(iii) Have no past relevant work or can no longer perform past relevant work, and
(iv) Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.
  There it is in subparagraph (iv) -- the inability to communicate in English or able to speak and understand English but unable to read and write along with the rest of the profile results in a finding of disability.  Appendix 2, Rule 201.17 applies even with a high school or more education in another language if the person is illiterate in English. 


Appendix 2 § 202.00(d)
Where the same factors in paragraph (c) of this section regarding education and work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability (i.e., closely approaching advanced age, 50-54) and an individual's vocational scope is further significantly limited by illiteracy or inability to communicate in English, a finding of disabled is warranted.
 Same analysis.  Appendix 2, Rule 202.09 applies with illiteracy or inability to communicate in English.

And we have to remember the definition of high school education. 20 C.F.R. §§ 404.1564(b)(4); 416.964(b)(4) includes the person obtaining language skills.  The regulations describe the pertinent language skills as English.  

In case anyone is confused by the regulation, POMS 25015.010 describes the issue:

When to apply illiterate or unable to communicate in English

This category applies when the claimant is unable to:
  • read a simple message (such as short instructions or inventory lists) in English,
  • write a simple message in English,
  • speak or understand a simple message in English, or
  • any combination of the above.
 A high school education in another language -- a college degree in another language -- is irrelevant to the presence of disability under Rules 201.17, 202.09, and 203.01, 203.02, 203.10. 


Friday, June 23, 2017

Order Clerk, Food and Beverage

Ah, the old order clerk, food and beverage, occupation ... how many of them really exist?  We follow our standard methodology starting with the DOT.  

I like the Dictionary of Occupational Titles (DOT) Job Descriptions The full DOT narrative and trailer:
209.567-014 ORDER CLERK, FOOD AND BEVERAGE (hotel & rest.)
    Takes food and beverage orders over telephone or intercom system and records order on ticket: Records order and time received on ticket to ensure prompt service, using time-stamping device. Suggests menu items, and substitutions for items not available, and answers questions regarding food or service. Distributes order tickets or calls out order to kitchen employees. May collect charge vouchers and cash for service and keep record of transactions. May be designated according to type of order handled as Telephone-Order Clerk, Drive-In (hotel & rest.); Telephone-Order Clerk, Room Service (hotel & rest.).
GOE: 07.04.02 STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 77
Now slip over to the O*NET crosswalk.  Order Clerk, food and beverage, belongs to a broader group of Order Clerks, O*NET or SOC code 43-4151.  That group contains 196,000 employees or jobs.  From the custom report, we find that the group of order clerks contains 11 different DOT codes.  The custom report for work context tells us that 93% of the jobs require standing less than half the time or never.  

The O*NET detail page contains information.  Job zone tells us that these occupations usually require a high school diploma and have an SVP range of 4.0 to > 6.0.  The education breakdown confirms that 88% of the jobs require a high school education, some college, or an associate's degree.  

The O*NET links to the Occupational Outlook Handbook under the heading of Information Clerks.  This broader group includes 10 SOC codes, including order clerks.  The "how to become one" page describes the training as "short-term."  This translates to unskilled for SSA purposes with the OOH Glossary.  

Back to the job outlook tab and the XLSX link to the employment projections.  The EP confirms 195,900 jobs.  The DOT told us that order clerk, food and beverage, works in the hotel and restaurant industry.  The EP uses the NAICS codes from the Census Bureau.  The accommodation sub-sector (721000) employs 200 order clerks.  The food services and drinking places sub-sector (722000) employs 1,800 order clerks.  That's it.  That covers all hotel (accommodation) and restaurant (food and drinking) industries.  How many order clerk, food and beverage, jobs are there out there?  About 2,000.  

We can check the occupation-industry matrix sorted by industry to double check.  That page gives us a link to sector 72, accommodation and food services.  Scrolling down the page and looking for SOC code 43-4151 ... it isn't there.  There are too few jobs to warrant a line on the employment projections for the industry sector.  Order clerks (SOC 43-4151) are reported in the sub-sector reports (Accommodation 721000 and Food Services and Drinking Places 722000) but not in the sector report.  The sub-sector reports give employment numbers of 200 and 1,800.  In all the reports, the percent of industry employment that work as order clerks is less and 0.1%, so the reports state 0.0%.  

The next time a vocational expert suggests order clerk, food and beverage, as a viable occupation at step five of the sequential evaluation process, ask them to break it down by industry. 

Thursday, June 22, 2017

EAJA Timeliness and Prematurity

Every once in a while, a court will enter an order making a party the prevailing party in litigation involving the United States.  The court sometimes does not formally enter judgment.  Because of the 60 days in which to appeal a judgment of a District Court or 90 days in which to seek certiorari from a decision of the Court of Appeals, the intrepid attorneys for the prevailing party may wish to file before the entry of formal judgment or before the expiration of the time in which to appeal.

The Commissioner will complain that the application is premature.  Judgment has not been entered or the time in which to appeal has not expired.  These are spurious arguments designed to extend litigation, creates satellite litigation, and do not assist the Court in management of its docket.  A recent decision from the Court of International Trade, in Former Employee of Marlin Firearms, Co. v. United States Secretary of Labor, says the following about prematurity:

Regardless, the plaintiff did not make his application prematurely. Section 2412(d)(1)(B) requires “[a] party seeking an award of fees and other expenses” to submit its application “within thirty days of final judgment in the action.”  Legislative history and the weight of case law correctly interprets this language as creating only a final deadline for filing, rather than also establishing a time before which applications are premature, i.e., the entry of final judgment. See Equal Access to Justice Act, Extension and Amendment, H.R. Rep. 99-120(I), at 18 n.26 (1985), as reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 (stating that “fee petitions [under the EAJA] may be filed before a ‘final judgment,’” and disavowing “the overly technical approach” of a case holding that applications filed prior to final judgment are premature) (emphasis added); see, e.g., Haitian Refugee Ctr. v. Meese, III, 791 F.2d 1489, 1495 (11th Cir. 1986) (“[S]ince the district court has not entered final judgment, since the thirty-day limit has not begun, and sincethe time to appeal has not run, the application for attorneys’ fees was timely filed.”), vacated on other grounds, 804 F.2d 1573 (11th Cir. 1986); Gonzalez v. United States, 44 Fed. Cl. 764, 767 (1999) (“Congress did not intend to proscribe EAJApetitions filed prior to the start of the 30-daylimitations period.”). But see Perez v. Guardian Roofing, No. 3:15-cv-05623-RJB, 2016 WL898545, at *3 (W.D. Wash. Mar. 9, 2016) (“[Defendant’s] EAJA Counterclaim is premature,because EAJA contemplates that the submission of an EAJA application follows, not precedes, final judgment. This interpretation is supported by use of the word ‘within,’ . . . versus use of words such as ‘before’ or ‘prior to[.]’”). Because the plaintiff did not file the application prematurely, and because, regardless, Labor has waived its objection to the application’s timing,the court will consider the merits of the plaintiff’s motion.
 The prevailing party needs to prevail, not have judgment entered.  Animal Lovers v. Carlucci, 867 F.2d 1224, 1225 (9th Cir. 1989); Marks v. Clarke, 102 F.3d 1012, 1034 (9th Cir. 1996).  The whole idea of a premature EAJA petition is wrong.  Labor was wrong to wrong to raise it in Marlin Firearms but right to waive it.  

Tuesday, June 20, 2017

Free v. Social Security Administratiion

Free v. Social Security Administration is an unpublished opinion from the Sixth Circuit.  The court addressed the question of exposure to dust, gases, fumes, and other irritants in the occupation of a packager, hand.  The court said:
The job does not require exposure to dust, fumes, odors, and gases or more than occasional stooping, kneeling, and crawling, and, although the job does require constant reaching, it does not explicitly require overhead reaching.See id. § 920.587-018, 1991 WL 687916.
What the court said is false. DICOT 920.587-018 – packagers, hand.  The Job Browser Pro report summary of the physical demands:
COMMON ENVIRONMENTAL WORKING CONDITIONS (to which the worker is exposed):
  WE - Exposure to weather - Not Present
  CO - Extreme cold - Not Present
  HO - Extreme heat - Frequent
  WT - Wet and/or Humid - Not Present
  NO - Noise Intensity Level - Loud
  VI - Vibration - Not Present
  AT - Atmospheric Conditions - Frequent
  MV - Moving Mechanical Parts Hazard - Not Present
  EL - Electrical Shock Hazard - Not Present
  HI - High, Exposed Place Hazard - Not Present
  RA - Exposure to Radiation - Not Present
  EX - Explosion Hazard - Not Present
  TX - Toxic/Caustic Chemical Hazard - Not Present
  OT - Other Environmental Conditions - Not Present
The question is simple, what does frequent exposure to atmospheric conditions mean?  The SCO defines atmospheric conditions as:
7. ATMOSPHERIC CONDITIONS
Exposure to such conditions as fumes, noxious odors,
dusts, mists, gases, and poor ventilation, that affect the
respiratory system, eyes, or the skin. In Part A, the rating
for the Atmospheric Conditions component appears
seventh in the Environmental Conditions column under
the vertical heading AC.
SCO Appendix D.  

Either the parties failed to provide the court with the definition of atmospheric conditions or the court ignored the meaning of atmospheric conditions.  I assume the former.   A winnable case lost for failure to read the SCO.