Thursday, August 27, 2020

Larson v. Saul and Skidmore Deference

 When you cannot possibly sleep at night and need a brain game as a complete distraction from the world, the deference doctrine is a good choice.  This is the Chevron watershed that stands at the heart of administrative law in the last 35 years. Deference is the doctrine that fills in the gaps where the law is ambiguous by a publication from the agency that is not law.  Deference to a statutory construct is the core of Chevron deference.  

If a statute is genuinely ambiguous, the path opens for the executive agency to interpret the statute.  Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc..  The courts will defer to the agency's construction of the statute unless plainly erroneous or inconsistent with the statute.  

If a regulation is ambiguous, the agency can interpret is own lack of clarity.  Kisor v. Wilkie.  The courts will defer to the agency's construction of the regulation unless plainly erroneous or inconsistent with the statute or regulation.  

But when the statute is ambiguous and either the regulations do not interpret the statute or Congress did not delegate to the agency, full-blown deference under Chevron or Kisor does not attach.  Then the agency gets the power to persuade deference.   Skidmore v. Swift & Co.

Enter Larson v. Saul and the Windfall Elimination Provision of the Social Security Act.  42 U.S.C. § 415(a)(7).  The Eighth Circuit decided Petersen v. Astrue, finding that the WEP did not apply to dual status technicians (civilian workers that are members of the uniformed services).  The COSS responded to Petersen with Acquiescence Ruling 12-1(8)POMS 00605.380 regurgitates the ruling.  

After the publication of Peterson, the ruling, and POMS, three other circuits weighed in on the dual service technician issue.  In the Eleventh Circuit, Martin v. Social Security Administration Commissioner  relied at least in part on Skidmore deference to agree with the COSS.  The Sixth and Tenth Circuits did not get past the step one question (is the statute ambiguous) to require resort to a deference doctrine.  Babcock v. Soc. Sec. Comm'r; Kientz v. Comm'r, SSA

Larson rejected the non-ambiguity findings of Babcock and Kientz.  Larson found the WEP provisions truly ambiguous and that both the claimant and the COSS made reasonable arguments for the construction of the statute.  Based on that equipoise, Larson granted Skidmore deference to the ruling and POMS.  Larson's benefits were subject to the windfall elimination provision of the Act.  

There are two problems with the grant of deference by the Ninth and Eleventh Circuits.  The administrative state makes a decision about whether dual service technicians without input from the stakeholders and weighing of policy considerations in public.  Without notice and comment, the legislation by administrative fiat should not form part of the social contract.  Second, Congress punted.  Congress either did not consider in the statute whether dual service technicians would get unreduced Social Security benefits or did not want to make that decision public for fear of retribution by voters impacted by the WEP.  Members of Congress have plausible deniability in the effectuation of a statute on constituents.  

The four circuits and the COSS create another problem.  Dual service technicians should move to geographic boundaries of the Eighth Circuit before applying for Social Security retirement or disability benefits.  A national program lacks uniform application across the country.  But that is the nature of every Acquiescence Ruling that cabins a decision to a circuit -- a lack of uniform application of a national standard to residents of different states.  Nor is this the kind of problem that will ever get before the Supreme Court to resolve the split in the circuits.  It is not likely that any of the remaining circuits will ever disagree with the duo of decisions disagreeing with Petersen or the duo of decisions yielding under the deference doctrine to cabin Petersen to the Eighth Circuit.  

The practice pointer is simple.  A claimant for benefits in the dual service technician role should move to the Eighth Circuit before applying for benefits.  A concern for uniform application of a statute should prompt the agency to rescind the Acquiescence Ruling  and POMS with a regulation that addresses the problem and move forward with a request for Brand X deference.    

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Suggested Citation:

Lawrence Rohlfing, Larson v. Saul and Skidmore Deference, California Social Security Attorney (August 27, 2020) http://californiasocialsecurityattorney.blogspot.com/2020/08/larson-v-saul-and-skidmore-deference.html



Tuesday, August 25, 2020

Dissecting the VE Testimony in Brace v. (Berryhill) Saul

 Earlier, we discussed applying and differentiating the Seventh Circuit decision in Brace v. Saul from the Supreme Court decision in Biestek v. Berryhill and the Ninth Circuit decision in Ford v. Saul.  To get a better handle on the depravity of the vocational expert testimony, we examine the District Court decision in Brace v. Berryhill.  The court summarized the residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), as follows: lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently; sit, stand, and walk, each, for six hours in an eight-hour workday; can remain in one position for at least 30 minutes, but would need to change positions occasionally throughout the day; no reaching overhead; no foot pedals; occasional fingering, handling, and feeling with the nondominant hand, but no restrictions with the dominant hand; no ramps or stairs; no slippery or uneven surfaces; no dangerous machinery or unprotected heights; and no operating a motor vehicle as a condition of employment.
The critical limitations are light work, stand/walk six hours; changing positions every 30 minutes; occasional manipulation with the nondominant hand.  The other limitations will rarely impact light and sedentary work.  

The VE identified call out operator (DOT 237.367-014), semi-conductor bonder (DOT 726.685-066), and counter clerk (DOT 249.366-010).  The Court of Appeals adds registration clerk and the District Court refers to the four examples as representing 140,000 jobs.  

Call-Out Operator

Call-out operator is a sedentary, unskilled occupation requiring reasoning level 3.  It does require occasional handling and fingering.  Call-out operator belongs to Credit Authorizers, Checkers, and Clerks (SOC 43-4041).  Credit authorizers represent 30,300 jobs and are typically semi-skilled or skilled per the 2018 OOH.  The O*NET suggests that 25% of those jobs qualify as unskilled within the sub-group of Credit Checkers (O*NET 43-4041.02).  Job Browser Pro estimates fewer than 3,000 jobs.  

Semi-Conductor Bonder

Semi-conductor bonder is a sedentary, unskilled occupation requiring reasoning level 2.  It requires frequent handling and fingering.  Semi-conductor bonder has an apparent conflict with the SCO.  

Semi-conductor bonder belongs to Metal Workers and Plastic Workers, All Other (SOC  51-4199).  Metal and plastic workers represent 25,900 jobs in the nation and are typically semi-skilled or skilled per the 2018 OOH.  Neither the O*NET nor the ORS address this very small occupational group.  Job Browser Pro estimates less than 20 jobs.  

Counter Clerk

Counter clerk is a light, unskilled occupation requiring reasoning level 2.  It requires occasional handling and fingering.  Counter clerk belongs to the occupational group of Counter and Rental Clerks (SOC 41-2021).  Counter and rental clerks represent 436,100 jobs and are typically unskilled per the 2018 OOH.  

The O*NET says that 40% of the jobs are part-time.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET says that almost 14% of these jobs are unskilled.  

The ORS disagrees with the O*NET about skills level:  almost 69% are unskilled.  Counter and rental clerks use both hands for gross manipulation in 76.5% (frequently in 57.2%) of jobs and fine manipulation in 65.6% of jobs.  As a separate description involving fingering, counter and rental clerks keyboard in almost all jobs and occasionally in 67.3% of jobs.  Counter and rental clerks stand 100% of the day at the 75th and 90th percentiles.  Counter clerks sit 95% of the day at the 90th percentile.  

Job Browser Pro estimates fewer than 1,800 jobs.  

Registration Clerk

The DOT lists two registration clerks.  One is SVP 5 and skilled.  The second is SVP 3 and semi-skilled.  The ALJ did not find transferable skills.  This occupation has an apparent conflict with the DOT and the absence of transferable skills.  

Registration clerk (DOT 205.367-042) is a sedentary, semi-skilled occupation requiring reasoning level 3.  It requires frequent handling. Registration clerk has an apparent conflict with the handling limitations in the RFC.  

Registration clerk belongs to Interviewers, Except Eligibility and Loan (SOC 43-4111).  Interviewers represent 204,600 jobs and are typically unskilled per the 2018 OOH.  

The O*NET states that interviewers work part-time in 55% of jobs.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET states that almost 76% of jobs are unskilled.  

The ORS states that 42.1% of interviewer jobs are unskilled.  Interviewers engage in sedentary work in 86.3% of jobs.  Interviewers sit 87.5% of the day at the median.  Interviewers can arrange their workday to sit or stand/walk at will in about half the jobs.  Interviewers engage in fine manipulation occasionally in 88.4% of jobs and keyboard in 97.9% of jobs.  

Job Browser Pro estimates the number of registration clerk jobs at less than 1,500.  

Observations

A full-court press is mixed.  The DOT/SCO knocks out two of the four occupations.  Submitting the JBP data shows the absence of a significant number of jobs, except in the Sixth Circuit.  The ORS requires careful analysis and familiarity with the data by the vocational expert for unskilled counter clerks and interviewers.  Every occupation represents a different problem amplified by the peculiarities of the specific residual functional capacity finding.  The Employment Projections, Occupational Employment Statistics, O*NET OnLine, Occupational Requirements Survey and private resources such as Job Browser Pro and OccuCollect.com provide greater insight into the mostly opaque testimony of a vocational expert.  

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Suggested Citation:

Lawrence Rohlfing, Dissecting the VE Testimony in Brace v. (Berryhill) Saul, California Social Security Attorney (August 25, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/dissecting-ve-testimony-in-brace-v.html

Saturday, August 22, 2020

Brace Yourself for an Emerging Paradigm

 The Seventh Circuit decided Brace v. Saul on August 14, 2020.  The opening paragraph says it all:  the vocational expert's testimony was inscrutable and that does not satisfy the lenient substantial evidence standard.  The problem of the black box approach to vocational expert testimony is recurrent.  

In Biestek v. Berryhill, the vocational expert relied on in-house and confidential labor market surveys, which the ALJ refused to order that the VE turn over.

Biestek's attorney asked O'Callaghan "where [she was] getting those [numbers] from." [...].  O'Callaghan replied that they came from the Bureau of Labor Statistics and her "own individual labor market surveys." Ibid. The lawyer then requested that O'Callaghan turn over the private surveys so he could review them. Ibid. O'Callaghan responded that she wished to keep the surveys confidential because they were "part of [her] client files."

Without the BLS data or some description of methodology, Biestek affirmed.  

In Ford v. Saul, the VE refused to provide information about the sources establishing the number of jobs testimony.  

The vocational expert testified that 130,000 addresser and 9,800 ink-printing jobs existed nationwide and that Ford's RFC allowed her to perform these jobs. In response to cross-examination about how he had derived those estimates, the vocational expert stated "[m]y numbers come from a variety of sources which include the Department of Labor and the U.S. Chamber of Commerce and actually Social Security, itself, the Census Bureau, through the [International Trade Administration], supply really good numbers and, believe it or not, the state of Alaska has good national numbers." Probing the expert's conclusion regarding the number of addresser jobs, Ford's counsel asked "[w]hich publication indicated that there were that number of jobs?" The expert responded, "I don't have that information in my notes. I typically average all my sources." The counsel then asked, "What were the numbers that you averaged together to get 130,000?" Again, the expert responded, "I don't have that information in my notes, either." The expert explained that he averages the numbers from his various sources once a year, and then puts those numbers in his notes. Ford's counsel then stated he had no further questions.

Without sources form the DOL, Social Security, and Census Bureau, Ford affirmed.  

The biggest difference between Brace and the decisions in Biestek and Ford is the question of methodology.  Biestek and Ford asked for sources, not methods.  Brace asked the "how" question.  How do the sources inform your opinion about the call-out operator, semiconductor bonder, registration clerk, and counter clerk aggregated to total 140,000 jobs in the national economy.  "Brace's attorney asked the vocational expert ("VE") to explain his methodology for estimating that 140,000 jobs are available in the national economy."  

The ALJ reasoned that Brace did not object to the admissibility of the VE testimony.  Imagine how long the hearings would last if the claimant had to object to every piece of evidence's admissibility in order to later argue that the evidence was not worthy of weight.  Brace quickly rejected that vaporous statement.  

The ALJ reasoned that even if the VE has off by an unknown factor, the number of jobs would still be available.  Brace affirmed that substantial evidence does not find satisfaction in substantial speculation.  

The lesson from Brace is simple.  Representatives must ask the VE not only for the sources but also for the methodology.  Then the claimant can argue that the VE testimony is not substantial on its face.  Of course, submitting rebuttal evidence remains an equally mandatory approach to undermining VE testimony.  

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Suggested Citation:

Lawrence Rohlfing, Brace Yourself for an Emerging Paradigm, California Social Security Attorney (August 22, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/brace-yourself-for-emerging-paradigm.html

Thursday, August 13, 2020

Larkin v. Saul -- POMS Supports the Majority and the Dissent

  An unpublished decision containing a dissent provides some level of concern.  Larkin v. Saul provides the example of the day.  Judges Collins and VanDyke affirmed the final decision of the Commissioner to deny Larkin's claim for benefits.  Judge Berzon would have reversed and remanded.  The case centers around the state agency psych workup, juxtaposing the section I worksheet with the section III residual functional capacity assessment.  

The case centers around application of Stubbs-Danielson v. Astrue.  The majority Stubbs-Danielson as the "most applicable precedent."  Larkin's description of the case informs the application of precedent:

Not unlike this case, the ALJ in Stubbs-Danielson was faced with physicians' statements like: "claimant has several mental limitations" and "borderline intellectual functioning" and "slow pace in thought and action" and is "moderately limited in her ability to perform at a consistent pace without an unreasonable number and length of rest periods," but also that she "showed good persistence" and "retained the ability to carry out simple tasks" and "could perform simple work without public contact." Id. at 1171, 1173 (internal quotation marks omitted). The ALJ ultimately "determined that Stubbs-Danielson `retained the residual functional capacity to perform simple, routine, repetitive sedentary work, requiring no interaction with the public.'" Id. at 1171 (alteration marks omitted).

Hoopai v. Astrue stands for the same basic proposition.  The doctor said two things about persistence that reside in conflict.  Moderate limitations in performing at a consistent pace conflicts with the statement that the claimant had good persistence and still had the ability to perform simple tasks without public contact.  

POMS DI 24510.060 describes the process of the mental residual functional capacity assessment.  The purpose of section I is to document the presence and degree of specific functional limitations and hte adequacy of the documentation.  Section B.2.a states that section I is a mere worksheet and an aid that does not constitute the RFC assessment.  Section B.2.c describes moderately limited as greater than not significantly limited and less than markedly limited.  A moderate limitation in any of the 20 categories represents a significant impairment but it is not a RFC assessment.  That structure supports the treatment of the tension between moderate limitations in moderate limitation in performing at a consistent pace and having good persistence for simple non-public work.  The section III findings are the RFC and the section I categories are a worksheet.  That supports the majority opinion.  

Judge Berzon makes the observation:

The ability to complete a regular workweek is a separate employment qualification from performing simple, routine tasks. A person may be able to perform simple, routine tasks on one day and still be limited in her ability to appear for work the following day because she is suffering from an episode of depression or anxiety. Dr. Comrie's summary sentence on which the majority focuses—"[Larkin] will have some limitation with keeping a regular workweek due to her mood and anxiety [symptoms] but she retains the ability to follow through with routine tasks with reasonable [concentration, persistence, and pace]"—firmly distinguishes between the ability to show up to work regularly and the ability, when at work, to complete tasks. If the ALJ had questions about what the sentence meant, then he should have inquired further.

 POMS DI 24510.060, first bullet, describes an endorsement of a moderate limitation in performing at a consistent pace as present and a specific functional limitation.  POMS DI 25020.010 sec. B.3 lists 14 functional requirements that are critical to performing unskilled work.  Section B.3.i lists as one of the critical functions:

complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)

It is not persistence but a consistent pace that is both critical to performing unskilled work and represents a usually strict requirement.  Persistence is an attribute of semi-skilled and skilled work per sec. B.4.b.  Judge Berzon poses the question of whether having the persistence to complete simple work represents a different functional problem compared to getting to work regularly and completing tasks on a timely basis.  POMS answers that question, yes.  More importantly, the need to complete tasks in a timely fashion is strictly enforced.  

My question is whether that question was posed by the representative at the hearing.  The lack of statement to the contrary tells me, "no."  The order adopting the report and recommendation is available on google scholar but the R&R is not.  

Nor was POMS centered in the available materials.  The Ninth Circuit is scattered on this issue.  POMS is entitled to at least respect.  As a construction of the RFC regulation that is facially incomplete (404.1545(c)), POMS warrants deference.  That is a subject for another day.  


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Suggested Citation:

Lawrence Rohlfing, Larkin v. Saul -- POMS Supports the Majority and the Dissent, California Social Security Attorney (August 13, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/larkin-v-saul-poms-supports-majority.html

Thursday, July 30, 2020

Postmortem on Goode v. Commissioner -- the Court Got Half the Story

The Eleventh Circuit reversed in a huge win for claimants on the reliability of vocational expert testimony. Goode v. Commissioner of Soc. Sec. The court called out the vocational expert and ALJ (but neither by name). Goode v. Berryhill. The decisions are a good read and available to everyone to read for themselves. Today we pull back the curtain to disccover that the vocational expert was reckless, tried to cover his tracks, and I think I know why. 

We start with the district court decision:
Plaintiff notes that the VE testified that he got these job numbers from the Occupational Employment Quarterly ("OES), which does not provide job numbers by Dictionary of Occupational Title numbers, but by Specific Occupational Code (SOC) group. (Doc. 22 p. 8).
We continue with the circuit court decision: 
the vocational expert must look to other sources like the Occupational Employment Quarterly (OEQ), which is compiled by a private organization called U.S. Publishing, to find employment statistics. See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Brault v. Soc. Sec. Adm., 683 F.3d 443, 446 (2d Cir. 2012). The OEQ database, however, does not compile data by DOT codes, but rather through the Standard Occupational Classification (SOC) system. See Brault, 683 F.3d at 446; Occupational Employment Statistics, Bureau of Labor Statistics, https://www.bls.gov/oes/ (last visited April 30, 2020).
Both courts reference the OEQ.  Neither quotes the VE referencing the OEQ.  

Assuming that the VE did rely on the OEQ to identify bakery worker (bakery worker, conveyor line) as belonging to SOC 51-3099, there is a huge problem for the veracity of the VE.  In no publication of OEQ has US Publishing ever listed food processing workers, all other (SOC 51-3099) as an occupational group.  Why would the OEQ omit SOC 51-3099?  As Goode argued successfully to the circuit court, the Department of Labor does not assign any DOT codes to SOC 51-3099, none.  

The question has to turn to the VE's source for the idea that bakery workers belong in SOC 51-3099.  That honor belongs exclusively to Job Browser Pro.  JBP does list bakery worker, conveyor line (DOT 524.687-022) as belonging to SOC 51-3099.  JBP did so in 2014 and does so today.  Why not confess to use of JBP as the source for the job numbers?  As the circuit court found, the VE aggregated the occupational group identifying all the jobs in the group, not just bakery worker.  JBP states now and in 2014 that bakery worker, conveyor line represents fewer than 500 jobs.

Goode argued and the circuit court found that bakery worker belongs to production workers, all other (SOC 51-9199).  For the 2010 SOC, that is true.  Bakery worker is one of 1,590 DOT codes and one of 405 light unskilled DOT codes that belong to production workers, all other.  None of those occupations represent 43,000 jobs in the nation.  

One final point for the day is warranted.  Labor lists the titles of occupations that belong to food processing workers, all other (SOC 51-3099).  They are:
  1. Olive Pitter
  2. Pasta Press Operator
  3. Poultry Hanger
  4. Yeast Maker
The VE did not honestly identify the source for his testimony.  If the VE did, it would have been easy to check the job numbers against the source to prove them wrong.  But the VE corps needs to please the ALJ to remain on the rotation.  Not identifying significant numbers of jobs will lead to removal from the rotation.  The VE and ALJ got slammed in this case but their deceit rests just below the surface.  

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Suggested Citation:

Lawrence Rohlfing, Post Mortem on Goode v. Commissioner -- the Court Got Half the Story, California Social Security Attorney (July 30,  2020) edited (Aug. 18, 2020)

Monday, July 13, 2020

ALJ Relies on Occu Collect Data to Find VE Unpersuasive

Counsel for the claimant submitted the Occupational Requirements Survey data about standing and walking showing that waiters and waitresses stand/walk more than six hours in an eight hour day.  Vocational expert says nay nay, waiters and waitresses sit down to fold napkins and fill salt shakers.  Here is what the ALJ said about the conflict in the evidence:

At the June 2020, the vocational expert testified that the claimant had transferable skills from her previous work as a Cocktail Waitress that would transfer to work as an Informal Waitress, DOT 311.477-030, which is also considered light, semi-skilled work with an SVP of 3 and of which there are 7,500 full-time jobs in the national economy. According to the vocational expert, individuals performing this work often work split shifts and do not stand and/or walk for more than six hours in an eight-hour workday. However, the claimant's representative challenged the accuracy of this testimony, as it appeared inconsistent with accepted vocational resources (Ex. B22E; Hearing Testimony). In weight and evaluating the vocational expert's testimony, the undersigned finds the vocational expert's testimony that the claimant could perform work as an Informal Waitress but not her very similar past relevant work as a Cocktail Waitress inconsistent.  
According to the vocational expert's own testimony, an Informal Waitress must perform set up such as folding napkins and filling condiments that could be performed seated, but there is insufficient evidence that this would occupy a sufficient amount of time to accommodate the claimant's exertional limitations. The vocational expert's testimony did not adequately satisfy the requirements of SSR 00-4p to resolve these inconsistencies. Accordingly, the undersigned finds the claimant does not have any transferable skills within the residual functional capacity defined above.
Relying on statistical evidence to rebut VE folly wins again.

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Suggested Citation:

Lawrence Rohlfing, ALJ Relies on Occu Collect Data to Find VE Unpersuasive, California Social Security Attorney (July 13, 2020)

Tuesday, June 30, 2020

Counter and Rental Clerks (SOC 41-2021) and the Simple Problem

Labor puts 11 DOT codes in the group of counter and rental clerks (SOC 41-2021).  The DOT classifies seven of those codes as requiring reasoning level 3; four with reasoning level 2.  In the simple versus complex debate, reasoning level 3 is typically enough to remove that level of work from the step 5 analysis.  The other four occupations, indeed all 11, require multiple significant worker functions in data, people, or things, except furniture-rental consultant.  The entire occupational group:

DOTCode DOTTitle STRENGTH DATA PEOPLE THINGS GEDR
249.366-010 COUNTER CLERK L 3S 6S 6S 2
290.477-010 COUPON-REDEMPTION CLERK L 4S 7S 7N 3
295.357-018 FURNITURE-RENTAL CONSULTANT L 3N 5S 7N 3
295.367-014 BABY-STROLLER AND WHEELCHAIR RENTAL CLERK L 3S 6S 7N 3
295.367-026 STORAGE-FACILITY RENTAL CLERK L 3S 6S 7S 3
295.467-010 BICYCLE-RENTAL CLERK L 4S 6S 7N 2
295.467-014 BOAT-RENTAL CLERK L 4S 6S 7S 3
295.467-018 HOSPITAL-TELEVISION-RENTAL CLERK L 4S 6S 7N 2
369.477-010 CURB ATTENDANT M 4S 7S 7N 2
369.677-010 SELF-SERVICE-LAUNDRY-AND-DRY-CLEANING ATTENDANT M 6N 7S 7S 3

All counter and rental clerks require dealing with people as a significant worker function.  That is the common thread running through group.  The O*NET OnLine describes counter and rental clerks as having constant contact with others in 91% of jobs and frequent contact with others in 9% of jobs.  Dealing with external customers is fairly important in 18% of jobs; important or very important in 1% of jobs, each; and extremely important in 80% of jobs.  Counter and rental clerks face conflict situations in 99% of jobs.  Counter and rental clerks work with a group or team in all jobs.  Counter and rental clerks work part-time in 40% of jobs.  

The O*NET OnLine describes counter and rental clerks as having 30 days or less of training time in less than 14% of jobs.  The Occupational Requirements Survey assigns SVP 2 to 68.7% of jobs.  The O*NET is based primarily on incumbent surveys.  The ORS is based on human resource surveys.  

The ORS reports that counter and rental clerks have their workload controlled by people in 99.5% of jobs and work at a varying pace in 89.8% of jobs.  Counter and rental clerks require basic people skills in 50.4% of jobs and more than basic people skills in 49.6% of jobs.  Counter and rental clerks interact with the public in 100% of jobs and telework is never available.  

The DOT data set confirms that counter and rental clerks are not simple work.  That confirmation is supported by the findings of the O*NET and ORS.  

Of the reasoning level 2 occupations within the group of counter and rental clerks, counter clerk is the most often cited.  Vocational experts cite counter clerk in response to the light exertion; simple work; occasional reaching, handling, and fingering; and intact for contact with the public.  Counter clerk requires significant worker functions in all three data-people-things categories:
Data: 3 - Significant
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.
People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.
Things: 6 - Significant
Feeding Off Bearing: Inserting, throwing, dumping, or placing materials in or removing them from machines or equipment which are automatic or tended or operated by other workers.
 The DOT narrative is descriptive of varied duties, broken down:
249.366-010 COUNTER CLERK (photofinishing)
1. Receives film for processing,
2. loads film into equipment that automatically processes film for subsequent photo printing, and
3. collects payment from customers of photofinishing establishment:
4. Answers customer's questions regarding prices and services.
5. Receives film to be processed from customer and
6. enters identification data and printing instructions on service log and customer order envelope.
7. Loads film into equipment that automatically processes film, and routes processed film for subsequent photo printing.
8. Files processed film and photographic prints according to customer's name.
9. Locates processed film and prints for customer.
10. Totals charges, using cash register, collects payment, and returns prints and processed film to customer.
11. Sells photo supplies, such as film, batteries, and flashcubes.
Counter clerk has one temperament: dealing with people beyond receiving work instructions.  

Counter clerk carries two work field designations (use the DOT/SCO summary report from OccuCollect).  The first listed work field:
232 NUMERICAL RECORDING-RECORD KEEPING
Systematizing information on transactions and activities into accounts and numerical records through the application of arithmetic. bookkeeping, statistics, and other quantitative procedures (including paying and receiving money). Distinguish from Verbal Recording-Record Keeping (231), in which the primary activity is the keeping of records without computation.
The second work field:  
202 DEVELOPING-PRINTING
Reproducing records of data and designs by chemical means.
The presence of two work fields, the required temperament for dealing with people, the presence of significant worker functions in the three categories measured, and the list of 11 serial job duties suggest strongly that this is not simple, routine, and repetitive work that viewing reasoning alone would suggest.   

The integrated use of the entire DOT data set is often necessary to understand the nature and requirements of a specific occupation as it is typically performed in the national economy.  

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SUGGESTED CITATION:

Lawrence Rohlfing, Counter and Rental Clerks (SOC 41-2021) and the Simple Problem, California Social Security Attorney (June 30, 2020)