Wednesday, May 13, 2015
Transferable Skills Analysis
The ALJ takes testimony from the medical expert. The doctor gives fairly reasonable testimony and this ALJ usually accepts this expert’s testimony. The ALJ eventually gets to the vocational expert and asked the hypothetical question including all of the medical expert’s limitations. The vocational expert testifies in the ordinary course that the claimant cannot perform his/her past relevant work. Because of an unfavorable vocational profile in terms of age, you expect that the person will in fact grid out. But the vocational expert has a surprise, the identification of transferable skills to other work at step five of the sequential evaluation process. The task at hand requires cross-examination of the vocational expert.
1. The Concept of Transferability
The sequential evaluation process requires that the ALJ compare that residual functional capacity finding to the demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(f); 416.920(f). The ALJ generally uses the services of a vocational expert to answer that question. See 20 C.F.R. §§ 404.1566(e); 416.966(e).
The Commissioner defines transferability. 20 C.F.R. §§ 404.1568; 416.968. Those regulations provide:
(d) Skills that can be used in other work (transferability)—
(1) What we mean by transferable skills. We consider you to have skills that can be used in other jobs, when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs.
(2) How we determine skills that can be transferred to other jobs. Transferability is most probable and meaningful among jobs in which—
(i) The same or a lesser degree of skill is required;
(ii) The same or similar tools and machines are used; and
(iii) The same or similar raw materials, products, processes, or services are involved.
20 C.F.R. §§ 404.1568; 416.968.
2. Social Security Ruling 82-41
Social Security Ruling 82-41 provides a policy statement about transferable skills. The ruling clarifies that the issue of transferability of work and will provide a decisive measure when the presence of transferable skills changes the Appendix 2 directed decision from “disabled” to “not disabled.” Transferability of skills will generally not arise for younger individuals, individuals closely approaching advanced age with at least a light level of exertion, or individuals of advanced age capable of medium exertion. See generally 20 C.F.R. part 404, subpart P, Appendix 2.
The Commissioner defines a skill as knowledge of a work activity requiring the exercise of significant judgment that goes beyond carrying out simple job duties. A claimant acquires job skills through performance of occupations which require more than 30 days to learn. Job skills arise in the proper and approved application of knowledge. Job skills always give an advantage over unskilled workers in the labor market. Job skills do not transfer to or from unskilled work activity.
Social Security Ruling 82-41 repeats the critical word found in the regulation, “meet.” In order to have transferable skills, the claimant must have the ability to perform all of the skilled and semi-skilled aspects of the target occupation without additional training. Additional training would imply that the person does not “meet” the requirements of the other work. The ruling emphasizes that worker traits do not provide transferable skills. Worker traits used in skilled or semi-skilled activities do give rise to the presence of skills. Social Security Ruling 82-41 makes the observation that skills would generally not transfer from semi-skilled work such as chauffeur, some sewing-machine operators, room service waiters, or nurse aide.
Social Security Ruling 82-41 repeats the regulatory requirements for (1) the same or lesser degree of skill; (2) same or similar tools and machines are used; and (3) the same or similar raw materials, products, processes, or services are involved. The ruling emphasizes that “a complete similarity of all these factors is not necessary.” Social Security Ruling 82-41 repeats the regulatory criteria for little, if any, vocational adjustment in terms of tools, work processes, work settings, or industry for individuals at or over the age of 55 limited to sedentary work and for individuals at or over the age of 60 limited to light work.
3. Materials Outside the Regulations and Ruling
In studying ways in which to revise the outdated Dictionary of Occupational Titles, the Commissioner set out a blue ribbon panel to explore the baseline established by the DOT. See http://ssa.gov/oidap/. The Committee issued significant reports by subcommittee. See http://ssa.gov/oidap/panel_documents.htm. One of the appendixes concerned the subject of work experience. See http://ssa.gov/oidap/Documents/AppendixD.pdf. The subcommittee stated that the “experts unanimously agree that the current SSA definition for TSA (transferability of skills analysis) found in the CFR is comprehensive and remains useful.” Id. at page D-43. In restating the three criteria for assessing transferability, the subcommittee parenthetically noted the DOT counterpart for the data point. The same or less degree of skill refers to SVP (specific vocational preparation). The same or similar tools and machines refer to work fields. The same or similar raw materials, products, processes, or services refer to MPSMS (materials, products, subject matter, and services). Id.
The recognition of the state of the art or generally accepted practices, especially the unanimous consensus of the experts consulted is the historical reference point. The learned texts agree, “work filed and MPSMS codes in the DOT squarely fit the SSA transferability definition the CFR as it applies to disability.” Career Development, Employment, and Disability in Rehabilitation, Strauser, p. 245 (Springer Publishing Co. 2014). SkillTRAN publishes its view of transferability in full agreement with Strauser and the OIDAP subcommittee. See http://www.skilltran.com/online/TSAprocess.htm. So does the wiki. See http://en.wikipedia.org/wiki/Transferable_skills_analysis. Use of SVP, work fields, and MPSMS codes has long stood as the only acceptable methodology. See “Transferable Skills Analysis and Vocational Information During a Time of Transition” Journal of Forensic Vocational Analysis, Vol. 6(1), Truthan, J.A. & Karman, S.E. (2003).
Similar work fields and MPSMS codes means the first two digits. See http://www.skilltran.com/online/TSAprocess.htm. According to Strauser, the presence of similar work fields and similar MPSMS codes requires moderate training. Career Development, p. 255. Strauser relies on the SkillTRAN – OASYS methods. Id. That method carries the caveat that generally transferable skill with similar work fields and MPSMS codes that “Some learning of essential job duties is likely to be necessary.” Id. That means that the “meet” requirement of the regulation is not met. 20 C.F.R. §§ 404.1568(d)(1).
The use of work fields and MPSMS codes prevents the use of occasional and incidental parts of an occupation as a fulcrum upon which to lever a finding of transferability. See Social Security Ruling 82-41. Transferability does not exist between a nurse and an appointment clerk when using the universally recognized methodology of work fields and MPSMS codes.
This analysis relies upon the plain text of the regulation is understood by the vocational rehabilitation community. The regulations belong to the Commissioner and should in the ordinary course get construed by the Commissioner first. Prior to October 2014, the Commissioner had not construed the transferability of skills regulations and had actively sought to limit application of work fields and MPSMS codes. See e.g. Garcia v. Astrue, 2012 WL 4091847, at *7 n.6 (E.D. Cal. Sept. 17, 2012) (while the Truthan and Karman article indicates that a researcher of Transferable Skills Analysis had “asserted the use of Work Field and MPSMS as the only true method for transferable skills analysis,” “this assertion does not support Plaintiff’s contention that the MPSMS is the only method to address transferable skills”).
4. POMS DI 25015.017
On October 6, 2014, the Commissioner published an interpretation of the skills regulation to assess and find transferability of skills. POMS DI 25015.017 (TN 5 (10-14)) (effective October 6, 2014). The Commissioner first repeats the definition of transferability found in the regulations. POMS DI 25015.017.A. The Commissioner defines materiality of the transferability of skills analysis (TSA) when application of a finding of “skills not transferable” would result in a directed finding of “disabled.” POMS DI 25015.017.B. The Commissioner again defines transferability with the regulatory criteria, noting that a complete similarity of skills level, work tools and machines, and raw materials, products, processes, or services is not necessary. POMS DI 25015.017.C.4.
The Commissioner describes the discrete steps in performing a TSA. POMS DI 25015.017.D. The ALJ must identify the work past relevant work (PRW). Step 1. The ALJ must review the job description and note the “processes, tools, machines, and materials used and the products or services.” Step 2 (emphasis original). Step 3. The Commissioner directs the search for occupations related to the claimant’s past relevant work using the same or similar:
1. guide for occupational exploration (GOE) code;
2. materials, products, subject matter, and services (MPSMS) code;
3. work field (WF) code;
4. occupation group (first three digits of DOT code); or
5. industry designation.
The Commissioner directs the making of a list of all possible occupations, ruling out unskilled occupations, ruling out occupations with higher specific vocational preparation time, and ruling out occupations that fall outside of the claimant’s residual functional capacity. Step 5. The Commissioner directs comparison of the DOT description of the job duties of the claimant’s past relevant work, including composite jobs, to the target occupation. Step 6. The Commissioner directs the making of a judgment about whether job skills gained in past relevant work have use and other work within the physical and mental residual functional capacity. Step 7. The Commissioner directs the Social Security Administration to support the decision with a brief statement if skills are not transferable. If the Social Security Administration finds skills are transferable, the decision-maker must identify both of the transferable skills and the occupations to which those acquired work skills transfer. Step 8. The Commissioner includes the caveat to generally cite at least three occupations when documenting the capacity for other work, leaving open the possibility of citing less than three occupations if the agency can document a significant number of jobs in the national economy.
The Commissioner provides the additional tip that skills are likely to transfer from highly skilled occupations, occupations consisting of many separate tasks, or occupations with skills applicable across a number of industries. Skills are unlikely to transfer from highly specialized or technical work, or from work in isolated vocational settings. POMS DI 25015.017.E.
The Social Security Administration will only consider skills demonstrated in past relevant work. Transferable skills will not arise out of work that did not constitute past relevant work (recency, duration, and substantial gainful activity), nor will they arise from educational experiences, hobbies or interests, or volunteer work. POMS DI 25015.017.E.1. The Commissioner construes the regulation to include consideration of six factors:
1. types of tasks, materials, production, processes or services;
2. types of tools or machines used;
3. composite jobs;
4. degree of judgment required beyond carrying out simple duties;
5. work-setting and/or industry; and
6. the claimant’s description of PRW (as opposed to the DOT description).
The Commissioner construes the regulation to preclude consideration of three factors, emphasizing “Don’t”:
1. rely on generic occupational titles;
2. assume that an individual acquired all skills listed in the DOT occupation; or,
3. discount skills acquired that are not listed in the DOT.
The Commissioner lists 12 occupations likely to have transferable skills to other light work:
1. Auto repair
4. Heavy equipment operator
6. Law enforcement
8. Maintenance mechanic
9. Master carpenter
POMS DI 25015.017.E.2.
The Commissioner lists three occupations likely to have transferable skills to sedentary or light work:
POMS DI 25015.017.E.3.
The Commissioner emphasizes that nurse’s aides, specialized truck driving, and unusual or isolated types of work do not generally give rise to the presence of transferable skills. POMS DI 25015.017.E.4. This provision points back to Social Security Ruling 82-41 for the proposition that occupational titles or skeletal descriptions do not provide sufficient information upon which to assess transferable skills. Id. The Commissioner includes in her construction of the regulatory paradigm that the heightened burden of having very little, if any, locational adjustment in terms of tools, work processes, and industry occur for individuals age 55 or older limited to sedentary work or individuals age 60 or older limited to light work. POMS DI 25015.017.E.5.
5. What Do these Codes Mean?
The literature suggests that the vocational inquiry into the presence of transferability of skills should focus on SVP, work fields, and MPSMS codes. The Commissioner interpreted the regulations as expanding that list to include
1. guide for occupational exploration (GOE) code;
2. materials, products, subject matter, and services (MPSMS) code;
3. work field (WF) code;
4. occupation group (first three digits of DOT code); or
5. industry designation.
The question of what these codes are, what they represent, and where they can be found forms the nucleus of the next logical avenue of inquiry. All of this information is found in the Dictionary of Occupational Titles and its various companion publications. The DOT forms the subject of administrative notice as a source of job information. 20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1). The Handbook for Analyzing Jobs defines the terms and establishes the benchmarks for everything in the DOT and its companion publications. Revised Handbook for Analyzing Jobs, introduction (Dept. of Labor 1991).
The RHAJ defines the Guide for Occupational Exploration as providing information about interests, aptitudes, adaptability’s, and other requirements for occupational groups. The GOE has the express purpose of helping people understand themselves realistically in regard to their ability to meet job requirements. The GOE lists 12 primary categories of interest. The GOE breaks down each of the 12 categories into subcategories. RHAJ chapter 11.
The RHAJ describes MPSMS codes as the final link in describing (1) what the worker does; (2) what gets done; and (3) to what. The answer to “what” is the MPSMS codes. The MPSMS code provides the classification of the object of the work. The RHAJ contains 48 groups divided into 336 categories classified by three digit codes. An occupation will have between one and three separate MPSMS codes.
The RHAJ describes work fields as answering that second question, what gets done. They reflect the purpose of the job. The RHAJ lists 97 work fields, six of which represent combination fields.
The first three digits if the DOT code come from the DOT. That part is that plain. The first three digits break down the world of work into more precise types of occupations. All occupations starting with the number 2 represent clerical and sales occupations. The first two digits of 25 represent sales occupations, services. The first three digits 253 represent sales occupations, utilities.
The industry designation follows the name of the occupation’s name. For some occupations, it represents a differentiation of two different DOT codes with the same name. In others, it just represents the industry designation for use in a transferability of skills analysis under the DOT rubric. The RHAJ provides for use of the Standard Industrial Classification Manual (SIC) codes as well. The SIC gave way to North American Industry Classification Systems (NAICS) after the North American Free Trade Agreement between the United States, Canada, and Mexico. POMS DI 25015.017 does not state whether industry designation follows the DOT, the SIC, or the NAICS classification. The SIC is outdated and unused. The DOT is outdated but subject to administrative notice. The NAICS is used by the County Business Patterns and the Occupational Outlook Handbook, but the subject of administrative notice. 20 C.F.R. §§ 404.1566(d); 416.966(d).
6. The Cross
The regulation, ruling, and POMS all provide that the transferability of skills analysis need not have “complete similarity of all of these factors” in order to find transferability of skills. That leaves open whether the finding of transferability of skills must have some similarity in the factors as described by POMS. These data points provide fertile ground for concrete cross-examination of a vocational expert based upon differences in the GOE codes, MPSMS codes, work field codes, digits of the DOT code, and industry designations.
The first question to ask focuses on the vocational expert’s methodology for identifying occupations subject to the transferability of skills analysis. If the vocational expert provides amorphous testimony that does not identify a methodology but instead describes the dimensions of the black box of expertise, the representative must ask the vocational expert whether he/she used GOE codes, MPSMS codes, work fields, occupational group codes from the DOT, or the industry designation either from the DOT or the NAICS. If the vocational expert testifies that he/she did not use the search methodology described by POMS, then the representative should move to strike the testimony as violating agency policy. Testimony that violates agency policy does not constitute substantial evidence. Social Security Ruling 00-4p.
If the vocational expert did use the methodology described in POMS, the next set of questions should seek out a statement of each and every code from the past relevant work and from the target occupation of the transferability of skills analysis. The testimony may get tedious and long, but the existence or non-existence of transferable skills means the difference between a favorable and an unfavorable decision whenever the issue is material. If the ALJ states that the case is taken too much time, the representative should ask for a continuance to continue to explore the complex issues. The representative should remind the ALJ that the regulations specifically describe whether work skills can be used in other work as a “complex issue.” 20 C.F.R. §§ 404.1566(e); 416.966(e). Fundamental notions of due process require care in the examination of witnesses on complex issues especially where the Commissioner has provided a detailed policy interpretation of the regulations. 20 C.F.R. §§ 404.1568(d); 416.968(d); POMS DI 25015.017. If the vocational expert testifies to the existence of transferable skills, the failure to cross-examine on that issue will fall below the standard of care for a competent representative.
7. Application of POS to Pending Cases
The Commissioner contends that the ALJ need not comply with POMS not in effect when the ALJ made its decision or that the ALJ need not comply with POMS ever. The Commissioner forbids the ALJ from relying on the testimony of a vocational expert that deviates from agency policy. Social Security Ruling 00-4p, Evidence that Conflicts with SSA Policy. The Commissioner makes the point more stridently that all levels of the agency adjudication must follow not only the regulations and rulings but also POMS and HALLEX. Social Security Ruling 13-2p, ¶ 15. The statements in the rulings bind the ALJ. Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Because the two rulings incorporate agency policy into binding status, the provisions of POMS DI 25015.017 bind the agency adjudicators in Court.
Even if not binding, the interpretation of the regulation by POMS provides a binding interpretation of the regulation unless that interpretation is clearly erroneous. Auer v. Robbins, 519 U.S. 452, 462-463 (1997). Because the Commissioner interprets his own regulation, no lesser form of deference applies. Bassiri v. Xerox Corp., 463 F.3d 927, 930-931 (9th Cir. 2006). POMS constitutes the fair and considered judgment of the agency outside the influence of the boundaries of this or any other dispute. The Circuit Court uses POMS as a basis for giving POMS a persuasive interpretation of an ambiguous regulation even if not judicially enforceable. Kennedy v. Colvin, 738 F.3d 1172, 1177-1178 (9th Cir. 2013) citing Skidmore v. Swift & Co., 323 U.S. 134 (1944). Giving POMS persuasive force as a fair and considered judgment of the Commissioner, the Court should find that POMS explains the ambiguities in the regulation to impose an obligation to consider facially GOE, MPSMS, work fields, the DOT number, and the industry.
A change in the law affects all pending cases, not just pending before an ALJ. Combs v. Commissioner of Social Security, 459 F.3d 640, 656 (6th Cir. 2006) (en banc) (applying the deletion of the obesity listing to cases pending in Court even though the ALJ made a decision that did not conform to Appendix 1, Listing 9.09). When an interpretation of stable law changes, that interpretation applies to all pending cases in the absence of clear intent to the contrary. See generally Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993) (holding “when this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law, and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule”).
The Ninth Circuit enforces the law in effect at the time of the Court’s decision. Ball v. Massanari, 254 F.3d 817, 820-821 (9th Cir. 2001) citing Landgraf v. USI Film Prods., 511 U.S. 244, 245, 269 (1984). When an agency issues an interpretation of a statute or regulation, the Court must defer to that new interpretation, even if it conflicts with prior decisions of the Court of Appeals. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512-514 (9th Cir. 2012) (en banc). The Court affirmed that it will defer to an agency interpretation of an ambiguous statute even if that interpretation conflicts with pre-existing circuit holding. Garfias-Rodriguez relies on National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967, 982-983 (2005). Montgomery Ward & Co. v.FTC, 691 F.2d 1322, 1333 (9th Cir. 1982) sets out a five-factor test for retroactivity:
(1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is applied relied on the former rule, (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old standard.
The interest in the even-handed resolution of questions concerning eligibility for disability benefits also cuts in favor of retroactive application. The new interpretation applies retroactively under Montgomery Ward and is fairly raised by the parties. Garfias-Rodriguez, 702 F.3d at 520. The Commissioner has no legitimate interest in defending an ALJ decision that violates the Commissioner’s fair and considered judgment about how the agency makes a transferability of skills analysis. More importantly, POMS does not represent a change in the law. It reflects a reasoned and considered interpretation of the regulations promulgated by the Commissioner. The courts should always defer to the Commissioner’s interpretation of her own regulations.
Please note that the scope and application of the concept of deference to the agency interpretation of its own regulations would require a separate 90 minute discussion. The scope of Auer deference varies from circuit to circuit and requires specific research for application of that issue within those states. Similar, the scope of Brand X deference varies from circuit to circuit and requires a specific research for application of that issue within those states.
8. An Example
Assume an individual with past relevant work as a nurse. Assume the person is under 55. When asked for other work, the vocational expert testified:
if we can be a little broader with industry in that – […] – methods and all that, I do think that appointment clerk, which is an SVP 3, would be available. There are not skills required for this occupation. And oftentimes they are found within the health care industry, setting appointments. They’re also found within retain but that’s strictly a (sic) setting appointments.
The vocational expert stated:
Again this is SVP 3 so I’m going to be looking at very basic organizational skills, decision making skills, basic recordkeeping skills, the ability to use typical office equipment, phone, fax, that sort of thing.
The vocational expert testified:
Number one is Registered Nurse generally are less involved with direct patient care and do -- although she was more involved, and I understand that, they do make reports. Oftentimes they'll schedule workflow, that sort of thing.
And then in addition to that, based on 1E and the testimony today, she had a period of time where she was actually doing more of the secretary, medical secretarial work for about almost three months, it looks like, from February 3rd of 2010 through April 22nd.
The vocational expert stayed with the presence of organizational skills, use of office equipment, use of a pen or pencil to chart, and knowing how to use a telephone. The vocational expert clarified that organizational skills meant “keeping your desk organized as an appointment clerk.” The vocational expert testified that the skilled nature of nursing required the employee to be “highly organized, very very good complex decision making” as compare to the lower skill level of an appointment clerk with “very limited skills and so basic.” When asked for the specific organizational skills of an appointment clerk, the vocational expert testified:
Organizing, keeping the records organized, keeping appointments organized, keeping your daily work flow organized. I have to make these X number of appointments, so I need to call X number of people. I'm going to call them in this order. This person works so I need to move this person down to the afternoon so I can contact -- so that I can reach them when I contact them. Very basic organizational skills, nothing highly complex. But they are there.
The two occupations do not have a same or similar GOE, MPSMS, WF, first three digits of the DOT number, or the DOT industry designation. What those occupations have in common is the ipse dixit of the vocational expert that the skills transfer across wholly dissimilar GOE, MPSMS, WF, first three digits of the DOT number, or the DOT industry designations. The work of a general duty nurse carries the designations of:
1. GOE code 10.02.01 nursing;
2. MPSMS code 924 nursing, dietetic, and therapeutic services;
3. WF code 294 health caring – medical;
4. First three digits of the DOT code 075 registered nurses); and
5. DOT industry medical services.
The occupation of an appointment clerk has the following characteristics:
1. GOE code 07.04.04 reception and information giving;
2. MPSMS code 890 general business, finance, insurance, and real estate;
3. WF code 231 verbal recording-recordkeeping;
4. First three digits of the DOT code 237 (information and reception clerks); and
5. DOT industry clerical and kindred services.
The Commissioner takes administrative notice that nursing occupations have a likelihood to transfer to other light work. POMS DI 25015.017.E.2. The Commissioner does not include nursing in the skills likely to transfer to other sedentary or light work. POMS DI 25015.017.E.3.
As of the writing of this article, the case described in this example is pending in Court. The Court issued a decision before publication of POMS DI 25015.017. The motion to reconsider is based on publication of that interpretation less than 28 days after the Court entered judgment.
 Available at http://books.google.com/books?id=dRSPAQAAQBAJ&lpg=PA253&ots=sIbISVl9rH&dq=WORK%20FIELDS%20MPSMS%20SSA.GOV&pg=PA255#v=onepage&q=WORK%20FIELDS%20MPSMS%20SSA.GOV&f=true.
 Available in full at http://www.skilltran.com/TSATransition.htm.
 Available at http://www.vocational.org/Analysis/RHAJ.pdf
 Kennedy did not address application of Social Security Ruling 13-2p binding the ALJ to agency policy. Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011) and Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) predate Social Security Ruling 13-2p.
 Available at https://scholar.google.com/scholar_case?case=13815838661372170260&hl=en&as_sdt=2006.