Furniture Rental Consultants 295-357-018

Another -- you have got to be kidding me, right?  We are not allowed to ask a question like that during a Social Security administrative hearing.  But we want to ask, because the identification of the furniture rental consultant as representing 40,000 jobs in the nation doesn't make sense.  The reason that it doesn't make sense is that our commonsense is correct. 

Look at the occupation as it exists in the Dictionary of Occupational Titles.  We can find the information on the web.  Here.  The occupation exists in the retail trade industry and it rents furniture and accessories. 

I rent cars on a regular basis -- several a year if not more.  If I wanted to fly or float, I would rent a plane or a boat, or just buy a ticket.  But I haven't rented furniture except when in college and don't know many people that do.  It isn't a big industry from a lay perspective.  But that is the beauty of taking judicial or administrative notice; we don't have to be experts to look stuff up.  Let's keep looking stuff up. 

Counter and rental clerks form a group of occupations because of their similar job duties under the O*NET as the Labor replacement to the DOT.  We can look at a detailed description of the occupation on the O*NET OnLine.  The work requires standing:

Spend Time Standing — How much does this job require standing?

15    Continually or almost continually 32    More than half the time 34    About half the time 13    Less than half the time

 
The work is semi-skilled or less. 

"SVP Range

(Below 4.0)"

So for those sit-stand, light, and unskilled jobs, this remains a candidate.  But honestly, how many are there? 

The O*NET reports 442,000 counter and rental clerk jobs, in 24 different occupations.  One of the 24 is the furniture rental consultant.  The Occupational Outlook Handbook reports 442,100. 

The OOH and the O*NET rely on the Bureau of Labor Statistics.  The occupation-industry matrix lists all the Standard Occupational Classification groups.  The line for counter and rental clerks, SOC group 41-2021 generates an excel spreadsheet that breaks down the occupational group by industry.

The employment projections for 41-2021 agree -- the occupational group has 442,100 jobs.  Almost half are in the real estate and rental and leasing industry sector (NAICS 53000).  The employment projections state that the retail trade sector (NAICS 44-450000) has 87,900 jobs.  That is the industry group specified by the DOT, so let's stick with that. 

Within the retail trade sector, 46,500 jobs exist in the motor vehicle and parts dealers industry group (NAICS 441000).  The furniture and home furnishing stores employ 600.  (NAICS 442000).  Within the industry group, counter and rental clerks make up 0.1% to 0.2% of industry employment. 

Code

Title

Employment

Percent of industry

TE1000

Total employment

442.1

0.3

44-450	Retail trade	87.9	0.6
441000	Motor vehicle and parts dealers	46.5	2.5

442000	Furniture and home furnishings stores	0.6	0.1
442100	Furniture stores	0.5	0.2

County Business Patterns provides industry employment data.  Sector 44 for retail trade (turn off LFO and noise flags) counts nationwide employment for the industry:

Compare Areas	NAICS code	NAICS code description	Paid employees for pay period including March 12 (number)	First-quarter payroll ($1,000)	Annual payroll ($1,000)	Total establishments

	442	Furniture and Home Furnishings Stores	429,073	3,026,406	12,836,584	50,595
	4421	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	44211	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	442110	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	4422	Home Furnishings Stores	230,853	1,358,333	5,798,798	27,028
	44221	Floor Covering Stores	63,011	570,982	2,513,664	10,763
	442210	Floor Covering Stores	63,011	570,982	2,513,664	10,763
	44229	Other Home Furnishings Stores	167,842	787,351	3,285,134	16,265

Applying the employment projections percentage of employment yields 429 jobs as a furniture rental clerk; 386 of them in the furniture stores. 

That's it.  There are not and cannot be 40,000 or even 10,000 furniture rental clerks in the national economy.  There are less than 500. 


 

The Nail in the Coffin - Surveillance Systems Monitor

A recurring question that comes up in Social Security disability hearings -- are there any sedentary unskilled jobs with occasional use of the hands?  I have heard the question and litigated the number of jobs -- several times.  The vocational experts have identified surveillance-systems monitor.  See Meanel v. Apfel and Beltran v. Astrue.  In Meanel, the vocational expert testified to 1,000 to 1,500 jobs in the Los Angeles region  as an SSM, which the court affirmed over statistical objection that the number was patently false.  In Beltran, the vocational expert testified to 1,680 jobs in the nation as an SSM, which the court found insignificant.  Not may case, but Golowach v. Colvin reports vocational expert testimony of 34,000 jobs -- a 2016 USDC decision out of New York.

Vocational experts give widely different numbers for what should be nothing more than a statistically knowable fact.  Opinions can vary an estimate but the numbers do not vary as the witnesses would have the agency and the courts believe.  The fact of the matter is that the occupation represents very few jobs, if any. 

The SSM is a low-level security job.  It is unskilled but carries a reasoning level of 3.  It isn't simple but it is unskilled.  The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles confirms the selected characteristics, including reaching, handling, and fingering.  But that doesn't give job numbers.  The DOT and SCO inform the world that the occupation existed in the wild at some point in time -- but how many?

The O*NET replaced the DOT.  The DOT was last updated in 1991.  The O*NET was last updated in 2010.  Pick your data source. 

The O*NET places the SSM occupation in two different SOC codes:

Surveillance-System Monitor. 379.367-010 33-9031.00 Gaming Surveillance Officers and Gaming Investigators 33-9099.00 Protective Service Workers, All Other

The O*NET describes protective service workers, all other as representing 114,000 jobs.  It consists of 5 different DOT codes.  Aggregating and pretending that all the occupations represent roughly the same number of jobs, we get 22,800.  Golowach looks reasonable, if aggregation is the game. 

Protective service workers, all other includes the sub-group:

33-9099.02    Retail Loss Prevention Specialists

That code represents a single DOT code -- 376.137-010    Manager, Internal Security.  The O*NET says that this occupational group represents 114,000 jobs.  Following the aggregation model, we now divide by six.  Golowach is losing ground. 

The gaming surveillance officers doesn't add to the unskilled SSM total.  The O*NET reports that this occupational group represents work with a specific vocational preparation of 4 to < 6 -- the work is semi-skilled to skilled.  That excludes the unskilled SSM. 

Back to the DOT description, the DOT industry designation is government service.  Four of the occupations in the 33-9099 list share that industry designation -- government service.  The national employment matrix states that all levels of government employ 30,800 protective service workers, all other.  The federal government employs about 4,800 workers in 33-9099. 

The feds employ over 3,750 deputy marshals and criminal investigators.  That leaves a possible 1,000 SSM jobs at the federal level and only if there are no polygraph examiners in federal employment.  Whether states would employ SSMs in public transportation terminals is a reasonable question.  But states employ 7,300 workers in 33-9099.  Local government employs 18,700 workers in 33-9099 but that includes school bus monitors, community service patrol officers, and polygraph examiners. 

While it makes sense that transportation centers have eyes watching in this age of terrorism, the prospect that these are unskilled workers not trained in detecting suspicious behavior falls outside the pale of reasonable.  I have encountered vocational experts that refuse to identify this occupation because it does not exist as an unskilled occupation in significant numbers.  Until that trend becomes a universal truth, representatives will have the obligation to cross the errant, misinformed, or deceitful vocational experts to show their work statistically, not viscerally. 

Obsolete Occupations

From time-to-time, vocational experts will assert the absurd.  I know, you already know that I believe that vocational experts say the absurd because the ALJ corps expects if not demands the absurd. 

OIDAP describes five occupations as obsolete.  From the report:

INITIAL-LEVEL REVIEW RESULTS
Limitations in Job Data – Step 5
Occupational and Medical-Vocational Claims Review Study

For claims denied at step 5, the adjudicator cites jobs that are
examples of the type of work a clamant can do. Our study
found a substantial number of cases where DDSs cited jobs
that might be obsolete. Examples of such jobs cited at step 5
in our study cases include:

•    Addresser (cited in 9.5% of step 5 denial cases)
•    Tube Operator (1.1%)
•    Cutter-and-Paster, Press Clippings (0.9%)
•     Host/Hostess, Head (0.8%)
•    Magnetic-Tape Winder (0.7%)

It is doubtful that these jobs, as described in the DOT, currently exist in
significant numbers in our economy.

If you have a vocational expert identify addresser; tube operator; cutter-and-paster of press clippings; host/hostess, head; or magnetic-tape winder, cross-examination must explore the existence of that work in the national economy and a post-hearing submission should include a copy of the OIDAP report. 

Film Touch-Up Inspector, DOT 726.684-050, Occasional Decision-Making - You Can't Be Serious

Sometimes I just want to ask -- are you serious?  This comes from the files of the absolutely ridiculous.

ALJ asks and finds that the claimant has a mental impairment that leaves a youthful claimant with a residual functional capacity to engage in work activity that involves occasional decision-making.  The kind of RFC is relatively common in Social Security decisions.  Depending on the presence of other limitations, this kind of limitation can prove fatal to the ability to perform a significant number of jobs in the national economy. 

The vocational expert in this case identified two occupations that make no sense.  The vocational expert stated that the claimant could perform the occupation of a film touch-up inspector, DOT code 726.684-050.  The occupation title tells us that there is a problem -- inspector.  The DOT narrative describes the work functions as:

Inspects and repairs circuitry image on photoresist film (separate film or film laminated to fiberglass boards) used in manufacture of printed circuit boards (PCB's): Inspects film under magnifying glass for holes, breaks, and bridges (connections) in photoresist circuit image. Removes excess photoresist, using knife. Touches up holes and breaks in photoresist circuitry image, using photoresist ink pen. Removes and stacks finished boards for transfer to next work station. Maintains production reports. May place lint free paper between dry film sheets to avoid scratching circuit images on film.

The vocational expert stated that the claimant could perform the occupation of a touch-up screener, circuit board assembly, DOT code 726.684-110.  For this occupation, the title does not reveal the problem unless screener means that the work function includes screening product.    The DOT describes the work functions as:

Inspects printed circuit board (PCB) assemblies for defects, such as missing or damaged components, loose connections, or defective solder: Examines PCB's under magnification lamp and compares boards to sample board to detect defects. Labels defects requiring extensive repairs, such as missing or misaligned parts, damaged components, and loose connections, and routes boards to repairer. Performs minor repairs, such as cleaning boards with freon to remove solder flux; trimming long leads, using wire cutter; removing excess solder from solder points (connections), using suction bulb or solder wick and soldering iron; or resoldering connections on PCB's where solder is insufficient. Maintains record of defects and repairs to indicate recurring production problems. May reposition and solder misaligned components. May measure clearances between board and connectors, using gauges.

Inspectors inspect for conformance to standards.  Inspectors decide whether the product in front of him/her meet the employer's standards for sale or whether the product needs repair and to decide the nature and extent of those repairs.  The worker decides as the essential job function. 

Both occupations belong to the same Standard Occupation Classification (SOC) group, 51-9061 for inspectors, testers, sorters, samplers, and weighers.  There are 782 different DOT codes within the group.   The O*NET confirms that the most important core function of this occupational group involves inspecting, testing, and measuring.  The O*NET informs that the typical work in this group covers specific vocational preparation (SVP) code of 4 to <6.  Ignoring that this occupational group has few if any unskilled work, these workers decide.  While the unskilled variety of inspectors may not make repair decisions, the inspectors decide that the manufacturing process produced a defective or deficient product, or that the product meets the standards. 

So why would a vocational expert offer inspector occupations to respond to a hypothetical question involving occasional decision-making?  These are sedentary occupations and the existence of unskilled sedentary work is increasingly rare.  The DOT lists these two technical-related occupations that are likely to survive out-sourcing and automation.  Inspectors check the automated process.  The knee-jerk reaction to identify some work is just wrong.  When the ALJ asks the vocational expert whether the testimony conforms to the DOT, the answer "yes" is at best irresponsible.  Vocational experts must offer the honest testimony that either the occupation is not appropriate or offer a reasonable explanation how and why inspectors don't have the clear job function of making a decision throughout the workday. 

How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

I addressed the issue of superficial contact with supervisors and coworkers earlier this year.  A transcript from a real case pending in federal court provides context and illustrates the methodology.

BY THE ADMINISTRATIVE LAW JUDGE:

Q So what he would be limited to would be a light level of work. Occasional posturals, and avoiding hazards which would be working at heights, or operating dangerous, moving machinery. And visually would be according to doctor, he has -- his vision is corrected by glasses but he certainly would have distance problems if he did not wear his glasses. So he has a visual limitation but again, correctable by glasses.

In terms of his non-exertional limitations, he suffers from a disorder that would limit him to simple, routine instructions, and also would limit him to brief and superficial contact with the public, the supervisors and the co-workers. Now with those limitations, [vocational expert], can you identify some jobs that would exist, if there are any jobs that would exist, that exist in the national environment?

[colloquy and clarification of the exertional limitations]

A Okay. All right. Well, thank you, Your Honor. At the sedentary level, sedentary, unskilled, SVP 2 work, would be hand sorter of small fruits and vegetables, nuts, food products. The DOT is 521.687-086, approximately 3,000 jobs nationally.

[colloquy about the nut sorter jobs]

A Okay. And then, Your Honor, the other would be assembler, hand assembler and that would be 726.684-050, sedentary, unskilled. It's touch up assembler, excuse me. And also approximately 3,000 jobs nationally.

Q Okay.

A And then, Your Honor, another would be production bear with me. You said superficial contact with others?

Q Yes.

A Okay. I would leave it there, Your Honor.

BY THE ATTORNEY:

Q [...] in terms of brief and superficial contact with supervisors, that would also include criticism, work instructions, training. Are all of those brief and superficial?

A That's a very good question. It depends upon the level -- you're describing a situation that's going to vary also according to the level of work performance which would elicit
greater or lesser interaction with supervisors regarding instruction and supervision.

Q Do you consider the ability to accept and respond appropriately to criticism from supervisors to be critical to performing unskilled work?

A Yes, yeah.

Q Okay. So if the person can only tolerate brief and superficial contact, and the ability to accept instructions and respond appropriately to criticism from supervisors is critical to performing unskilled work, how can those two marry?

A Excuse me. You lost me on -- you're jumping from one to the other, so --

Q Okay.

A -- my understanding of your question was is it critical being able to accept criticism, and -- okay, I see what you're saying. Repeat the hypothetical again, please?

Q Well, it's not a hypothetical, it's an observation. If the person can only tolerate brief and superficial contact with supervisors, and we agree that the ability to accept instruction and respond appropriately to criticism from supervisors is critical to performing unskilled work, how could such a person that can only tolerate brief and superficial contact also tolerate and accept criticism from supervisors?

A All right. You -- correct. There would be a conflict there. I don't believe it would be possible.

Q So would you agree that a person can tolerate only brief and superficial contact from supervisors could not engage in competitive employment?

A As presented right now, yes.

The ALJ went on to reject the testimony on cross-examination as somehow changing the hypothetical question.  The court will get to review that assessment.  But this is an example of the "how" of cross-examining a vocational expert on superficial contact with others.

Is the Attorney Representative All that AND a Bag of Potato Chips?

So here are some questions to ask:

1.        Does the attorney know the file better than the medical expert in every case?  That requires hours of case review per file and some files exceed 5,000 pages.  Did the attorney read and annotate the file before the hearing … every time?

2.       Does the attorney act like the potted plant at the hearing?

a.       Was there meaningful cross of the medical expert about unfavorable and unsupported parts of the ME testimony?

b.       Was there meaningful cross of the vocational expert?

3.       Does the attorney have a theory of the case that pertains to the facts of the case?

a.       Does the claimant fit inside of a favorable grid rule?

b.       Does the claimant have a non-exertional impairment that wipes out work at an or several exertional levels?

c.       Does the attorney ask questions tailored to the theory of the case?

                                                               i.      Do you have good use of your hands?

                                                             ii.      If no, tell the judge what you mean by “no.”

                                                           iii.      Can you open jars with ease?  Explain.

                                                           iv.      Can you manipulate a zipper with ease?  Explain.

                                                             v.      Can you type?  How fast?  How many errors?  For how long? 

                                                           vi.      Can you use a mouse?  Which hand?  For how long?

                                                          vii.      Cooking, scissors, etc. 

d.       Does the attorney have record citations that back up the theory of the case?

4.       Does the attorney permit the vocational expert to go unchecked – the potted plant syndrome?

a.       Can the attorney cross the VE on the provisions of the DOT and its companion publications including temperaments, aptitudes, environmental requirements, physical requirements?  Does the attorney know the DOT better than the VE?

b.       Can the attorney cross the VE based on the rulings?  See POMS DI 25025.030 for a list of the rulings about the significance of impairments on the exertional bases. 

c.       Can the attorney cross the VE based on mental limitations.  See POMS DI 25020.010 for a list of the critical and strictly enforced requirements of unskilled work. 

                                                               i.      Is a 10% reduction in productivity meaningless but a 15% reduction preclusive of all work?

                                                             ii.      Is superficial contact with supervisors a limitation that permits a wide swath of work? 

                                                           iii.      Is working in relative isolation OK?

                                                           iv.      What does SSR 00-4p say about testimony inconsistent with agency policy?

                                                             v.      What does SSR 13-2p include in the statements of agency policy?

d.       Does the attorney have a working knowledge of the scope of administrative notice?  See 404.1566(d) and 416.966(d). 

                                                               i.      Can the attorney challenge the VE on jobs within a specific industry?  See County Business Patterns. 

                                                             ii.      Can the attorney challenge the VE on the educational requirements for work as described in the OOH and the O*NET?

                                                           iii.      Does the attorney know the difference between Current Population Survey and Occupational Employment Statistics?

                                                           iv.      Does the attorney know the difference between SOC, OES, O*NET, and Census code reporting of job numbers?  The first three are the same for our purposes, the last one isn’t?

                                                             v.      Does the attorney know how to use the BLS employment projections?

                                                           vi.      Does the attorney know how to cross on a transferability of skills issue?  See POMS DI 25015.017 TSA. 

1.       GOE codes

2.       MPSMS codes

3.       Work Fields

4.       Occupational Group

5.       Industry Designation

The Treating Physician Rule Will Die, Now What?

The treating physician rule will likely die according to the Notice of Proposed Rule Making (NPRM).  I believe in the treating physician rule and argued for its extension to disability plans covered by ERISA.  See Black & Decker Disability Plan v. Nord.  Writing for the unanimous Court, Justice Ginsburg explained that plan administrators "may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician."  As to ERISA claims, the treating physician rule died that day.  

The Commissioner of Social Security's NPRM suggests that the agency discard the treating physician rule:

We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. 

20 CFR § 404.1520c(a).  (20 CFR § 416.920c is the SSI counterpart).  Before the claimant's bar runs off screaming that the sky is falling, they ought to examine the paragraphs directed by the predicted demise of the treating physician rule.  

First things first, the burden to articulate the weight given to the evidence remains, for the most part.  20 CFR § 404.1520c(b)(1).  Gone is the obnoxious practice of simply selecting between two equally weighted opinions.  20 CFR § 404.1520c(b)(3).  Retained and expanded is the obligation to articulate how the agency addressed non-accepted medical source opinion evidence.  Chiropractors, nurse practitioners, and other non-doctors just got a regulatory boost in status.  

The Commissioner retains the weight for supportability and consistency.  20 CFR § 404.1520c(c)(1) and (2).  The Commissioner keeps as a weight factor the relationship to the claimant -- examining better than non-examining; length of the relationship; frequency of examinations; purpose of the treatment relationship; and extent of the treatment relationship.  20 CFR § 404.1520c(c)(3).  In sub-paragraphs (i) through (v), the Commissioner gives back with the left hand what the right hand had taken away.  All things being equal in terms of supportability and consistency with the record, the longitudinal treatment relationship will cause SSA to give more weight to the opinions of the treating physician than that of an examining or non-examining physician.  The label of treating physician rule has died but the commonsense notion that the treating physician knows the patient better than the one-time consultative examiner or the non-examiner survives.  

The practical effect of the change will amount to not much.  A lack of support in the record and a lack of consistency with the record have long provided SSA with adequate grounds to reject the opinions of the treating physician.  Those cases are legion.  But the tie goes to the runner -- the treating physician -- and will continue to favor the claimant.  When the examining physician opines that the claimant can stand or walk for six hours and the treating physician states that four hours is more likely and sustainable for a particular patient, the treating physician opinion should prevail under current law and under the NPRM.  

To answer your question -- no, I am not concerned about the death of the treating physician rule.  I experienced that pain long ago and it didn't kill me.  The regulations as drafted keep the key elements of the doctrine alive and discharged to thrive.  Long live the weight given to a treating source when it is supported and consistent.  

How Did You Do on the Test?

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?

Answer 1:  A person can receive a period of disability and disability insurance benefits only if the person is both fully insured and currently insured.  42 USC sec. 416(i)(3).  The statute defines fully insured status as

one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage

42 USC sec. 414(a)(1).

Our claimant was born in 1954.  She turned 21 in 1975.  Counting 33 years, one for each quarter, takes us to 2008.  The year before the claimant becomes disabled or dies is 2008.  She is fully insured to 2009.

The statute defines currently insured status as:

The term “currently insured individual” means any individual who had not less than six quarters of coverage during the thirteen-quarter period ending with (1) the quarter in which he died, (2) the quarter in which he became entitled to old-age insurance benefits, (3) the quarter in which he became entitled to primary insurance benefits under this title as in effect prior to the enactment of this section, or (4) in the case of any individual entitled to disability insurance benefits, the quarter in which he most recently became entitled to disability insurance benefits, not counting as part of such thirteen-quarter period any quarter any part of which was included in a period of disability unless such quarter was a quarter of coverage, and who satisfies the criterion specified in subsection (c).

42 USC sec. 414(b).

Our claimant has 20 quarters accumulated between 2003 and 2009.  She has at least one in 2003 and at least one in 2009.  She is missing eight quarters of coverage during those seven years.  Her currently insured status extends 12 more quarters, to December 31 2012.

The claimant must have both, fully insured status and currently insured status.  Her date last insured for disability purposes is December 31, 2009. 

Question 2:  When this person turns 62 in 2016, can she collect a RIB?

No.  She doesn't have 40 quarters of coverage to be fully insured for RIB or early RIB.  Telling the claimant that lacks 40 quarters of coverage to take a RIB of any kind is below the standard of care.

Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

This is the math problem.  The period for assessing past relevant work is 15 years before the date last insured.   20 CFR sec. 404.1560.  Counting back 15 years is not 2009 minus 15.  That would include 1994.  One year prior to December 31, 2009, is January 1, 2009.  Counting back 15 years is January 1, 1995.

Bonus Question:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

No.  Work performed in 1994 is legally irrelevant under the regulations defining the relevant period.  Some may quibble that the period reaches to December 31, 1994.  Now meet the substantial gainful activity test of $500 per month in earnings with that day alone.  Can't be done.  It isn't relevant.

Assume that an attorney obtains a remand from the USDC to reassess the RFC.

Why does that help?  The ALJ found an inability to perform work after 1994, just the past work performed in 1994.  The first bonus question did not assume the ability to perform work done in 2003 to 2009.  Don't assume facts not in the question and not in evidence.  The correct issue is the lack of past relevant work.  In 1999, the person was 55 years of age.  She just needs a light residual functional capacity to "grid" out.

I left a lot out of the question.  The focus of the question is the technical issue -- calculating the date last insured and the period of the past relevant work.  If you got the date last insured right but counted the work done in 1994 as relevant, give yourself a B.  If you thought the date last insured was other than December 31, 2009, i.e. 2012 or some other date, give yourself a C.  If you got the date last insured correct as well as excluded the work in 1994 as irrelevant, give yourself the A.  You earned it. 

Test Your Knowledge of How the Disability Insurance Benefit Program Works

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?
Question 2:  When this person turns 62 in 2016, can she collect a RIB?
Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

Bonus questions:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

Assume that an attorney obtains a remand from the USDC to reassess the RFC. 

I will post the answers this week.  If you want to play at anytime without looking at the answers, post them on the Law Offices of Lawrence D. Rohlfing facebook page.   

Chiclets, Poverty, and Policy

I spent two weeks in Mexico recently and had the opportunity to see first-hand how the socialist government of Mexico treats its disabled.  As an attorney representing the disabled for nearly 31 years, I have a perspective and foundation to look at and compare the treatment of the disabled in the United States and Mexico. 

1. They Call Him BinLaden

Mostly because of his scraggly appearance.  This man is gaunt, unshaven, and unbathed.  He walks the beaches of Mazatlán with a box of chiclets gum.  He sells the individual pieces for 5 pesos.  Under current exchange rates, each pack of two pieces of gum costs 25 cents.  The locals tell me that this man goes downtown and buys the box of gum for 35 pesos, about $1.75.  If he sells the box, he grosses 250 pesos.  But he has to keep 35 pesos for tomorrow and as far as I can tell, he doesn't sell out everyday.  He lives on $10 a day.

This man doesn't speak.  He kind of grunts, holding out the box of gum.  He doesn't walk well, stiff legged with little if any flexion of the knees.  Did I mention that he walks on the beach?  He holds the box of gum with his open right hand and takes money with his open left hand.  I never saw him make a fist or touch his palm with any of his fingertips.  I am not a doctor but I pretend to be one in court and before SSA.  I suspect that he is palsied and that it happened at birth.  So this man has struggled his entire life. 

I luxuriated on the patio of the hotel.  Bin walked by.  He spotted Maggie and I -- recognized the faces as people that always overpaid for the chiclet.  Don't get too excited, we paid 10 pesos for each piece of gum  The 50 cents means nothing to us and a lot to him.  Paint me as not proud. 

I waved Bin off.  We were in a conversation that was serious.  Bin cocked his head to the side and rubbed his abdomen with his left hand.  He was hungry.  I gestured him to come over and bought some gum.  Paint me as shamed. 

2. Mexico's Social Safety Net

I contemplated leaving this entire section blank.  There isn't one.  Bin gets nothing in terms of housing assistance.  He is homeless as far as I could tell.  He gets nothing in terms of food assistance.  I know this from speaking with locals and asking questions.  Bin survives on the sale of chiclets gum mostly to tourists, most of whom don't want to be bothered by this unkempt mess.  The social safety net does not exist for Bin and others like him. 

I understand that Mexico does have an aged pension program.  It is meager.  Everyone gets old or older but most do not get palsied at birth or disabled during life.  In the industrialized world, that happens to 5% to 10% of the population. 

3.  The United States Safety Net

If Bin lived in the US, he would get nothing.  Not a citizen and not here before August 1997.  He would get nothing.  Bill Clinton signed that into law cutting off permanent residents that did not have 40 quarters of coverage in the family unit. 

If Bin were born in the US or got citizenship, he would get SSI.  That welfare component of the Social Security Act has a federal benefit rate of $733 for an individual and $1100 for a couple.  California provides a supplement, folding the food stamps into the monthly SSI check, $156.40 per month.  Bin is homeless so in California he would get $240.40 as the supplement. 

4.  The Pros and Cons of the Policy Choices

In Mexico, Bin has to go downtown (El Centro, or the center), buy the gum, and go back to the beach to sell.  He has to plan for the 35 pesos tomorrow.  He has to interact with people to the extent able and find something to eat.  It rains a lot in Mazatlán, or at least compare to Los Angeles -- but then again everywhere gets more rain than LA.  Bin has to manage life and has to ambulate. 

But it isn't just about Bin.  It is about me ... and you.  We have to or get the opportunity to see Bin everyday while on vacation.  But for the grace of God, there goes me.  I was born into the wealth of the United States and had a physician deliver me with forceps that prevented birth brain injury.  But for the grace of God, there goes me.  I get slapped in the face with the proposition of my incredible blessing of a well-functioning mind, body, and resources.  Paint me as humbled. 

In the US, we would give Bin SSI benefits.  When his parents died, retired, or became disabled, we would give him benefits on his parents' earnings record.  SSI would give him Medi-Cal or Medicaid.  The disabled adult child would get Medicare. 

Bin would not have to go to El Centro.  He would not have to hobble through the Playa (beach).  He would not have to sell chiclets to get something to eat.  Bin would not have to get the physical exercise and would not have to interact with people in order to survive.  And that would be my loss.  I would not have the reminder that but for the grace of God there goes me.  I would not have the reminder of the blessing of being born in the US.  I would not have the reminder that this well-functioning mind, body, and access to resources arise from nothing that I did.  They are gifts of happenstance; I was born here.  But that is what we do to the disabled in the US.  We give them enough money to stay home -- to stay out of sight.  We can't be bothered with the messiness of the disabled and disfigured.  Paint me as cursed. 

5.  The Choice

Under the guise of largesse, do we shutter away the aged and disabled so we don't have the guilt of not doing more?  Under the guise of indifference, do we force the Bins of our own little corner of the world to struggle mightily just to eat enough to barely survive and claim -- the exercise is good for him.  Is there another solution, a middle ground? 

Part of the problem rests on the proposition that in the micro, I can use compassion and discernment to pick the Bins.  In the macro, I use sterile standards to pick and choose.  The people that effectuate policy bring their own bag of bias with them.  And then there is fraud and waste.  I have no solution, just observations based on a short vacation in Mexico and a deep desire to understand the human condition. 

Rules Matter -- Cuevas v. Hartley and Kozinski's Dissent

Run of the mill ... ho hum.  Cuevas v. Hartley is just another habeas case.  But it represents much more -- a practice that Judge Alex Kozinski labels a game of "dare."  From the former Chief Judge's perspective, attorneys file oversized briefs at the last minute with a motion to permit the filing of a brief that violates the court rules that just dare the court to reject the brief and say "no." 

The passive-aggressive posture adopted by counsel that disrespects the court's case load.  A judicial officer has to manage his/er docket.  That is job number one.  Attorneys for a party must act ethically first, as the fiduciary to the client second, and to facilitate the court as a third priority.  I saw this in an order from the Eastern District of California last month, Salinas v. Colvin. 

The government attorney asked for a third extension of time to file a brief in opposition.  The court did not find good cause and took the matter under submission.  Judge Grossjean previously warned: "extensions based on demands of other cases are disfavored" and that "no further extensions will be permitted absent extraordinary circumstances." The court noted that the extension would put the matter 90 days behind schedule, did not articulate good cause, and got filed after the due date for the brief. 

Cuevas and Salinas may mark a turning point where the courts correct the relationship -- attorneys facilitate the courts' management of their docket; courts do not facilitate attorneys' management of time.  Some balance is in order but filing for a fat brief the day it is due or filing for a late brief after it was due are just disrespectful.  Rules matter, try to comply. 

Production Workers, all other SOC 51-9199

During the last couple of years, I have struggled with the administrative notice provisions of the Social Security regulations.  20 CFR 404.1566(d).  The Occupational Outlook Handbook did not have a detailed entry for this massive aggregation of DOT codes.  Nor did it have this group of occupations on the list of occupational groups not covered in detail. 

For the 2014 publication of job numbers, the OOH does now.  Listing 51-9199 on the occupations not covered in detail fills in a large hole in the OOH.  The group contains either 1525 or 1590 different DOT codes.  The 1525 estimate contains 52 sedentary and 395 light unskilled occupations.  Remember -- the sedentary unskilled occupations in the DOT total 137 codes; the light unskilled occupations total about 1400.  This group is HUGE because there are not enough of any one group of occupations in 51-9199 to warrant a separate listing.  The last digit -- the "9" -- means not elsewhere classified.  The "9" says, we don't have a place for these occupations so BLS puts them here,. 

Now that the OOH lists 51-9199 in the not covered in detail page, we now get the full linkage.  The limited discussion addresses educational requirements for most of the occupations -- surprise it is high school or more.  It links to the O*NET listing for the group.  The detail tab of the listing allows the users of the OOH to see that the O*NET lists the group as containing 1590 different DOT codes.  It also links to the employment projections that list the industries in which the occupational group exists. 

BLS publishes the employment projections for all SOC groups.  That list includes the specific spreadsheet for production workers, all other -- group 51-9199. 

PRACTICE POINTER:  when the vocational expert states that there are 200,000 or even 20,000, even if the vocational expert says 2000 jobs exist within an occupation that is included in 51-9199, ask for the industries in which the occupation exists and cross-index that result on the BLS employment projections.  Don't forget to ask if the witness uses the OOH as well as the linked O*NET and employment projections as well as the County Business Patterns. 

A Dangerous Trend -- Re-Writing the ALJ Decision

Unpublished memoranda -- yawn, they are not precedential.  The only parties that care are the parties to that memorandum and onlookers waiting for trends to develop.  Roy v. Colvin is such a memorandum.

The court found that the ALJ erred in rejecting the opinions of Dr. Eisenhauer.  The question is always materiality -- would it have mattered.  Under Stout v. Commissioner, the thought experiment assumes that the improperly rejected evidence is true and then asks would that credited evidence change the outcome.  Roy finds that the ALJ could have rejected the findings of Dr. Eisenhauer because those findings were brief and conclusory.  But the ALJ never found Dr. Eisenhauer's opinions to be brief and conclusory.  The Ninth Circuit said that.  Neither the District Court before it nor the Ninth Circuit on de novo review gets to weigh the facts.  Did the ALJ commit legal error or did the ALJ make a fact finding lacking the support of substantial evidence?  That is the sole function of the court.

Where the ALJ thinks that the report of a doctor belongs to another person and it turns out the ALJ was wrong and where the ALJ gives no other reasons for rejecting that opinion evidence, the court should NOT re-write the ALJ decision to give a reason that the ALJ did not offer.  "We are constrained to review the reasons that ALJ asserts.  SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)."  Connett v. Barnhart.  The Ninth Circuit lacks the judicial power to add reasons that the ALJ did not articulate.  This stands at the corner of administrative law -- don't excuse a decision because you think this ALJ might have decided it the way that you would because you, the court, are not the fact finder.

Spiva v. Astrue said it best: the government seems "determined to dissolve the Chenery doctrine in an acid of harmless error."

The Ninth Circuit should adopt and follow Spiva lest we all ingest a corrosive acid that gives everyone a jurisprudential ulcer.

Attmore v. Colvin - Medical Improvement Standard

The Ninth Circuit published its opinion in Attmore v. Colvin last week.  The court doesn't publish a lot of any kind of decision.  The case has to reinforce a proposition that the districts are getting wrong, and not just in that case, or say something new that the court has not previously addressed.  Most cases are too fact specific to warrant publication.  Which is why memoranda dispositions are not precedent for anything -- too short on the facts.

Attmore is a something new decision.  Once SSA finds the claimant disabled, the ALJ cannot cut the person off of disability without evidence of medical improvement related to the ability to perform work.  20 CFR 404.1594.  From the facts of the case and the district court decision, the ALJ reasonably found Attmore disabled.  It is also inferred from the decision that the ALJ could have reasonably found that Attmore's disability ceased.  But that isn't enough.  The actions, decisions, and determinations of SSA have to make sense in the whole, not in bifurcated analysis.

If Attmore was disabled for a discrete period of time and there is inadequate evidence of improvement, then SSA could not terminate the period of disability or entitlement to SSI.  The facts limit the reach of the holding.  Attmore had isolated pockets of doing well with other periods of not doing well.  Substantial evidence did not permit an inference of sustained capacity to engage in substantial gainful activity.  The keystone in that bridge is "sustained."

Without the prior finding of disability during the earlier period, Attmore would have had a different problem.  Attmore would have had to prove the inability to engage in work for 12 continuous months.  SSA would have argued, as it typically does, that the pockets of improvement destroy the durational requirement.  But that is a specious argument for another day and another case-focus.

The Court Orders the Payment of Benefits and SSA Drags Its Feet

The court ordered the payment of benefits on a date in the past.  Six months later, the agency has failed to process the claim.  The claimant is prejudiced by the delay because SSI benefits are paid in installments.  POMS SI 02101.020 effectuating 7502 of the Deficit Reduction Act of 2005 (P.L. 109-171). 

If SSA does not initiate the payment of benefits within 21 days, file a motion in the court asking the court to issue an order to show cause why the Commissioner of SS should not be held in contempt.  The claimant is entitled to be paid. 

The claimant should take a copy of the memo and judgment to the congressperson's office and start an inquiry. 

The attorney should write to the District Office and to the Appeals Council Court Case Branch with the judgment and the memorandum demanding immediate processing.  

Court Scrutiny of EAJA Settlements with a Federal Agency

The parties attempted to settle this matter, twice.  The court denied the opportunity to settle this matter because the Commissioner did not confess a lack of substantial justification.  Counsel  represents to the court that no other court in which he practices requires a confession of error or a confession of a lack of substantial justification in order to permit a represented party to resolve a matter of questionable or certain loss.  Would the court require the United States to admit to negligence in an action under the Federal Tort Claims Act in order to resolve a negligence claim?  Undoubtedly that would prevent resolution of claims because the alleged tort feasor rarely admits to liability in a settlement – the parties settle for reasons that they don’t admit to each other much less the world.  

The United States is never estopped in other cases because the Commissioner settled any claim arising under the EAJA.  New Hampshire v. Maine, 532 U.S. 742, 755 (2001) (citing Heckler v. Community Health Services of Crawford Cty., Inc., 467 U. S. 51, 60 (1984)).  Settlement does not conclusively establish weakness and the court should not penalize or discourage useful settlements.  Pierce v. Underwood, 487 U.S. 552, 568 (1988). 

And the risk to the fisc is significant.  The preparation of serial stipulations, motions, or other documents to evade the court’s requirement that a settlement include a confession of sin eats at the most valuable public and private asset of the parties – the time of their counsel.  Nor does this motion seeking the court finding of a lack of substantial justification help.  But for the settlement, this party would seek $4,600 in fees and expenses already itemized and additional time for the preparation of this motion.  Settlement allows the Commissioner to avoid some of its exposure in exchange for a sacrifice of some of the plaintiff’s potential fee recovery all with the serendipitous result that allowing parties to settle avoids the court’s expenditure of time and effort in the noble quest that the ably represented United States not give away the contents of the Treasury or the Social Security Trust Funds.   

In the final analysis, the court’s oversight of the EAJA process should not amount to a rigorous extraction of itemization and confession of each element of the fee request.  The court need exercise care in approving settlement of class actions because of the divergent interests of the class representatives, class counsel, and the members of the class.  Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (risk, expense, complexity, likely duration, amount offered, extent of discovery, stage of proceedings, experience and views of counsel, presence of a government entity, and view of the proposed class).   But those factors are not present in individual party litigation after the close of the merits.  Fees should not give rise to a second round of motion practice or litigation.  Hensley, 461 U.S. at 437.  The Supreme Court focused on the desired practice – “Ideally, of course, litigants will settle the amount of a fee.”  Id.  If the parties don’t settle, then and only then does the prevailing party bear the burden of proof of time, rates, and entitlement.  Id.  Where the parties resort to the ideal, the court should not put the parties to the expense of the unideal.  The court should approve the fee agreed upon by the parties.