Social Security Rulings 96-7p and 16-3p

The Commissioner published Social Security Ruling 96-7p to establish the bases on which the agency will assess the credibility of claimants on July 2, 1996.  The Commissioner entitles the interpretive ruling as, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an individual's Statements.  The ruling uses the words credibility, credible, or other form of the word 52 times.

The Commissioner published Social Security Ruling 16-3p effective March 28, 2016. The purpose of the ruling appears under the heading -- Purpose:

We are rescinding SSR 96-7p: Policy Interpretation Ruling Titles II and XVI Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements and replacing it with this Ruling. We solicited a study and recommendations from the Administrative Conference of the United States (ACUS) on the topic of symptom evaluation. Based on ACUS's recommendations and our adjudicative experience, we are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.

(We discussed this last year.)  There it is -- credibility is a stranger to the regulations.  The character of the person, nestled at the heart of the credibility analysis, has no connection to the two-part analysis of the claimant's subjective perception of limitation on the ability to function.

The question heats up because the courts have thousands of cases pending where the ALJ corps used the credibility analysis from SSR 96-7p to trash the claimant's testimony.  The Commissioner now defends those decisions as compliant with SSR 96-7p and the SSR 16-3p does not apply to decisions made prior to March 28, 2016.  I call BS.

The rulings do not have force of law.  They warrant deference only to the extent that they interpret either the statute or the regulations.  When the rulings interpret the statute or regulations, they receive deference unless plainly erroneous or inconsistent with the statute or regulations.  Quang Han Van v. Bowen; Holohan v. Massanari   Because SSR 96-7p lacks force of law, any compliance with a discarded interpretation of the regulations or statute is irrelevant.  The court does not enforce the ruling; the court enforces the regulation as interpreted by the ruling under the doctrine of deference.  Auer v. Robbins ; see also Social Security Ruling 00-1c (Supreme Court defers to a policy memorandum).

 While the rulings bind the ALJ, a rescinded ruling does not bind anyone.  Because the Commissioner states as a matter of executive discretion that SSR 96-7p does not reflect an accurate reading of the regulation and is actually inconsistent with the regulation, no court should use it for guidance.  The Commissioner informs the public and the court that SSR 96-7p is wrong.  The proper inquiry turns on consistency with the medical evidence.  SSR 16-3p.  To the extent that an ALJ decision rejected limitation testimony based on credibility rather than consistency with the medical evidence, the ALJ erred.  The inquiry must turn to materiality. 

Production Workers, All Other -- Are There Significant Numbers of Unskilled Jobs?

We discuss, again, the often cited occupational group of production workers, all other.  This occupational group travels under the Standard Occupational Classification code 51-9199.  The O*NET lists 1,590 DOT codes in this group.  The Occupational Outlook Handbook moved 60 DOT codes to food processing workers, all other (SOC 51-3099) between 2010 and 2012.  We can prove that another day.  The focus of this article addresses the question of whether unskilled production worker, all other jobs exist in significant numbers.

We start with the concept of administrative notice.  The Commissioner "will take administrative notice" of the OOH.  20 C.F.R. §§ 404.1566(d)(5); 416.966(d)(5).  Because the Commissioner takes administrative notice of the OOH, we can use it to rebut vocational expert testimony.  Since the Commissioner takes administrative notice of the OOH, we need to examine what it says about this huge accumulation of DOT codes:

Production workers, all other

All production workers not listed separately.

• 2014 employment: 236,200
• May 2015 median annual wage: $27,950
• Projected employment change, 2014–24:
  • Number of new jobs: 7,700
  • Growth rate: 3 percent (Slower than average)
• Education and training:
  • Typical entry-level education: High school diploma or equivalent
  • Work experience in a related occupation: None
  • Typical on-the-job training: Moderate-term on-the-job training
• O*NET:
• 51-9199.00 - Production Workers, All Other
• 51-9199.01 - Recycling and Reclamation Workers  

The occupational group requires a high school diploma or equivalent.  That means that the majority of these occupations are unavailable to individuals with a limited or marginal education absent some factor that suggests a higher educational level capacity than achieved in school.  

The occupational group does not require experience.  These are entry-level jobs.  

The occupational group entails moderate-term on-the-job training.  These jobs are not unskilled.  

Are there some unskilled occupations and jobs inside of production workers, all other?  Maybe, but not very many.  The occupational group exists in industries not encompassed by the DOT.  The economy changed between 1977 when some of the DOT codes were last updated and changed again since 1991 when Labor last published the revised DOT.  The OOH is a source of administrative notice; it is listed on the Vocational Expert Handbook as mandatory familiarity for the vocational expert.  But when a vocational expert testifies to 30,000 sedentary unskilled and 100,000 light unskilled jobs in this occupational base, the responsible representative must ask for an explanation.  Ignorance of the OOH just means that the witness cannot provide a reasonable basis for resolving the conflict.