Monday, May 29, 2017

No High School, Unskilled Work and the OOH

In our unending quest to put consistency into the adjudicative mode, here is the list of the 74 Occupational Groups, according to BLS, that do not require a high school diploma (or equivalent) and have either no training time or short-term on-the-job training:

SOC Description Code
Hosts and hostesses, restaurant, lounge, and coffee shop 35-9031
Models 41-9012
Agricultural equipment operators 45-2091
Agricultural workers, all other 45-2099
Amusement and recreation attendants 39-3091
Automotive and watercraft service attendants 53-6031
Bartenders 35-3011
Building cleaning workers, all other 37-2019
Carpet installers 47-2041
Cashiers 41-2011
Cleaners of vehicles and equipment 53-7061
Combined food preparation and serving workers, including fast food 35-3021
Construction laborers 47-2061
Conveyor operators and tenders 53-7011
Cooks, fast food 35-2011
Cooks, institution and cafeteria 35-2012
Cooks, short order 35-2015
Counter and rental clerks 41-2021
Counter attendants, cafeteria, food concession, and coffee shop 35-3022
Crossing guards 33-9091
Cutters and trimmers, hand 51-9031
Derrick operators, oil and gas 47-5011
Dining room and cafeteria attendants and bartender helpers 35-9011
Dishwashers 35-9021
Door-to-door sales workers, news and street vendors, and related workers 41-9091
Entertainers and performers, sports and related workers, all other 27-2099
Farmworkers and laborers, crop, nursery, and greenhouse 45-2092
Farmworkers, farm, ranch, and aquacultural animals 45-2093
Food preparation and serving related workers, all other 35-9099
Food preparation workers 35-2021
Food servers, nonrestaurant 35-3041
Graders and sorters, agricultural products 45-2041
Grounds maintenance workers, all other 37-3019
Helpers, construction trades, all other 47-3019
Helpers--brickmasons, blockmasons, stonemasons, and tile and marble setters 47-3011
Helpers--carpenters 47-3012
Helpers--painters, paperhangers, plasterers, and stucco masons 47-3014
Helpers--production workers 51-9198
Helpers--roofers 47-3016
Hoist and winch operators 53-7041
Home health aides 31-1011
Hunters and trappers 45-3021
Industrial truck and tractor operators 53-7051
Insulation workers, floor, ceiling, and wall 47-2131
Janitors and cleaners, except maids and housekeeping cleaners 37-2011
Laborers and freight, stock, and material movers, hand 53-7062
Landscaping and groundskeeping workers 37-3011
Laundry and dry-cleaning workers 51-6011
Lifeguards, ski patrol, and other recreational protective service workers 33-9092
Loading machine operators, underground mining 53-7033
Machine feeders and offbearers 53-7063
Maids and housekeeping cleaners 37-2012
Material moving workers, all other 53-7199
Meat, poultry, and fish cutters and trimmers 51-3022
Mine shuttle car operators 53-7111
Motion picture projectionists 39-3021
Motor vehicle operators, all other 53-3099
Packers and packagers, hand 53-7064
Parking lot attendants 53-6021
Personal care aides 39-9021
Pipelayers 47-2151
Pressers, textile, garment, and related materials 51-6021
Refuse and recyclable material collectors 53-7081
Retail salespersons 41-2031
Rock splitters, quarry 47-5051
Sewing machine operators 51-6031
Shampooers 39-5093
Slaughterers and meat packers 51-3023
Stock clerks and order fillers 43-5081
Tank car, truck, and ship loaders 53-7121
Taxi drivers and chauffeurs 53-3041
Telemarketers 41-9041
Ushers, lobby attendants, and ticket takers 39-3031
Waiters and waitresses 35-3031

This information corresponds to the information in the Occupational Outlook Handbook. As we have discussed before, the Commissioner of Social Security takes administrative notice of the OOH.   

Saturday, May 27, 2017

The Vocational Expert is Not a Statistician

So sayeth the ALJ in a decision to deny benefits.  A claimant may not demonstrate that the vocational expert uttered bogus numbers of jobs by pointing to statistical evidence subject to administrative notice.  We have entered full-force into the world of ipse dixit.  The jobs exist in not just significant numbers but huge numbers because the vocational expert breathed them into existence.

The vocational expert testified -- you know, under oath -- that packers exist at all exertional levels and that 30,000 existed in the national economy at the sedentary range of exertion.  No DOT code, not a sedentary one anyway, just because the vocational expert said so.  That is ipse dixit.

There are 111 DOT codes with the title of "packer."  None of those require sedentary exertion.  Of that accumulation of occupations, 61 of them belong to packers and packagers, hand (SOC 53-7064).  Six belong to machine bearers and off-loaders (SOC 53-7063).  Three belong to the ubiquitous production workers, all other (SOC  51-9199).  The Bureau of Labor Statistics (BLS) scatters the rest in other occupational groups in clusters of eight, nine, eleven, and so forth.  Our intrepid vocational expert identified packager, hand (DOT 920.587-018).  For those so inclined to look it up -- yes, packager, hand requires medium exertion.  It belongs to packers and packagers, hand (SOC 53-7064).  And yes, the claimant has a limitation to sedentary exertion.

I know my way around the DOT, OOH, CBP, O*NET, and their related publications.  How does anyone cross-examine this kind of bile in the context of an administrative hearing that is supposed to last 45 minutes.  This occupation alone takes at least two hours to unpack, pun accidentally discovered and used with glee.

Start with the size of the occupational group of packers and packagers, hand (SOC code 53-7064).  BLS put 59 DOT codes inside of the group.  BLS counts jobs, after all, it specializes in labor statistics.  BLS estimates that the occupational group consists of 705,660 jobs as of May 2016.  This is up from 695,000 in May 2014.  Engaging in gross, and statistical improper aggregation, the average DOT code represents circa 12,000 jobs.  Two of the DOT codes in this group require sedentary exertion.

Ampoule sealer (DOT 559.687-014) exists in the pharmaceutical industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

Hand bander (DOT 920.687-030) exists in the tobacco manufacturing industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

First, let's to the O*NET.  This comes from a joint effort of the Department of Labor and the Employment and Training Administration.  The O*NET says that packers and packagers, hand spend time standing on the job:

98 
Spend Time Standing — How much does this job require standing?
92     Continually or almost continually
8     More than half the time
0    About half the time
0    Less than half the time
0    Never
The O*NET reports that packers and packagers, hand spend time sitting on the job:

8 
Spend Time Sitting — How much does this job require sitting?
0    Continually or almost continually
0    More than half the time
0    About half the time
31     Less than half the time
69     Never
While we get slightly different pictures of the occupational group depending on whether we look at standing or sitting, one conclusion remains consistent.  None of the workers sit more than half the time or continually on the job.

By now, my confidence level in the vocational expert assertion that packing jobs exist at the sedentary range of exertion dwindles.  Let's move to the Occupational Outlook Handbook (OOH), linked at the bottom of the page of the detail report tab in the O*NET for this group.  The OOH puts packers and packagers, hand with other hand laborers and material movers.  The OOH reports employment by industry for each SOC in the group.

On line 45 of the report, we find a report of packers and packagers, hand in the pharmaceutical and medicine manufacturing industry for our ampoule sealer occupation:

                                                                                                                       Percent of
Code              Title                                                                  Employment   Industry

325400          Pharmaceutical and medicine manufacturing   2.8                   1.0

BLS reports employment in thousands, so 2,800 jobs or 1.0% of total industry employment.

But I do remember that the vocational expert told us that packers exist at all levels of exertion.  I suspect that Big Pharm employs a few hand packagers, that medium occupation.  So the number is less than 2,800, probably less than half.  Sealing ampoules is probably a fraction of the packing that goes on in the manufacture of pharmaceutical and medicine.  Most of my clients get most of their medicine in tablet form.

Moving right along to hand bander occupation in the tobacco industry.  The employment projection reports on line 26:

                                                                                                                     Percent of
Code              Title                                                                Employment   Industry

3122000        Tobacco manufacturing                                  0.3                   2.2

Read that again -- 300 packers and packagers, hand in the tobacco industry.  I suspect, having retained my commonsense, that the tobacco industry produces a lot more than cigars and pack a lot more than the banding of cigars with a wrapper.  I could be wrong, but I doubt it.

Let's go to the second item of administrative notice, just in case some ALJ might want to swill the kool-aid of vocational expert ipse dixit.  County Business Patterns reports:

                                                                                                             Paid
Geograph.    NAICS     Industry                                              Year    Employment
United States3122Tobacco manufacturing201513,872
United States31223Tobacco manufacturing201513,872
United States312230Tobacco manufacturing201513,872
United States3254Pharmaceutical and medicine manufacturing2015242,329
United States32541Pharmaceutical and medicine manufacturing2015242,329
United States325411Medicinal and botanical manufacturing201528,950
United States325412Pharmaceutical preparation manufacturing2015146,113
United States325413In-vitro diagnostic substance manufacturing201525,818
United States325414Biological product (except diagnostic) manufacturing201541,448

Applying 2.2% of industry employment for tobacco manufacturing yields 305 jobs.  Check.

Applying 1.0% of industry employment for pharmaceutical and medicine manufacturing yields 2,423 jobs.  Slightly lower, but check.  We could back out jobs in codes 325413 and 325414 and reduce the number of jobs by 760, but at this point, we don't have to.

I have one request from the ALJ corps.  Don't place productivity as the end all and be all of the process.  Insist on a level of honesty and integrity that passes the disgusting test.  This example of garbage testimony and equally garbage finding of fact -- just disgusting.

Friday, May 19, 2017

The Five-Day Rule

Taking a break from the  vocational issues that have dominated this blog lately.  On May 5, 2017, the five-day rule for the admission of evidence became effective.  We explore the boundaries and implications of the rule. 

20 CFR §§ 404.935(a) and 416.1436(a) provide in relevant part that:
Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in §404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.
SSA states the obligation in the alternative.  Either submit the evidence five business days before the hearing or inform the ALJ of the existence of the evidence five business days before the hearing.  If the representative learns of new evidence and promptly informs the ALJ within five days of the hearing while contemporaneously making the request for records, the representative and the claimant has complied with the regulation. 

The regulations address the failure to comply with the five-day rule to inform or submit.  Subsection (b) states:
If you have evidence required under §404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: ...
This subsection confirms the reading of subsection (a).  The ALJ will accept the evidence after the passage of the deadline if the ALJ has not issued a decision and the claimant/representative did not inform the agency about the evidence before the deadline.  We don't get to the conditions for considering the late evidence if the predicate of the syllogism does not apply. 

The solution is self-evident.   Get a list of care providers from the claimant and submit that list to SSA a month or two before the hearing.  If the representative hits a snag in the collection of evidence, the informing the ALJ of the existence of the evidence 45 days ago protects the "late submission."  The regulation does not force an emergency record procurement with the attendant costs to the claimant.  Inform the ALJ of the care providers, all of them, well before the five days expires.