Social Security Ruling 00-4p Warrants No Deference

Social Security Ruling 00-4p warrants no deference concerning the content of the Dictionary of Occupational Titles (DOT).  The ruling states in relevant part that:

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.

It all started in 1995 with the Eighth Circuit decision in Jones v. Chater. The court said:

In other words, in our view, the reference book gives the approximate maximum requirements for each position, rather than their range.

Several courts (in about 30 cases) cite to Jones for that proposition.   The Commissioner published SSR 00-4p with the statement we looked at above.  The question is whether the DOT lists the maximum requirements or something else.  Examining the DOT answers that question:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.

See DOT Appendix D.   Typical does not imply maximum.  Typical implies the average.  Don't take my word for it, use the dictionary.  Merriam Webster defines typical:

1. a :  combining or exhibiting the essential characteristics of a group typical suburban housesb :  conforming to a type a specimen typical of the species

By defining the DOT descriptions as typical and using the English language to do so, the Department of Labor set forth the naked proposition that the DOT characteristics set forth the essential characteristics of the work set forth in the DOT itself.

When the Commissioner or a court says that the DOT describes the maximum requirements of the occupations defined, put on the brakes and cite to the DOT Appendix D.  The DOT does not belong to SSA and the SSA does not get to construe the DOT contrary to the construction provided by Labor.  The ruling gets no deference in defining the content of the DOT.  The ruling defines the concept of administrative notice.  On that latter point, the Commissioner gets deference.  

High School Education in Another Language is Irrelevant

Recent hearing, a claimant over the age of 50 and limited to light work lacking the ability to communicate in English -- ALJ says that claimant has a high school education in Mexico.  So what, right?  Let's look at the regulations and explanations found in POMS/HALLEX.

20 C.F.R. §§ 404.1564(b)(5); 416.964(b)(5) provides:

Inability to communicate in English. Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do. It generally doesn't matter what other language a person may be fluent in.

Hmm, regardless of the amount of education that the person may have and it doesn't matter what language the person is fluent in.

20 C.F.R. part 404, subpart P, Appendix 2 § 201.00(h)(1)

Accordingly, a finding of “disabled” is warranted for individuals age 45-49 who:

(i) Are restricted to sedentary work,

(ii) Are unskilled or have no transferable skills,

(iii) Have no past relevant work or can no longer perform past relevant work, and

(iv) Are unable to communicate in English, or are able to speak and understand English but are unable to read or write in English.

  There it is in subparagraph (iv) -- the inability to communicate in English or able to speak and understand English but unable to read and write along with the rest of the profile results in a finding of disability.  Appendix 2, Rule 201.17 applies even with a high school or more education in another language if the person is illiterate in English. 

Appendix 2 § 202.00(d)

Where the same factors in paragraph (c) of this section regarding education and work experience are present, but where age, though not advanced, is a factor which significantly limits vocational adaptability (i.e., closely approaching advanced age, 50-54) and an individual's vocational scope is further significantly limited by illiteracy or inability to communicate in English, a finding of disabled is warranted.

 Same analysis.  Appendix 2, Rule 202.09 applies with illiteracy or inability to communicate in English.

And we have to remember the definition of high school education. 20 C.F.R. §§ 404.1564(b)(4); 416.964(b)(4) includes the person obtaining language skills.  The regulations describe the pertinent language skills as English.  

In case anyone is confused by the regulation, POMS 25015.010 describes the issue:

When to apply illiterate or unable to communicate in English

This category applies when the claimant is unable to:

• read a simple message (such as short instructions or inventory lists) in English,
• write a simple message in English,
• speak or understand a simple message in English, or
• any combination of the above.

 A high school education in another language -- a college degree in another language -- is irrelevant to the presence of disability under Rules 201.17, 202.09, and 203.01, 203.02, 203.10. 

Order Clerk, Food and Beverage, 209.567-014

Ah, the old order clerk, food and beverage, occupation ... how many of them really exist?  We follow our standard methodology starting with the DOT.  

I like the Dictionary of Occupational Titles (DOT) Job Descriptions.  The full DOT narrative and trailer:

209.567-014 ORDER CLERK, FOOD AND BEVERAGE (hotel & rest.)

    Takes food and beverage orders over telephone or intercom system and records order on ticket: Records order and time received on ticket to ensure prompt service, using time-stamping device. Suggests menu items, and substitutions for items not available, and answers questions regarding food or service. Distributes order tickets or calls out order to kitchen employees. May collect charge vouchers and cash for service and keep record of transactions. May be designated according to type of order handled as Telephone-Order Clerk, Drive-In (hotel & rest.); Telephone-Order Clerk, Room Service (hotel & rest.).
GOE: 07.04.02 STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 77

Now slip over to the O*NET crosswalk.  Order Clerk, food and beverage, belongs to a broader group of Order Clerks, O*NET or SOC code 43-4151.  That group contains 196,000 employees or jobs.  From the custom report, we find that the group of order clerks contains 11 different DOT codes.  The custom report for work context tells us that 93% of the jobs require standing less than half the time or never.  

The O*NET detail page contains information.  Job zone tells us that these occupations usually require a high school diploma and have an SVP range of 4.0 to > 6.0.  The education breakdown confirms that 88% of the jobs require a high school education, some college, or an associate's degree.  

The O*NET links to the Occupational Outlook Handbook under the heading of Information Clerks.  This broader group includes 10 SOC codes, including order clerks.  The "how to become one" page describes the training as "short-term."  This translates to unskilled for SSA purposes with the OOH Glossary.  

Back to the job outlook tab and the XLSX link to the employment projections.  The EP confirms 195,900 jobs.  The DOT told us that order clerk, food and beverage, works in the hotel and restaurant industry.  The EP uses the NAICS codes from the Census Bureau.  The accommodation sub-sector (721000) employs 200 order clerks.  The food services and drinking places sub-sector (722000) employs 1,800 order clerks.  That's it.  That covers all hotel (accommodation) and restaurant (food and drinking) industries.  How many order clerk, food and beverage, jobs are there out there?  About 2,000.  

We can check the occupation-industry matrix sorted by industry to double check.  That page gives us a link to sector 72, accommodation and food services.  Scrolling down the page and looking for SOC code 43-4151 ... it isn't there.  There are too few jobs to warrant a line on the employment projections for the industry sector.  Order clerks (SOC 43-4151) are reported in the sub-sector reports (Accommodation 721000 and Food Services and Drinking Places 722000) but not in the sector report.  The sub-sector reports give employment numbers of 200 and 1,800.  In all the reports, the percent of industry employment that work as order clerks is less and 0.1%, so the reports state 0.0%.  

The next time a vocational expert suggests order clerk, food and beverage, as a viable occupation at step five of the sequential evaluation process, ask them to break it down by industry. 

EAJA Timeliness and Prematurity

Every once in a while, a court will enter an order making a party the prevailing party in litigation involving the United States.  The court sometimes does not formally enter judgment.  Because of the 60 days in which to appeal a judgment of a District Court or 90 days in which to seek certiorari from a decision of the Court of Appeals, the intrepid attorneys for the prevailing party may wish to file before the entry of formal judgment or before the expiration of the time in which to appeal.

The Commissioner will complain that the application is premature.  Judgment has not been entered or the time in which to appeal has not expired.  These are spurious arguments designed to extend litigation, creates satellite litigation, and do not assist the Court in management of its docket.  A recent decision from the Court of International Trade, in Former Employee of Marlin Firearms, Co. v. United States Secretary of Labor, says the following about prematurity:

Regardless, the plaintiff did not make his application prematurely. Section 2412(d)(1)(B) requires “[a] party seeking an award of fees and other expenses” to submit its application “within thirty days of final judgment in the action.”  Legislative history and the weight of case law correctly interprets this language as creating only a final deadline for filing, rather than also establishing a time before which applications are premature, i.e., the entry of final judgment. See Equal Access to Justice Act, Extension and Amendment, H.R. Rep. 99-120(I), at 18 n.26 (1985), as reprinted in 1985 U.S.C.C.A.N. 132, 146 n.26 (stating that “fee petitions [under the EAJA] may be filed before a ‘final judgment,’” and disavowing “the overly technical approach” of a case holding that applications filed prior to final judgment are premature) (emphasis added); see, e.g., Haitian Refugee Ctr. v. Meese, III, 791 F.2d 1489, 1495 (11th Cir. 1986) (“[S]ince the district court has not entered final judgment, since the thirty-day limit has not begun, and sincethe time to appeal has not run, the application for attorneys’ fees was timely filed.”), vacated on other grounds, 804 F.2d 1573 (11th Cir. 1986); Gonzalez v. United States, 44 Fed. Cl. 764, 767 (1999) (“Congress did not intend to proscribe EAJApetitions filed prior to the start of the 30-daylimitations period.”). But see Perez v. Guardian Roofing, No. 3:15-cv-05623-RJB, 2016 WL898545, at *3 (W.D. Wash. Mar. 9, 2016) (“[Defendant’s] EAJA Counterclaim is premature,because EAJA contemplates that the submission of an EAJA application follows, not precedes, final judgment. This interpretation is supported by use of the word ‘within,’ . . . versus use of words such as ‘before’ or ‘prior to[.]’”). Because the plaintiff did not file the application prematurely, and because, regardless, Labor has waived its objection to the application’s timing,the court will consider the merits of the plaintiff’s motion.

 The prevailing party needs to prevail, not have judgment entered.  Animal Lovers v. Carlucci, 867 F.2d 1224, 1225 (9th Cir. 1989); Marks v. Clarke, 102 F.3d 1012, 1034 (9th Cir. 1996).  The whole idea of a premature EAJA petition is wrong.  Labor was wrong to wrong to raise it in Marlin Firearms but right to waive it.  

Free v. Social Security Administration, Atmospheric Conditions Includes Dust, Fumes, and Gases

Free v. Social Security Administration is an unpublished opinion from the Sixth Circuit.  The court addressed the question of exposure to dust, gases, fumes, and other irritants in the occupation of a packager, hand.  The court said:

The job does not require exposure to dust, fumes, odors, and gases or more than occasional stooping, kneeling, and crawling, and, although the job does require constant reaching, it does not explicitly require overhead reaching.See id. § 920.587-018, 1991 WL 687916.

What the court said is false. DICOT 920.587-018 – packagers, hand.  The Job Browser Pro report summary of the physical demands:

COMMON ENVIRONMENTAL WORKING CONDITIONS (to which the worker is exposed):

  WE - Exposure to weather - Not Present

  CO - Extreme cold - Not Present

  HO - Extreme heat - Frequent

  WT - Wet and/or Humid - Not Present

  NO - Noise Intensity Level - Loud

  VI - Vibration - Not Present

  AT - Atmospheric Conditions - Frequent

  MV - Moving Mechanical Parts Hazard - Not Present

  EL - Electrical Shock Hazard - Not Present

  HI - High, Exposed Place Hazard - Not Present

  RA - Exposure to Radiation - Not Present

  EX - Explosion Hazard - Not Present

  TX - Toxic/Caustic Chemical Hazard - Not Present

  OT - Other Environmental Conditions - Not Present

The question is simple, what does frequent exposure to atmospheric conditions mean?  The SCO defines atmospheric conditions as:

7. ATMOSPHERIC CONDITIONS

Exposure to such conditions as fumes, noxious odors,

dusts, mists, gases, and poor ventilation, that affect the

respiratory system, eyes, or the skin. In Part A, the rating

for the Atmospheric Conditions component appears

seventh in the Environmental Conditions column under

the vertical heading AC.

SCO Appendix D.  

Either the parties failed to provide the court with the definition of atmospheric conditions or the court ignored the meaning of atmospheric conditions.  I assume the former.   A winnable case lost for failure to read the SCO. 

Unskilled Light Work and the Occupational Outlook Handbook

The Dictionary of Occupational Titles lists 1,574 light unskilled occupations.  We can match the DOT code to the corresponding O*NET code.  The O*NET code gives us the Standard Occupation Classification codes.  The Occupational Outlook Handbook uses the SOC codes.  The O*NET and the OOH point their electronic fingers back at each other for more information, except the O*NET ignores the OOH for occupations not covered in detail.

Both the OOH and O*NET give detail about education and training time.  Today, we examine the list of light unskilled work and the corresponding OOH entries.

Two occupations are in groups that require post-secondary education and either no training or short-term training.  Education after high school generally substitutes for training time, not one for one, but it does substitute.  These are not in a classification of unskilled.

Six occupations are in groups that require some college.  Four require long-term training and two require moderate-term training.

Four occupations are in groups that require an associates degree and moderate-term training.

Forty-nine occupations are in groups that require a high school education and long-term training.

Eight hundred seventy-eight occupations are in groups that require a high school education and moderate-term training.  Most of these fall into production workers, all other (SOC 51-9199).

Two occupations are in groups that require no formal education but do require long-term training.

Twenty-three occupations are in groups that require no formal education but do require moderate-term training.

One occupation is in a group that requires a high school education and has no training time.

One hundred eighteen occupations are in groups that require a high school education and short-term training.

Four hundred eighty-four occupations are in groups that require no formal education and have short-term training.

The occupational base for light unskilled work from the DOT translates over to the OOH with 603 occupations.  Certainly the number of jobs that are unskilled in the OOH with no more than a high school education expand the list.  But 603 occupations is a far cry from the 1,600 promised in the Appendix 2 Medical-Vocational Guidelines.