Sunday, October 14, 2018

SSR 00-4p and Why the Courts Should Not Grant Auer Deference

We have the administrative notice regulations.  The regulations provide:
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
We would expect that the regulation has a predictable application.  Administrative notice accepts as presumed to be true the matters notices through the notice and comment process.  The APA, which may or may not apply in Social Security proceedings but is still instructive, provides that:
When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.
The DOT, CBP, and OOH form the foundation of the Medical-Vocational Guidelines, the "grids."  If the APA applies directly or by analogy, then a party can show that the rule directed by the grids is wrong.  But the agency recognizes that the adjudicator cannot rebut the conclusions directed by the grids.  This means that the ALJ cannot find unskilled work for a 55-year-old claimant limited to light or sedentary work.

That understanding brings the discussion back to SSR 00-4p.  We have already discussed the problem of the ruling attributing to the DOT a description of work as the maximum of each occupation.  In a nutshell, to summarize that post, the DOT describes the occupational definitions as representing the typical way in which work gets done in the occupations analyzed and described.

But SSR 00-4p does something else that is antithetical to SSR 83-5a:  it allows the agency adjudicator to rebut that which the agency has found to be true and presumed to be true through the notice and comment process.  Heckler v. Campbell lays out the scope of administrative notice encapsulated in the grids and in the administrative notice regulations:
The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them.The second inquiry requires the Secretary to determine an issue that is not unique to each claimant — the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U.S.App. D.C. 310, 319, 359 F.2d 624, 633 (1966) (en banc).
As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious.
 Campbell stands for a straightforward application of Chevron deference without applying the doctrine.  Part of that rests at the broad delegation of authority to the Commissioner to promulgate regulations to flesh out the Social Security Act.

As applied, SSR 00-4p permits the agency adjudicator to rebut application of the DOT to a particular fact question -- does a significant number of jobs exist?  That is the second Campbell inquiry:  the types and numbers of jobs that exist in the national economy.   The types and number of jobs is not unique to each claimant.  The types and number of jobs is a stable answer at any given point in time.  SSR 00-4p's grant of authority of an adjudicator to accept evidence contrary to administrative notice does so at the sacrifice of administrative efficiency and has led to the needless hindrance of an overburdened agency.

A second problem arises from the application of SSR 00-4p to the administrative notice regulation -- it carves out the DOT and its companion Selected Characteristics of Occupations as somehow functionally and substantively difference from CBP and the OOH. If anyone has the Census Reports or the occupational analyses prepared for SSA by the states, we should publish them.  But we do have access to CBP through the American FactFinder and BLS publishes the OOH describing all 840 SOC groups either in detail or in a snapshot

Under traditional treatment of agency subregulatory publications, the courts grant the power to persuade.  Under the evolving concepts under the Chevron watershed, court grant deference as long as the ruling is not plainly erroneous or inconsistent with the statute or regulation.  SSR 00-4p expands the scope of administrative notice to include the SCO.  The Commissioner can impose more rigorous standards on her adjudicators than either the statute or regulations require.  That deviation from the text of the regulation is a permissible deviation because it does not dampen the rights and legitimate expectations of the potential beneficiaries. 

SSR 00-4p renders administrative notice of CBP and the OOH a nullity.  That use of SSR 00-4p is inconsistent with the text of the administrative notice regulation.  Under either the power to persuade or the grant of deference standard, the Commissioner's resort to SSR 00-4p, as a basis for refusing to take notice and resolve evidentiary conflict with CBP and the OOH, fails.  The courts should not grant either respect or deference to SSR 00-4p vis-a-vis CBP or the OOH. 

Saturday, October 6, 2018

Office Helper -- Simple and Repetitive -- No on Both Counts

We spent this week, with a brief detour to look at the deference doctrine, addressing the issue of simple, repetitive tasks where the occupation has a reasoning level of 2.  The circuits are split on the question of whether reasoning level 3 has an apparent conflict with a limitation to simple, repetitive tasks.  This series of posts have the intent to establish the point that reasoning level 2 does not end the inquiry but instead establishes a data point requiring further analysis.  Some skilled occupations have a reasoning level of 2 with and without the temperament for repetitive work.  Some unskilled occupations have a reasoning level of 2 and require dealing with people as an important worker function and as a temperament for dealing with people beyond receiving instructions.  We are now ready to tackle the occupation of office helper and its identification as simple, repetitive work.  We start with the DOT:
DOT Narrative: 239.567-010 OFFICE HELPER (clerical) Performs any combination of following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine. May deliver items to other business establishments [DELIVERER, OUTSIDE (clerical) 230.663-010]. May specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical). May deliver stock certificates and bonds within and between stock brokerage offices and be designated Runner (financial). GOE: 07.07.03 STRENGTH: L GED: R2 M2 L2 SVP: 2 DLU: 81
The first part of the description that belies the simple, repetitive tasks (SRT) mantra is combination.  Office helpers do not perform one task all day long; office helpers perform a combination of job duties all day long.  They furnish; handle incoming mail; they handle the outgoing mail; they act as the conduit for intra-office communication, both oral and written; and they have file clerk responsibilities.  The task elements represent the typical way in which work gets performed in the national economy per the DOT.   The parts of the narrative description following by the word may are not typical work duties.  The DOT describes may functions:
Many definitions contain one or more sentences beginning with the word "May". They describe duties required of workers in this occupation in some establishments but not in others. The word "May" does not indicate that a worker will sometimes perform this task but rather that some workers in different establishments generally perform one of the varied tasks listed. In the example, the three sentences beginning "May notify. . .", "May mount. . .", "May position. . .", are "May" items. Do not confuse "May" items with the "May be designated. . ." sentence which introduces undefined related titles.
 Contrast the may statements with the task statements that precede the may statements:
Task element statements indicate the specific tasks the worker performs to accomplish the overall job purpose described in the lead statement. The sentences in the example beginning with "Turns handwheel . . . ", "Turns screws . . . ", "Sharpens doctor . . . ", "Aligns doctor . . . ", "Dips color . . . ", etc. are all task element statements. They indicate how the worker actually carries out the job duties.
 The SCO provides a better understanding of the occupation:
PHYSICAL DEMANDS:
CL
BA
ST
KN
CO
CW
RE
HA
FI
FE
TA
HE
TS
NA
FA
DP
AC
CV
FV
N
N
O
N
N
N
F
F
F
N
O
O
N
F
N
N
N
N
N

ENVIRONMENTAL CONDITIONS:
WE
CO
HO
WT
NO
VI
AT
MV
EL
HI
RA
EX
TX
OT
N
N
N
N
3
N
N
N
N
N
N
N
N
N
Frequent use of the hands; occasional speaking; occasional hearing; frequent near acuity; office noise.   Nothing surprising, just data.  The electronic files, the data described in the Revised Handbook for Analyzing Jobs (Dept. of Labor 1991) provides more data points and moves the analysis toward that non-SRT conclusion.
APTITUDES:
G
V
N
S
P
Q
K
F
M
E
C
3
4
4
4
4
3
4
3
3
5
5

TEMPERAMENTS: V
The aptitudes for average general learning ability, clerical perception, finger dexterity, and manual dexterity suggest that a third of population never had the innate ability to perform work and a person with impaired cognitive, perception, or dexterity cannot.  The presence of significant dexterity requirements also suggests that this occupation rests at the high end of that unskilled rating.  The temperament rating of V does require further exploration.  The RHAJ defines V as:
Preform a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.
Office helpers shift seamlessly from task to task without loss of efficiency or composure.  A limitation to occasional changes in a work setting would eliminate this occupation from consideration. 

The last sentence of the V-definition brings out the issue that I tend to ignore in examining unskilled work -- work field and MPSMS codes.  The OccuCollect DOT-SCO summary report lists the codes for the data:
MPSMS: 890 899 0
WF: 231 011 221
We have to go back to the RHAJ to define the three work fields.
231 VERBAL RECORDING-RECORD KEEPINGPreparing. keeping, sorting, and distributing records and communications, primarily verbal in character but including symbol devices, to communicate and systematize information and data by methods not specifically defined elsewhere. as in Developing-Printing (202), Imprinting (192), Photographing (201), Printing (191), and Stock Checking (22 I). Distinguish from Numerical Recording-Record Keeping (232), where records are also involved but the primary activity is computation.
011 MATERIAL MOVING
Conveying materials manually and by use of machines and equipment, such as cranes, hoists, conveyors, industrial trucks, elevators, winches, and handtrucks. Distinguish from Transporting (013), which involves conveyance of passengers and materials by common carrier.
221 STOCK CHECKINGReceiving, storing. issuing. requisitioning, and accounting for stores of materials and materials in use; involves the physical handling of the materials. Representative job activities covered by this work field include processing records and keeping materials on hand in balance with operational needs; assigning locations and space to items according to size, quantity, and type; verifying quantity, identification, condition, and value of items and the physical handling of items, such as binning, picking, stacking, and counting; receiving. checking. and delivering items; verifying completeness of incoming and outgoing shipments; preparing and otherwise committing stocks for shipment; keeping and conducting inventory of merchandise, materials, stocks, and supplies; filling orders and requisitions; and issuing tools, equipment, and materials.
Following the rabbit down the trail, we need to understand the definition of work fields
Work Fields. a component of Work Performed. are categories of technologies that reflect how work gets done and what gets done as a result of the work activities of a job: the purpose of the job. There are 96 Work Fields identified for use by the USES for classification of all jobs in the economy in terms of what gets done on the job.
Work Fields range from the specific to the general and are organized into homogeneous groups. based on related technologies or objectives. such as the movement of materials. the fabrication of products, the use of data. and the provision of services. Each Work Field is identified by a three-digit code, a brief descriptive title, and a definition. In many cases. a comment is included which enlarges upon the definition and limits or extends the application of the Work Field. Also, cross-references are frequently included which distinguish one Work Field from other related Work Fields
Why aren't Office Helpers simple, repetitive tasks:  (1) they perform a combination of duties; (2) they occasionally interact verbally with other people; (3) they perform a variety of duties; (4) they must have the ability to change duties without loss of efficiency or productivity; (5) they work in three different work fields; and (6) they work with three different categories of unrelated technologies or objectives.  Office Helper is not simple and it is not repetitive (substitute routine here for your case).





Friday, October 5, 2018

Kavanaugh, Deference, the Administrative State, and Smith v. Berryhill

We start with Garco Construction, Inc. v. Speer.  Justices Thomas and Gorsuch dissenting from the denial of certiorari complained that Garco was the right case to revisit and presumably gut if not kill the Auer deference doctrine.  In Perez v. Mortgage Bankers Ass'n, Justice Alito said that he waited for the right case to explore Seminole Rock, the progenitor of Auer deference.  In Decker v. Northwest Environmental Defense Center, Chief Justice Roberts stated that it may be appropriate to review Seminole Rock, but not in that case.  For those keeping score at home, that is four votes to revisit the Seminole Rock-Auer deference doctrine.  Kavanaugh will make five and that my friends is a majority of a nine-person court.  (I write this on the assumption that Judge Kavanaugh will be Justice Kavanaugh in three days or less). 

As a refresher - an agency promulgates regulations permitted by statute to fill in the gaps in the statute or to even interpret the statute.  As long as the interpretation is not inconsistent with the statute or plainly erroneous, the understanding of the statute in the regulations gets deference.  The understanding of the statute may not be the best interpretation, just not inconsistent or plainly erroneous.  That is the Chevron deference doctrine off the back of my hand.  Regulations go through notice and comment requiring the agency to respond.  That regulatory rule making process has a safeguard in the notice and comment process. 

But regulations are written by people and sometimes those regulations are ambiguous.  Enter the Seminole Rock-Auer deference doctrine.  The agency can tell us what the regulation means by stroke of the pen.  That interpretation does not need notice or comment.  No procedural safeguards exist.  The agency just changes its mind. 

Acquiescence Ruling 99-4(11) informed the Social Security world that the Eleventh Circuit decision in Bloodsworth v. Heckler was wrong.  Here is what the agency said in restricting Bloodsworth to the boundaries of the Eleventh Circuit:
The Eleventh Circuit held that an Appeals Council dismissal of a request for review of an ALJ decision is a "final decision of the Secretary made after a hearing" (now a "final decision of the Commissioner of Social Security") within the meaning of section 205(g) of the Social Security Act and, therefore, subject to judicial review.
Contrary to the holding of the court in Bloodsworth, SSA policy is that the regulations make a clear distinction in regard to rights of judicial review between dismissals and determinations on the merits by the Appeals Council. The Appeals Council may take three types of action following an ALJ decision: (1) it may grant a request for review; (2) it may deny a request for review; or (3) it may dismiss a request for review. The dismissal of a request for review of an ALJ decision is binding and not subject to further review. 20 CFR 404.972, 416.1472. See also 20 CFR 404.955, 416.1455, 422.210. The Appeals Council will dismiss a request for review if it is untimely filed and the time for filing has not been extended.[6]The Appeals Council may also dismiss a request for review for other prescribed reasons. 20 CFR 404.971, 416.1471.
SSA's position, based on the above-cited regulations, is that an Appeals Council dismissal is not a "final decision of the Commissioner of Social Security made after a hearing." Therefore, such a dismissal is not judicially reviewable under section 205(g) of the Social Security Act (42 U.S.C. 405(g)).
That issue is now before the Supreme Court in Smith v. Berryhill on a petition for certiorari.  The Solicitor General agrees with Smith that the AR followed by the Sixth Circuit is wrong and that the Supreme Court needs to resolve the issue to fix the split in the circuits. 

In the administrative state, the courts permit the agency to interpret the statute.  In the administrative state, the courts permit the agency to change the rules by interpreting the regulations.  When the agency takes these acts through the subregulatory process, the agency does so without notice and comment.  Our liberal colleagues may not like the conservatives on the Supreme Court but on this issue and in reigning in the agency's reinterpretations in flux, those justices hostile to the blowing winds of discretion are our friends. 

Thursday, October 4, 2018

Unskilled and Reasoning Level 2 -- Simple, Repetitive Work? Not Necessarily

Over the past two posts, we discussed reasoning level 2 occupations that are not simple, repetitive work because they are skilled SVP 5 and 6 occupations.  One group carried the temperament for repetitive work but had other characteristics that explained why there were not simple, repetitive work.  The second group did not carry the temperament for repetitive work and necessarily had other characteristics that betrayed the idea of R2 equals simple, repetitive work.  Academically interesting but not informative since the ALJ asks about the ability to perform other unskilled work in the majority of disability cases.  In this and the next few posts, we will use what we learned about R2 skilled work to declassify R2 unskilled work from that simple, repetitive work mantra. 

Consider this list of 24 light, unskilled, reasoning level 2 occupations that do not carry the temperament for repetitive work but do carry the temperament for people. 

DOTCode
DOTTitle
159.647-010
AMUSEMENT PARK ENTERTAINER
371.567-010
GUARD, SCHOOL-CROSSING
372.667-042
SCHOOL BUS MONITOR
311.472-010
FAST-FOODS WORKER
352.677-018
WAITER/WAITRESS, CLUB
311.477-010
CAR HOP
319.464-014
VENDING-MACHINE ATTENDANT
344.677-010
PRESS-BOX CUSTODIAN
349.677-018
CHILDREN'S ATTENDANT
342.667-014
ATTENDANT, ARCADE
324.577-010
ROOM-SERVICE CLERK
335.677-014
HOT-ROOM ATTENDANT
346.677-018
SECOND
358.677-014
LOCKER-ROOM ATTENDANT
353.667-010
ESCORT
349.667-010
HOST/HOSTESS, DANCE HALL
249.366-010
COUNTER CLERK
295.467-010
BICYCLE-RENTAL CLERK
295.467-018
HOSPITAL-TELEVISION-RENTAL CLERK
291.454-010
LEI SELLER
291.457-010
CIGARETTE VENDOR
292.457-010
NEWSPAPER CARRIER
205.367-058
TRAFFIC CHECKER
245.367-014
BLOOD-DONOR-UNIT ASSISTANT

Several occupations on the list jump out as identified by vocational experts.  Some, like cigarette vendor, do not exist or exist in dwindling numbers -- my hunch with no data exploration.  Each of the occupations listed carry a "S" for significant on that middle digit, the people code in the data-people-things coding.  This significant-not significant coding is found in a variety of sources that compile the electronic files of the DOT-SCO data set, such as Occu Collect.  The people codes range from 4 to 7 in this set.  The DOT defines those classifications:
4 Diverting: Amusing others, usually through the medium of stage, screen, television, or radio.
 5 Persuading: Influencing others in favor of a product, service, or point of view.
 6 Speaking-Signaling: Talking with and/or signaling people to convey or exchange information. Includes giving assignments and/or directions to helpers or assistants.
 7 Serving: Attending to the needs or requests of people or animals or the expressed or implicit wishes of people. Immediate response is involved.

The words "others" or "people" are in the categories used and are designated as significant.  The temperament for people from the Revised Handbook for Analyzing Jobs (Dept. of Labor 1991) refines the concepts:
Dealing with PEOPLE: Involves interpersonal relationships in job situations beyond receiving work instructions.
This definition of the people temperament includes more than the interaction of receiving instructions; this definition requires the ability to engage in interpersonal relationships.  People are not simple.  The fifth example has the most application to unskilled work activity.  The RHAJ describes dealing with people by exemplar:
 Receives callers at establishment, determines nature of business, and directs callers to destination.
Embedded in this definition are the functions of making determinations of the intent or need of another person and making a decision how or who the caller needs to go to meet that need.  The 24 light unskilled occupations do not qualify as simple, repetitive tasks despite the presence of reasoning level 2 because of the significance of dealing with people beyond receiving work instructions   Occupations without the temperament for repetitive or short cycle work and with a temperament are not simple nor are they repetitive.  




Wednesday, October 3, 2018

Reasoning Level 2, Not Repetitive and Yes, Still Skilled Work

We discussed the finding of reasoning level 2 work with a temperament for repetitive work activity as skilled work and therefore not simple repetitive work.  The DOT lists another 14 occupations that have the designation of reasoning level 2, do not have the temperament for repetitive work, and are SVP 5 and 6 -- skilled work.  The 14 occupations:

DOT Code
DOT Name
378.684-022
INFANTRY INDIRECT FIRE CREWMEMBER
502.664-018
STEEL-POURER HELPER
514.582-010
VACUUM CASTER
575.684-026
GATHERER
619.484-010
ORNAMENTAL-METAL-WORKER HELPER
720.684-014
PHONOGRAPH-CARTRIDGE ASSEMBLER
732.684-118
SKI REPAIRER, PRODUCTION
774.384-010
INSPECTOR II
805.664-010
BOILERMAKER HELPER II
842.684-014
DRY-WALL APPLICATOR
863.664-010
BLOWER INSULATOR
951.685-014
FIRER, LOW PRESSURE
952.687-014
SUBSTATION-OPERATOR HELPER
962.687-022
GRIP

Like the list of R2 repetitive occupations, none of these occupations have a significant need to deal with people so that is not the reason for their skilled classification. Inspector II has a significant worker function for data, compiling:
3 Compiling: Gathering, collating, or classifying information about data, people, or things. Reporting and/or carrying out a prescribed action in relation to the information is frequently involved.
That "3" is the fourth digit in the data-people-things cluster. These occupations require significant worker functions with things, mostly "4" with one each of 2, 5, and 7. From Appendix B of the DOT:
2 Operating-Controlling: Starting, stopping, controlling, and adjusting the progress of machines or equipment. Operating machines involves setting up and adjusting the machine or material(s) as the work progresses. Controlling involves observing gauges, dials, etc., and turning valves and other devices to regulate factors such as temperature, pressure, flow of liquids, speed of pumps, and reactions of materials.

4 Manipulating: Using body members, tools, or special devices to work, move, guide, or place objects or materials. Involves some latitude for judgment with regard to precision attained and selecting appropriate tool, object, or material, although this is readily manifest.

5 Tending: Starting, stopping, and observing the functioning of machines and equipment. Involves adjusting materials or controls of the machine, such as changing guides, adjusting timers and temperature gauges, turning valves to allow flow of materials, and flipping switches in response to lights. Little judgment is involved in making these adjustments.

7 Handling: Using body members, handtools, and/or special devices to work, move, or carry objects or materials. Involves little or no latitude for judgment with regard to attainment of standards or in selecting appropriate tool, object, or materials.
These worker functions implicate the SSA definition of skilled work:
Skilled work requires qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced. Skilled work may require laying out work, estimating quality, determining the suitability and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.
Infantry indirect fire crewman is the only occupation that requires a temperament for working under stress. It also requires exercising judgment. Including the infantry crewman occupation, 12 of the 14 reasoning level 2 non-repetitive occupations require the exercise of judgment as a temperament. Ten of those occupations require the temperament for attaining precise set limits and tolerances. The remaining two occupations (boiler maker II and grip) require the temperament for performing a variety of duties.

The three key temperaments of use of judgment, attaining set limits, and performing a variety of tasks are defined in the Revised Handbook for Analyzing Jobs (Dept. of Labor 1991) as:
Performing a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, techniques, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.
Attaining Precise Set Limits, TOLERANCES, and Standards: Involves adhering to and achieving exact levels of performance, using precision measuring instruments, tools, and machines to attain precise dimensions; preparing exact verbal and numerical records; and complying with precise instruments and specifications for materials, methods, procedures, and techniques to attain specified standards. 
Making JUDGMENTS and Decisions: Involves solving problems, making evaluations, or reaching conclusions based on subjective or objective criteria, such as the five senses, knowledge, past experiences, or quantifiable or factual data.
Performing a variety of tasks, attaining precise set limits, and making judgments are quintessentially inconsistent with a limitation to simple repetitive or routine tasks. Next we will look at unskilled occupations that share these temperaments with the same question, are they simple repetitive or routine tasks.