Thursday, April 19, 2018

The Occupational Outlook Handbook -- Equivalence to the DOT

A number of district court cases have rejected the proposition that an ALJ must consider the occupational information contained in the Occupational Outlook Handbook to the vocational expert testimony.  The district court decisions rest on Shaibi v. Berryill883 F.3d 1102, 1109 (9th Cir. 2018).  The quest is to fill in the gaps.  

Shaibi rejected the theory that the ALJ had a sua sponte obligation to compare County Business Patterns and the OOH to the vocational expert's job numbers.  The court found no authority for forcing the ALJ to take sua sponte administrative notice of the economic data contained in CBP or the OOH.  Slip op. at 16.  The court continued to apply the existing precedent that the ALJ could rely on the vocational expert testimony as to job numbers.  Slip op. at 17.  

The OOH states not only the number of jobs but also the typical education, training, and experience requirements of work.  For example, production workers, all other (SOC 51-9199) provides:

Production workers, all other
All production workers not listed separately.
Education and training are not economic data.  They are baseline requirements.  The OOH glossary defines the terms -- moderate means more than 30 days. The glossary defines entry level as the starting level for those new to the job.  Education, training, and experience are phrased in terms of the level typically needed.  

Is that different from the DOT?  The DOT states that it describes the typical way in which occupations are performed.  DOT App. D.  Compare that statement in the DOT to the SSA view of the DOT -- that it describes the maximum requirements that the occupations requires.  SSR 00-4p.  So if the ALJ should compare the VE testimony to the maximum requirements of work, then the ALJ ought to glance at the typical requirements.  

Some of the district court cases are pending in the Court of Appeal.  I will report back to you in 24 months.  

Wednesday, March 28, 2018

Cross-examination on the Sit vs. Stand/Walk Option

This is a common fact pattern with nearly infinite variety -- assume the person needs a sit vs. stand/walk option at will, every 30 minutes, every hour, etc.  Vocational experts identify cashier, assembly, and bench work.  Some identify clerical occupations.  The key is curiosity.  

I am fascinated by how people know bits and pieces of information.  Did you read that; someone tell you that; or just have anecdotal experience with that particular phenomenon?  When vocational experts testify to the existence of work, they bring out the enigma box with the label, "I have 30 years of experience."  That is sufficient if we let that statement ride.  
How many times have you performed a job analysis on this cashier occupation?
How many different regions of the country have you been to and conducted a job analysis of this cashier occupation? 
Do you believe that you have a statistically relevant sample on which to extrapolate to the 155 million jobs in the US economy?
It is not enough to complain that the vocational expert has just made up testimony out of whole cloth.  The representative needs to ask questions that prove the lack of statistical basis for the testimony and either a concession that the Department of Labor does or that the vocational expert is ignorant of whether the Department of Labor collects that data.  Then go get and present the data to the ALJ.  
Cashiers have the option of sitting vs. standing/walking at will in 5.6% of jobs
Cashiers are on their feet 87.5% of the day at the 10th percentile.  
The vocational expert testified to 300,000 cashier positions requiring light exertion with standing/walking limited to six hours in a day.  The add-on of the sitting vs. standing/walking option led to the vocational expert eroding that number by half.  The ALJ will find 150,000 jobs significant; everyone in process knows that.  These two Occupational Requirements Survey reports first gutted the existence of light cashier jobs that require six hours of standing/walking and then eviscerated the concept that half of light cashier jobs have the sitting vs. standing/walking option.  

There are 3.55 million cashier jobs in the nation.  Cashiers don't require a high school education nor do they require either work experience or the acquisition of work skills per the OOH.  The ORS tells us that 20.8% of those jobs require light exertion.  How many cashiers get to sit for at least two hours per day, when they want to sit, for as long as they want to sit?  The statistics don't parse down to answer that question but our first quest is to prove that the vocational expert lacks the foundation to tell us that the number is half the cashier II jobs cited by Job Browser Pro.  


Friday, February 16, 2018

Has Document Preparer Turned Into Document Scanner?



Vocational expert faced with a sedentary unskilled residual functional capacity identifies the occupation of document preparer. ALJ turns the questioning over to the intrepid representative. We start with the DOT:
249.587-018 DOCUMENT PREPARER, MICROFILMING (business ser.)
Prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard microfilming size and format when allowed by margin space, using paper cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard microfilming size, using photocopying machine. Stamps standard symbols on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of special handling, such as manual repositioning, during microfilming. Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and address, product category, and index code, to identify material. Inserts material to be filmed in document folder and files folder for processing according to index code and filming priority schedule.

GOE: 07.05.03 STRENGTH: S GED: R3 M1 L2 SVP: 2 DLU: 86
Does that job still exist?
 Well, no. Now the worker scans documents into a computer.

So the person needs to know how to operate the scanner software and utilities for scanning documents? 
Yes, but it is still very simple.

This kind of questioning devolves into, "I have 30 years of experience and you don't." We don't want to play that game.

What is the SOC code? General office clerks, 43-9061. Some of the over 3 million general office clerks:
Some clerks file documents or answer phones; others enter data into computers or perform other tasks using software applications. They also frequently use photocopiers, scanners, fax machines, and other office equipment.
That is according to the OOH. The OOH says that the occupation requires a high school diploma or equivalent as a typical entry level requirement. The occupational group is unskilled. It only takes 1% of the over 3 million jobs to get to 30,000 jobs in the nation.

The O*NET says that 88% of general office clerks sit either more than half the time to continuously.  The O*NET states that the occupational group requires SVP 4 to < 6.  The O*NET has this occupation as semi-skilled.

The ORS describes the occupation as generally requiring sedentary exertion with almost 80% of jobs permitting a sit-stand option at will.   The 10th percentile requires sitting 50% of the day; the 25th percentile requires sitting 75% of the day.  

But we suspected at the outset that general office clerks and this scanner occupation require some skills.  The O*NET teased us with some hope.  The OOH told us that no prior experience was required and typically needed a high school or equivalent education.  The most recent data, the ORS, speaks to these issues with current incumbent surveys.  

And the survey said:  at the 10th percentile, general office clerks require 180 days of prior work experience.  Inconsistent with that statement, the ORS states that 47.3% of general office clerks do not require experience. Checking SVP, the ORS states that 5.8% of jobs have short demonstration only.   Another 29.5% of jobs have training time up to 30 days.  And 83.2% of the jobs require a high school education.

The statistical data and write-up from the OOH support the presence of scanner jobs and the presence of unskilled general office clerk jobs at the sedentary level of exertion.  While less than 13% do not have an educational requirement, that still results in a large number of jobs.  Whether the presence of unskilled work, the lack of a high school education, and the absence of a need for prior work experience intersect at 1% or more of the jobs, well that is a vocational expert question for someone that has done a labor market survey and not relying on anecdotal experience from 30 years ago.




Sunday, January 14, 2018

The Worn Out Worker -- 35 Years of Arduous Work and the Inability to Adapt

Last week we looked at the adverse vocational profile of an individual of advanced age, no relevant work experience, and possessing a limited education as presenting a profile of a claimant lacking the ability to adjust to other work -- the person is disabled.  We stick in the same regulation but examine the profile of the worn out worker.  The regulation describes the elements of the person deemed disabled:
If you have no more than a marginal education (see § 404.1564) and work experience of 35 years or more during which you did only arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), we will consider you unable to do lighter work, and therefore, disabled.
The first element of marginal education looks at §404.1564.  Marginal generally means 6th grade or less.  Sixth graders can read and engage in math.  The regulation does not require illiteracy.  A claimant that reads the newspaper may nonetheless have a marginal education.  The actual grade entered or completed may not prove dispositive:
the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower.
Developing the evidence of the ability to perform at the 6th grade level or less may require testing by a qualified professional where the claimant attended school beyond that level. 

The second element, 35 years or more of only arduous unskilled physical labor, requires getting out of the box.  The ALJ mantra gets stuck at 15 years, the relevant period for past work most of the time.  If a claimant has arduous work experience for the past 15 years, that raises the flag and requires the representative to examine the other 20 or more years to capture 35 years of work experience exclusive of the period after work cessation. 

The third element uses the phrase, "you are not working."  This represents a linguistic difference from the "If you are doing substantial gainful activity" found in the fist step of the five-step sequential evaluation process.  The difference may be intentional to include non-substantial gainful activity or may represent an artifact from the 1960 regulations that never caught anyone's attention. 

The fourth element contains additional oddities that fall outside of the regulatory norm.  The regulation requires the "inability to engage in that past work because of a severe impairment."  The regulations require a medically determinable severe impairment at step two of the process but must consider severe and non-severe impairments after establishing that presence in assessing listings and residual functional capacity.  It does not require much to knock out the ability to perform arduous work so the presence of an impairment as opposed to an impairment that reaches "severe" may constitute different questions.  Because "severe" is a de minimis test, an impairment that eliminates the ability to engage in arduous work probably satisfies the test. 

This raises the question, "what does arduous mean?"  The word is clearly ambiguous.  Social Security Ruling 82-63 does not define the word.  It does caution that grid rule 203.01 does not capture this adverse profile for people under the age of 60.  POMS DI 25001.001 states:
No specific physical action or exertional level denotes arduous work. Such work may be arduous if it demands a great deal of stamina such as repetitive bending or lifting at a very fast pace. For additional information on arduous work see DI 25010.001B.1.
A great deal of stamina -- that is the sub-regulatory test.  The reference to POMS DI 25010.001 B.1 is completely unhelpful in defining the word arduous; it points back to POMS DI 25001.001 for the definitions of arduous, marginal education, and unskilled work.  Arduous probably includes heavy and very heavy work as well as medium work that requires frequent, very fast bending/stooping or frequent, very fast lifting.  Extract from the claimant testimony of abject exhaustion at the end of the day to meet the great deal of stamina test. 

One more observation about the 35-year test.  Assuming a claimant that stopped school around the age of 12 and went to work for socio-economic reasons, that person may have started objectively arduous work well before age 20.  This profile could prove useful in meeting the disability test for a claimant under the age of 55. Proving disability for a person capable of medium exertion and closely approaching advanced age -- now that is lawyering.  

Wednesday, January 10, 2018

Adverse Vocational Profiles -- The Inability to Adjust to Other Work

Is a person with a residual functional capacity for medium work ever disabled?  The answer is "yes," tell the ALJ to read the regulations.  We look at the policy changes that came about in 1975 with the advent of the SSI program -- people that don't have enough connection to the work force to have insured status. 

The statute requires consideration of age, education, and work experience in assessing the ability to engage in other work at step five of the sequential evaluation process.  This structure holds true for disability insurance benefits.  The inclusion of a federal SSI program meant that the agency would regularly decide the question of disability for people that lacked relevant work experience.  The regulations describe that adverse profile as calling for a finding of disability beginning at age 55:
If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) (see §§ 416.920(c)416.921, and 416.923), are of advanced age (age 55 or older, see § 416.963), have a limited education or less (see § 416.964), and have no past relevant work experience (see § 416.965), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to subpart P of part 404 of this chapter.
A claimant passing that bright line of age 55, having a limited education or less, with no past relevant work experience, and having a severe impairment has an entitlement to a finding of disability.  That's it, drop the mic and walk away. 

For disability insurance purposes, it is now common for work experience to buy a quarter of coverage and not qualify as past relevant work because the amount earned does not rise to substantial gainful activity.  In 1975, the agency defined SGA as more than $200 per month.  A quarter of coverage cost $250 per month.  A person earning the minimum for SGA needed to work in each quarter of the year to earn four quarters.  In 2018, the agency defines SGA as more than $1,180 per month.  A quarter of coverage costs $1,320 in 2018.  But the person need not work in every quarter; earnings are annualized so that $5,280 earned in five months purchases four quarters of coverage.  A claimant can work at non-SGA amounts for five months a year and earn four quarters of coverage.  It is now easier to purchase insured status without every accumulating PRW.  The adverse vocational profile comes up more often now even in disability insurance benefit cases. 

The keys that unlock the doors of relevance of work experience rest in the earning as we just discussed but also in the concepts of duration and recency.  Recency represents the most common problem of PRW in SSI cases.  When we see a finding of ability to perform PRW in SSI cases, we should always comb the earnings record for earnings and recency even for unskilled work experience. Nor do we have to look very hard; the vocational profile regulation tells us where to look for that three-part test of relevance of past work. 

We need to remain vigilant for the adverse vocational profiles for claimants over the age of 55 and having not more than a limited education.  Does the claimant have relevant work experience?  If  not, a step two finding of a medically determinable severe impairment terminates the inquiry with a finding of disability.  See also the medical-vocational guidelines, rules 201.01, 202.01, 203.01, 203.02, and 203.10 that direct the same findings for the adverse profiles at step five.  For a further explanation of the adverse profile case, see the Social Security Ruling