Why the Equal Distribution Method Conflicts with County Business Patterns

We discussed why the equal distribution method of calculating job numbers violated the administrative notice provisions and the requirement to adduce and articulate a persuasive basis for resolving apparent conflict with the DOT.  In a nutshell, the DOT describes occupations as they exist in specific DOT-industry classifications.  The equal distribution method has an apparent conflict with the industry narrative because it assumes that occupations in small industries have the same occurrence in the national economy as occupations in large industries.  Fewer assembler jobs exist in the optical goods industry than in the automobile manufacturing industry.  DICOT, Occupational Titles Arranged by Industry Designation.  

But the Commissioner does not just take notice of the DOT.  The Commissioner takes administrative notice of County Business Patterns (CBP).   20 CFR § 404.1566(d)(2).  The Census Bureau published CBP to provide economic data including the number of establishments; employment as of March 12 of the year; and payroll data for all industries surveyed.  U.S. Census Bureau, County Business Patterns.  CBP tables of data sorted by industry are available on American FactFinder.  U.S. CensusBureau, American FactFinder.  Users can extract job numbers without CBP by industry sector (two-digit NAICS code), industry sub-sector (three-digit code), industry group (four-digit code), industry (five-digit codes), and specific industry (six-digit codes).  Where the five-digit industry designation has no further specificity, the six-digit code ends in “0.”  

The presence of administrative notice establishes the accuracy of facts which the agency takes notice tested through the rulemaking process.  Heckler v. Campbell, 461 U.S. 458, 460 (1983).  To exclude consideration of industry in assessing the number of jobs that exist for a particular occupation ignores the administrative notice of the statement of jobs within the industry of which the Commissioner has taken notice and tested through the notice and comment process of rulemaking. 

Most vocational experts would rather not consider CBP.  In a recent hearing, the VE testified that she did not use CBP because this is not a county-based program, but a national program.  The interesting point response is that counting the jobs in all the counties in a state yields a statewide number of jobs within an industry; counting all the states, the District, and territories yields a national number of jobs.  And we don't use a calculator to get there; CBP provides the data. 

Why the Equal Distribution Method of Estimating Job Numbers Conflicts with the DOT

We discussed the equal distribution method of calculating job numbers in the past in the Production Workers, All Other, and the Occupational Employment Quarterly.  The OEQ uses an equal distribution of jobs within an occupational group to calculate jobs numbers. 

There are two competing methodologies for the estimation of job numbers:  occupational density; and equal distribution.  Chavez v. Berryhill, ___ F.3d ___ (7th Cir. July 18, 2018).  The equal distribution method rests on the proposition that all occupations (DOT codes) within an occupational group represent the same number of jobs.  The Occupational Employment Quarterly uses the equal distribution method.  Chavez surveys the cases expressing concerns within the Seventh Circuit with the equal distribution method.  Id. (citing Alaura v. Colvin, 797 F.3d503, 507–08 (7th Cir. 2015); Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014); Herrmann v. Colvin, 772 F.3d 1110,1112–14 (7th Cir. 2014)).

The occupational density model determines the industries in which occupations listed in the DOT exist and uses the BLS reported intersection of occupation and industry as the starting point to determine job numbers.  Job Browser Pro uses the occupational density method.  At the intersection of occupation and industry, Job Browser Pro uses the equal distribution method at that significantly more granular level. 

The question is whether the equal distribution method violates agency policy by containing an unidentified and apparent conflict with the DOT.  20 CFR § 404.1566; SSR 00-4p.  Every DOT code contains a parenthetical industry designation.  DICOT, Parts of the Occupational Definition.  The DOT provides:

3) Industry DesignationThe industry designation is in parentheses immediately following the occupational base title. It often differentiates between two or more occupations with identical titles but different duties. Because of this, it is an integral and inseparable part of any occupational title. An industry designation often tells one or more things about an occupation such as:

• location of the occupation (hotel & rest.; machine shop)

• types of duties associated with the occupation (education; forging)

• products manufactured (optical goods; textile)

• processes used (electroplating; petrol. refin.)

• raw materials used (nonfer. metal; stonework)

While a definition usually receives the designation of the industry or industries in which it occurs, certain occupations occur in a large number of industries. When this happens, the industry assigned is a cross-industry designation. For example, clerical occupations are found in almost every industry. To show the broad, cross-industry nature of clerical occupations, "clerical" is an industry designation in itself. Among other cross-industry designations are: "profess. & kin.", "machine shop", and "woodworking".
Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry." The job title in the example is assigned this designation. It should always be identified as CLOTH PRINTER (any industry) 652.382-010.
In compiling information for the DOT, analysts were not able to study each occupation in all industries where it occurs. The industry designation, therefore, shows in what industries the occupation was studied but does not mean that it may not be found in others. Therefore, industry designations are to be regarded as indicative of industrial location, but not necessarily restrictive.

The equal distribution method ignores the restriction that occupations exist within industries.  It necessarily conflicts with the specification of industry by the DOT.  This becomes more complicated when the DOT uses the designation of "any industry."   The DOT defines this classification.  DICOT, Occupational Titles Arranged by Industry Designation.  The DOT states:

any industry--ANY INDUSTRY: This designation includes occupations that are not allocated to other classifications. The principal groups of jobs included under this designation are: (1) occupations
that characteristically occur in practically all industries; (2) occupations that occur in a number of industries (which number is not exactly determinable) but that do not characteristically occur
in most industries; and (3) occupations that are not considered to have any particular industrial attachment. The occupations included under this designation are considered to be essentially the same
wherever they occur, in that they involve the same fundamental functions, and are performed for the same general purpose wherever they exist. Familiarity with a given job in one industry, however,
may not permit a worker to transfer to the same job in another industry without some training period to acquaint the worker with the processes, terminology, hazards, or other factors in the
industry to which he or she is being transferred that would affect the occupation in question in that industry. Many occupations that occur in various industries, and could logically fall within this
group as defined above, are allocated to such classifications as CLERICAL AND KINDRED OCCUPATIONS (clerical); FOUNDRY (foundry); [M]ACHINE SHOP (machine shop); PROFESSIONAL AND KINDRED OCCUPATIONS (profess. & kin.); and WOODWORKING (woodworking); all of which embrace occupations that cut across industry lines.

The three primary bases for putting a DOT code with a designation of "any industry" requires the vocational expert to tell SSA which one applies.  Assembler occupations exist in may industries, but all within the manufacturing sector of the economy.  Consider:

ASSEMBLER, PRODUCTION 706.687-010
ASSEMBLER, SMALL PRODUCTS I 706.684-022
ASSEMBLER, SMALL PRODUCTS II 739.687-030
ASSEMBLY-PRESS OPERATOR 690.685-014

All carry the "any industry" designation; none of them would logically work outside of manufacturing; and none of them would work in the food manufacturing subsector.  

Using the equal distribution method always ignores the industry designations.  That requires that we ask the simple question after the ALJ asks about conformity with the DOT:

Q:  Does your testimony take into account the industry designation contained in the DOT?

That leaves open the next line of inquiry into how the equal distribution method accounts for industry designation at all.  

Culbertson -- Predictions

Culbertson v. Berryhill - a case in which the Supreme Court granted certiorari to resolve the split in the circuits.  The question presented:

QUESTION PRESENTED:

"Fees   for [the] representation of individuals claiming Social Security old-age, survivor, or disability benefits [at] the administrative and judicial review stages [are handled] discretely: [42 U.S.C.] § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 793- 794 (2002).  Section 406(b) specifies in particular that

[w]henever a court renders a judgment favorable to a claimant * * * who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due  benefits to which the claimant is entitled by reason of such judgment.

42 U.S.C. § 406(b)(l)(A) (emphasis added).

The question presented is:  Whether fees subject to § 406(b)'s 25-percent cap include, as the Sixth, Ninth, and Tenth Circuits hold, only fees for representation in court or, as the Fourth, Fifth, and Eleventh Circuits hold, also fees for representation before the agency.

 The chances of the Supremes granting certiorari went way up when the Solicitor General agreed that the Court should resolve the split among the circuits.  Is there a de jur 25% cap on fees when cases go to federal court?  We know that there is no cap if a case is resolved at the agency level only -- just a reasonableness cap.

So we all entered the merits stage sitting fat and happy -- the Supreme Court was going to agree that there did not exist a cumulative cap on fees under section 406(a) and (b), just a 25% cap on fees under 406(b).  The SG threw a curveball.  While a de jur 25% cumulative cap on fees did not exist, the agency and the courts could exercise their discretion to impose a 25% cap when the courts believed that a reasonable fee should not exceed 25% of the past due benefits.

So here are my predictions:

1.  Culbertson will win a pyrrhic victory.  The Supreme Court will vacate and remand back to the 11th Circuit the fee petition where the court will entertain the question of whether Culbertson can or should get 25% of the past due benefits plus keep the EAJA fee and the 11th Circuit will say "no."

2.  Whichever decides fees second, the agency or the court, will take the decision in Culbertson as permission if not a mandate to limit the aggregate fees in court remand cases to a de facto cumulative cap of 25% of the past due benefits.

3.  Neither party nor any amicus to date has explained why the attorneys would ever want overlapping or coterminous fees that exceed 25% of the past due benefits and so the Court will assume that no good reason exists other than trying to avoid the mandatory reimbursement provisions of the Equal Access to Justice Act.

4.  Attorneys that share fees to even out the 25% distribution on a pro rata basis will lose that ability because it will remain a crime for either to receive an unauthorized fee.

5.  In the anti-claimant representative era, the practice of  Social Security law will get more cumbersome thanks to Mr. Culbertson.

We can all expect changes that will not be good in the long run.  This arises from the desire to avoid the uncodified portions of the EAJA to refund to the claimant the smaller of the two fees under the EAJA and 406(b).

The Claimant May Need a Cane for Long Distances

Look at enough ALJ decisions or go to enough hearings and we eventually see/hear/read a finding and hypothetical question that includes "may" and/or "long distance."  I have no idea what "may need a cane for long distances" means in the context of a complete residual functional capacity finding or hypothetical question to a vocational expert. 

MAY:

"I may use a cane today."  That means that I may not use a cane today.  When the ALJ directs the vocational expert that the claimant "may" need a cane or "may" need to engage in a certain activity, that "may" permits the ALJ to have the position of having considered the limitation and permits the vocational expert to assume that it never happens or happens so rarely as to be insignificant.  Tell the ALJ that you "may" attend the hearing tomorrow.  Right, "may" means nothing and sucks all meaning out of everything that follows. 

Q:  What does "may" need a cane mean to you?
A:  That may or may not need to use a cane.
Q:  Assume that the person will need to use a cane occasionally when walking is required on the job.  Does that change your answer?
A:  Of course it does.  I identified medium work. 
Q:  Needing a cane occasionally during the walking required of a medium job would eliminate that kind of work, right?
A:  Yes. 
Q:  And it eliminates light work that involve walking as well, right?
A:  Yes. 

Now you have to work on the stationary jobs that require no walking, if they indeed exist. 

LONG DISTANCE:

Q:  How far can you walk?
A:  Not a long distance.
Q:  I don't know what that means.  How far is a "long distance" for you?
A:  About a half block. 

Or the claimant might testify that a long distance is a mile -- about a 20 minute walk for a healthy person.  We would not let our client get away with vague testimony.  We drill down to the specific.  That's our job. 

When the ALJ asks the witness to assume something with "long distance" in the question, the ALJ puts on the cloak of having considered the testimony of a half-block and the vocational expert can assume that the phrase means over an hour of continuous walking. 

Q:  When the ALJ asked you to assume "no long distance" walking, what did you think that meant in time and distance?

The ALJ may interrupt and clarify with some intermediate distance.  But we now get clarity. 

Q:  The ALJ defined long distance as more than 15 minutes or two blocks.  Is that what you thought it meant? 
A:  Oh yes, of course I did. 
Q:  How did you know that "long distance" meant 15 minutes or two blocks?
A:  Experience.
Q:  Assume that the person needs a cane occasionally when walking 15 minutes or more in an hour.  Does that change the answers that you gave here today?
A:  Yes. 

Vagueness is the empowering facet of unfettered discretion.  Concreteness and clarity strip away the ability of the ALJ to exercise that unfettered discretion. 

Declaring Victory in the Numbers Game

 Some have asked me, "do you win at the numbers game?"  The answer in the past has been, "sometimes."  I announce today that we are well on our way to winning the numbers game.

The Social Security Administration issued a Vocational Expert Handbook effective August 2017.  In that Handbook, the Commissioner tells the vocational experts that testified that they “should be prepared to cite, explain, and furnish any sources” that the vocational expert relies on to support “testimony.”  Handbook, p. 3.  The Handbook directs the vocational expert to use, know how to use, and be able to use the DOT, County Business Patterns, and the Occupational Outlook Handbook.  Handbook, pages 8-9.  The Handbook states that the vocational expert should “be prepared to cite, explain, and furnish any sources upon which” the vocational expert relies for the testimony.”  Handbook, p. 19.  The Handbook emphasizes with an “again” statement directing the vocational expert to “be prepared to cite, explain, and furnish any sources” relied upon in support of the testimony given.  Handbook, page 20.  The Handbook reiterates with the “as noted above” statement that the vocational expert should be “prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 28.  In the discussion of work experience, the vocational expert must “be prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 31.

 The Handbook permits the vocational expert to include data not found in the DOT.  Handbook, pages 38.  When the vocational expert relies upon data outside of the DOT, the vocational expert must “be prepared to explain why [the] sources are reliable.”  Id.  The Commissioner continues, noting that the vocational expert should “maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources.”  Handbook, page 38.  Bayliss v. Barnhart is contrary to agency policy.

 In opposing certiorari before the Supreme Court in Biestekv. Berryhill, the Solicitor General writes:

           

SSA has recently issued updated policy guidance expressing the agency’s expectation that vocational experts testifying at ALJ hearings should be prepared to identify and describe the factual bases for their testimony.  In 2017, SSA updated its Vocational Expert Handbook, which sets forth the agency’s expectations as to how vocational experts should prepare for ALJ conducted disability hearings. SSA, Vocational Expert Handbook (Aug. 2017), [https://www.ssa.gov/appeals/public_experts/Vocational_ Experts_(VE)_Handbook-508.pdf] (Handbook). The Handbook instructs vocational experts that they “should be prepared to provide a complete explanation for [their] answers to hypothetical questions”; that they “should have available, at the hearing, any vocational resource materials [on which they] are likely to rely”; and that they “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.” Id. at 37. The Handbook further advises vocational experts that “[i]n some cases, the ALJ may ask [them] to provide relevant portions of materials [they] rely upon.” Ibid.

The revised Handbook, which had not yet been issued at the time of petitioner’s ALJ hearing, will help guide the agency’s handling of vocational expert testimony in future cases, so that any disagreement among the courts of appeals may be of limited prospective importance. At a minimum, the Handbook and the regulations cited above (see pp. 8-9, supra) underscore that Social Security disability claimants are already able under current law to challenge the reliability of vocational expert testimony. Petitioner cannot show that imposing the novel mandatory rule he urges, which is not grounded in the statutory or regulatory text, is necessary to provide such an opportunity.

The Solicitor General speaks for the United States, including the Social Security Administration.  The ALJ cannot rely on Bayliss to the exclusion of the requirements of the Handbook because the SG imposes that obligation on the VE and the ALJ.  

The pregnant question implicit in the SG brief  is one of deference.  Does the Handbook warrant deference as a constructions of the administrative notice and vocational expert regulations.  If the Handbook warrants respect deference under Skidmore, then the obligation to turn over the foundational data applies.  If the Handbook gets no deference, then the courts' interpretations that vocational expert testimony needs no foundation would remain the law of the law. 

This is the merger of my two favorite legal topics -- vocational expert testimony and the concept of deference to sub-regulatory pronouncements of the Commissioner.  On the latter, the philosophy is plain -- don't print it and make it available if it isn't true, don't lie to the public.