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.