We start with the text of the administrative notice regulation:
(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—The Commissioner takes administrative notice of reliable nob information from various governmental and other publications. Social Security Ruling 83-10 makes statements about the exertional demands of sedentary, light, and medium work:
(1) Dictionary of Occupational Titles, published by the Department of Labor;
"Occasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.
"Frequent" means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.
A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds.Let's first review the DOT definitions of sedentary, light, and medium work:
S-Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
L-Light Work - Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.
M-Medium Work - Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.
Run the thought experiment. If an occupation requires no lifting but sitting 7.8 hours per day, what is the exertional demand of that work? If an occupation requires frequent lifting up to 10 pounds and no more than that even occasionally, but requires standing/walking 7.8 hours per day, what is the exertional demand of that work? If an occupation requires lifting up to 25 pounds frequently and no more than that even occasionally, but requires standing/walking 7.8 hours per day, what is the exertional demand of that work? According to the DOT structure, the answers are (1) sedentary; (2) light; and (3) medium. The DOT is not ambiguous.
Let's look at the regulatory definitions of sedentary, light, and medium work:
Let's look at the regulatory definitions of sedentary, light, and medium work:
(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.Same thought experiment. Same answers. The regulations are not ambiguous.
The first Kisor question returns to the Chevron watershed: is the regulation ambiguous? If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore, but it does not get deference. There is nothing ambiguous about the definitions of sedentary, light and medium work in the DOT or the regulation. Because the regulation and DOT are not ambiguous, the ruling gets no deference.
The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity? Assuming that either the regulation or the DOT were ambiguous, any identifiable ambiguity is not related to defining occasionally as 25% of the day or frequently to constantly as 75% of the day. Because the regulation and the DOT define occasionally and frequently as ranges from very little to a third of the day or more than a third of the day up to two-thirds of the day, picking precise percentages is not reasonable.
If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner. That is the third Kisor question. There is no doubt that Social Security Ruling 83-10 represents the Commissioner’s binding agency policy.
The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency. Whether and how the DOT defines work as sedentary, light, or medium is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT. Here are the modern definitions of sedentary, light, and medium work from the Occupational Requirements Survey:
The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity? Assuming that either the regulation or the DOT were ambiguous, any identifiable ambiguity is not related to defining occasionally as 25% of the day or frequently to constantly as 75% of the day. Because the regulation and the DOT define occasionally and frequently as ranges from very little to a third of the day or more than a third of the day up to two-thirds of the day, picking precise percentages is not reasonable.
If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner. That is the third Kisor question. There is no doubt that Social Security Ruling 83-10 represents the Commissioner’s binding agency policy.
The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency. Whether and how the DOT defines work as sedentary, light, or medium is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT. Here are the modern definitions of sedentary, light, and medium work from the Occupational Requirements Survey:
Strength
BLS derives strength estimates from several job requirements’ estimates; and measures it with five levels: sedentary, light work, medium work, heavy work, and very heavy work. The levels are determined by how much weight a worker is required to lift or carry, how often, and whether standing or walking is required as part of the workday, in some special cases. BLS determines the strength level when at least one of the lifting or carrying conditions shown in the table below are satisfied, or as defined by the “Strength Level - Special Cases” table. The highest strength level satisfied is the level that represents that sampled job. For example, if a job requires a worker to lift or carry 11–20 pounds occasionally, then it is classified as light work. However, if that same job were to require lifting or carrying that same weight frequently, then it is medium work.
As noted, there are special cases for strength. The following table outlines the special cases. In instances where field economists are unable to determine certain job requirements from the respondent, they record these data as “unknown” and strength level handle derivation through imputation. See the section “Weighting, imputation, and benchmarking” for more information.
Exhibit 5. Determining strength level based on duration of lifting or carrying Strength level Duration of lifting or carrying Seldom Occasionally Frequently Constantly 11-20 pounds 11-20 pounds 1-10 pounds Negligible weight 21-50 pounds 21-50 pounds 11-25 pounds 1-10 pounds 51-100 pounds 51-100 pounds 26-50 pounds 11-20 pounds >100 pounds >100 pounds >50 pounds >20 pounds
Strength level Description If it is unknown whether lifting or carrying occurs occasionally, frequently, or constantly or none of the conditions in the strength level chart are met and standing or walking or sitting are unknown. If none of the conditions in the strength level chart are met and standing or walking occurs less than or equal to 1/3 of the work schedule. If none of the conditions in the strength chart are met and does not meet the special conditions for unknown or sedentary. Exhibits 6. Special cases for calculating strength level
Sedentary work requires standing/walking up to occasionally. No standing/walking, seldom standing/walking, and occasional standing/walking qualifies work as sedentary. Light work exceeds sedentary, either in lifting/carrying, standing/walking, or other reasons. But the difference between light, medium, and heavy have nothing to do with the amount of standing/walking done in a day. Where does SSA get six hours? It made it up and the ruling did not undergo notice and comment for the public to tell the agency it was wrong.
We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill. The DOT lists about 137 sedentary unskilled DOT codes, 1,586 light unskilled DOT codes, and 981 medium unskilled DOT codes. If the intent of SSR 83-10 is to describe when the agency will invoke the grids -- at the six hour capacity limit -- that is a matter of agency discretion, but subject to rebuttal. But if the intent was to actually describe every unskilled sedentary, light, or medium occupation as generally requiring six hours of sitting or standing/walking in a workday, the Commissioner gets no deference.
We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill. The DOT lists about 137 sedentary unskilled DOT codes, 1,586 light unskilled DOT codes, and 981 medium unskilled DOT codes. If the intent of SSR 83-10 is to describe when the agency will invoke the grids -- at the six hour capacity limit -- that is a matter of agency discretion, but subject to rebuttal. But if the intent was to actually describe every unskilled sedentary, light, or medium occupation as generally requiring six hours of sitting or standing/walking in a workday, the Commissioner gets no deference.
Next, we will explain why the courts should not defer to the Commissioner's continued use of the DOT as reliable -- which it is not. It is useful for some purposes, but not reliable for the disposition of claims.
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