Occupations Identified as "An Example"

Vocational experts have been trained to use the phrase "as an example" when identifying jobs within an occupation.  That "as an example" allows significant slough in the evidence that dutiful representation must clarify.  ALJ discretion is the bane of the claimant's representative.

The first task is to define "as an example."  That phrase could mean 20,000 jobs as a lens inserter including other similar sedentary unskilled occupations aggregating to 20,000 jobs.  Alternatively, the phrase could mean 20,000 jobs as a lens inserter and there are a lot more jobs that are similar to lens inserter.  The two alternatives make a difference.  If the testimony contends that there are 20,000 lens inserter jobs, that is an easy rebuttal.  If the testimony contends that there are 20,000 sedentary unskilled production worker jobs, that is a more cumbersome rebuttal.

1. 20,000 Lens Inserter Jobs

That specific testimony, which does occur, is statistically unsustainable.  Job Browser Pro provides an estimate of 208 jobs.  That's wrong.  JBP provides the estimate placing lens inserter in the jewelry and silverware manufacturing industry.  The DOT places lens inserter in the optical goods industry.  The optical goods industry corresponds to the ophthalmic goods manufacturing industry, part of the medical equipment and supplies manufacturing industry group (four digits).  The similar occupation of final assembler has a JBP estimate of 32 jobs.  That is based on the assumption that 65 DOT codes made up 2,077 jobs at the SOC-NAICS intersection. 2,077 / 65 = 31.95.  Round it off to 32.  Equal distribution rules the day.

But if the occupation exists in the ophthalmic goods manufacturing industry, we need to examine County Business Patterns.   Medical equipment and supplies manufacturing industry group represents 281,335 jobs in the nation.   The OES Query System estimates:

Occupation (SOC code)	Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)	12790
Ophthalmic Laboratory Technicians(519083)	9560
Helpers--Production Workers(519198)	2300
Production Workers, All Other(519199)	2210
Packers and Packagers, Hand(537064)	2810

The production workers, all other number of jobs is slightly in excess of the intersection reported by JBP.

Ophthalmic goods manufacturing industry represents 24,988 jobs in the nation.  That is 8.9% of the medical equipment and supplies manufacturing industry group total employment.  Assuming similar staffing in the  ophthalmic goods manufacturing industry, we would get:

Occupation (SOC code)	Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)	1,136
Ophthalmic Laboratory Technicians(519083)	849
Helpers--Production Workers(519198)	204
Production Workers, All Other(519199)	196
Packers and Packagers, Hand(537064)	250

There are 20 DOT codes assigned to the optical goods industry.  How many jobs are there as a lens inserter or final assembler?  Less than 10 each.

2. 20,000 Sedentary Unskilled Production Worker All Other Jobs, e.g. Lens Inserter

To respond to this testimony takes knowing some basic facts -- asking the vocational expert to state them or profess ignorance.

a. How many DOT codes exist within production workers, all other?  (1,590 by the O*NET, 1,589 by US Publishing, 1,526 by JBP).

b. How many sedentary unskilled DOT codes exist within production workers, all other? (52 by all three sources).

c. Do all 52 DOT codes have the characteristics that meet the hypothetical question posed?  (2 SVP 1, 50 SVP 2; 19 R1, 33 R2; 19 constant handling, 33 frequent handling).

d. How many jobs exist for this DOT example?  (See analysis for Scenario 1).

e. If the Department of Labor, Bureau of Labor Statistics published data that suggested that there are significantly fewer jobs at the unskilled sedentary variety within production workers, all other, would you defer to the BLS data?

The fluid use the DOT/SCO, O*NET, OOH, and ORS (all available on OccuCollect.com) along with CBP and JBP allows us to find out exactly what the vocational expert means and then to prove the lack of reliability.

Happy New Year!

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SUGGESTED CITATION:

Lawrence Rohlfing, Occupations Identified as "An Example," California Social Security Attorney (December 31, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/occupations-identified-as-example.html

OccuCollect Lift & Carry Report

The OccuCollect Lift & Carry Report sets out the DOT with its strength rating; the OOH statement of education, experience, training, and number of jobs; the O*NET statement of full-time versus part-time; and the ORS statements of SVP, and all the lifting/carrying statements.

Using the advertising-material distributor (DOT 230.687-010) as an example, we have a light occupation.  The work typically requires a high school diploma or equivalent, no related work experience, short-term training, and 354,600 jobs as of 2018 in the category of helpers -- production workers (SOC 51-9198).  The O*NET describes helpers as working part-time in 6% of jobs.

The ORS states that helpers engage in unskilled SVP 2 work in 68.3% of jobs.  Helpers engage in medium work in 49.2% of jobs.  At this point, the data gets interesting.  Helpers lift/carry greater than 20 pounds and less than 50 pounds seldom in 66.3% of jobs.  That is clearly a lift/carry requirement that exceeds light exertion.  The ORS states that helpers lift/carry 25 pounds at the 25th percentile and 15 pounds at the 10th percentile.  At least 75% of this category have work requirements that exceed the demands light exertion.

The only available inference to draw is that the 25.8% of jobs engage in heavy or very heavy work (75% minus 49.2%).  This is consistent with the maximum lift/carry 50 pounds at the 50th and 75th percentiles and 60 pounds at the 90th percentile.  The number of light and/or sedentary jobs that are classified as helpers is less than 25%.

The maximum number of light and sedentary jobs is 88,650.  The unskilled jobs cannot exceed 60,548 applying the O*NET part-time reduction.  That is the starting point for any further reduction for limitations on standing/walking, posturing, environmental conditions, or interaction with others.  Helpers contains 31 SVP 1 occupations and 126 SVP 2 light occupation.  That observation provides significant variability in the numbers for any particular occupation.

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SUGGESTED CITATION:

Lawrence Rohlfing, OccuCollect Lift & Carry Report, California Social Security Attorney (December 18, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/occucollect-lift-carry-report.html

Supreme Court Review -- Was There a Case or Controversy?

I tell people that I really don't practice law, I just do administrative law.  The Social Security practice is non-adversarial; hearings last 30 minutes; and even federal court review is labeled "transcript litigation."  We do not take depositions, propound interrogatories, or examine witnesses in open court.  And yet, the practice of administrative law has been intellectually and professionally rewarding.  Today, we look at two Social Security cases decided in the last term with a constitutional question: was there a case or controversy?

The first case is Culbertson v. Berryhill.  This case ended the view of a minority of circuits that attorney fees for federal court under 42 U.S.C. § 406(b) were both capped by the 25% statutory maximum but that ceiling included any and all fees awarded by the agency to attorneys that represented the claimant before the agency.  Culbertson maintained that there was no such unified cap.  Before the district court and the court of appeals, the Commissioner asserted that there was, convincing both courts that Culbertson was wrong.  Culbertson sought certiorari.

The Commissioner argued in the Eleventh Circuit that the district court had decided the issue correctly.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:

Because no party defends the judgment, we appointed Amy Weil to brief and argue this case as amicus curiae in support of the judgment below. 584 U.S. ___, 139 S.Ct. 304, 2042, 202 L.Ed.2d 14 (2018). Amicus Weil has ably discharged her assigned responsibilities.

 If the parties agree, where is the case or controversy?  Isn't the public policy to encourage parties to resolve their disputes and not to ask the court to issue advisory opinions resolving a split in the circuits?  The answer is typically yes but fees under §406(b) are different.  As the Eleventh Circuit said 20 years ago, Congress designated the courts with the responsibility of interfering with the financial particulars of the attorney-client relationship, in parens patriae.  From the Wiki:

Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection.

The controversy in Culbertson was between the court and Culbertson, not the agency and Culbertson.  The capitulation in response to the petition for certiorari that Culbertson had correctly interpreted the fee statute did not relieve the court of discharging its parens patriae obligation.

The second case is Smith v. Berryhill.  This case ended the problem of the Appeals Council losing the request for review, dismissing the request for review as untimely, and then barring an evidentiary inquiry in court whether the claimant had timely filed a request for review.

Undeterred by the Commissioner's view of the review process, Smith filed in federal court.  The Commissioner moved to dismiss.  The district court agreed with the Commissioner and dismissed the suit for want of jurisdiction.  Smith appealed.  The Sixth Circuit affirmed.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:

We granted certiorari to resolve a conflict among the Courts of Appeals. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018).[6] Because the Government agrees with Smith that the Appeals Council's dismissal meets § 405(g)'s terms, we appointed Deepak Gupta as amicus curiae to defend the judgment below. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018). He has ably discharged his duties.

The footnote surveyed the conflict in the circuits: seven courts no jurisdiction and two jurisdiction existed to hear the claim.  Smith cites to Mathews for the settled proposition that jurisdiction based on exhaustion of administrative remedies is waivable.  The controversy is resolved as to the motion to dismiss.  The Commissioner should not have filed the motion to dismiss.  Despite the admission that the agency erred, the Supreme Court issues an opinion to resolve a conflict among the circuits to publicly affirm that Commissioner changed her mind.  There was no case or controversy.  The Appeals Council issues a new order finding that Smith did not file a request for review in a timely manner and inviting review by the district court.  The case starts over rather than using/wasting the Supreme Court's time to fix that which the executive branch acknowledged it should not have done.

Perhaps erasing seven obnoxious sets of circuit precedent depriving claimants of review is laudable.  But that ignores the cost to scarce resources and the constitutional requirement of a case or controversy.  The better solution would have been for the Supreme Court to issue an order vacating the decision of Sixth Circuit with directions to remand to the district court to hear the exhaustion question on the merits.

Two cases involving the Commissioner's capitulation on the issue before the Supreme Court.  Not a good track record for agency attorneys: that they have litigated issues contrary to the correct interpretation of the statute.  In one, the Supreme Court need to proceed because of role of the courts in protecting claimants from their own attorneys; in the other, the Supreme Court to issue an advisory opinion without telling us why it infringed on the plain meaning of case or controversy.

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SUGGESTED CITATION:

Lawrence Rohlfing, Supreme Court Review -- Was There a Case or Controversy?, California Social Security Attorney (December 17, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/supreme-court-review-was-there-case-or.html

OccuCollect's Specialized Reports

The frequency of contact with others recurs in residual functional capacity assessments.  OccuCollect added a Contact With Others (CWO) Report as a custom report for subscribers.  The report is generated by entering a DOT code or entering a SOC/O*NET codes and then selecting a DOT code from the list.  The numbers generated reflect occupations with the characteristics as a percentage of the occupational group.  The job numbers reported reflect the Occupational Outlook Handbook, which is based on the Employment Projections published bi-annually by the Bureau of Labor Statistics.  What's in the report?

The DOT description contains the full narrative and the trailer information.  It also includes the data-people-things codes as defined in Appendix B of the DOT along with the rating of significant (S) or not significant (N) stated in the complete DOT data set.  In this CWO Report, our focus is typically on the fifth digit of the DOT code, people.  The fourth digit will frequently come into play.  Data addresses people in compiling (3) and comparing (6).  The sixth digit is important for contact with others in terms of driving-operating (3).

The OOH states the basic summary for the occupational group:  entry-level education, work experience needed, on-the-job training, and number of jobs.  The CWO report contains the hyperlinks to the OOH page, the Employment Projections list of education and training by occupational group, the employment projections listing industry employment for that occupation, and the entire industry-occupation matrix, by occupation.

The O*NET OnLine data in the CWO Report includes:

1. Contact with Others
2. Coordinate or Lead Others
3. Deal with External Customers
4. Face-to-Face Discussions
5. Work with a Group or Team
6. Duration of a Typical Work Week

We always need to discard part-time work.  In the absence of a full-time description, further evidence would be necessary to establish that part-time work amounts to substantial gainful activity.

The O*NET Resource Center data sets out the education, training, and experience for the occupational group.  The two data points included are:

1. On-the-Job Training 
2. Related Work Experience

The Occupational Requirements Survey reports the education, training, and experience reported by BLS.  We are typically interested in the unskilled employment numbers.  This data gives a third point of reference for establishing Specific Vocational Preparation:  the OOH, the O*NET Resource Center, and the ORS.  The standard OOH report (a free report, no subscription required, just sign in) reports the education level of incumbents.

The OccuCollect Calculator puts the percentage of the group in the five categories from the O*NET for contact and interaction with other people, the O*NET statement about full-time versus part-time work, and also the number of jobs for the SVP levels reported by the ORS.  Here is a sample of the conclusions:

• Helpers - Production Workers have occasional or no contact with other in 61,700 jobs.
• Helpers - Production Workers do not coordinate or lead other in 74,821 jobs.
• Helpers - Production Workers do not work with a group or team in 27,304 jobs.
• Helpers - Production Workers do not deal with external customers in 202,122 jobs. 
• Helpers - Production Workers rarely have face-to-face discussions in 36,382 jobs.
• Helpers - Production Workers have on-the-job training up to one month is 156,804 jobs.
• Helpers - Production Workers require related work experience up to one month in 145,138 jobs.
• Helpers - Production Workers work full-time in 211,377 jobs.  
• Helpers - Production Workers have SVP 2 classification in 242,192 jobs.  

Occasional contact with others will never prove disability by itself.  When coupled with other limitations, we can whittle down the size of the vocational base.  No teamwork or superficial contact with others as implicating one or more of the categories and a limitation to light or sedentary work will leave few jobs available in this category.

The CWO Report joins the easy to use custom reports already in the OccuCollect library;  the Unskilled Exertion Job Number Report; the Sitting, Standing, and Walking Report; the Reaching, Handling, and Fingering Report; and the Lifting & Carrying Report.  Using one or more of these reports reduces the search and calculation time for a post-hearing submission dramatically.  Users can still print to PDF the full reports from each database in the more complex cases.

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SUGGESTED CITATION:

Lawrence Rohlfing, OccuCollect's Specialized Reports, California Social Security Attorney (December 14, 2019),
http://californiasocialsecurityattorney.blogspot.com/2019/12/occucollects-specialized-reports.html

Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives

I argued Keifer v. Saul to the Ninth Circuit on December 2, 2019.  The issue is simple, the vocational expert identified the number of production jobs, twice, and claimed that the entire OES group applied, twice, to both sedentary 1-2 step occupations.  The VE did the same with a filling machine operator occupation and an inspector occupation.  The non-attorney representative did not present the conflict to the ALJ.  The case was a prior remand from the District Court.  The case bypassed the Appeals Council.

Keifer asked the USDC to take notice of the Occupational Employment Statistics showing the exact number of jobs identified by the VE in all four occupations and the Occupational Outlook Handbook to show that the occupations required moderate-term on-the-job training -- semi-skilled or skilled as typically performed.  The USDC found waiver applied to the non-attorney representative, extending Meanel v. Apfel and Shaibi v. Berryhill.

Judge Callahan suggested that the court treat pro pers from administrative proceedings in the same way that they do in federal court proceedings -- no slack.  Judge Bade wondered how the differential treatment crept into the law.  Visiting Judge Lucero did not appear too concerned about the origin of the concept.

My prediction is simple.  The court will extend issue waiver before the ALJ to non-attorney representatives.  The duty to present evidence to the ALJ will extend from "at least where represented by counsel" to "where represented by any professional representatives."  The issue of pro per claimants is is not before the court.

Te court will drive the fulcrum between McLeod v. Astrue, permitting the claimant to submit VA evidence to the court, and Chaudhry v. Astrue, because here we have a representative that is registered and qualified for direct payment -- a professional representative.

There is a discussion about the ramifications of waiver -- legal or professional malpractice.  Where the case is clearly on the cusp, failure to develop the conflicting evidence will likely fall below the standard of reasonable care.  Sedentary 1-2 step work does not exist, at least not  in significant numbers based on a reliable method for extrapolating local experience to the national economy.  Ask the vocational expert:

1. What is your source
2. What is your methodology
3. Replicate the source and methodology
4. Submit that evidence to the ALJ
5. Force the ALJ to resolve the conflict in the evidence
6. Seek review by the Appeals Council
7. Seek review by the District Court

Expect a decision early next year in Keifer.  This is another step where the courts demand that if we believe the VE testimony is insubstantial, we must prove it ... to the ALJ.
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SUGGESTED CITATION:

Lawrence Rohlfing, Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives, California Social Security Attorney (December 4, 2019),
http://californiasocialsecurityattorney.blogspot.com/2019/12/oral-argument-in-keifer-v-saul.html