Monday, May 18, 2020

Laundry Worker and Literacy

In Sutherland v. Saul, the Ninth Circuit affirmed on the basis that the vocational testimony about laundry worker did not have an apparent conflict with the DOT in an unpublished opinion.  The court did not address the finding of the ALJ that Sutherland could perform past work or other occupations beside laundry worker.  Nor does the court tell us the boundaries of the medical-vocational profile.  The vocational testimony asserted that some laundry worker jobs required literacy, but not all.  The court reasoned:
The Dictionary thus describes "maximum requirements" of jobs as "generally performed," and not what every job within that occupational field requires. [Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016)] (quoting SSR 00-4P, 2000 WL 1898704, at *2-3). Here, the vocational expert testified that some, but not all, jobs that fall within the relevant occupational category of "laundry worker" require literacy. That is not an "obvious or apparent" conflict with the Dictionary's requirements for the relevant laundry worker occupation, which says almost nothing about literacy. Id. at 808; see also DICOT 361.685-018, 1991 WL 672987
It bears repeating, the DOT does not describe the maximum requirements of occupations as they are generally found.  The DOT describes the typical requirements of occupations as they are generally found.  DICOT Appendix D.  Gutierrez implicitly defers to a ruling that is not entitled to deference.

But that is not the question here.  The question is whether laundry workers require literacy.  The Occupational Outlook Handbook (available on for free www.occucollect.com) states that laundry and dry-cleaning workers (SOC 51-6011) represents 218,600 jobs.  Laundry and dry-cleaning workers contains 23 DOT codes and 168 alternate occupational titles.  Laundry and dry-cleaning workers require a high school or equivalent education in 20.6% of jobs.  Laundry and dry-cleaning workers do not have a minimum educational requirement in 79.4% of jobs.  Laundry and dry-cleaning workers do not require literacy in 18.5% of jobs.  Occupational Requirements Survey (2018).

The number of jobs that do not require literacy is approximately 40,400 jobs.  The data supports the testimony of the vocational witness as to the existence of a significant number of jobs that do not require literacy.  Whether other limitations (whether eroding exertion or other cognitive requirements of work) would erode that number is not discernible based on the face of the court's unpublished opinion.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Laundry Worker and Literacy, California Social Security Attorney (May 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/laundry-worker-and-literacy.html

Thursday, May 14, 2020

Preschool Teacher -- An Illustration of the Outdated DOT

Preschool teacher (DOT 092.227-018) is a fairly common occupation representing 523,600 jobs in the national economy.  OOH (2018) 25-2011 -- Preschool teachers, except special education.  Preschool teacher is the only DOT code in the group.  The DOT classifies preschool teacher as a light skilled occupation, SVP 7.

The O*NET Resource Center states that preschool teachers require one month of training or less in 30.43% of jobs.  Preschool teachers require related work experience of 30 days or less in 19% of jobs.   Preschool teachers require a high school diploma or equivalent in 28.75% of jobs.  From these three data points, 19% of preschool teachers could represent unskilled work.  A small minority of jobs require either on-the-job training or related work experience in excess of two years.  Less than 38% require more than an associate's degree.  O*NET OnLine Resource Center (2019) 25-2011.00 -- Preschool teachers, except special education.  The SVP of Preschool teachers appears overstated.

The Occupational Requirements Survey estimates that preschool teachers represent SVP 7 work in 37.5% of jobs and SVP 6 work in 26.3% of jobs.  The ORS does not describe the remaining 36% of jobs in terms of skill level.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require SVP 2-5 or 8-10, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The Occupational Requirements Survey estimates that preschool teachers require light exertion in 24.3% of jobs and medium exertion in 54.3% of jobs.  The ORS does not describe the remaining 25% of jobs in terms of exertion.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require sedentary or heavy exertion, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The SCO describes preschool teacher as requiring frequent reaching and handling with occasional fingering.  DOT 092.227-018.  The aptitudes, as part of the DOT dataset not in the SCO or DOT, describes preschool teacher as requiring below average motor coordination and finger dexterity but requiring average manual dexterity.

The O*NET OnLine states that preschool teachers use their hands to handle, control, or feel objects continually or almost continually in 17% of jobs, more than half the time in 37% of jobs, about half the time in 5 percent of jobs, less than half the time in 8% of jobs ,and never in 33% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers require fine manipulation in all jobs.  Preschool teachers engage in fine manipulation occasionally in 75.8% of jobs and frequently in 19.2% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  In addition to fine manipulation, preschool teacher must keyboard in 67.7% of jobs occasionally in 33.1% of jobs.  Id.

The Occupational Requirements Survey states that preschool teachers require gross manipulation in all jobs.  Preschool teachers engage in gross manipulation occasionally in 52.8% of jobs and frequently in 36.3% of jobs. Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers reach at or below shoulder level in 88.8% of jobs.  Preschool teachers reach at or below shoulder level occasionally in 45.7% of jobs. Preschool teachers reach overhead in 40.6% of jobs, using both hands in 36% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey describes preschool teachers as standing/walking 75% of day at the mean, half the day at the 25% percentile, and 90% of the day at the 90th percentile.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The O*NET OnLine reports that preschool teachers work less than 40 hours per week in 52.1% of jobs.  Preschool teachers work full-time or more in 47.8% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

For a step four analysis of ability to perform past relevant work, it is important to first classify the nature of the work as actually performed.  Did the work require SVP 7 skill level while engage in light work?  Did the claimant work full-time or part-time?  What were the standing/walking requirements of the job as actually performed.

Once the claimant establishes an inability to perform preschool teacher as actually performed, the attention must turn to the occupation as generally performed.  If the claimant worked part-time as past relevant work, then the existence of part-time work counts as generally performed.  Careful attention must be given to the question of as generally performed in terms of staying at or below the claimant's skill level, excluding jobs that require too much exertion, or have requirements that the claimant does not or no longer possesses.

The as generally performed analysis begs the question:  what does generally mean?  If generally means typical, then preschool teacher typically requires medium exertion.  If generally performed means something other than typically performed, then the claimant has a much more difficult burden to establish the inability to perform past relevant work as generally performed.  Because the DOT presents occupations as typically found in the national economy (DICOT App. D), typicality represents the best approximation of as generally performed.  Whether that range falls around the median, a plurality, or an average will turn to a case-dependent fact.

What is clear is that DOT as to preschool teacher no longer describes work that exists in the national economy.  The DOT does not describe typical skill, exertion, or manipulative requirements.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Preschool Teacher -- An Illustration of the Outdated DOT, California Social Security Attorney (May 14, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/preschool-teacher-illustration-of.html

Monday, May 11, 2020

Conflating the Stand/Walk Limitation to Eight Hours

A vocational witness responds to a hypothetical question that assumes a capacity for light work and a limitation to standing/walking for six hours in an eight hour day.  The claimant is advanced age, high school education, and past relevant work as a pharmacy technician (DOT 074.382-010, SVP 3, light).

The question did not contain any mental limitations but did have a limitation to occasional postural activities. The absence of a mental limitation, even slight or mild, made the case difficult. The limitation to occasional postural activities is unimportant. The vocational witness states that the person could perform past work as a pharmacy technician.
ATTY: What SOC code does pharmacy tech sort into?
VW: 29-2052 pharmacy technicians.
ATTY: What is your understanding of generally performed?
VW: [silence].
ATTY: Well, does it mean the majority of jobs, the median, the mean, what does generally performed mean to you?
VW: Generally performed as described by the DOT.
ATTY: What if we consider generally performed in the national economy. (that is the standard 20 C.F.R. § 416.960(b)(2)) If someone can only stand/walk six hours in an eight hour day, so that person must sit for two hours, can this individual perform work as a pharmacy tech as generally performed in the national economy?
VW: [mumbles, then silence.]
ATTY: If I presented you with data from the Department of Labor that reports jobs in this occupational group do not sit at the 25th percentile, do not sit at the median, and only sit for 1.1 hours at the mean, would that change your answer as to whether an individual could perform work as a pharmacy tech, as generally performed in the national economy, when that individual cannot stand/walk more than six hours in an eight hour day?
The vocational witness agreed that past work as a pharmacy tech requires more than six hours of standing/walking as actually and generally performed in the national economy.  Skills did not transfer to work that permitted six hours or less of standing/walking in an eight-hour day.  A colloquy ensued between the ALJ and counsel that "about six hours" of standing and/or walking found in the initial and reconsideration medical opinions/findings does not permit eight hours of combined standing/walking.  

In this case, counsel had submitted the Occupational Requirements Survey for Pharmacy Technicians (29-2052.00) from www.OccuCollect.com.  The ORS data and the vocational witness concession put the claimant into grid rule 202.06 once the claimant carried his burden of proof that he could not perform his past work as actually or as generally performed.  

Data wins.  Disabusing the witness of the notion that six hour of standing and/or walking does not mean six hours of each wins. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Conflating the Stand/Walk Limitation to Eight Hours, California Social Security Attorney (May 11, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/conflating-standwalk-limitation-to.html

Saturday, April 18, 2020

Use of the OOH and O*NET Accepted by the Court

The district court reverse and remanded Cymande S. v. Berryhill, 2019 WL 4148351, at *3 (C.D. Cal. May 16, 2019).  The decision is not available on Google Scholar.  No freebies.

This a straight Occupational Outlook Handbook and O*NET OnLine assault on vocational expert testimony mounted at the Appeals Council.  The district court summarized the issue:
Plaintiff also argues that the ALJ could not have reasonably relied on the testimony of the VE given that the VE's figures for a single job exactly matched the OOH reported figures for a category of jobs containing 18 distinct DOT job codes in one instance and 782 distinct DOT job codes in another instance.
Inspectors, testers, sorters, samplers and weighers (SOC 51-9061) is the occupational group that contains 782 DOT codes.  The OccuCollect.com everything report summary for any of the 782 DOT codes (including nut sorter) states:

There are 782 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

67 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary
14 are SVP 2
585 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light
3 are SVP 1 132 are SVP 2
117 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Medium
17 are SVP 2
13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Heavy
1 are SVP 1 6 are SVP 2

The unskilled occupations make up 173 DOT codes out of the 782 total codes.  The OOH currently describes the occupational group as typically requiring a high school diploma or equivalent, moderate-term on-the-job training, and representing 574,000 jobs.  The OOH glossary defines moderate-term as more than 30 days and up to one year.  The work is typically semi-skilled or skilled.  Inspectors, testers, sorters, samplers and weighers are not typically unskilled.  A nut sorter (DOT 521.687-086) cannot represent 574,000 jobs.  

This is one of occupations identified in Biestek v. Berryhill.  The proposition that 120,000 jobs as a nut sorter existing in the national economy ever is laughable.  Justice Gorsuch identified that concept in dissent.  

Cashiers (SOC 41-2011) is the occupational group that contains 18 DOT codes.  The OccuCollect.com everything report summary for any of the 18 DOT codes (including toll collector) states:

There are 18 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

5 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary
13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light
6 are SVP 2

The unskilled occupations make up 6 of the 18 total codes.  The OOH currently describes the occupational group as typically requiring no formal educational credential, short-term on-the-job training, and representing 3,648,500 jobs.  Toll collector cannot represent 3.4 million jobs.  

Cymande S. v. Berryhill represents progress is using the OOH combined with the O*NET crosswalk report to demonstrate the fallacy of job numbers.  Other data not mentioned by the court concerned the standing/walking of inspectors and cashiers, the predominant part-time nature of cashier work, as well as unskilled vs. semi-skilled or skilled work as reported by the O*NET (full-time) and ORS (other job characteristics).  Cymande S. v. Berryhill can be your next win if you present the vocational rebuttal to the ALJ or the Appeals Council (where AC evidence matters). 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Use of the OOH and O*NET Accepted by the Court, California Social Security Attorney (April 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/use-of-ooh-and-onet-accepted-by-court.html

Thursday, April 16, 2020

Come on Down! Let's Make a Deal!

Let's Make a Deal is the iconic TV game show that debuted in 1963 and continues to this day.  Whether you remember Monty Hall or the new version with Wayne Brady, Let's Make a Deal is the risk of the bird in the hand or pursue the two in the bush only to find that the two in the bush was a box of rocks.  Administrative Law Judges play that game too.

I will use the experience of yesterday.  I could use similar experiences from 30 years ago.  The conversation goes something like this:
ALJ:  I am willing to find your client disabled as of February 1, 2020, the week before the psychiatrist signed the medical source statement.
ATTY:  The PA that authored that MSS completed two more with congruent findings, the first in 2008.
ALJ:  I know that.  If you don't want to take the February 1, 2020, date, then I will send the claimant out for a consultative psych eval -- who knows how long that will take.  Your choice counsel.
ATTY:  Compromising the claim is never my choice.  I will speak to my client.
ALJ:  I will put the call on hold and the monitor will text me when I can pick up.  
The vocational expert hangs up on my insistence.  I explain the game of Let's Make a Deal.  Not only do I not know who the consultative examiner will be, I have no idea what that person will write.  It isn't even a testifying medical expert where I can choose what exhibits to point out.  The consultative examiner is the worst option.  The client, desperate for security and tired of general relief subsistence, takes the ALJ offer rather than wait until December to get a decision whether the same, better, or worse.

We address this issue based on the Code of Conduct for Unites States Judges.  Canon 3A(4), second paragraph, states:
A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.
Is the threat of a consultative examination coercive?  Is the statement that getting the claimant out to a consultative examination when the unending COVID-19 crisis ends coercive?   I submit that the choice of pay now or wait an indeterminate amount of time with an unknown variable is coercive.  We further the analysis with the last clause of the oath of office of every office other than the President and elected or appointed offices:
I will well and faithfully discharge the duties of the office on which I am about to enter.
 The oath of justices and judges is similar:
I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ...
The authority of an ALJ includes taking appropriate measures necessary to enable him or her to discharge the duties of office.

The clear import of the duty of the ALJ is to pay the claims of people that meet the disability standard on the date that the ALJ believes is proven by the record and to deny benefits to people that have not met the burden of proof.  Pay every dime due and deny every dime not due.

In our case from yesterday, the ALJ was either not persuaded of disability as of February 1, 2020, or was using that date as a coercive lever to preclude resolution of the controversy as to the earlier date.  The February 1, 2020, date is an endorsement date, not a medically based onset date.  It is a coerced result.

That is the bottom line.  The ALJ either put someone on the disability rolls that did not belong there by stripping that person of to right to have the earlier period adjudicated, or the ALJ simply coerced the person into giving up rights to protect the government fisc or some other improper purpose.

When an ALJ suggests an amendment to the onset date or the termination of disability, that suggestion or offer should stand without precondition.
I am prepared to find your client disabled as of February 1, 2020.  You may amend your onset date or I will prepare a partially favorable decision, leaving the exceptions and review rights intact.  What would your client like to do?  
That is the type of statement that complies with the oath of office and the judicial canons, used here by analogy.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Come on Down!  Let's Make a Deal!, California Social Security Attorney (April 16, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/come-on-down-lets-make-deal.html

Thursday, April 2, 2020

O*NET OnLine Will Migrate to the SOC 2018 in November 2020

New O*NET-SOC Taxonomy Transition Tools within O*NET Web Services

With the release of the O*NET 25.1 Database in November 2020, O*NET Web Services will transition to the O*NET-SOC 2019 taxonomy. This taxonomy, based on the 2018 SOC, introduces several changes to the occupations returned by our services. It includes 1,016 occupational titles, 923 of which represent O*NET data-level occupations. For more information on these changes, see the O*NET-SOC Taxonomy page at the O*NET Resource Center.
To help O*NET Web Services users with the upcoming taxonomy transition, Taxonomy Services are now available to enable developers to connect occupational data between existing systems based on the O*NET-SOC 2010 taxonomy, and the future O*NET-SOC 2019 taxonomy-based O*NET Web Services.
That's the announcement from the Department of Labor, Employment Training Administration (ETA). One big change comes in production workers, all other (51-9199).  This probably the most statistically abused group in terms of the number of DOT codes (1,590), the number of unskilled sedentary and light DOT codes (457), and the insidious use of equal distribution.  Part of that will go away in November.  Here is what is happening to SOC 51-9199 and its detailed occupation 51-9199.01 Recycling and Reclamation Workers:
51-9161.00 Computer Numerically Controlled Tool Operators
51-9162.00 Computer Numerically Controlled Tool Programmers
51-9199.00 Production Workers, All Other
53-7062.04 Recycling and Reclamation Workers
Some DOT codes, maybe, and a significant number of jobs will move to other O*NET/SOC codes.  Part of the gross data aggregation will go away.  Production workers, all other will get numerically smaller.  None of the unskilled sedentary and light DOT codes currently resident in production workers, all other fit the three new classifications.

Another statistical mess will get cleaned up.  Stock clerks and order fillers will consolidate four detailed occupations back into the single SOC code:
43-5081.01 Stock Clerks, Sales Floor
43-5081.02 Marking Clerks
43-5081.03 Stock Clerks- Stockroom, Warehouse, or Storage Yard
43-5081.04 Order Fillers, Wholesale and Retail Sales

Those four detailed occupations and the constituent 2 million jobs will all end up in Stockers and Order Fillers with a new numerical designation, but same name:
53-7065.00 Stockers and Order Fillers
We can expect the ORS will track the new changes.  Counting unskilled light stockers and order fillers will get easier because the data will designate light and unskilled jobs.  We will still have to put the numbers together.  My suspicion is that the number of light markers will go down significantly because the range of medium exertion includes constant lifting/carrying of 2 pounds or frequent lifting/carrying of 11 pounds in addition to the recognized occasional lifting/carrying of 21 pounds all to that maximum of seldom lifting/carrying of 50 pounds.

When the data arrives, you can expect to see it incorporated into OccuCollect and its heralded everything report.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, O*NET OnLine Will Migrate to the SOC 2018 in November 2020, California Social Security Attorney (April 2, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/onet-online-will-migrate-to-soc-2018-in.html

Thursday, March 19, 2020

Documented Occupational Erosion Using BLS Data Accepted by the ALJ

I had a telephone hearing with an ALJ. Judge states that he found the pre-hearing brief persuasive and intends to award benefits for a younger individual, high school education in a foreign country, illiterate in English, past work semi-skilled and light. The residual functional capacity is for a limited range of light work: standing two hours; walking two hours. Clearly a mixed bag on the medical-vocational criteria. I attach an everything report from OccuCollect.com for the two occupations cited. The everything report includes the DOT, SCO, OOH, O*NET, and ORS data along with calculations for the common factors encountered. With those reports attached, here is the argument presented, the client's name replaced with CLAIMANT, to protect privacy:

The prior vocational expert testified to assembler of plastic hospital products (DOT 712.687-010) representing 115,000 jobs; assembler, electrical accessories (DOT 729.687-010) representing 20,000 jobs. The testimony is easily contradicted and rendered feeble. It is not substantial evidence. You should find CLAIMANT disabled under the Medical-Vocational Guidelines, Rule 201.17 by analogy.

1. Assembler of Plastic Hospital Products

Assembler of plastic hospital products is a light unskilled occupation. DICOT 712.687-010. Assembler of plastic hospital products belongs to the occupational group of production workers, all other (SOC 51-9199). Production workers, all other represents a large occupational group containing 1,590 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-9199. The Occupational Outlook Handbook describes production workers, all other, as representing 244,700 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-9199.

Production workers, all other, have no minimum educational requirement in 49.1% of jobs. They require literacy in 31% of the jobs. That leaves 18.1% of the jobs is not requiring literacy. Production workers, all other, engage in unskilled work in 53% of jobs. Production workers, all other, engage in medium work in 63.9% of jobs. Production workers, all other, stand/walk 6.75 hours per day at the 25th percentile; 7.92 hours per day at the 50th percentile; and 8.0 hours per day at the 75th and 90th percentiles. There is no significant range of work in the occupational group of production workers, all other, that permit standing/walking equal to or less than four hours in an eight-hour day. Occupational Requirements Survey (2018), 51-9199.00.

2. Assembler of Electrical Accessories I

Assembler of electrical accessories I is a light unskilled occupation. DICOT 729.687-010. Assembler of electrical accessories I belongs to the occupational group of electrical and electronic equipment assemblers (SOC 51-2022.00). Electrical and electronic equipment assemblers is a large occupational group containing 61 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-2022. The Occupational Outlook Handbook describes electrical and electronic equipment assemblers as representing 218,900 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-2022.

Electrical and electronic equipment assemblers have no minimum educational requirement in 26.7% of jobs. Literacy is required in all, 26.7% of jobs. Electrical and electronic equipment assemblers engage in unskilled work in 29.2% of jobs. Electrical and electronic equipment assemblers engage in light work and 28.3% of jobs. Electrical and electronic equipment assemblers do not sit at the 10th percentile; sit for hours per day at the 50th percentile; sit 6.4 hours per day at the 75th percentile; and sit 7.2 hours per day at the 90th percentile. Electrical and electronic equipment assemblers stand/walk 1.6 hours per day at the 25th percentile; 4.8 hours per day at the 50th percentile; 7.2 hours per day at the 75th percentile; and 8.0 hours per day at the 90th percentile. Very few electrical and electronic equipment assemblers meet the residual functional capacity assessed, but none of them meet the educational deficiency of illiteracy in English. Occupational Requirements Survey (2018), 51-2022.00.

3. Conclusion

A limitation to four hours of standing/walking in an eight-hour day erases the ability to perform light work. First and foremost, the ability to stand is far more important than the ability to walk for light work. Social Security Ruling 83-10. The primary difference between light and sedentary work is standing/walking. Id. You should apply Grid rule 201.17 and find CLAIMANT disabled.

The ALJ directed the vocational expert to the brief in the E section.  The vocational expert confirmed that the person could not perform any identifiable work.  Hearing concluded. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Documented Occupational Erosion Using BLS Data Accepted by the ALJ, California Social Security Attorney (March 19, 2020)
http://californiasocialsecurityattorney.blogspot.com/2020/03/documented-occupational-erosion-using.html

Friday, March 13, 2020

Ford v. Saul and the Five-Day Rule for VE Rebuttal

Ford v. Saul holds that a request to subpoena records from the vocational expert is too late under 20 C.F.R. § 404.935(a) (the five-day rule).  We analyze why that holding is wrong and why it does not constitute law of the circuit.  


We start with our premise:  the five-day rule does not apply to rebuttal evidence at step five of the sequential evaluation process.  That position rests on plain error of law.  We start with the regulation:
When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. §§ 404.935(a), 416.1435(a).   The required (404.1512 and 416.912) sections describe the claimant’s responsibility:
you must inform us about:
(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.
 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).  Paragraph (2) describes the completeness issue:
The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—
(i) The nature and severity of your impairment(s) for any period in question;
(ii) Whether the duration requirement described in § 404.1509 [§ 416.909] is met; and
(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) [§ 416.920(e) or (f)(1)] apply.
20 C.F.R. §§ 404.1512(a)(2), 416.912(a)(2).  The regulations do not impose a duty on the claimants to present evidence about the step five question before the hearing.  That duty rests on the Commissioner.  20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3):
In order to determine under § 404.1520(g) [§ 416.920(g)] that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a [§§ 416.960 through 416.969a]), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e) [§ 416.920(e)]), age, education, and work experience.
 The five-day rule does not apply to evidence in rebuttal to (b)(3).  The five-day rule does not embrace evidence after the step three interim finding of residual functional capacity for completeness.  While a claimant must inform the Commissioner about work experience, the evidentiary hearings typically spend time on that subject — the five-day rule does not apply to developing and completing the record for past relevant work purposes. The Commissioner recognizes the problem of surprise at a hearing generally.  81 Fed. Reg. 90987, 90991 (Dec. 16, 2016):
 if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As  previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.
Ford v. Saul, ___ F.3d ___, part D (9th Cir. Feb. 20, 2020) cites the five-day rule for the purposes of requesting a subpoena.  Ford does not analyze the scope of §404.1512.  Ford does not control the analysis of §404.1512 to the five-day rule by failing to discuss it.  See Miranda B. v. Kitzhaber,328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’” (quoting United States v. Johnson,256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J. concurring)).  Ford does not confront the scope of §404.1512 and fails the law of the circuit test. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul and the Five-Day Rule for VE Rebuttal, California Social Security Attorney (March 13, 2020) edited (March 13, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-and-five-day-rule-for-ve.html

Wednesday, March 4, 2020

Douglas Prutting, Vocational Expert and Probable Prevaricator

Vocational experts are not used to being challenged.  We need to make the challenge ordinary.  The time investment up front is extraordinary but the dividends in the long run will more than compensate for the initial investment.  Douglas Prutting, Colorado Springs, Colorado, is the example of the day.

We get to a light residual functional capacity, simple repetitive tasks, minimal educational requirements, and limited to standing/walking four hours in a workday.  Prutting identifies small products assembler I (DOT 706.684-022).  Prutting uses Job Browser Pro.
Which version?
 The latest version that came out in July 2019.  
Houston, we have a problem.  The latest version of JBP did not come out in July 2019.  Version 1.7 came out in October 2019.
How many jobs does JBP state there are for small product assembler?
218,000.
Is that for the entire SOC group (51-9199) and not the for the DOT code?
Yes.  
How many jobs does JBP estimate exists for small product assembler?
I don't know how to get that number.  
JBP uses the OES job numbers.  JBP is plain about that.  The current OES job number for production workers, all other is 230,760.  I do not have to check JBP, I know that Prutting is not looking at a 2019 release of JBP, either the last installment of ver. 1.6 or ver. 1.7.  He is not truthful.

The May 2014 OES data, released by BLS in May 2015, estimates the number of production workers, all other (SOC 51-9199) at 217,500.  No other year comes close.  Data for years after 2014 are too high.  Data for 2013 reports 206,600 jobs.  Prutting is using the JBP release from 2015 and has either never bothered to check current data or never updated JBP, another misstatement.

Douglas Prutting is a prevaricator.  It is just that plain.  He got caught using old data and resorted to the natural human instinct of self-defense by speaking falsely.  Prutting probably is not used to anyone challenging him or caring that he lies.  But I do.  I care.  And so should the agency.  The ALJ has access to JBP at their desk on the fly and can check witness testimony that relies on JBP.  But they don't care.  Neither does the agency.  Public confidence in the system demands that we expose false testimony and demand that Prutting and his ilk speak truthfully and accurately.  The quality of life of disabled people depends on it.  In an age of budget retraction, we have to prove disability when the person cannot work.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Douglas Prutting, Vocational Expert and Probable Prevaricator, California Social Security Attorney (March 4, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/douglas-prutting-vocational-expert-and.html

Sunday, March 1, 2020

Ford v. Saul -- What Jobs and How Many?


The Ninth Circuit decided Ford v. Saul on February 20, 2020.  Ford is capable of a limited range of sedentary work.  We consult the District Court decision to fill in some of the gaps.  Ford can perform sedentary work with no climbing of ladders, ropes, or scaffolds; no climbing of stairs, crouching, crawling, or kneeling; occasional stooping; frequent handling and fingering; avoiding concentrated exposure to extreme cold; understand, remember, and carry out simple and routine tasks; no fast-paced production work; superficial contact with the public; can work in small groups; can interact with co-workers and supervisors to complete tasks.

The Ninth Circuit reports that the vocational expert identified 130,000 jobs as an addresser and 9,800 jobs as ink-printing.  Addresser belongs to the occupatinal group of word processors and typists (SOC 43-9022)..  Ink printer belongs to the occupational group of printing press operators (SOC 51-5112).

Addresser is obsolete.  Addresser is a word processor and typist (SOC 43-9022) occupation.  Word processors and typists contains eight DOT codes.  BLS reported in May 2015 (data that would have been published in 2016 and have been the most current data in the November 2016 hearing) that there were 68,660 word processors and typists in the nation.  The OOH relied on the 2014-24 employment projections as of November 2016, estimating the number of word processors and typists at 90,700.  That would represent the number for the O*NET OnLine as of November 2016.  The two BLS sources (EP and OES) do no support the 130,000 jobs as an addresser in 2016 or even 130,000 jobs in the group of word processors and typists.  The vocational expert lied and the failure to submit available evidence from the BLS allowed the witness to get away with it. 

An “everything report” from OccuCollect gives the data that we need to destroy the testimony.  The O*NET reports that addresser is the only unskilled DOT code.  The O*NET Resource Center reports that 51.54% of word processors and typists have 30 days or less of on-the-job training; 4.05% do not require related work experience of more than 30 days; and 51.57% of jobs require a high school education or less.  SVP is a function of training, work experience, and education.  The SVP can never be lower than the smallest component.  The exception is the exchange of experience or education where those criteria are treated interchangeably as qualifications.  Then the lowest of the two defines the SVP.  For word processors and typists, the requirement for six months to two years of related work experience means that most of the jobs are skilled.  Relatively few (8.12%) of word processors and typists are semi-skilled. 

The O*NET Resource Center does not support the presence of more than 4,500 addresser jobs in the nation in 2016. Current OOH job numbers permit the inference of 3,000 addressers.  Current OES job numbers permit the inference of 2,600 addressers.  The testimony of the vocational expert in Ford, that there were 130,000 addresser jobs, is patently false. 

Ink printer is a printing press operator (SOC 51-5112) occupation.  The ORS component of the  “everything report” from OccuCollect tells us that the OOH describes printing press operators stand/walk five hours per day at the 10th percentile.  Printing press operators engage in unskilled work in 23.8% of jobs.  Printing press operators engage in medium work in 62.7% of jobs and lift up to 25 pounds at the 25th percentile.  That data point tells us that at least 13% of the jobs require heavy or greater exertion (62% above the 25th percentile is 87%).  If there are sedentary printing press operators, they represent less than 10% of the jobs.  The testimony that ink printer represent 9,800 jobs is possible. 

Ford waived the important issues at the hearing level.  The vocational expert gave unreliable testimony.  The court embarrassed itself by allowing junk to decide the entitlement to benefits.  SSA embarrassed itself by defending that kind of testimony.  The public confidence in the system of administrative justice should go down. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul -- What Jobs and How Many?, California Social Security Attorney (March 1, 2020) edited (March 2, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-what-jobs-and-how-many.html

Wednesday, February 26, 2020

Valerie Williams, VE, Relies on Job Browser Pro 2017

Valerie Williams testifies as a vocational expert in Las Vegas and the nine southern California Social Security hearing offices -- that I know of.

Here are some facts that I have gleaned:

1. Williams does not own a license for Job Browser Pro -- she shares a copy with another expert.
2. The copy of Job Browser Pro is version 2017.
3.  Williams does not check current job numbers.

Really, a vocational expert that is pinching pennies does not have her own copy of JBP.  It is $549 for the initial license and significantly less for annual renewals.  While we are on this rant, attorneys must have access to a current version of JBP.  If an attorney does not have access to a copy of JBP, then the attorney cannot submit rebuttal evidence to vocational expert testimony.

SkillTran launched version 1.7 in the fall of 2019.  Use of any version prior to that date is irresponsible and unreliable.  Version 1.6.3 is not reliable when the publisher declares openly that the methodology and ability of users to add and subtract industries constituted a flaw.  The version out in 2017 is at least one release behind in terms of ver. 1.6 and completely misses the 1.7 improvements.  That does not mean that JBP is correct or reliable in every instance but it is always useful evidence.

And here it is, Williams testifies to 85,000 jobs as an usher (DOT 344.677-014) and 40,800 jobs as a barker (DOT 342.657-010).  The ALJ confirmed that these are full-time job numbers.  Cross-examination confirmed that JBP version 2017 (no such designation) is the data source for the job numbers.

But that is not what JBP says, not even close.  JBP estimates the number of full-time ushers at 4,460 in the nation and the number of full-time barkers at 3,144 in the nation.  Williams played fast and loose with the job numbers and misrepresented what she did not have to look at.  That is negligent at best, more likely reckless, if not plainly false testimony.

A check of the OES job numbers of OccuCollect.com estimates that ushers, lobby attendants, and ticket takers represent 133,970 jobs in the nation.  The OOH job numbers of OccuCollect.com estimates job numbers for ushers, lobby attendants, and ticket takers at 136,400 jobs.  The OES and OOH reports are free non-subscription reports available by registering your email address.

The O*NET OnLine states that 90% of ushers, lobby attendants, and ticket takers work less than full-time.  The O*NET is part of the subscription package on OccuCollect.com.  JBP estimates the number of part-time workers at 86%.  JBP uses the definition of full-time at 35 hours per week.  the O*NET uses 40 hours per week.  It is impossible for the occupational group of  ushers, lobby attendants, and ticket takers to represent 85,000 jobs in the nation.

A check of the OES job numbers of OccuCollect.com estimates that amusement and recreation attendants represent 318,900 jobs in the nation.  The OOH job numbers of OccuCollect.com estimates job numbers for amusement and recreation attendants at 338,600 jobs.

The O*NET OnLine states that 59% of amusement and recreation attendants work less than full-time.  The O*NET is part of the subscription package on OccuCollect.com.  JBP estimates the number of part-time workers at 71%. The Everything Report from OccuCollect.com uses the Occupation Requirements Survey to describe amusement and recreation attendants as unskilled in 80% of jobs; lifting/carrying 20.56 pounds at the mean; standing/walking 80% of the day at the 25th percentile and 66.7% of the day at the 10th percentile; and no minimum education requirement in 72.6% of jobs.  Most of the jobs are part-time and don't count; most of the jobs require medium exertion; and some reduction is warranted for skill and education.

Usher and barker are targets because of the SCO description of occasional handling.  The ORS states that amusement and recreation attendants require gross manipulation with both hands in 82.3% of jobs and require fine manipulation in 97.5% of jobs.  Limitations to light work with six hours of standing/walking and occasional use of one or both hands will not leave a significant number of jobs.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Valerie Williams, VE, Relies on Job Browser Pro 2017, California Social Security Attorney (February 26, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/valerie-williams-ve-relies-on-job.html

Tuesday, February 11, 2020

The Death of SSR 00-4p

This is the brief in Anthony D. v. Saul raising the colorable claim that SSR 00-4p is not entitled to deference:

A.   The Death of Social Security Ruling 00-40p

The substantial evidence question involves two discrete components: (1) is there a discernible path from the vocational expert’s local knowledge that uses a reliable method to extrapolate to national data; and (2) is the vocational expert testimony feeble or contradicted. Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019). There is no discernible path from the vocational expert’s testimony from local data to national statistics because no one asked.

Kisor v. Wilkie, 139 S.Ct. 2400 (2019) retools the deference doctrine found in Auer v. Robbins, 519 U.S. 452, 461 (1997). To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation. Social Security Rulings are frequent recipients of deference. Quang Han Van v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989); Wellington v. Berryhill, 878 F.3d 687, 872 (9th Cir. 2017). The rulings bind all components of the agency. 20 C.F.R. § 402.35(b). Under Kisor, that automatic deference is now up for reconsideration. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). [D.] examines deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. [D.] starts 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—
(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.
The Commissioner takes administrative notice of reliable job information from various governmental and other publications. Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:
In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.
And:
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.
The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook. Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:
The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.
The first Kisor question returns to the Chevron watershed: is the regulation ambiguous? 139 U.S. at 2415. 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 v. Swift & Co., 323 U.S. 134 (1944), but it does not get deference. There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples. Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses. Because the regulations 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? 139 U.S. at 2415-16. Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed. Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. The Commissioner cannot create a new regulation by interpreting a clear one to say something that the regulation does not suggest. Christensen v. Harris County, 529 U.S. 576, 588 (2000).

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. 139 U.S. at 2416. There is no doubt that Social Security Ruling 00-4p 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 the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration. But here is what Labor says about the subject:
The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.
Dept. of Labor, Office of Administrative Law Judges, Dictionary of Occupational Titles –  Fourth Edition, Revised 1991, electronic version at https://www.oalj.dol.‌gov/‌‌LIBDOT.HTM.  The O*NET is an ongoing process of data collection and refinement.  See 84 Fed.Reg. 24822 (May 29, 2019). 

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek. The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published. The O*NET is updated every year. Most of the DOT is over 40 years out-of-date. When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek. With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:
Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.
The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set version 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT as to the descriptions contained in the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.


_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, The Death of SSR 00-4p, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/the-death-of-ssr-00-4p.html

A Word About Numerosity

That is the title of the section of the court decision in Anthony D. v. Saul, CV 19-134 MRW.  It is not available on Google Scholar or WestLaw.  Here are the important snippets from the court decision by Magistrate Judge Wilner:

13 ... Some judges [fn. 1] doubt whether the twentieth century's DOT (last revised in 1991) remains a legitimate, dependable source of employment data in contemporary America. The database continues to trumpet the availability of jobs that simply don't exist anymore.

14. It is especially eye-opening that the U.S. Department of Labor endorses a competing compilation (the O*Net) as the "primary source of occupational information" for use in industry and litigation — even as the Labor Department explains that it posts DOT information on its website solely as an accommodation to the Social Security Administration. (oalj.dol.gov/LIBDOT.HTM (accessed Jan. 9, 2020).)

15.  Plaintiff makes colorable arguments as to why SSR 00-4p should not receive Kisor-Auer deference. Counsel also may have my ear some day in asserting that vocational expert testimony based on archaic DOT job data and descriptions does not constitute "substantial evidence" adequate to support an adverse agency ruling. Biestek v. Berryhill, U.S. , 139 S. Ct. 1148, 1154 (2019). However, because the action is remanded on another ground, I get to duck the issue today.

16.  By the way, so did the Ninth Circuit in Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). The government is literally correct in quoting the passage from Shaibi that the circuit could "find no case, regulation, or statute suggesting" that an ALJ must turn to other data sources in lieu of the DOT. (Docket # 21 at 23 (quoting Shaibi, 883 F.3d at 1109).) But the Ninth Circuit clearly did not view that issue as either ripe or preserved at the time — the main and obvious holding in the case was that Mr. Shaibi "forfeited his challenge to the VE's job numbers." Id., 883 F.3d at 1108.

17.  Are other aspects of the decision merely nonbinding dicta? Perhaps Pasadena will deal with this roiling question soon. If so, the agency may need to reconsider its defense of the dusty DOT data.  

And footnote 1 lists some cases casting doubt on blind application of the DOT:

Including me. See Analia D. v. Berryhill, No. CV 18-3869 MRW, 2019 WL 856854 at *2 (C.D. Cal) ("To that end, a growing number of courts have resisted agency findings that historic jobs — like those involving the word processing devices formerly known as typewriters — exist in substantial numbers in the 2019 economy. See, e.g., Skinner v. Berryhill, No. CV 17-3795 PLA, 2018 WL 1631275 (C.D. Cal. Apr. 2, 2018) (`addresser' jobs have 'significantly dwindled in number since 1991 in light of technological advances'); Hilda V.A. v. Berryhill, No. ED CV 18-195 KES, 2018 WL 5291930 (C.D. Cal. 2018) (discussing percentage of time that 'accounting clerk' currently spent on keyboarding tasks); Boomhower v. Berryhill, 2017 WL 7167116 (D. Or. 2017) (remanding for determination whether 'addresser' and 'nut sorter' are jobs 'still performed' as described in DOT); Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (retired Circuit Judge Posner's doubts about the validity of job information for positions like 'pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist').") 

We will make progress in this endeavor if we persevere and fastidiously demand that the agency produce reliable evidence of the existence of work.


_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, A Word About Numerosity, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/a-word-about-numerosity.html


Saturday, January 25, 2020

A Plain Conflict Between the Regulation, Ruling, and POMS

In 2003, Social Security amended the regulations concerning adverse medical-vocational profiles that warrant a finding of disability without the assessment of residual functional capacity. Social Security added paragraph (b) to §§ 404.1562, 416.962Prior to the 2003 amendment, the regulations provided:
If you have only a marginal education and work experience of 35 years or more during which you did 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), we will consider you unable to do lighter work, and therefore, disabled. However, if you are working or have worked despite your impairment(s) (except where the work is sporadic or is not medically advisable), we will review all the facts in your case, and we may find that you are not disabled. In addition, we will consider that you are not disabled if the evidence shows that you have training or past work experience which enables you to do substantial gainful activity in another occupation with your impairment, either on a full-time or a reasonably regular part-time basis.
(Example omitted).  The regulation now reads:
(a) If you have done only arduous unskilled physical labor. 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.
(b) 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 §§ 404.1520(c), 404.1521, and 404.1523), are of advanced age (age 55 or older, see § 404.1563), have a limited education or less (see § 404.1564), and have no past relevant work experience (see § 404.1565), 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 this subpart.
The concept of a person of advanced age, lacking past relevant work, and limited to medium exertion was presumptively disabled.  Appendix 2, Rules 203.02, 203.10.   The explanation for the rules contained in Social Security Ruling 82-63. In that ruling, the agency expands:
Rules 203.02 and 203.10 in Table No. 3 of Appendix 2 reflect the policy decision in July 1975 with respect to persons who have a severe exertional impairment which limits them to the medium level of work exertion. However, should only rules 203.02 and 203.10 be considered, a person with a severe nonexertional impairment who is of advanced age, has a limited education, and has no recent and relevant work experience might not be found to be disabled.
The 1982 ruling states that a person of advanced age, limited education, and severe mental impairment "might not be found to be disabled." The 2003 regulation states that if a person is of advanced age, possesses no more than a limited education, has no past relevant work experience, and has a severe medically determinable impairment, that person is presumptively disabled.  The regulations are clearly positive law. The ruling is binding on agency adjudicators. Something is wrong.

The SSA also issues POMS DI 25010.001. There, the agency describes the paragraph (a) arduous unskilled work profile, the paragraph (b) no work experience profile, and a third lifetime commitment profile (not currently working at SGA levels; lifetime commitment of 30 years or more to a field of work that is either unskilled or leaves no transferable skills; no longer able to perform past work because of a severe impairment; closely approaching retirement age; and having no more than a limited education).

To resolve the tension between the ruling, amended regulation, and current POMS provision, we need to understand that rulings are not positive law but are instead policy statements or interpretations of regulations or the statute. SSR 83-63 properly interpreted the provisions of rules 203.02 and 203.10, but did not anticipate the 2003 regulatory changes. The statement that a person with a nonexertional impairment otherwise meeting the adverse vocational profile "might not be found disabled" is inconsistent with the regulatory language. Because it is inconsistent with the regulatory language, it is not entitled to deference.

The POMS provision is more troublesome in its addition of the lifetime commitment profile for an individual at least 60 years of age.  The current version of the adverse vocational profile regulation does not include this profile. Whether an ALJ would apply the lifetime commitment profile to an individual age 60 or over represents a fair question.

The take away from this is simple: just because a ruling is still in place does not mean that it is entitled to deference. It might be wrong. It might not be consistent with amended regulations. Or it might not be entitled to deference for other reasons.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, A Plain Conflict Between the Regulation, Ruling, and POMS," California Social Security Attorney (January 25, 2020), revised (January 27, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/01/a-plain-conflict-between-regulation.html




Wednesday, January 22, 2020

Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work

Sometimes it is worth examining our presumptions about what terms and phrases of art mean.  We explore the issue of the exertional demands of the different ranges of work.  The Occupational Requirements Survey is a creature of the Bureau of Labor Statistics.  The ORS is intended as the eventual replacement for the Dictionary of Occupational Titles.  Here is the ORS definitions of light through very heavy work.

Table 1. Determining strength level based on duration of lifting or carrying
Strength level
Duration of lifting or carrying
Seldom
Occasionally
Frequently
Constantly
Light work
11-20 pounds
11-20 pounds
1-10 pounds
Negligible weight
Medium work
21-50 pounds
21-50 pounds
11-25 pounds
1-10 pounds
Heavy work
51-100 pounds
51-100 pounds
26-50 pounds
11-20 pounds
Very heavy work
>100 pounds
>100 pounds
>50 pounds
>20 pounds


The definition of sedentary is a residual category, a process of excluding other ranges of work. 

Table 2. Special cases for calculating strength level
Strength level
Description
Unknown
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.
Sedentary
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.
Light work
If none of the conditions in the strength chart are met and does not meet the special conditions for unknown or sedentary.

The amount of standing/walking in a day is a factor only in differentiating between sedentary and light work.  The statement is SSR 83-10 that the primary difference between sedentary and light work is the amount of standing/walking conforms to Labor definitions.  The statements in SSR 83-10 that light and medium work involve standing/walking six hours in a workday was not correct in 1983, not correct in 1991, and not correct today.  Light work involves standing/walking from zero to eight hours per day. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work," California Social Security Attorney (January 22, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/01/definitions-of-sedentary-light-medium.html