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, 416.962.  Prior 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.

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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

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

The Industries Assigned to Small Products Assembler I -- DOT Conflict

We addressed the use of DOT industry designations and narrative job descriptions to create unexplained conflict between the DOT and Job Browser Pro using lens inserter as our example.  We can now examine a bigger and more damaging problem in the occupation of small products assembler I (DOT 706.684-022).  We start with the DOT entry for the occupation:

706.684-022 ASSEMBLER, SMALL PRODUCTS I (any industry) alternate titles: bench assembler 

Performs any combination of following repetitive tasks on assembly line to mass produce small products, such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors: Positions parts in specified relationship to each other, using hands, tweezers, or tongs. Bolts, screws, clips, cements, or otherwise fastens parts together by hand or using handtools or portable powered tools. Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker. Loads and unloads previously setup machines, such as arbor presses, drill presses, taps, spot-welding machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or light metal-cutting operation on assembly line. May be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor. May be known according to product assembled.

GOE: 06.04.23 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 79

 The first thing to notice is the designation of any industry.  Here is what the DOT says about that any industry designation:

Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry."

The mass production of small products such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors do not occur in nearly all industries but do occur n a number of industries, not most industries.  When the vocational expert identifies small products assembler, it is incumbent to establish those self-evident facts.

So what does JBP describe as the industries?  We take them groups as a time.

311100 Animal food manufacturing
311200 Grain and oilseed milling
311300 Sugar and confectionery product manufacturing
311400 Fruit and vegetable preserving and specialty food manufa
311500 Dairy product manufacturing
311600 Animal slaughtering and processing
311700 Seafood product preparation and packaging
311800 Bakeries and tortilla manufacturing
312100 Beverage manufacturing
314000 Textile product mills
316000 Leather and allied product manufacturing
321100 Sawmills and wood preservation
321200 Veneer plywood and engineered wood product manufact
321900 Other wood product manufacturing
322000 Paper manufacturing
323000 Printing and related support activities
324000 Petroleum and coal products manufacturing
3250A1 Chemical manufacturing
3250A2 Chemical manufacturing
325400 Pharmaceutical and medicine manufacturing

These industries would not appear to manufacture small products on an assembly line.

326100 Plastics product manufacturing
326200 Rubber product manufacturing

These categories are possible and do not create an easily established apparent conflict.

331200 Steel product manufacturing from purchased steel
331300 Alumina and aluminum production and processing
331400 Nonferrous metal (except aluminum) production and proc
331500 Foundries
3320A1 Fabricated metal product manufacturing
3320A2 Fabricated metal product manufacturing
332710 Machine shops
332800 Coating engraving heat treating and allied activities

More questionable industries.  

3330A1 Machinery manufacturing
333300 Commercial and service industry machinery manufacturin
333500 Metalworking machinery manufacturing
333600 Engine turbine and power transmission equipment manuf
334100 Computer and peripheral equipment manufacturing
334200 Communications equipment manufacturing
334300 Audio and video equipment manufacturing
334400 Semiconductor and other electronic component manufact
334500 Navigational measuring electromedical and control instr
334600 Manufacturing and reproducing magnetic and optical medi
335100 Electric lighting equipment manufacturing
335200 Household appliance manufacturing
335300 Electrical equipment manufacturing
335900 Other electrical equipment and component manufacturing
336100 Motor vehicle manufacturing
336200 Motor vehicle body and trailer manufacturing
336300 Motor vehicle parts manufacturing
336400 Aerospace product and parts manufacturing
336900 Other transportation equipment manufacturing
337000 Furniture and related product manufacturing
339000 Miscellaneous manufacturing
339100 Medical equipment and supplies manufacturing

Some of these facially fit the DOT occupation description.  Others require an explanation. 

4230A1 Merchant wholesalers durable goods
423100 Motor vehicle and motor vehicle parts and supplies merch
423400 Professional and commercial equipment and supplies mer
423800 Machinery equipment and supplies merchant wholesaler
4240A1 Merchant wholesalers nondurable goods
4240A2 Merchant wholesalers nondurable goods
4240A3 Merchant wholesalers nondurable goods
424300 Apparel piece goods and notions merchant wholesalers
424500 Farm product raw material merchant wholesalers
425000 Wholesale electronic markets and agents and brokers
441000 Motor vehicle and parts dealers
444000 Building material and garden equipment and supplies deal
445000 Food and beverage stores
448000 Clothing and clothing accessories stores
451000 Sporting goods hobby musical instrument and book stor
453000 Miscellaneous store retailers
454000 Nonstore retailers
493000 Warehousing and storage
561320 Temporary help services

Wholesalers and retailers do not manufacture.  They employ production workers, all other, but not this DOT code, not without a reasonable explanation.

624300 Vocational rehabilitation services

Sheltered work does not count. 

811200 Electronic and precision equipment repair and maintenanc

Workers repairing and maintaining do not manufacture. 

TE1100 TESelf-employed workers

 This last category of self-employed production workers probably does not fit the unskilled mantra.

The industries listed by JBP for small products assembler are questionable for many of those listed.  This is fertile grounds for cross-examining the VE.

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SUGGESTED CITATION:

Lawrence Rohlfing, The Industries Assigned to Small Products Assembler I -- DOT Conflict," California Social Security Attorney (January 11, 2020),
http://californiasocialsecurityattorney.blogspot.com/2020/01/the-industries-assigned-to-small.html

Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro

We talked about the release of Job Browser Pro 1.7 last year.  Here is the most important features of ver. 1.7 that differ from prior versions:

Because the extensive research we have done has enabled estimation of employment at a weighted average of 88.3% for each SOC/OES group, we no longer allow customers to immediately modify NAICS industries for a DOT occupation. We do allow customers to submit suggestions, which we will review and incorporate into a subsequent update as appropriate. We want to prevent double counting and inappropriate NAICS, so we will study each suggestion in the context of the impact of that suggestion on the entire SOC/OES Group.

The emphasis belongs to SkillTran.  A vocational expert that uses a prior version of JBP can add industry codes, double count two, three, four, five, and six digit NAICS codes.  That makes the job number estimate unreliable.

 Our objective is to establish that the industry code (NAICS) assignments either double count or are just wrong.  We can start with lens inserter (DOT 713.687-026).  JBP assigns lens inserter to jewelry and silverware (NAICS 332210) and estimate 183 jobs.  But the DOT industry assignment is optical goods manufacturing, not jewelry and silverware.

We can show the correct industry assignment for occupations in the optical goods industry by examining final assembler (DOT 713.687-018).  JBP assigns final assembler to the medical equipment and supplies manufacturing industry group (NAICS 339100).  JBP links to its restatement of County Business Patterns, the blue CBP link.  That leads here.  Once there, we can click on the Show Products for this NAICS button.  Medical equipment and supplies manufacturing group includes the manufacture o eyeglass frames (NAICS 339115), the focus of final assembler job duties.  NAICS 339115 is the specific industry for ophthalmic goods manufacturing, a subset of medical equipment and supplies manufacturing industry.

We return to lens inserter and find the duties involve fitting lenses into sunglass frames.  The manufacture of sunglasses and goggles is a medical equipment and supplies manufacturing industry group is found in NAICS 339115, the ophthalmic goods manufacturing manufacturing industry.  Clearly lens inserter should include NAICS 339100 as the industry group that includes NAICS 339115.  But should it include NAICS 332210, jewelry and silverware manufacturing?

No.  Following the blue CBP link for jewelry and silverware manufacturing leads here.  The Show Products for this NAICS button displays the products manufactured in this specific industry.  The manufacture of glass(es), frame(s), lens(es), or anything related to the optical goods industry and the narrative description of lens inserter is missing.

That leads to the SSR 00-4p question of apparent conflict with the DOT.  There is an apparent conflict if and only if the JBP report for lens inserter is in the record.  The DOT is in the record by virtue of the ruling.  But the submission of the JBP report is the representative's responsibility on a post-hearing submission.  We must create a record that shows an apparent conflict and then ask the ALJ to resolve the conflict based on a reliable methodology.

Obviously the report of 183 jobs is rarely a concern.  The VE probably did not identify 183 jobs reported by JBP.  The VE probably identified what most of them identify, circa 20,000 jobs.  Submission of the JBP report for lens inserter establishes a conflict point and the submission of final assembler represents a more reliable estimate.  JBP reports 281,335 employees in the medical equipment and supplies manufacturing industry group.  If anyone believes that 9% of those jobs are unskilled sedentary production workers, all other, I do have a bridge to sell.

A more common problem is identification of unskilled light work, e.g. small products assembler I (DOT 706.684-022).  We address that occupation in the next blog.

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SUGGESTED CITATION:

Lawrence Rohlfing, Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro," California Social Security Attorney (January 11, 2020),
http://californiasocialsecurityattorney.blogspot.com/2020/01/using-dot-industry-designation-to-erode.html