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on the basis that the vocational testimony about laundry worker did not have an apparent conflict with the DOT in an unpublished opinion.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