Thursday, December 3, 2020

The Ability to Stop and Stretch for One to Two Minutes

 Oh no, that would not impact the ability to perform the work identified.  You have heard the hypothetical question, seen the residual functional capacity assessment, and read the results in the ALJ decision.  The vocational expert is grossly uninformed, negligent, or making it up.  Pick 'em.  

According to the Handbook of Methods, the Occupational Requirements Survey collects data on the cognitive and mental requirements of work.  Included in that category of workplace functions, the ORS measures work pace and the ability to pause work.  See page 33.  The Collection Manual defines pause control:

Collect the presence (yes/no) of a worker’s ability, for a personal reason, to easily step away from work for short periods of time outside of scheduled breaks such as lunch or morning/afternoon break periods.

Page 83.  The Collection Manual explains how Labor accomplishes those data calculations and what those data points mean.  Employers or analysts code "yes" for the ability to pause work if either of two conditions are met:

  • Workers typically have the flexibility to choose when to take breaks throughout the day.
  • There is an overall time limit for breaks, but such breaks are allowed.
Id.  Employers or analysts code "no" for the ability to pause work any of three conditions are present:
  • If the worker would need to find someone to cover his or her responsibilities.
  • When breaks are usually allowed, but not during certain busy periods in the performance of a critical job task (for example, when work is exceedingly heavy, when a line of customers is building, etc.).
  • Workers are required to be present at a workstation for a defined period of time.
Id.  The Collection Manual gives three examples of when pause control exists:
  • Office workers can pause and take a quick walk down the hall when they need a mental break. Even when they have group meetings with coworkers or clients, they have the ability to step away quickly, if needed. A high school teacher teaches classes. In the middle of a lesson, the teacher can ask students to work quietly while she steps out into the hall for a few minutes when feeling overwhelmed. 
  • Landscapers mow lawns, prune trees and plants, and weed flower beds. Landscapers may briefly step away from their duties to take medication or attend to other medical needs without notifying a supervisor. 
  • An outside sales representative solicits business from clients via telephone, email, and in-person. Reps have the ability to schedule client appointments at their convenience. Even in the middle of a call or appointment, the rep has the ability to politely request to step away briefly
Page 84.  The Collection Manual gives examples of when pause control does not exist
  • A building security guard at a secure facility screens employees and visitors entering the facility; and walks standard patrols on a rotating basis with other guards. They are not able to leave their station without asking someone else to cover for them. 
  • A kindergarten teacher must call to the principal’s office to have another adult keep an eye on the students when he leaves the classroom. 
  • Cashiers are able to take a break when there are no customers but cannot leave their station when there is a line. 
  • A surgeon would not be able to step away easily while performing surgery. 
Id.  

The academic questions are nice to know, but how the data plays out is where the rubber meets the road.  Selecting out from the ORS data set (2019) 13 of my favorites:

Without the Ability to Pause Work

%

all workers

47.1

office clerks, general

23.2

janitors and cleaners, except maids and housekeeping cleaners

23.8

workers in office and administrative support occupations

27

inspectors, testers, sorters, samplers, and weighers

29.1

maids and housekeeping cleaners

32.2

receptionists and information clerks

50.8

laborers and freight, stock, and material movers, hand

65.1

stockers and order fillers

71.2

dishwashers

78.1

workers in production occupations

61.4

cashiers

91


Nearly half of all workers do not have the ability to pause work.  That is a surprising statistic in light of typical VE testimony.  Less than a quarter of general office clerks cannot self-regulate.  General office clerks is a huge unskilled body of work, generally sedentary, that becomes unavailable with either an education deficit (limited or less), a limitation to simple work, or a limitation in interacting with others.  

Cashiers is another large unskilled occupational group, this time light.  Less than 10% of cashiers have the ability to pause work activity.  Cashiers get eliminated in toto with a limitation on contact with the public or a limitation to simple work.  Check out the physical demands of cashiers in the ORS; hint: light is not the maximum exertion and standing is not limited to four or even six hours for full-time work.  

Workers in production occupations, including all supervisors and a large swath of skilled workers, have the ability to pause work in just over 60% of jobs.  Whether unskilled production workers in tandem with other workers could ever pause is highly doubtful.  

The ORS has and is developing data that answers many of the routine questions that we hear in ALJ examination of vocational experts.  The anecdotal experience of the VE without an accepted methodology for extrapolating that experience to the national economy, when nationally collected data disagrees, is not substantial evidence.  The representative, us, must submit rebuttal data to the agency. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Ability to Stop and Stretch for One to Two Minutes, California Social Security Attorney (December 3, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/12/the-ability-to-stop-and-stretch-for-one.html 

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