Padilla v. Saul -- Office Helper and Occasional Changes in Essential Job Functions

 I tell lawyers to refrain from telling me what they think about the world of work and stick to the data.  Commonsense can understand the data, but do not impose your myopic view of the world on something that you really know little about.  Enter the court in Padilla v. Saul.  The decision projects an understanding of work that is ... wrong.  

Padilla is limited to “only occasional changes to the essential job functions.” It is unlikely, however, that two of the identified occupations, office helper (DOT 239.567-010) and counter clerk (DOT 249.366- 010)—which each require a reasoning level of 2—involve more than occasional changes to essential job functions. Level 2 reasoning requires the ability to “[d]eal with problems involving a few concrete variables in or from standardized situations.” U.S. Dep’t of Labor, Dictionary of Occupational Titles app. C (4th ed. 1991). But it does not speak to whether an “essential, integral, or expected” part of being an office helper or counter clerk entails changing essential job functions more than occasionally such that there is an apparent conflict here. See Gutierrez, 844 F.3d at 808. Nor do the DOT’s descriptions of office helper or counter clerk indicate that it is likely that either occupation requires more than occasional changes in essential job functions. Indeed, the DOT’s description of office helper has a discrete list of several specific duties, suggesting that the essential duties of an office helper remain rather invariable.

The decision focuses on reasoning level 2, involving a few concrete variables in or form standardized situations.  The question is not how many variables, but how often the person changes work functions between the variables present.  Reasoning level 2 is a useful guide for assessing complexity but the DOT has multiple layers of data that don't lend themselves to a singular focus on a complex question.  For instance, work that requires sitting all day long and frequent lifting of two pounds -- that requires light exertion because two pounds is more than a negligible weight (one pound).  

Back to the office helper.   We start with and dissect the lead statement and the task statement:

Performs any combination of following duties in business office of commercial or industrial establishment: 

1. Furnishes workers with clerical supplies. 

2. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. 

3. Delivers oral or written messages. 

4. Collects and distributes paperwork, such as records or timecards, from one department to another.

5. Marks, tabulates, and files articles and records.

DICOT 239.567-010.  The lead statement describes a combination of duties.  The purpose of the lead statement is to set forth:

• worker actions
• objective or purpose of the worker actions
• machines, tools, equipment, or work aids used by the worker
• materials used, products made, subject matter dealt with, or services rendered
• instructions followed or judgments made

DICOT, Parts of the Occupational Definition, para. 5.a.  

Reasoning level 2 may describe a generic classification of a few variables but the narrative lead statement demands a different conclusion.  The task statement cements that conclusion:  office helper has five "indicate the specific tasks the worker performs to accomplish the overall job purpose described in the lead statement."  DICOT, Parts of the Occupational Definition, para. 5.b.  These are not "may" items that only a subset of workers perform but are instead task statements of functions typically found in the occupation.  DICOT, Appendix D.  

 Office helper requires the temperament V, performing a variety of tasks.  The Revised Handbook for Analyzing Jobs defines V:

Perform a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.

There it is, frequent changes of tasks.  That is how Labor defines office helper.  That is not a lay understanding of the lead statement or the multi-part reading of the task statement.  Office helper requires performing a variety of tasks involving frequent changes not only in tasks but also in process and exertion.  

The definition of V states that this kind of work may have two or more work fields.  Office helper has three.  

231 - Verbal Recording-Record Keeping - Preparing. keeping, sorting, and distributing records and communications, primarily verbal in character but including symbol devices, to communicate and systematize information and data by methods not specifically defined elsewhere. as in Developing-Printing (202), Imprinting (192), Photographing (201), Printing (191), and Stock Checking (221). Distinguish from Numerical Recording-Record Keeping (232), where records are also involved but the primary activity is computation.

011 - Material Moving - Conveying materials manually and by use of machines and equipment, such as cranes, hoists, conveyors, industrial trucks, elevators, winches, and handtrucks. Distinguish from Transporting (013), which involves conveyance of passengers and materials by common carrier.

221  - Stock Checking - Receiving, storing. issuing. requisitioning, and accounting for stores of materials and materials in use; involves the physical handling of the materials. Representative job activities covered by this work field include processing records and keeping materials on hand in balance with operational needs; assigning locations and space to items according to size, quantity, and type; verifying quantity, identification, condition, and value of items and the physical handling of items, such as binning, picking, stacking, and counting; receiving. checking. and delivering items; verifying completeness of incoming and outgoing shipments; preparing and otherwise committing stocks for shipment; keeping and conducting inventory of merchandise, materials, stocks, and supplies; filling orders and requisitions; and issuing tools, equipment, and materials.

RHAJ, chapter 4.  

That is the DOT dataset and what Labor had to say about office helper.  

Counter clerk presents as a different kettle of fish.  First, the Foto-Mart booth in the shopping center is gone and has been gone for so long that many will not know what I mean.  For the current generation, Costco has eliminated their photo-processing service.  Why?  Because your camera is in your pocket and your photo album is on your thumb drive.  Counter clerk in the photofinishing industry does not exist.  Yes, I reported my commonsense understanding of the world.  But allow me to back it up:  the OEWS (successor to the OES) reports that counter and rental clerks have 870 jobs in the other personal services industry group (812900) that includes all photofinishing (812920).  Counter clerk does not exist in significant numbers.  

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Suggested Citation:

Lawrence Rohlfing, Padilla v. Saul -- Office Helper and Occasional Changes in Essential Job Functions, California Social Security Attorney (April 29, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/04/padilla-v-saul-office-helper-and.html

A Limitation Precluding Exposure to Bright Lights -- What Does that Even Mean?

The case is McMahon v. Saul. The Ninth Circuit affirms the finding that McMahon could perform three occupations: document preparer, call-out operator, and final assembler. Experience tells us that this is a sedentary occupational base. We review the District Court decision to get the particulars. The District Court decision (titled Steven M. v. Andrew M. Saul but the representation line states his full name and that of his counsel) confirms that this case is about a younger individual with a high school education and no relevant work experience. The recitation of residual functional capacity

The ALJ found Plaintiff capable of performing a range of sedentary work, with the following exertional limitations: he can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl. He can occasionally operate foot controls bilaterally. He can have occasional exposure to vibration, loud noise, bright lights, and extreme cold temperatures. He must use a cane when ambulating.

Two concerns arise from this residual functional capacity assessment.  First, the ALJ did not find any sitting limitation.  Many sedentary jobs do not have a work environment or list of duties that permit the accumulation of two hours of standing/walking during the workday – everyday.  When the agency fails to include a sitting, standing, or walking limitation, that omission violates the function-by-function assessment of Social Security Ruling 96-8p as the interpretation of the residual functional capacity assessment regulation. 

The second problem, and the focus of this post, is occasional exposure to bright lights.  What does bright lights mean?  If you know what that phrase means, then tell me that the ALJ and the vocational expert share your insight into the language.  The most common definition of bright lights from the web describe the lighting of a city at night, not very bright. 

The O*NET OnLine has a category for extremely bright or inadequate lighting.  General office clerks have exposure to extremely bright or inadequate lighting everyday in 5% of jobs.  That is the exposure to extremely bright lighting, not bright lighting. 

OSHA defines the minimum lighting required in different work settings. 

    TABLE D-3 - MINIMUM ILLUMINATION INTENSITIES IN FOOT-CANDLES

 

____________________________________________________________________

              |

 Foot-Candles |            Area of Operation

______________|_____________________________________________________

              |

5.............|  General construction area lighting.

3.............|  General construction areas, concrete placement,

              |   excavation and waste areas, access ways, active

              |   storage areas, loading platforms, refueling, and

              |   field maintenance areas.

5.............|  Indoors: warehouses, corridors, hallways, and

              |   exitways.

5.............|  Tunnels, shafts, and general underground work areas:

              |   (Exception: minimum of 10 foot-candles is required

              |   at tunnel and shaft heading during drilling,

              |   mucking, and scaling. Bureau of Mines approved cap

              |   lights shall be acceptable for use in the tunnel

              |   heading)

10............|  General construction plant and shops (e.g., batch

              |   plants, screening plants, mechanical and

              |   electrical equipment rooms, carpenter shops,

              |   rigging lofts and active store rooms, mess halls,

              |   and indoor toilets and workrooms.)

30............|  First aid stations, infirmaries, and offices.

______________|____________________________________________________

 

We glean from this data that the brightest lighting occurs in three environments:  first aid stations, infirmaries, and offices.  If McMahon cannot tolerate bright lighting, then he cannot tolerate the workspaces that have the most intense lighting. 

We measure lighting in foot-candles as OSHA has done or in lux.  I found this chart:

Light Levels
Outdoor	FC	LUX
Direct Sunlight	10,000	100,000
Full Daylight	1,000	10,000
Overcast Day	100	1,000
Dusk	10	100
Twilight	1	10
Deep Twilight	0.1	1
Full Moon	0.01	0.1
Quarter Moon	0.001	0.01
Moonless Night	0.0001	0.001
Overcast Night	0.00001	0.0001

  

Staring at the sun will cause blindness.  Walking in the snow or ice with no eye protection getting full daylight and reflected sunlight will cause snow blindness. The need for eye protection in full daylight is not a workplace limitation.  That would represent a limitation to occasional work outdoors.  The limitation against bright lighting is something less than occasional work outdoors. 

Occasional bright lights constitutes a vague limitation.  Vagueness forms the proper basis for the objection to a question.  If the phrase is not defined linguistically, then the phrase warrants a definition technologically. 

Q.  When the judge asked you to assume occasional exposure to bright lights, what did you understand that phrase to mean?

Q.  When you study a work environment, do you ever measure lighting?

Q.  How do you measure lighting?

Q.  Does OSHA prescribe lighting standards for the workplace?

Q.  In what work environments does OSHA require the most lighting?

Q.  If we consider the highest level of lighting required, like in a first aid station, to represent bright lighting, could the person described in the question perform the three occupations that you identified?

Q.  Why would you ever answer a question that anyone poses where you do not understand the question asked?

Document preparer works in an office setting using a paper cutter, razor knife, and uses a photocopy machine.  Document preparer and bright lights are conjoined.  Call-out operator and final assembler warrant full-throated contradiction on the number jobs.  They do not exist. 

While we push the agency on the residual functional capacity question through the medical evidence that the testimonial evidence, we must continue the assault through step five on the existence of other work. 

Remember in law school, an injury claim from a defective product required a contract analysis, a negligence analysis, and a product liability analysis?  Same process here.  We use all the tools on the belt.  We don’t throw some of them away just because math is hard. 

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Suggested Citation:

Lawrence Rohlfing, A Limitation Precluding Exposure to Bright Lights -- What Does that Even Mean?, California Social Security Attorney (April 20, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/04/a-limitation-precluding-exposure-to.html

Applegate v. Saul -- Bottling Line Attendant

 Applegate v. Saul, yet another unpublished Ninth Circuit memorandum that illustrates the need for a full-throated attack of vocational expert prevarication.  Because of the brevity  of unpublished memoranda, we start with the District Court's discussion of step five, the findings of other work.  

However, the third identified job, bottling line attendant, has a Reasoning Level of 1. The vocational expert testified that there were 45,000 such jobs available in California and more than 300,000 such jobs in the United States. AT 29, 86. Because at least one viable job existed in sufficient numbers, any error as to the reasoning levels of the other two jobs was harmless. See 20 C.F.R. § 404.1566(b) (providing that "[w]ork exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet") (emphasis added). See also Thomas v. Comm'r, 480 F3d. Appx. 462, 464 (9th Cir. 2012) (affirming ALJ even though claimant could not perform two identified jobs because she could perform the remaining job of housekeeper, which existed in significant numbers in the national economy).

Bottling line attendant represents 45,000 jobs in California and 300,000 jobs in the United States.  That is untrue and unbelievable.  It is at least a disregard for the truth.  I cry "foul."

Bottling line attendant is a packer and packager, hand (SOC 53-7064) occupation.  The group represents 640,800 jobs in the nation per the OOH.  The 2019 OES estimated 633.640 jobs as a packer and packager.  The 2020 OEWS estimates 599,270 jobs.  

We are concerned with the limitations found by the ALJ:

must avoid concentrated exposure to hazards such as dangerous machinery, unprotected heights, and uneven surfaces; and can perform simple tasks in a setting with few workplace changes and no more than occasional interaction with the general public and coworkers.

 The O*NET says that about 10% of the packer and packager jobs have occasional contact with others.  The ORS says that 30% of packer and packager jobs have exposure to moving mechanical parts, most of those constantly.  The ORS classifies 32% of the jobs has requiring light exertion.  The ORS states that 17.5% of packers and packagers have SVP 1 characteristic of bottling line attendant.  

Packers and packagers has 59 DOT codes.  The idea that half of the jobs work as a bottling line attendant is a little hard to grasp.  Because of that lingering doubt, we must check the industry employment for packers and packagers.  The DOT defines bottling line attendant as occurring in the beverage manufacturing industry.  That is where we will look.  

The 2020 OEWS states that the beverage manufacturing industry employed 640 packers and packagers.  The 2019 OES states that the beverage manufacturing industry employed 580 packers and packagers.  The 2019 EP states that the beverage manufacturing industry employed 600 packers and packagers.  The 2019 CBP states that the entire beverage manufacturing industry employed 226,462 people in every occupation within the industry.  Over half the jobs work in breweries, wineries, and distilleries.  Less than 80,000 people work in soft drink, bottled water, and ice manufacturing -- in the nation in every job in the industry.  

The odds of bottling line attendant representing 45,000 jobs in California and 300,000 jobs in the nation rests between zero and none.  That testimony is false.  It is not reliable.  The vocational expert pulled it out of the hat.  

How do we beat bogus testimony?  We rely on the Occupational Outlook Handbook, v.  We must submit that evidence to the ALJ and force the ALJ to state why the agency chooses conclusory evidence from a witness over the statistical publications of the Department of Labor.  We demand administrative notice under the regulations.  

The Ninth Circuit did not regurgitate the numbers.  It would prove embarrassing to the Court to recite those kinds of numbers with a straight face.  Bottling line attendants represent 300,000 jobs in the nation.  Absurd.

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Suggested Citation:

Lawrence Rohlfing, Applegate v. Saul -- Bottling Line Attendant, California Social Security Attorney (April 19, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/applegate-v-saul.html

Surveillance Systems Monitor -- In Transition

Surveillance-system monitor remains a popular occupation among locational experts in response to a residual functional capacity for sedentary work involving occasional use of the hands for reaching, handling, and fingering.  In the 2010 SOC, labor placed surveillance-system monitor in the group of protective service workers, all other (33- 9099.00).  The O*NET still does.   The O*NET also places surveillance- system monitor in the occupational group of school bus monitors (33- 9094.00).   The O*NET reports 145,600 employees in both occupational groups.

The Occupational Outlook Handbook reports a combination of school bus monitors and protective service workers, all other as an OEWS hybrid with a 2019 employment estimate. 

School bus monitors and protective service workers, all other

This is an OEWS hybrid and the OEWS definition can be found by following the OEWS link below

· 2019 employment: 145,600

· May 2020 median annual wage: $31,960

·       Wages come from the Occupational Employment and Wage Statistics (OEWS) program, click here for more OEWS data on this occupation

· Projected employment change, 2019–29:

·       Number of new jobs: 6,200

·       Growth rate: 4 percent (As fast as average)

·       Click here for additional projections detail

· Education and training:

·       Typical entry-level education: High school diploma or equivalent

·       Work experience in a related occupation: None

·       Typical on-the-job training: Short-term on-the-job training

· O*NET links:

·       33-9094.00 - School Bus Monitors

·       33-9099.00 - Protective Service Workers, All Other

·       33-9099.02 - Retail Loss Prevention Specialists

 

The Occupational Employment and Wage Statistics (OEWS) (as the successor data base to the OES) defines the hybrid group:

This occupation includes the 2018 SOC occupations 33-9094 School Bus Monitors and 33-9099 Protective Service Workers, All Other and the 2010 SOC occupation 33-9099 Protective Service Workers, All Other.

The OEWS reports employment:

Employment (1)	Employment RSE (3)	Mean hourly wage	Mean annual wage (2)	Wage RSE (3)
144,310	2.1 %	$ 17.38	$ 36,140	0.6 %

 

The OOH and OEWS make clear that the O*NET reports of occupations for both school bus monitors and protective service workers, all other, represents a duplication of a group of occupations and jobs in transition due to a change in the definitions and assignments of the SOC codes.  The 2018 SOC defines school bus monitors as:

Maintain order among students on a school bus. Duties include helping students safely board and exit and communicating behavioral problems. May perform pre trip and post trip inspections and prepare for and assist in emergency situations.

Illustrative examples: Bus Monitor

The 2018 SOC defines protective service workers, all other as:

All protective service workers not listed separately.

Illustrative examples: Warrant Server

Labor will break out the job numbers for school bus monitors from protective service workers, all other.  Hopefully, we will see that breakdown in the next data set.  Surveillance-system monitor does not fit the definition of the occupational group of bus monitors. It does fit the all other classification. Expect to see the number of jobs as a surveillance-system monitor continued to erode in the ability of people without statistical expertise to conflate job numbers either by equal distribution within an occupational group , equal distribution at the occupation-industry intersection, or some other methodology that does not take into account the existence of unskilled sedentary work as opposed to semi- skilled, skilled, light, medium, or heavy work. Heavy work is Deputy United States Marshall, classified by the DOT as requiring medium exertion.

If a vocational expert identifies surveillance-system monitor as an occupation in response to a sedentary exertional capacity with manipulative limitations but no limitation to simple or repetitive types of work, the representative must inquire diligently into the methodology used by the vocational expert to tease out the number of jobs. Experience is not enough. The vocational expert did not go around the nation with a clicker counting jobs. There is a statistical basis for estimating job numbers and the representative must demand that information.

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Suggested Citation:

Lawrence Rohlfing, Surveillance Systems Monitor -- In Transition , California Social Security Attorney (April 19, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/surveillance-systems-monitor-in.html