EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2

We pick up from the discussion of DPT and Temperaments earlier this week.  EM-21065 says more disturbing and misguided things about GED and aptitudes:

SSA does not use General Education Development (GED), Aptitudes, and frequency counts or percentages in adjudication.

Later, EM-21065 says: 

Only use SVP to determine the demands of work. SSA does not consider GED or Aptitudes to identify the demands of work for disability adjudication in SSA’s disability programs.

Continuing:   

SSA does not consider the descriptors of GED, Aptitudes, Work Situations (Temperaments), or Work Functions (DPT) when searching for a person’s past work or when limiting work demand requirements for a search of occupations for a TSA or occupations to cite for a framework determination or decision. We should not use these features since our policy does not use these descriptors to identify the demands of work for disability adjudication in SSA’s disability programs.

And finally: 

1. SSA does not consider the following information:

General Education Development (GED) ratings. These ratings do not correspond with SSA’s regulatory definitions of unskilled, semiskilled, and skilled work.

Aptitudes and Work Situations (Temperaments). These ratings do not represent functional requirements for work because they reflect the personal interests, natural abilities, and personality characteristics of job incumbents rather than limitations or restrictions resulting from a medically determinable impairment(s), as is required for SSA’s disability programs.

We start with GED, general educational development.  This is a specification of reasoning, mathematics, and language in the DOT trailer with a three digit code.  Appendix C of the DOT describes the category:

General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study.

GED describes the educational level required for satisfactory job performance.  These are bona fide occupational qualifications for the integral, essential, and expected job functions.  The statute commands the Commissioner to consider education.  Many unskilled jobs do require a high school education or equivalent.  It is true that GED does not correlate 1:1 to skill level.  

There are 16 DOT codes classified as semi-skilled that require reasoning level 1.  There are 1,887 DOT codes classified as semi-skilled and skilled that require reasoning level 2.  The regulations include in semi-skilled that is not academically challenging:  

A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

Those are the exceptions.  Of the approximately 10,000 skilled and semi-skilled occupations, the majority require reasoning level 4 or higher.  Nor does correlation have to be 1:1 to be informative about the requirements of work.  

Aptitudes represents a different challenge.  As with temperaments, the aptitudes were not "selected" for inclusion in the SCO.  Aptitudes are part of the DOT dataset defined in the Revised Handbook for Analyzing Jobs.  The RHAJ defines:

Aptitudes: Capacities or abilities required of an individual in order to facilitate the learning of some task or job duty. The II Aptitudes included in this component are defined and discussed in Chapter 9.

There is that pesky description, again: required.  In Chapter 9, the RHAJ expands on the definition:

Aptitudes, a component of Worker Characteristics, are the capacities or specific abilities which an individual must have in order to learn to perform a given work activity. There are II Aptitudes used by USES for job analysis. Nine Aptitudes are measured by the United States Employment Service's General Aptitude Test Battery (GATB). Two others, Eye-Hand-Foot Coordination and Color Discrimination, have been added to these for job analysis because they are considered to be occupationally significant. Measurements for these Aptitudes have not been developed for the GATB. 

These are not nice to have, aptitudes are the ability that "an individual must have in order to learn to perform a given work activity."  Employers require aptitudes that a person must have to learn how to perform the BFOQ or essential functions of a job.  Absent those aptitudes, a person is not expected to learn how to do the job.  Aptitudes represent an educational component of work.  

SSA is not the expert agency about the requirements of work.  The Department of Labor is the expert agency about the requirements of work.  When we need information about what is and is not required in the workplace, DOL is the source of that information.  EM-21065 warrants no deference and no respect under controlling court precedent.  

_______________________

Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2, California Social Security Attorney (June 29, 2022) https://californiasocialsecurityattorney.blogspot.com

EM-21065 -- SSA Does Not Consider DPT or Temperaments -- Oh Really, Part 1

SSA published an emergency message in October 2021 covering OccuBrowse and occupational information in electronic tools. It is my understanding that OccuBrowse is a transferable skills analysis tool that does not estimate job numbers by DOT code. We are concerned primarily with unskilled work and the job numbers associated with those DOT codes.

EM-21065 covers OccuBrowse, Job Browser Pro (JBP), and OASYS in the background information (paragraph B). The EM addresses JBP:2. Job Browser Pro: Users can access this program in the SSA Digital Library. Once you make the selection for Job Browser Pro, the Citrix StoreFront brings up a page of Apps from which you can select Job Browser Pro. Users can search by job title, DOT code or keyword(s) within the title, and task description. After selecting an occupation and clicking “Details”, users can find all DOT/SCO information on the “Quick View – Codes” button. The advanced search, which is found on the opening page with the Job Title and Description Keyword, also allows searches by a variety of other lists, such as GOE or occupational group. All these searches can be useful when performing a TSA.

2. Job Browser Pro: Users can access this program in the SSA Digital Library. Once you make the selection for Job Browser Pro, the Citrix StoreFront brings up a page of Apps from which you can select Job Browser Pro. Users can search by job title, DOT code or keyword(s) within the title, and task description. After selecting an occupation and clicking “Details”, users can find all DOT/SCO information on the “Quick View – Codes” button. The advanced search, which is found on the opening page with the Job Title and Description Keyword, also allows searches by a variety of other lists, such as GOE or occupational group. All these searches can be useful when performing a TSA.

 SSA does not endorse JBP.  SSA permits ALJs to use JBP and to follow along with the vocational witnesses.  

In describing the changes to OccuBrowse, the EM discusses four broad categories: (1) physical and environmental; (2) mental-cognitive; (3) skills and abilities; and (4) transferable skills.  Para. C.2.  The EM tells users to "use" the physical and environmental codes.  These come from the physical and environmental parts of the Selected Characteristics of Occupations (SCO).  

Mental-cognitive covers the data for work situations (temperaments) and work functions (data-people-things).  The EM says:

Do not use any of the functions under Mental-Cognitive. We do not use Temperaments (what the software tool manufacturer calls work situations or situations) or DPT (what the software manufacturer calls work functions) to determine the demands of work.

Let's address the easy one first, data-people-things.  It does not matter what SkillTRAN says about DPT in OccuBrowse or JBP.  What matters is what the Department of Labor says about DPT.  We look to the DOT, Appendix B:

Much of the information in this publication is based on the premise that every job requires a worker to function, to some degree, in relation to Data, People, and Things. These relationships are identified and explained below. They appear in the form of three listings arranged in each instance from the relatively simple to the complex in such a manner that each successive relationship includes those that are simpler and excludes the more complex. (As each of the relationships to People represents a wide range of complexity, resulting in considerable overlap among occupations, their arrangement is somewhat arbitrary and can be considered a hierarchy only in the most general sense.) The identifications attached to these relationships are referred to as Worker Functions, and provide standard terminology for use in summarizing how a worker functions on the job.

The fourth, fifth, and sixth digits of the occupational code reflect relationships to Data, People, and Things, respectively. These digits express a job's relationship to Data, People, and Things by identifying the highest appropriate function in each listing ...

 After listing the seven data functions, eight people functions, and six things functions, Appendix B provides "Definitions of Worker Functions."  When OccuBrowse or JBP label the DPT codes as worker functions, they do so by parroting what the DOT says in Appendix B.  The Commissioner takes administrative notice of the DOT in regulation and calls it the primary source of occupational information in SSR 00-4p.  The EM is incompetent to erode the unambiguous language of the regulation and the mandatory language of the binding ruling.  

Now we address the harder subject, the temperaments.  The DOT does not list the temperaments.  The SCO does not list the temperaments; that aspect of work was not "selected" for inclusion in the SCO.  But the temperaments are part of the broad dataset that resulted in the DOT and SCO.  We know that because the glossary for the DOT and SCO says so, the Revised Handbook for Analyzing Jobs.  The  RHAJ describes temperaments first in chapter 2, concepts and principles of job analysis:

Adaptability requirements made on the worker by the job-worker situation.

 The second word in the description is critical -- requirements.  In chapter 10, the RHAJ makes the same point:

Temperaments, a component of Worker Characteristics, are the adaptability requirements made on the worker by specific types of jobs.

There it is again -- requirements.   After listing the 11 different temperaments, the RHAJ explains:

The category Temperaments is one of the components of job analysis because different job situations call for different personality traits on the part of the worker. Experience in placing individuals in jobs indicates that the degree to which the worker can adapt to work situations is often a determining factor for success. A person's dissatisfaction or failure to perform adequately can sometimes be attributed to an inability to adapt to a work situation rather than to an inability to learn and carry out job duties.

The EM focuses on personality traits.  We know that personality traits give rise to maladaptive behaviors.  SSA calls those personality disorders.  Personality traits are by definition non-severe.  But that does not relieve the Commissioner of considering non-severe impairments in assessing the ability to perform other work under the statute and regulations.  

The description of temperaments addresses adaptability and the characteristic that the presence or absence of adaptability will often determine success -- will this person sustain work.  Getting along with other people, a limitation to repetitive work, being precise, tolerating stress, or limiting to rote duties without change are regular parts of a residual functional capacity assessment for the mental requirements of work caused by a severe impairment.  The only question is whether we ignore the data accumulated by the DOL.  The Commissioner is not the expert on the requirements of work, the Secretary of Labor is that expert.  What the DOL says about work is worthy of administrative notice and reliable under the regulations.  

The EM says that SSA adjudicators should not consider OccuBrowse and JBP data about DPT and temperaments because of what SkillTRAN says about those data fields.  Ignore SkillTRAN.  But pay attention to what the Department of Labor says about the data and what the data means.  

 ___________________________

Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider DPT or Temperaments -- Oh Really, Part 1, California Social Security Attorney (June 24, 2022)  https://californiasocialsecurityattorney.blogspot.com 

Luis Mas, Ph.D. -- Housekeeping Cleaner, Assembler, and Material Distributor

 Dr. Mas testifies as a vocational witness. In a recent case, the ALJ propounded a hypothetical for a person closely approaching advanced age, possessing a high school education, lacking transferable skills, and limited:

to perform light work as defined in 20 CFR 404.1567(b) except could frequently climb, balance, crawl; occasionally stoop, kneel, crouch; requires simple repetitive tasks; can occasionally perform detailed and complex tasks; occasional contact with the public; and occasionally interact with coworkers.

Dr. Mas testified that the individual would have been able to perform the requirements of representative occupations such as cleaner housekeeping (DOT 323.687-014) jobs of which there are 200,000 nationally; assembler (DOT 706.684-022) jobs of which there are 100,000 nationally; and material distributor (DOT 230.687-010) jobs of which there are 30,000 nationally.  I call BS on every count.  Just disgusting disregard for the importance of the proceedings.  

Let's look at the easy ones first.  Assembler:

DOT: 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

There is an apparent conflict between occasional interaction with coworkers and the requirement to frequently work as a member of an assembly group receiving and passing parts with other workers.  

DOT 230.687-010 ADVERTISING-MATERIAL DISTRIBUTOR (any industry) alternate titles: distributor, advertising material

Distributes advertising material, such as merchandise samples, handbills, and coupons, from house to house, to business establishments, or to persons on street, following oral instructions, street maps, or address lists. May be designated according to type of advertising material distributed as Handbill Distributor (any industry); Pamphlet Distributor (any industry); Sample Distributor (any industry).

GOE: 07.07.02 STRENGTH: L GED: R1 M1 L1 SVP: 2 DLU: 77

There is an apparent conflict between occasional contact with the public the going from house to house, business to business, or engaging people on the street as the sole bona fide work function of occupation.  

That leaves the frequently cited occupation of housekeeping cleaner.  About 15 years ago, the agency told ALJs to stop including the 6 hours of sitting or standing/walking out of residual functional capacity assessments and out of hypothetical questions.  The courts have turned a blind eye to that dumbing down of the examination.  Here that practice is in action:

DOT 323.687-014 CLEANER, HOUSEKEEPING (any industry) alternate titles: maid 

Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories, performing any combination of following duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title. May be designated according to type of establishment cleaned as Beauty Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area cleaned as Sleeping Room Cleaner (hotel & rest.).  

GOE: 05.12.18 STRENGTH: L GED: R1 M1 L1 SVP: 2 DLU: 86

The DOT does not describe any work function as sitting.  Commonsense tells us that housekeeping cleaners do not sit on the job other than as sporadic and incidental activities.  The O*NET confirms commonsense -- maids and housekeeping cleaners never sit in 72% of the jobs, never.  Another quarter of the jobs sit more than never and less than half the day.  The O*NET says that 3% sit about have the time.  

The 2021 ORS dataset confirms that mads and housekeeping cleaners sit 1.2 hours per day that the 90th percentile.  On average, maids and housekeeping cleaners sit 5.2% of the workday -- about 25 minutes per day.  A sycophantic response would point out that maids and housekeeping cleaners stand 5.6 hours per day at the 25th percentile.  The informed retort points out that maids and housekeeping cleaners stand 80% of the workday at the 10th percentile.  The total hours of standing in part-time work does not inform the full-time analysis at step 5 of the sequential evaluation process.  

We have to be prepared in every hearing to quickly review the DOT industry and narrative, call upon the O*NET and ORS (www.occucollect.com), and pull up Job Browser Pro to rebut VW testimony on the fly.  Otherwise, garbage testimony become the foundation of denying our client benefits.   There might be jobs for this vocational profile, just not these.  The Commissioner has the burden of proof.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Luis Mas, Ph.D. -- Housekeeping Cleaner, Assembler, and Material Distributor, California Social Security Attorney (June 8, 2022)  https://californiasocialsecurityattorney.blogspot.com