What We Discern from the Case Disposition Data in the 2020 SSA Waterfall Chart

 As part of the budget request to Congress every year, SSA presents its justification for that request.  In that justification is the "waterfall" chart.  The 2020 data for the 2022 budget request looks like this:

Treating all the data as from one application pool (which is wrong but nonetheless useful), the chart tells us that SSA granted 1,042,170 claims initially, on reconsideration, by an ALJ, by the Appeals Council, or by order of the federal courts.  While the initial level grants 39% of the claims made, 767,424 allowances represent 74% of the favorable determinations or decisions made on the chart.  Reconsideration accounts for 7% of favorable dispositions, ALJs account for 15% of those favorable dispositions.  The AC and the federal court combined amount to 0.15% of the awards of benefits (not counting remands).  When the claimants' bar complains about the low allowance rate of the state agencies handling initial claims, the bar must concede that initial claims account for the overwhelming majority of allowed claims on this chart and historically.  The 2020 data is not that different from prior years.  

The data allows consideration of attrition as a phenomenon.  Of the 1.5 million claims filed, 660,000 do not seek reconsideration after the initial determination that the person does not meet the definition of disability.  Another 61,000 do not request a hearing after the reconsideration denial.  Claimants denied benefits by an ALJ do not seek AC review in 22,000 cases.  The second-place finisher for attrition is the 87,000 claimants that receive a denial of review by the AC and fail to seek review by the federal courts.  

Since the Conn-Daugherty debacle of 2010, the bar knows that allowance rates at the ALJ level dropped precipitously.  Along with that free fall of allowance rates, the AC grant of review dropped from a historical 25% to 30% to the 12% reported on this chart.  Despite the halving of the review rate by the AC, the claimants' representatives have not sought review in more cases in federal court.  The rate of federal court filings has slid from the historical 14% to just over 13%.  That might not represent a statistically relevant change in the federal filing rate.  But when compared to the drop in the AC review rate, the relatively stable filing rate screams that the government has tightened the screws and the bar flinched.  The bar has not responded with more federal court filings of meritorious claims.  

There are explanations for this observation.  ALJ decisions are better organized than they were 15 to 30 years ago.  The Findings Integrated Template eliminated most of the decisions that failed to address subjective symptom and limitation testimony.  The evolution from the free style consideration of medical opinion evidence to the weight standard and to the persuasive value standard has made decisions vaguer about why the ALJ made findings and more cumbersome to challenge.  The courts' embrace and expansion of the harmless error standard in the past 20 years has made the court litigation more difficult.  The ingestion of the poison pill that vocational witnesses have some unstated statistical expertise has placed further obstacles in the court review process.  The claimants' bar can and should do more and do better at the hearings and pursue more claims in federal court.  

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Suggested Citation:

Lawrence Rohlfing, What We Discern from the Case Disposition Data in the 2020 SSA Waterfall Chart, California Social Security Attorney (July 25, 2022) https://californiasocialsecurityattorney.blogspot.com

The author is AV rated for 23 years and listed in Super Lawyers for 14 years. 

 

Speaking of Temporary Help Services - Define the Terms

A vocational witness identifies occupations and claims Job Browser Pro as the source and foundation for job numbers.  I check JBP on the fly and the numbers check out as the DOT job estimate.  The list of industries includes Temporary Help Services.  That is the line of questioning that I will pursue.  

Question: Do you agree most of jobs in the occupation you identified are in the Temporary Help Services industry as listed in Job Browser Pro?

Answer: Yes.  

Question: Is working for Temporary Help Services sustained employment?

Answer: Yes.  These are temp to hire jobs.

Question: What percentage of temporary jobs are temp to hire as opposed to temp to borrow for a short time?

Answer: Oh, I don't know the answer to that question.  

That's the scenario.  I call it fudge, and not the kind that you can eat.  It is sloppy, inexact, unreliable, and it turns out to be wrong.  We go to the definition of Temporary Help Services in the 2022 NAICS Manual (OMB 2022).  

561320 Temporary Help Services 

 This industry comprises establishments primarily engaged in supplying workers to clients' businesses for limited periods of time to supplement the working force of the client. The individuals provided are employees of the temporary help services establishment. However, these establishments do not provide direct supervision of their employees at the clients' work sites. 

Illustrative Examples:

Help supply services                              Temporary employment or temporary staffing
Model supply services                           Manpower pools
Labor (except farm) contractors 
(i.e., personnel suppliers)

Cross-References.                  Establishments primarily engaged in-- 

• Providing human resources and human resource management services to client businesses and households-- are classified in Industry 561330, Professional Employer Organizations;
• Supplying farm labor--are classified in U.S. Industry 115115, Farm Labor Contractors and Crew Leaders;
• Providing operating staff to perform a combination of services to support operations within a client's facilities--are classified in Industry 561210, Facilities Support Services;
• Providing executive search, recruitment, and placement services--are classified in U.S. Industry 561312, Executive Search Services;
• Listing employment vacancies and in recruiting, referring, or placing applicants for employment--are classified in U.S. Industry 561311, Employment Placement Agencies; and
• Representing models, entertainers, athletes, and other public figures as their agent or manager--are classified in Industry 711410, Agents and Managers for Artists, Athletes, Entertainers, and Other Public Figures.

Now that we know how the executive branch defines the industry for use in County Business Patterns, the Occupational Wage and Employment Statistics (the cornerstone of JBP), the Employment Projections (the foundation for the Occupational Outlook Handbook), and others, I continue:

Question: What part of the definition of industry suggests that some, most, or all the jobs in this industry are temp-to-hire?

Answer: That's based on my experience.  

Question: The Commissioner takes administrative notice of County Business Patterns.  The NAICS defines the industries used by CBP.  Is that your understanding?

Answer: I don't know.

Question: Do you use County Business Patterns for any purpose either here or in your professional services outside of Social Security?

Answer: No.

Question: Do you have the vocational handbook published by SSA?

Answer: Not with me.  It is in my office.

This is where we submit pages 8-9 of the VE Handbook:

While not a definitive list of job requirements, an ideal VE will have: 

• Up-to-date knowledge of, and experience with, industrial and occupational trends and local labor market conditions. 

• An understanding of how we determine whether a claimant is disabled, especially at steps 4 and 5 of the sequential evaluation process we describe beginning on page 14. 

• Involvement in or knowledge of vocational counseling and the job placement of adult, handicapped workers into jobs. 

• Knowledge of, and experience using, vocational reference sources of which the agency has taken administrative notice under 20 CFR 404.1566(d) and 416.966(d), including: 

• The Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO);

• County Business Patterns and Census reports published by the Bureau of Census; 

• The Occupational Outlook Handbook published by the Bureau of Labor Statistics; and

• Any occupational analyses prepared for SSA by various state employment agencies.

The vocational witness is unprepared to discuss CBP as required by regulation and the VE Handbook.  

Move to strike the witness's testimony.   It will be denied.  ALJs don't know beans about CBP and think that it does not give national job numbers.  That is just uninformed.  The counties make up the state and the states make up the nation.  If we have all the county job numbers, county-by-county, then we have the national job numbers.  CBP reports all that and more.  

There is no reason to assume that any discernible number of temporary help services jobs represent temp-to-hire in significant numbers.  Move to strike reliance on that testimony relying on jobs identified in Temporary Help Services.  It is not defined as temp-to-hire and speculative how many are temp-to-hire.  The vocational expert will cling to experience, and I will ask:

What is the reliable methodology that you use to extrapolate your local experience to the national economy?

And finally:

Who do you believe has the greater ability to collect and synthesize data; you or the Census Bureau? 

This last question has a variable. Here we are speaking to the NAICS Manual and the Census Bureau's CBP.  If our attention were directed at the ORS, OEWS, OOH, or EP, we ask about the Bureau of Labor Statistics.  If our attention were focused on the O*NET, we ask about the Employment Training Administration (the same agency that published the DOT).  Don't let the vocational witness steal from your client or steal your fee from you.  Focus on the first and make good decisions.

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Suggested Citation:

Lawrence Rohlfing, Speaking of Temporary Help Services, California Social Security Attorney (July 22, 2022) https://californiasocialsecurityattorney.blogspot.com

The author is AV rated for 23 years and listed in Super Lawyers for 14 years. 

SkillTRAN Restores the CBP Linked Data in Job Browser Pro

Yesterday, I alerted you to a problem with the CBP hyperlink in the Estimated DOT Employment Numbers embedded on the industry line for Job Browser Pro.  After posting alert, I reached out to Jeff Truthan at SkillTRAN.  Jeff advised me that it was a coding problem that SkillTRAN had thought it had resolved but did not.  

A short while after I reached out, Jeff sent me a message that SkillTRAN fixed the problem.  The rule of life applies, "if you don't ask, the answer is always no."  

The next step requires that we verify.  I looked at advertising material distributor (DOT 230.687-010).  JBP reports 2,006 jobs in two industries, the larger being Temporary Help Services with 1,973 jobs.  Advertising, public relations, and related services industry group accounts for 33 jobs.  The WT. link states 10 occupations.   The CBP takes me to the SkillTRAN Industry Analyzer for County Business Patterns, NAICS 56132.  I click on Staffing Patterns.  That gives me the list of occupational groups (SOC-OEWS (they are the same thing for our purposes)) sorted by number of jobs largest to smallest.  I click twice on the OEWS Group filter button to sort by occupational code, largest to smallest.  That allows me to look for the code I want in numerical order.  SOC-OEWS group 51-9198.  

The SkillTRAN Industry Analyzer lists 11 DOT codes.  This number is different than the WT. report of 10.  The different DOT code is Bundler, Seasonal Greenery in the forestry industry.  I care because Job Browser Pro uses an equal distribution method at the occupation-industry intersection.  See https://www.skilltran.com/pubs/DOTempnum_method.pdf. The larger the denominator, the smaller the quotient.  

Instead of dividing the occupation-industry total of 19,727 by 10, we divide by 11.  Instead of 1,973 jobs, we get 1,793 jobs.  SSA and the Courts have not established bright lines for the significant number of jobs test.  Eroding the number of jobs by 10% makes a difference.  I attack vocational witness testimony seeking to achieve death by a thousand cuts.  This inquiry represents 180 of those cuts.  

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Suggested Citation:

Lawrence Rohlfing, SkillTRAN Restores the CBP Linked Data in Job Browser Pro, California Social Security Attorney (July 21, 2022)  https://californiasocialsecurityattorney.blogspot.com

The author is AV rated for over 20 years and listed in Super Lawyers for 14 years. 

SkillTRAN Industry Analyzer No Longer Shows DOT Codes

One of the most useful tools in checking Job Browser Pro was to click on the CBP hyperlink in the Estimated DOT Employment Numbers embedded on the industry line.  With version 7.4 and update 7.4.1, JBP stopped the inconsistent use of three, four, and five digit industry codes (NAICS).  That CBP hyperlink still takes the user to the SkillTRAN Industry Analyzer.

The useful data that representatives need and vocational witnesses should use was and is on the Staffing Pattern button.  The Industry Analyzer describes the NAICS code, title of the code, and narrative.  The Industry Analyzer then lists the occupational groups employed in that industry.  A green + button used to give a drop down list of DOT codes.  A red + button meant that although the Department of Labor estimates jobs within the occupation existing in that industry, SkillTRAN could not identify an appropriate DOT code.  

As of today, that DOT code list is empty.  The Industry Analyzer does not list the DOT codes resident at the occupation-industry intersection for the 50 or so intersections checked.  I hope that SkillTRAN restores that useful data.  

In the meantime, JBP still has the internal WT. that brings up the list of DOT codes assigned within the program.  Users cannot retrieve a list of all occupations in that industry, just the ones at the occupation-industry intersection. The internal link does not have convenient internal cross-check against the SkillTRAN Industry Analyzer.  

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Suggested Citation:

Lawrence Rohlfing, SkillTRAN Industry Analyzer No Longer Shows DOT Codes, California Social Security Attorney (July 20, 2022)  https://californiasocialsecurityattorney.blogspot.com

The author is AV rated for over 20 years and listed in Super Lawyers for 14 years. 

EM-21065 -- SSA Does Consider O*NET -- Kind of, Part 3

We pick up from the discussion of DPT and Temperaments and GED and Aptitudes.  EM-21065 says on interesting thing that is kind of helpful and also myopic:

O*NET information. The information in O*NET has been grouped in such a way that it is not readily usable in our adjudication process. The data is not as specific as the DOT and is not associated with individual DOT occupations. However, adjudicators may use O*NET coding to search for similar DOT occupations for a TSA assessment. See DI 25015.017.

The O*NET is not banned from consideration.  Nor can SSA ban reliable published governmental information.  That is the definition of the scope of administrative notice.   It is also axiomatic that "when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond."  Heckler v. Campbell.  

So let's test this proposition that the data in the O*NET is not as specific as the DOT and therefore not useful.  First, the DOT is a statement of the typical way in which an occupation is performed within local and employer variances.  DOT Appendix D.  Typical does not mean the majority of jobs.  M-W defines typical as "combining or exhibiting the essential characteristics of a group," "conforming to a type," or "constituting or having the nature of the type."  This would include the majority but also include a plurality or the median of a particular set.  The DOT is, by definition, a statistical fudge.  

So is the O*NET.  For well over 100 SOC-O*NET codes, the data describes a single DOT code.  Take telephone solicitor as an example.  It is the only DOT code in telemarketers.  The O*NET describes telemarketers as semi-skilled to skilled.  But the O*NET Resource Center describes telemarketers as overwhelmingly requiring less than 30 days of on-site training, on-the-job training, and related work experience.  The vast majority of telemarketers do not require more than a high school education.  The data suggests that telemarketers are typically unskilled.  We have heard the mantra, they just read from a script.  The O*NET tells the world that most telemarketers work less than 40 hours per week.  Most telemarketers work in groups or teams and all have more than occasional contact or interactions with others.  The data in the O*NET is more specific.  

Hand packager is another good example.  The DOT never states the amount of sitting or standing/walking required, except for sedentary work is at least 5.7 hours per day.  The O*NET  states that hand packagers never sit in 50% of jobs.  That is important information when a person has a 6.0 hour standing/walking limitation.  There are 59 DOT codes but this is good information about how packers typically work and to explore the vocational witness's understanding of how much standing/ walking packagers actually do and how the VW acquired that information.  

When it comes to the nature and requirements of work, SSA is not the expert agency.  SSA's expertise is the medical evidence and the nature of impairments.  There, the agency gets deference.  In terms of occupational information, SSA must get that information from one or two agencies:  the Department of Labor and the Census Bureau.  What does DOL say about the DOT and the O*NET?  This:

The Dictionary of Occupational Titles (DOT) was created under the sponsorship by the Employment and Training Administration (ETA), and was last updated in 1991. The DOT was replaced by the O*Net, and ETA no longer supports the DOT.

The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.

The DOT was loaded onto the OALJ website because it was a standard reference in several types of cases adjudicated by the OALJ, especially immigration related matters. Time has passed, DOL’s regulations have changed, and OALJ now rarely adjudicates cases that reference the DOT.

So, why is the DOT still on the Office of Administrative Law Judges (OALJ) website? It is because the DOT is still used in Social Security disability adjudications and the OALJ copy of the DOT is often cited as an authoritative source of the DOT.

The Social Security Administration (SSA) is developing a new Occupational Information System (OIS), which will replace the DOT as the primary source of occupational information for use in the SSA disability adjudication process. SSA intends to have the OIS operational and to make necessary regulatory and policy updates by 2020.

Because the EM comes form the non-expert agency, it fails the basic deference test.  Kisor v. Wilkie.  When we want information about the requirements of work in the national economy, we should always use the most recent DOL published information.  

That takes us to the rub.  The VW has local experience.  The VW projects to the nation what the VW saw one time in a plant or office 20 years ago or assumes that the accommodation that VW worked out with an employer for one person 15 years ago is the norm.  The VW must answer the question and explain how the witness "extrapolat[es] those findings to the national economy by means of a well-accepted methodology."  The VW never has one.  The courts and the agency have swallowed the Kool-Aid that any VW appearing at the hearing is doing anything other than flying by the seat of his/her pants.  Administrative notice is the basic concept of establishing the number of jobs and the requirements of those jobs.  The O*NET serves that purpose.  A VW can help interpret that data, but even that assumes that the VW has statistical training.  They don't.  

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Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Consider O*NET -- Kind of, Part 3, California Social Security Attorney (July 1, 2022) https://californiasocialsecurityattorney.blogspot.com