Perkins v. Kijakazi - Another Win for Truth

 I watched the oral argument on this case back in June. The Court decided Perkins v. Kijakazi on August 22, 2022.  Another win for truth.

The lie in this case goes back to a hearing in 2011.  The vocational witness testified to sedentary unskilled work:

1. table worker (351,000 jobs in the national economy), 
2. small products inspector (81,000 jobs in the national economy), and 
3. polisher (147,000 jobs in the national economy).

Not in 2011 and not at the second hearing where no vocational witness testified.  The ALJ just bought the lie eight years ago. But Kilpatrick v. Kijakazi told us that stale evidence was not good evidence.  I am going to assume that Judge Fletcher was aware of Kilpatrick since he wrote it.  Perkins is a memorandum disposition, so no author is attributed and as a memorandum disposition, it hits only the high points not the nuanced details. 

Perkins does not turn on the ALJ reliance on stale evidence. Perkins submitted Job Browser Pro to the Appeals Council.  Court says, "good enough to rebut the presumption of reliability."  The ALJ must resolve the conflict.  Since the evidence was sent to the Appeals Council, the agency should have sent it back.  The Appeals Council action is not reviewable, but the evidence considered by the Appeals Council counts for substantial evidence purposes.  

More to the point, when is SSA going to get around to calling out its witnesses for making it up on the fly.  One, just one, investigation into perjury allegations and this garbage would come to a screaming stop.  But that would interfere with the business of denying legitimate cases.  Bogus vocational testimony like that given in 2011 and adopted in 2019 does actual harm to real people and violates the social contract with have framed within the disability provisions of the Social Security Act.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Perkins v. Kijakazi - Another Win for Truth, California Social Security Attorney (August 24, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

White v. Kijakazi -- We Are Winning the War

 Yesterday, the Ninth Circuit published an opinion in White v. Kijakazi. To understand White, we use our Rocky and Bullwinkle Way Back Machine and examine White v. Saul, the District Court decision.  The Way Back Machine is Google Scholar in this instance.  Here is what Judge Claire held:

Plaintiff asks the court to make its own assessment of job availability based on her counsel's personal research, when the relevant question is whether the ALJ properly relied on the VE's testimony. The undersigned finds that the ALJ did properly rely on the VE's testimony, and indeed the ALJ made specific findings of reliability. AR 29. Ninth Circuit precedent clearly supports the ALJ's authority to make a credibility finding regarding the VE's testimony, and to rely on that testimony with respect to job availably. Plaintiff has not demonstrated error, and her motion for summary judgment must be denied.

The Judges and Magistrate Judges should stop labelling our client as Plaintiff.  This is a defect in decision-writing that has infected most district courts.  The Court of Appeals uses the human being's name.  If we truly respect people for who they are, then we should use that person's name (first or last) or initials.  But I digress.  

The District Court focused on the evidence before the ALJ.  Was the ALJ reasonable in relying on the Jeanine Metildi's testimony that there were 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy that White could perform.  We know that counsel for White submitted the relevant screen shots from Job Browser Pro to the Appeals Council.  The question at the ALJ level is whether the ALJ should have relied on Metildi's testimony.  The answer is "no."  

The Social Security Administration makes available as part of its library to adjudicators the most up-to-date version of Job Browser Pro.  From a dead stop, JBP not running, it took me 1:35 to open the program, type in the job name (not number), find the occupation on the list (sort by exertion, these are sedentary), select that occupation, select employment numbers, and click on DOT estimate.  That minute and a half is for all three occupations.  But the person must care enough about truth to make the minimal effort to look.  I know that the ALJ has no sua sponte duty to look, but no one seriously believes that there are 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy.  No one, not even Jeanine Metildi.  

Table worker functions in the fabrication, nec industry according to the DOT.  The crosswalks tell us that table worker is an inspector, tester, sorter, sampler, and weigher occupations (SOC 51-9061).  Film touch-up inspector functions in the electronic component industry and is in the same occupational group.  There are 782 DOT codes representing circa 558,000 jobs.  Someone will have to justify how any rational person could testify that a fifth of the inspector jobs are contained in these two sedentary unskilled occupations.  Assembler works in the button and notion industry.  The entire miscellaneous manufacturing industry represents 254,659 jobs and a quarter of them are not this sedentary unskilled occupation.  No one seriously believes Jeanine Metildi's testimony that has an inkling of familiarity with the labor data and cares about the reliability of a system that adjudicates a lifeline to people that received the promise of help in the event of disability.  

___________________________

Suggested Citation:

Lawrence Rohlfing, White v. Kijakazi -- We Are Winning the War -- An Illustration, California Social Security Attorney (August 9, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

Touch-Up Screener, Printed Circuit Board Assembly -- An Illustration

Touch-up screener, printed circuit board assembly is a fairly common sedentary unskilled occupation identified by vocational witnesses.  Touch-up screener requires frequent reaching, handling, and fingering; constant near acuity; and average clerical perception, finger dexterity, and manual dexterity.  Within those parameters, the DOT supports the existence of that occupation.  The question is how many.  Here are the last 10 cases in Google Scholar identifying touch-up screener and the numbers of job, if stated:

Amador v. Kijakazi	48,000
Black v. Kijakazi	8,000 to 10,000
Cindy LS v. COSS	9,000
Williams v. Kijakazi	3,000
Mitchell v. COSS	unstated
Davis v. COSS	32,700
Christopher H. v. Kijakazi	unstated
Sherri S. v. Kijakazi	unstated
Kyle S. v. COSS	unstated
Fields v. COSS	17,000

The first thing we notice is that the range runs from 3,000 to 48,000 jobs.  There is no consistency.  One, some, most, or all the VW are pulling the answers out of a hat.  

For job numbers, we start with Job Browser Pro.  JBP estimates 1,074 touch-up screener jobs in the nation.  The best estimate from a VW is almost three times the JBP estimate.  Returning to the DOT, we examine the industry designation, electronic components.  The DOT defines that industry:

ELECTRONIC COMPONENTS AND ACCESSORIES INDUSTRY: This designation includes occupations concerned with manufacturing, assembling, and repairing electronic components. Electronic components are parts of electronic equipment that affect the current characteristics within its circuit. Included as electronic components are resistors, capacitors, coils, chokes, inductors, printed circuit boards, semiconductors, tubes, transistors, diodes, television antennas, headphones, piezoelectric crystals and crystal devices, computer logic modules filters, flipflops, gates, inverters, voltage dividers, delay lines, and wave guides. Occupations concerned with the manufacture of electrical machinery, equipment, and appliances or wire telephone or telegraph equipment are included in the ELECTRICAL EQUIPMENT INDUSTRY (elec. equip.) and occupations concerned with the manufacture of radio and tv receiving and broadcasting equipment and accessories are included in the RADIO, TELEVISION, AND COMMUNICATION EQUIPMENT INDUSTRY (comm. equip.). Occupations concerned with manufacturing blank and prerecorded magnetic tapes and phonograph records are included in the RECORDING INDUSTRY (recording).

Having established the integral part of the DOT presentation, we look to the industries used by JBP:

333300	Commercial and Service Industry Machinery Manufacturing
334100	Computer and Peripheral Equipment Manufacturing
334300	Audio and Video Equipment Manufacturing
334400	Semiconductor and Other Electronic Component Manufacturing
334500	Navigational, Measuring, Electromedical, and Control Instruments Manufacturing
335200	Household Appliance Manufacturing
335300	Electrical Equipment Manufacturing
336400	Aerospace Product and Parts Manufacturing

Without diving too deep into the weeds, those industry selections sound in a plausible range.  Within those industries, JBP estimates a total of 53,402 jobs spread out between 20 and 79 DOT codes at each occupation-industry intersection.  JBP arrives at 1,074 jobs for touch-up screener.  

Comparing JBP's occupation (inspectors, testers, sorters, samplers, and weighers (SOC 51-9061)) to those same industry groups, the OEWS estimates 62,930 jobs and the EP estimates 62,400 jobs.  That is a 15% unexplained departure from JPB to BLS data.  It is not in our favor so we let it go.  

This is where we cross-examine the VW:

    1. Do you agree that touch-up screeners belong to the occupational group of inspectors, testers, sorters, samplers, and weighers (SOC 51-9061)?

    2. Do you agree that inspectors, testers, sorters, samplers, and weighers contains 782 different DOT codes at various exertion and skill levels?

    3. Do you agree that inspectors, testers, sorters, samplers, and weighers represents between 551,000 (OEWS) and 558,000 (OOH/EP) jobs considering all 782 DOT codes?

    4. Did you consider the DOT designation of electronic components and accessories in estimating job numbers?

    5. What industries reported in County Business Patterns did you classify as employing touch-up screeners?

    6. State the NAICS codes for those industries?

    7. How many other testers, sorters, samplers, and weighers DOT codes co-exist the touch-up screeners in those industries that you just listed?

    8. What percentage of jobs at those occupation-industry intersections are unskilled?

    9. What percentage of jobs at those occupation-industry intersections are sedentary?

    10.  What percentage of jobs at those occupation-industry intersections are both sedentary and unskilled?

These 10 questions illustrate the granular nature of the question:

    What is your reliable well-accepted methodology for estimating job numbers?

Inside baseball statistics:  

    

    1. The ORS reports that 10.4% of testers, sorters, samplers, and weighers engage in sedentary exertion.  

    2. The ORS reports that 15.0% of testers, sorters, samplers, and weighers engage in unskilled work.

A VW would have to assume that all 10.4% of sedentary jobs are unskilled and that all of them work as touch-up screeners with no other occupations at the occupation-industry intersections to estimate anything close to 50,000 jobs for touch-up screeners.  More likely that 10% of the jobs at those occupation-industry intersections are sedentary and 15% of those are unskilled.  That is true if exertion and skill have no correlation.  To answer the question posed, most or all the VW are pulling the answers out of a hat.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Touch-Up Screener, Printed Circuit Board Assembly -- An Illustration, California Social Security Attorney (August 8, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

  

What We Know About Kilpatrick v. Kijakazi -- Reading the Tea Leaves

 Kilpatrick v. Kijakazi is precedent in the Ninth Circuit.  It is important for what it says and what it does not say.  This is not a dissection of the case but instead a dissection of the vocational witness.  

We start with Sarahrose K. v. Saul.  The hearing took place in July 2018.  From the District Court decision, we learn:

The VE noted he did not do a "typical labor market survey" but instead

I use a software program that will allow me to manipulate the data such that I can exclude certain industries and . . . isolate to the best degree that I can the DOT numbers, and then it also allows me to isolate just the full-time jobs based on another set of data. And then I am able to estimate, sort out, just the DOT numbers for that one job out of the OES numbers that I have.

There is one software program that estimated job numbers, allowed manipulation of industries, and allowed inclusion or exclusion of part-time jobs -- Job Browser Pro.  And that is the problem.  SkillTRAN released Job Browser Pro version 1.6 in 2015.  That version allowed manipulation of industries and inclusion or exclusion of part-time jobs.   The last version of 1.6 was active in July 2018.  

The VW identified usher and children's attendant totaling 114,000 jobs.  The 2017 dataset for the Occupational Employment Statistics was the version available to May -- July 2018.  At that time, OES estimated 124,710 jobs in the Ushers, Lobby Attendants, and Ticket Takers occupational group (SOC/OES 39-3031).  The OES released in May 2018 estimated 133,970 jobs.  

JBP currently reports 16% of Ushers, Lobby Attendants, and Ticket Takers working full-time.  And there's the rub.  How many Ushers, Lobby Attendants, and Ticket Takers including usher and children's attendant did the VW think worked full-time.  Even if it was half, the VW overshot the number of ushers and children's attendants by double the possible amount.  The only way to make the numbers work is to count sector 71; subsectors 711, 712, and 713; in industry groups 7111, 7112, 7113, 7114, 7115, 7121, 7131, 7132, and 7139.  Only then could someone force JBP 1.6.x to report 64,000 full-time ushers and 50,000 children's attendants.  The VW cheated the program and used it dishonestly.  

The same is true of sandwich-board carrier.  The 2018 OES reports 81,250 jobs in the group.  JB P reports 24% work full-time.  The VW double counted industries or added industries that don't belong.  The VW used JBP dishonestly.  Kilpatrick did not know it, flailing with even worse data and failing to ask the right questions. 

    1. What version of JBP are you using?

    2. What is the aggregate size of the OES group according to JBP?

    3. What percentage of workers in that occupational group work full-time according to JBP?

    4. What (NAICS codes) industries does JBP assign to this DOT code?

    5. What (NAICS codes) industries did you add?

    6. Have you avoided double counting NAICS industries, groups, subsectors, and sectors?

    7. Do you know what that means?

    8. And finally, submit the JBP reports for the then-current addition to show the number of jobs actually reported.

The system let the VW get away with it.  The economy did not change significantly from 2012 to 2018.  The data was stale as reported by the Ninth Circuit but stale as in day-old bread, still edible and still nourishing.  The stale evidence should have informed the record but Kilpatrick did not explain why  it was still probative or identify the source of the non-DOT estimate data from the 2012 JBP.  Lesson, keep the up-to-date version of JBP and use it.  Otherwise, we let the VW prevaricate and the courts will look the other way.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Stacy S. v. Kijakazi and the Occupational Requirements Survey, California Social Security Attorney (August 4, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

  

Stacy S. v. Kijakazi and the Occupational Requirements Survey

 Stacy S. v. Kijakazi addresses vocational expert testimony given in 2021 after a 2019 application for benefits.  The dates are important in this case.  The case stands for two propositions important to me: (1) the vocational witness did not have a reasonable explanation of a reliable methodology; and (2) the vocational witness used the Occupational Requirements Survey (ORS) to estimate job numbers at least in part.  The Court's summary of the vocational witness testimony is the typical smoke and mirrors that the VW give -- they really don't have a methodology.  Justice Gorsuch was right, they do pull it out of a hat.  

Stacy S. interests me because of its discussion of the ORS. The Court summarizes:

The VE averred that his testimony regarding the ability to perform Claimant's past work was based on the Dictionary of Occupational Titles ("DOT"); testimony regarding occasional handling and fingering and overhead reaching was based on the Occupational Requirements Survey ("ORS"); testimony regarding "the attendant work" was based on the Selected Characteristics of Occupations ("SCO"); and testimony regarding pushing, pulling, reaching, foot controls, absenteeism, and time off-task was based on "42 plus years of vocational counseling practice and placement experience of hundreds of people with disabilities." Id. at 60-61.

 The VW explained:

Well, I'm talking about—I think the ORS is based on SOC categories, which are general classifications of jobs. And within the [SOC] category, they're characterizing the number of jobs that are unskilled, semi-skilled, and so forth, and also breaking them down according to how often they are sedentary, light, and other physical—other requirements. And with an [SOC] code, all I'm doing is providing a representative DOT number of—a DOT number that falls within that SOC code.

 The Court held:

To the extent it appears the VE relied on the ORS for the estimated numbers, Claimant correctly argues that the ORS data shows "a percentage of total jobs within broad categories," but does not readily show how many jobs altogether are available within a given job category. [Dkt. 9 at 16.] Moreover, the currently available ORS data is only a preliminary estimate based on two years of a planned five-year sample period. As Claimant underscores, "any job numbers obtained from this source would necessarily be incomplete and unreliable." [Dkt. 9 at 17.]

Now we can take off our gloves.  The ORS does not answer DOT questions.  The ORS does answer whether any DOT code within the group has the characteristics that the VW wants to impute.  For instance, a VW says that a production job stands four hours per day and represents 50,000 jobs.  The ORS establishes that of the circa 200,000 production worker jobs, those workers are on their feet at least 75% of the day at the 10th percentile.  It is not possible for less than 10% of 200,000 to mathematically come up with 50,000 jobs.  The ORS can also establish that the incidence of sedentary work is negligible.  The ORS can establish that most of the jobs require medium exertion and most require skills.  To use the ORS to rebut the description that general office worker (Router, 222.587-038) or receptionist (Information Clerk, 237.367-018) do not require frequent manipulation when the SCO describes them that way is a misuse of the data.  Attendant (Children's Attendant, 349.677-018) is a part-time job in the same category as usher.  

The VW was also using stale data.  As of February 2021 when this hearing occurred, BLS had published the final first wave of the 2018 dataset, the 2019 dataset, and the 2020 dataset.  The 2018 dataset represented the culmination of the 2016-17-18 datasets.  The data that we now have in 2022 represents six sets of data representing responses from human resources (employers) about the requirements of work.  "Two years of a planned five-year sample" screams that the VW had not kept up with the data.  

The current data is in the 2021 dataset.  OccuCollect publishes the final first wave representing the 2018 dataset.  BLS publishes both but the presentation of the 2018 dataset is in an XLSX file that requires another file to understand the cells.  

A knife in the hands of a criminal is a deadly weapon.  A knife in the hands of a skilled surgeon saves lives.  It is apparent that data in the hands of vocational witnesses is akin to the former and not the latter.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Stacy S. v. Kijakazi and the Occupational Requirements Survey, California Social Security Attorney (August 3, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Preparing Meals as a Reason for Rejecting Symptom and Limitation Testimony

 I traveled back in the cases to find Fair v. Bowen, an old, reported instance of using the preparation of meals as a basis for rejecting symptom and limitation testimony.  More recently, Ahearn v. Saul cited preparing meals as an activity inconsistent with claims of disability. The regulations are clear:

We will consider all of your statements about your symptoms, such as pain, and any description your medical sources or nonmedical sources may provide about how the symptoms affect your activities of daily living and your ability to work.

The problem is ambiguity.  Without context, I do not know what preparing meals requires.  Getting a bowl and spoon, a box of cereal, a half-empty half-gallon of milk, and sitting down to consume that food did involve preparing a meal.  A person would never be on their feet for more than a few minutes, never lift over two pounds, and it does not take a hungry person very long to consume that bowl of cereal.  Yet, that is preparing and consuming a meal.  

Contrast that with Beef Wellington.  According to the Food Network, this dish requires seven hours to prepare.    Not only does it take all day long to prepare, but it is also a complicated dish to prepare with the pastry crust, the duxelles, the green pepper corn sauce, and then the side dishes.  Someone testifies to making Beef Wellington two or three times a month, that is inconsistent with a claim of inability to engage in the long standing and walking required of light work.  If 37 years of representing people, I have never heard or read testimony that someone prepared this culinary delight.  Too complicated, too much time, and too expensive for a person that has not worked in a year to five years.  

How about poached eggs, what does the Food Network say about that? This recipe carries the classification of easy to make.  The prep time is 10 minutes and the cook time is five minutes.  One inch of water in a two-quart pot, that is not even close to 10 pounds.  Making poached eggs is not inconsistent with either the inability to sit or stand for prolonged periods.  

A lunch consisting of a Cuban Sandwich is another item that I would not expect from my clients.  Food Network classifies this tasty lunch entree as easy to make.  The sandwich takes 25 minutes to prepare and cook.  Making Cuban Sandwich is not inconsistent with either the inability to sit or stand for prolonged periods.  

And what are we having for dinner?  Chicken Broccoli Casserole!  Food Network says it is easy to make and has active time of 35 minutes during almost three hours of total time.  Most of that time is waiting for the chicken to cook or the casserole to bake.  The three-quart baking dish weighs 3.1 pounds.  If this person were meal-prepping for a week (the recipe is 10 servings), that effort would not require more than occasional standing/walking with 40 minutes of rest time during the three hours of prep and cook time, TWICE.  Making Chicken Broccoli Casserole is not inconsistent with either the inability to sit or stand for prolonged periods.  

Next time your client says in testimony or in the function reports that he/she prepares meals, ask that per what he/she prepares.  Ask that person how long it takes, how much time on the feet is required to make that basic item of sustenance.  Don't allow the record to give an inference that your client ever makes Beef Wellington but more likely to have toast and coffee.  

Looking at recipes has piqued my appetite.  I find cooking to give me a catharsis.  It is creative, delicious, and a complete diversion from the practice of law.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Preparing Meals as a Reason for Rejecting Symptom and Limitation Testimony, California Social Security Attorney (August 1, 2022) https://californiasocialsecurityattorney.blogspot.com

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