Judge VanDyke is Just Wrong

 A memorandum disposition from the Ninth Circuit with a dissent should be published.  Jones v. Kijakazi is one such case.  Judge VanDyke issued a dissent in Jones to express his opinion that the court should affirm.  Judges Fletcher and Bybee reversed and remanded for further proceedings, which is the order of the court. 

Before getting too deep into the weeds, we must recognize that dissent is not a mere disagreement. A dissent has the objective of persuading the other members of the panel or to persuade future judges to rule in the manner urged. A dissent is not moaning and complaining that the majority got it wrong. Circuit Rule 36-2(g) describes an opinion "accompanied by a separate concurring or dissenting expression, and such author of such separate expression requests publication." If Judge VanDyke is serious about the content of his dissent -- that the majority got it legally wrong -- and wants to discourage other cases from committing similar error, then Judge  VanDyke should have asked for publication. 

We turn to the facts of the case in Jones. The majority describes the rejection of subjective limitation testimony because the extent of limitation was not fully supported by the record and Jones had activities of daily living. Judge VanDyke echoes the ALJ decision in the first paragraph of his dissent. Judge VanDyke urges a rule of law that the "long list of daily activities and chores" is always sufficient to permit rejection of symptom and limitation testimony. But that is not where Judge VanDyke starts. He starts with the proposition that the inconsistency with the medical evidence is alone sufficient.

Judge VanDyke relies on Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Carmickle affirmed where the claimant testified to lifting 10 pounds occasionally, but a doctor testified to 10 pounds frequently. Carmickle relies on Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995). And the wheels fall off, exposing Carmickle as violating circuit law. Johnson cites the foundation of the excess pain doctrine: "once an impairment is medically established, the ALJ cannot require medical support to prove the severity of the pain. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir.1991)."

Judge VanDyke cites Chaudhry v.Astrue, 688 F.3d 661, 672–73 (9th Cir. 2012) for the proposition that the ALJ can prefer objective evidence over subjective evidence. That is not what Chaudhry holds. The treating physician found a somatization disorder but the examining physician found malingering. Chaudhry did not follow medical advice. Chaudhry does not stand for the proposition that the ALJ can prefer objective evidence over subjective evidence. 

Judge VanDyke cites Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Burch recites the same two-part test found in Johnson and nested in the en banc decision in Bunnell. "An ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain." (Cleaned up). 

Judge VanDyke cites Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). While Thomas mentions activities of daily living in reciting the facts and in the discussion of the excess pain finding, Thomas holds that the claimant's lack of candor about substance abuse "carries over to her description of physical pain." Thomas is not an ADL case.  Thomas is a truthfulness case. 

Judge VanDyke cites Osenbrock v. Apfel, 240 F.3d 1157, 1165–66 (9th Cir. 2001) for the proposition that an ALJ could reject pain testimony based on normal physical findings. Osenbrock did not get over the first criterion -- the existence of an impairment that could cause pain. We go back to Johnson for this principle, the claimant must establish the existence of an impairment. A normal physical impairment precludes the existence of an impairment that could cause pain. 

In a single paragraph, Judge VanDyke disposes of the context of Jones's activities of daily living. But context is everything. All homicides are not murder; some homicides are not crimes. Context matters. Activities of short duration terminated by symptoms do not translate to the work setting and do not suggest that the person can persist for sufficient time to perform work or work-like activities. Context matters because claimants "need not vegetate in a dark room in order to be eligible for benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (cleaned up). 

We are not robbed of our commonsense and common experience. If anyone wants to see profoundly and obviously impaired individuals that meet or equal listings or that cannot sustain full-time work activity, go to the airport, the supermarket, the ball game, the movie theater, church, synagogue, temple, mosque, just go where people congregate and socialize. We have all seen people engaging in activities that ALJs point to as evidence of a capacity to engage in substantial gainful activity and seen people that obviously cannot. 

Let me be brazen and add to the list. Claimants for disability need not infantilize themselves and prostrate on the floor demanding that others around them take care of every basic human need.  Of course, people that lack a capacity for full-time work manage to attend to basic human needs of nourishment, self-care, and whatever pleasure they can eek out of their existence. SSA should not, and the courts should not permit, require that claimants for benefits act like infants unable to attend to any needs. Making a sandwich, pouring a bowl of cereal, frying an egg -- none of those things require the persistence of full-time work; none require the proximity and cooperation required of a work setting. SSA and the courts should not rob people of the dignity of life to enforce the social contract framed in the Act -- if you become unable to engage in substantial gainful activity, the federal government will provide a safety net whether earned (DIB) or as welfare (SSI). That's the bargain that frames the boundaries of public policy. We don't allow the disabled to fall from grace into want and then descend into destitution.  

And now, I must admit, I have changed my mind. Judge VanDyke should not ask that Jones become a published opinion. The dissent is not a powerful charge to course back to the law. It is a divergence from settled law framed in Bunnell that no judge or panel can modify. Judge VanDyke's dissent is just wrong. 

"Change my mind."

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Suggested Citation:

Lawrence Rohlfing, Judge VanDyke is Just Wrong, California Social Security Attorney (September 24, 2022) https://californiasocialsecurityattorney.blogspot.com

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

Court Scrutiny of EAJA Settlements -- Citing Superceded Decisions

We discussed the Court Scrutiny of EAJA Settlements with a Federal Agency in 2016. The resort to second-guessing the settlement choices of the parties has slowed but continues. The court scrutiny continues not only as to hours but also rates. Today, we examine a different aspect of the of same problem. 

The Commissioner denies a claim for Social Security disability benefits.  The claimant proceeds to federal court and prevails.  The Equal Access to Justice Act provides limited relief for having to litigate against the federal government when it has acted without substantial justification. The Supreme Court holds that a request for attorney's fees "should not result in a second major litigation."  Hensley v. Eckerhart. The Court continues to observe that: "Ideally, of course, litigants will settle the amount of a fee."  Id.  

If we assume that the Supreme Court is right, mostly because it is final, how should the courts treat stipulations and unopposed motions that "settle the amount of the fee?" Douzat v. Saul, 2020 WL 3408706 (D. Nev. Jun. 11, 2020) found that the district court had the right if not the obligation to review the hours and rates despite the presentation of a stipulation for fees settling the matter. Dissatisfied with the fee award and then potential offset against fees that he might owe later, Douzat appealed. Pursuant to joint motion, the Ninth Circuit awarded the fees in the stipulated amount. Douzat v. Saul, 2020 WL 8182913 (9th Cir. Oct. 16, 2020). The Ninth Circuit stated that the order served as the mandate. The District Court then "spread" the mandate of the Ninth Circuit on the docket of the District Court. 

Technically, the order of the District Court was not vacated.  It was superseded.  The order is not the order of the federal courts on the issue of fees awarded Douzat.  The District Court should stop citing Douzat because it is not the final order of the court.  The Court should also take note that whatever angst it has with a party getting a fee award under the EAJA, in in forma pauperis plaintiff will fill an appeal to the Ninth Circuit, the parties will file a joint motion awarding the fees sought, and the order of the District Court will become a nullity.  

Bascom v. Kijakazi, 2021 WL 5826311 (D. Nev. Dec. 8, 2021) is more shocking. The parties settled quickly without briefing. The parties stipulated to fees of $1,100. The District Court spent more time analyzing the fees than any party did in providing legal services on the merits, reducing the settled fee to $637.50. Bascom filed an appeal. On joint motion dismissing the appeal, the Ninth Circuit awarded the fees and expenses to which the parties had agreed, $1,100. Bascom v. Kijakazi, 2022 WL 945331 (9th Cir. Feb. 15, 2022). 

Brown v. Kijakazi, 2021 WL 56181753 (D. Nev. Nov. 8, 2021) is a tragedy. The District Court had before it an unopposed motion for fees in the amount of $7,500. Undaunted by the lack of opposition, the District Court reduced the hourly rate to $125 per hour and awarding $4,950 in fees. The docket does not show that Brown appealed despite initiating the action in forma pauperis. Counsel in the case did get costs of $250 which appears to represent the pro hac vice fee -- which is not a cost but might be a recoverable expense. 

When the courts reduce EAJA fees, the losers are several. First, counsel for the parties should take the extra time on the chin to file an appeal, enter mediation, and file a joint motion for fees and dismissing the appeal.  Time is money.  The attorneys for the plaintiff and the agency lose. The Ninth Circuit loses, having to docket an appeal, absorb the time of a mediator, granting a motion, and issuing a mandate.  The Court lose. The biggest loser is the claimant for benefits. The courts deprive the party of a reimbursement, offset, or credit against fees that the claimant deserves. 

Let's go back to Douzat. After the dust settled and the agency heard the case on remand, counsel went back to the District Court and sought fees. The Court awarded $32,000 in fees under section 406(b) and ordered a reimbursement of $4,500 for EAJA fees awarded by the Ninth Circuit. Douzat v. Kijakazi, 2021 WL 9316346 (D. Nev. Aug. 24, 2021). Had counsel been unwilling to "waste" the time on an appeal to the Ninth Circuit, Douzat would not have received a $4,500 reimbursement but instead the paltry $2,975 awarded by the District Court in the first instance.  

Douzat is dead and the courts should stop citing it. It is not good law, it is punitive, it wastes the scarce resources of time of not only the parties and their attorneys but also the District Court and the Ninth Circuit, and most importantly it violates the intent of the Equal Access to Justice Act. Please, Your Honor, take your foot off the neck of the plaintiff and the attorneys and please, stop treating government lawyers like they need your help.

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Suggested Citation:

Lawrence Rohlfing, Court Scrutiny of EAJA Settlements -- Citing Vacated Decisions, California Social Security Attorney (September 17, 2022) https://californiasocialsecurityattorney.blogspot.com. Updated December 28, 2022. 

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

Power-Screwdriver Operator -- We Need to Go Back in Time

 Power-screwdriver operator (DOT 699.685-026) will fast become a popular light unskilled occupation for the vocational witness in Social Security hearings.  Why?  I am glad that you asked. Job Browser Pro estimates that this occupation represents 237,527 jobs in the national economy.  That is a lot of jobs and the VW has JBP to back it up.  JBP does not link to O*NET or ORS data.  

Power-screwdriver operator belongs to the occupational group of miscellaneous assemblers and fabricators (SOC 51-2090).  The federal government statistical presentations use "0" as a place holder.  In occupational groups, the "0" designates a summary group.  Occupational groups that end in a non-zero digit designate a line item. So, what is up with miscellaneous assemblers and fabricators?  I am glad that you asked. 

We start tracking this group down in the Occupational Employment and Wage Statistics.  BLS explains that miscellaneous assemblers and fabricators (SOC 51-2090) includes the 2018 SOC occupations 51-2092 Team Assemblers and 51-2099 Assemblers and Fabricators, All Other.

We don't bother looking in the O*NET for 51-2099 Assemblers and Fabricators, All Other.  The O*NET does not provide data for occupational group ending in "9" -- the all other designation -- except for sub-groups with the O*NET trailer ".0X" where x is a non-zero digit. 

We do look for 51-2092 in the O*NET and both 51-2092 and 51-2099 in the ORS.  There we find a statistical basis for eroding the ability of the VW to claim a reliable methodology for extrapolating local experience to the national economy.

Team assemblers have occasional or less contact with other in 18% of jobs.  Team assemblers do not engage in teamwork in 3% of jobs.  JBP reports that miscellaneous assemblers and fabricators represent 1.3 million jobs.  A mere 3% still approaches 40,000 jobs.  The O*NET resource center reports that team assemblers engage in work with 30 days or less of on-the-job training in 14.5% of jobs.  Assuming that there is no correlation between working alone and skill level, the number of unskilled jobs that do not require teamwork drops to less than 6,000; but the number of jobs with occasional or less contact with others still hovers at 34,000 jobs.  Since working in proximity to or in coordination with others is critical to performing unskilled work, it is more likely that those without significant contact with others or without teamwork are skilled or at least semi-skilled workers.  The numbers drop fast.  

 The ORS reports that team assemblers stand almost 7.0 hours on average and 6.8 hours per day at the 25th percentile.  The ORS does not report the 10th percentile for standing.  The percent of the day reports state 84.2% of the day on average and 87.5% of the day at the 25th percentile.  Where the number of hours divided by 8 does not equal the percent of the day report, that observation suggests that the data does not report full-time work or reports an alternate work schedule.  Either the number of hours or the percentage of the day preclude workers with a limitation to 6 hours of standing/walking during the day.  

The incumbent reports in the O*NET and the employer reports in the ORS disagree on SVP.  The ORS reports that team assemblers engage in unksilled work in 53.7% of jobs.  Factoring in this data does change the results for contact with others and teamwork but does not change the required standing reported.  

The ORS reports that assemblers and fabricators, all other stand 6.52 hours on average and 8 hours per day at the median.  The ORS does not report either the 10th or 25th percentiles for standing.  The ORS reports the percentage of the day, 79.8% on average and 100% of the day at the median.  The ORS reports that assemblers and fabricators, all other engage in unskilled work in 49.5% of jobs.  

The OES, the processor of the OEWS, last separated team assemblers and assemblers and fabricators, all other in 2016.  Team assemblers represented 1.1 million jobs.  Assemblers and fabricators, all other represented 230,000 jobs.  Power-screwdriver operator was then designated an all other occupation, not a team assembler occupation, and it was never the only DOT code in the group.

Whether the claimant has an impairment in contact with others, teamwork, or standing, the data does not support 230,000 p0wer-screwdriver operator jobs.  With that conclusion, we return to the JBP estimate.  JBP reports that 53,700 jobs work in temporary help services.  We covered the problem with temporary help services earlier this year.  Those jobs do not represent sustained employment for Social Security purposes at step five of the sequential evaluation process.  

A VW regurgitating the number of jobs reported by JBP does not end the analysis.  We must use the O*NET, ORS, and understand the limitations inherent in JBP to squeeze the numbers to something that is reliable.  The estimate of 237,527 jobs as a power-screwdriver operator is not reliable for Social Security adjudicatory purposes.  

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Suggested Citation:

Lawrence Rohlfing, Power-Screwdriver Operator -- We Need to Go Back in Time, California Social Security Attorney (September 16, 2022) (updated October 5, 2022) https://californiasocialsecurityattorney.blogspot.com

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

Medium Work and Standing/Walking -- SSR 83-10 is Wrong as Interpreted

 Does medium unskilled work require a maximum of six hours of standing/walking in an eight-hour day?  That is what Social Security Ruling 83-10 implies.  At least two court decisions have found that the mere invocation of the term medium necessarily signals to the vocational witness that the ALJ intends to include that limitation to standing/walking six hours in an eight-hour day.  The understanding of SSR 83-10 as imposing a six-hour lid on standing/walking is linguistically wrong and more importantly is factually wrong.  

We have addressed the approximately six hours language in the past as modified by the description of sitting may occur intermittently during the remaining time.  As possessors of a legal education, we know that may is permissive but not necessarily.  We also know that intermittently does not mean all.  We also know that the remaining time does not mean that the person sits intermittently during the day.  The adverb intermittently describes the frequency of the adjective-noun sequence, the remaining time.  To cling to the notion that medium work requires six hours of standing/walking is to misread the ruling.  That is not what it says.  To be fair, the courts have not construed the language but instead agreed that ALJs and VWs think that.  On that proposition, the courts are probably right that that is what the typical ALJ things and about a third of VWs.  The more important question is whether any of them have a reliable basis in the data available from the Department of Labor.  The answer to that question is "no." 

First, the DOT does not define medium work with any discernible limit on the amount of standing/walking during a workday.  The only range of work that has a limit on standing/walking is sedentary work, not more than occasionally.  The regulations do not define medium work with any discernible limit on the amount of standing/walking during a workday. As to medium work, the concept of standing/walking is not mentioned -- at all -- in either the DOT or the regulations.

The factual question is whether all, most, some, or even a few medium occupations permit sitting.  The answer is clearly "yes," bus drivers and truck drivers sit.  Those are not unskilled occupations but illustrate that some medium work requires sitting.  

The unskilled DOT codes that require medium exertion narrow the focus.  The DOT lists 981 medium occupations with SVP 1 or 2.  

Production Workers, All Other

The largest aggregation of those medium unskilled DOT codes falls in the classification of Production Workers, All Other (SOC 51-9199).  The Occupational Requirements Survey reports that production workers stand 90% of the workday at the 10th percentile and reports that production workers stand six hours out of the workday at the 10th percentile.  The numbers don't correspond until we consider that some of the jobs are part-time.  Then and only then can 90% correlate to six hours.  Part-time work does not count at step five of the sequential evaluation process.  

It really does not matter that 85% of the production workers engage in medium exertion.  What matters is that no reported range of production workers stand not more than six hours of an eight-hour day whether medium, heavy, very heavy, light, or sedentary (none).  As an aside, the ORS further reports that 94% of production workers do not have a choice of sitting or standing in any circumstance.  

Helpers -- Production Workers

Helpers-Production Workers (SOC 51-9198) contains 172 medium unskilled DOT codes.  The ORS does not report standing at the 10th percentile nor its corresponding data point of sitting at the 90th percentile. Why?  The data are not reliable to report according to the federal government statistical standards.  

The ORS reports that helpers stand 7.2 hours or 90% of the workday at the 25th and 50th percentiles. The mean values are 7.23 hours and 88.3% of the workday.  These averages imply some part-time work and some data points less than 90% of the workday at lower unreported percentiles that do not meet statistical standards. The ORS reports that 76.5% of helpers engage in medium work; 14.8% engage in light work.  The data does not permit an inference that a significant number of helper jobs permit standing/walking not more than six hours for medium work (or light work and erase the existence of sedentary work).  

Machine Feeders and Offbearers

Machine Feeders and Offbearers (SOC 53-7063) contains 102 medium unskilled DOT codes. This entire occupational group represents between 60,000 and 63,000 jobs according to the OWES and OOH, respectively.  It is not a large occupational group in terms of numbers of jobs considering 291 DOT codes covering all skill and exertional levels. 

The 2021 dataset from the ORS does not report information about machine feeders and offbearers.  The final first wave 2018 dataset does report on this group.  Machine feeders and offbearers stand/walk eight hours or 100% of the day at the median.  Machine feeders and offbearers engage in medium work in 55% of jobs.  There is not basis on this data to assume that machine feeders and offbearers engage in medium work and sit at least two hours per day.  

Janitors and Cleaners, Except Maids and Housekeeping Cleaners

Janitors and Cleaners, Except Maids and Housekeeping Cleaners (SOC 37-2011) contains a mere eight DOT codes but contains occupations identified with regularity by the VW in search of DOT codes with simple tasks and low interpersonal contact.  Janitors and cleaners stand 3.2 hours per day at the 10th percentile and 5 hours per day at the 25th percentile.  Because of the existence of part-time work, we cannot take the number of hours as dispositive.  The ORS reports that janitors and cleaners stand 80% of the workday at the 10th percentile and 92.5$% at the 25th percentile.  When janitors and cleaners engage in medium work, or any other range of work, on a full-time basis, they do not sit at least two hours in a workday.

CONCLUSION

After examining the occupational groups that contain the plurality of jobs identified, the inference that medium unskilled work requires more than about or approximately six hours of standing/walking in a full=time work setting.  The reading Social Security Ruling 83-10 as implying a ceiling of six hours of standing/walking is wrong.  Some medium work may require sitting intermittently during the remaining two hours.  

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Suggested Citation:

Lawrence Rohlfing, Medium Work and Standing/Walking -- SSR 83-10 is Wrong as Interpreted, California Social Security Attorney (September 5, 2022) (updated October 5, 2022) https://californiasocialsecurityattorney.blogspot.com

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