A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi

A civil procedure/appellate law throwback. The foundational cases is Forney v. Apfel, 524 U.S. 266 (1998). In a unanimous decision, Forney held that a prevailing plaintiff in an action to review the final decision of the Commissioner could appeal where the District Court reversed on some issues, but not all the issues that the plaintiff raised. 

In Forney v. Chater, 108 F.3d 228 (9th Cir. 1997), the Circuit Court held that the Restatement Second of Judgments sec. 27 did not impose collateral estoppel on the issues the District Court affirmed, only the issues where the District Court reversed the final decision of the COSS. The Supreme Court reversed because an aggrieved party can appeal a decision granting in part and denying in part the remedy requested. 

On remand from the Supreme Court, the Ninth Circuit (176 F.3d 482 (Table) 1999 WL 197237) affirmed the finding that the ALJ properly rejected the treating physician; reversed on the rejection of Forney's testimony; reversed on the rejection of Forney's husband's testimony; found that the failure to account for limitations caused by pain rendered the vocational expert testimony insubstantial; and affirmed the District Court finding that the ALJ failed to consider the DOT/SCO (a year before the COSS published SSR 00-4p). Having had his deep dive into the Restatement reversed, Judge Kleinfeld dissented that he would affirm the ALJ on all counts. 

On a side note, the COSS did not cross-appeal from the judgment of the District Court. As the majority stated, that issue was not before Court of Appeals. 

Enter Sakowitz v. Kijakazi. Part 3 of the decision says:

Because neither party challenges the district court’s decision to remand for reconsideration of Dr. Warbritton’s opinion, we do not address this aspect of the district court’s decision.

Sakowitz won at the District Court. As Forney on remand suggests, a panel could take it all away even if the COSS does not cross-appeal. The majority in Forney on remand and this panel have it right. The Court of Appeal does not have jurisdiction to rake away the favorable parts of the District Court judgment absent a cross-appeal from the COSS. 

Sakowitz adds to the breadth of the remand order. Sakowitz holds that the ALJ erred in rejecting the symptom and limitation testimony; erred in rejecting the opinion from a second treating physician; and failed to provide germane reasons for rejecting the opinions of treating chiropractors. 

Are Forney appeals necessary? If the remand hearing is de novo on all issues, the answer is "no, Forney appeals are not necessary unless the plaintiff has a real shot at a reversal for the payment of benefits." If a remand hearing is not de novo but invokes law of the case and rule of mandate, then Forney appeals are absolutely necessary to broaden the scope of the remand hearing. 

The law of the case and the rule of mandate apply in Social Security cases. The purpose of an appeal (or complaint for review) is to narrow the scope of the later proceedings. The purpose of a court order is to correct errors. The idea that a step five reversal on a reaching issue would require the ALJ to reconsider Forney's, her husband's, and to include those factors into an examination of the vocational expert represents a very large set of dice and a prayer for a benevolent ALJ. Absent a court order calling for a de novo hearing, the proceedings on remand must comply with the order of the District Court. 

Sakowitz does not cite Forney. It doesn't have to cite Forney. The work done 25 years ago settled the law. We no longer need a law review article hashing through the Restatement Second of Judgments or the relevant Supreme Court decisions on appealability or when a party is aggrieved. 

Hat tip to Julien Swanson, the attorney of record in Sakowitz. 

And a hat tip to Ralph Wilborn, Tim Wilborn, and Eric Schnaufer for Forney so long ago. 

___________________________

Suggested Citation:

Lawrence Rohlfing, A Forney Appeal Expands the Scope of Remand -- Sakowitz v. Kijakazi, California Social Security Attorney (December 21, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi

Catching up reversals by the Ninth Circuit in unpublished memoranda. We can extract a sense of the direction of the court and various panels. Unpublished memoranda are not precedent. Carrier v. Kijakazi is on of those non-precedential decisions. 

Carrier applied for benefits before March 2017. The physician hierarchy applies from case law and the regulatory nod found in 20 CFR 404.1527. See, Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).  The specific and legitimate standard applies. 

The ALJ gave little weight because the treating physician expressed an opinion after the relevant period. Carrier observes that the doctor treated Carrier during the relevant period and the opinion addressed the relevant period. The ALJ relied on non-treating opinions expressed outside the relevant period. Carrier found the articulation not legitimate. 

The ALJ picked references in the treating notes that Carrier was alert and oriented. Carrier points out that the record includes presentations with substantial pain and limitations including pain-induced nausea. The ALJ did not read the alert and oriented references in the context of the record as a whole. 

The ALJ relied on Carrier's activities of daily living. The ALJ did not compare the activities cited to evidence of difficulty making meals or performing household chores. The medical record repeated the subjective statement that cooking aggravated low back pain. Carrier's walking on a treadmill as part of a rehabilitation program one time did not provide a basis for relying on ADLs. Trying to do some gardening and ending up with spasms and increased pain is likewise an insufficient basis for rejecting evidence describing greater limitations. 

The ALJ relied on travel from Seattle to Idaho. But Carrier described the trip as tough and that opiates barely helped. The pain made Carrier nauseas. During a party, Carrier secluded herself in a corner and was embarrassed. The ALJ did not state clear and convincing reasons for rejecting the testimony, did not explain how the activities translated to a work setting, and inappropriately relied on sporadic activities. 

The Court made short shrift of the ALJ's limited treatment of Carrier's testimony. The Court also reached the third-party testimony  finding that the ALJ did not state germane reasons for rejecting that testimony. 

The current regulatory paradigm does away with the specific and legitimate standard. Carrier reverses because the ALJ's stated reasons fail to meet that standard. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) still requires explanations supported by substantial evidence, sufficient to persuade a reasonable mind. Reversing the ALJ's treatment of the treating physician here does not rely on the physician hierarchy described in Lester, this case turns on the lack of persuasive value of the articulations and the lack of evidentiary support for those articulations. The hierarchy is dead but the ALJ still needs statements supported by substantial evidence to reject any physician opinion.

___________________________

Suggested Citation:

Lawrence Rohlfing, Opinions Outside the Relevant Period, Probative -- Carrier v. Kijakazi, California Social Security Attorney (December 15, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

An Update on White v. Kiajakzi -- 2023 EAJA

In the rundown of 2022 published Ninth Circuit cases, I wrote:

White v. Kijakazi, 44 F.4th 828 (2022) - if the claimant submits rebuttal evidence in the form of Job Browser Pro to the Appeals Council, is a remand necessary to allow the ALJ to address the evidence and to resolve the inconsistency? Held, a remand is appropriate to allow the ALJ to resolve the inconsistency between the vocational testimony and the data provided by Job Browser Pro.

A number of district courts had held that the ALJ had no duty to address rebuttal evidence not in the DOT and had held that Appeals Council evidence was too late. See, Ford v. Saul.

In the 16 months since publication, courts have cited White 60 times according to Google Scholar. Those cases cite White for the application of Job Browser Pro 26 times. The Court of Appeals cited White in two unpublished memoranda and in the disastrous decision in Wischmann v. Kijakazi. 

On remand, White sought fee relief under the Equal Access to Justice Act. As an aside, everyone should have in their pocket that attorneys do not make money on circuit court appeals. It isn't that we don't get paid, it is that we don't get paid enough, never do. An appeal in any other area of law would generate fees between $60,000 and $100,000. It takes that much effort, skill, and a pinch of luck. The identity of the panel makes a difference, after all we lost in the USDC. 

Back to White's application for fees. Magistrate Judge Allison Claire denied the motion. Judge Claire found that the COSS was substantially justified:

Indeed, the undersigned initially ruled in favor of the Commissioner based on the law as it existed and was understood at the time.

Who cares? Three judges on the Ninth Circuit panel reversed because it was legal error to fail to consider and reconcile the Job Browser Pro evidence. Novelty of a legal question is not a basis for finding substantial justification. Judge Claire continued:

Although Buck v. Berryhill had been decided before this case was filed, neither party referenced it in their briefing, presumably because they were either unaware of the case or believed it did not apply to the facts presented in this case.

Attorneys on both sides of the case have an ethical responsibility to cite to the court the controlling authority. For the plaintiff's attorney, a failure might fall below the standard of care. For the government attorney, the agency acted without substantial justification because the conduct violated the duty of candor owed to the court. Judge Claire continued:

Further, the Ninth Circuit acknowledged an extension of Buck to the circumstances of this case, in which plaintiff did not raise the job availability discrepancy to the ALJ, writing "We recognize that the claimant in Buck submitted his estimated job numbers to the ALJ, and that White submitted his estimated job numbers to the Appeals Council. This distinction is not fatal."

The problem for this analysis, even if factually correct, is that it does not matter. Sims v. Apfel erased the AC issue exhaustion because it is an inquisitorial process. Three justices rely on that proposition in the concurrence in Carr v. Saul. The controlling precedent in the Ninth Circuit is "or" in Meanel v. Apfel. Shaibi v. Berryhill states a best practice but permits submitting evidence to the AC. 

 In response, White raised three defenses to the COSS showing of substantial justification:

(1) the software producing more accurate job numbers was available at the initial ALJ determination level and the Commissioner advanced a false narrative while having ready access to more accurate numbers, 

That's right. The ALJ corps has Job Browser Pro on their desks. They also have the DOT. But they don't use them, at least not most or even a healthy plurality of ALJs perform the SSR 00-4p check much less check the sources cited. And the Ninth Circuit held that the Job Browser Pro evidence was probative because it contradicted the testimony of the vocational expert witness.

(2) the court of appeals held that the rebuttal evidence presented to the Appeals Counsel was significant, probative, and reasonably likely to change the outcome of the disability determination, yet the Appeals Counsel upheld the ALJ, and 

That is the holding of the panel. 

(3) the Commissioner's own vocational expert witness made false statements about job availability, and this misconduct cannot be substantially justified. 

The agency and the courts continue to embarrass themselves and hold the system to shame for accepting and excusing vocational witness prevarication. Justice Gorsuch wrote in his dissent in Biestek that false testimony cannot be substantial evidence whereas the majority affirmed the nonsensical proposition that nut sorter represented a significant number of jobs. No serious person really believes the nonsense that the witness testified to in Biestek. 

The majority in the EAJA appeal rejected the COSS defense and reversed the district court. The agency must clarity and develop the record when there is a vast difference in job numbers. The majority focused on the position of the government as a whole, not isolated aspects. The bottom line advanced by the COSS was that the agency should always be allowed to rely on the vocational witness because they have talismanic insight into the existence, requirements, and numbers of jobs. The majority held that the single sentence in the COSS answering brief that contended that the submission to the AC was reasonable and sufficient to raise a barrier of substantial justification. The majority disagreed. Circuit precedent clearly permits submission of evidence to the AC. 

Judge Miller dissented. He would hold that the COSS was reasonable -- substantially justified. What Judge Miller does not address is Brewes. And that it fatal to his dissent. 

If I represented the COSS, which I don't, I would have argued Ford v. Saul. There, the Court held that rebuttal vocational evidence was subject to the five-day rule and the untimely request for a subpoena was too little too late. Ford is wrong for several reasons but we can discuss that another day. And I suggested that with my see comment in the year rundown. 

Kudos John Metsker on the merits and on the fee appeal. Well done. 

___________________________

Suggested Citation:

Lawrence Rohlfing, An Update on White v. Kiajakzi -- 2023 EAJA, California Social Security Attorney (December 7, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi

 The Ninth Circuit published Glanden v. Kijakazi on November 16, 2023. Judge Paez wrote the decision joined by Judge Gould. Judge Graber dissented. Glanden sought disability insurance benefits based on an alleged onset date of December 1, 2017, and date last insured of June 30, 2018. 

In the course of practice, representatives are often tasked with the job of proving disability in a small window. This is one of those cases, a small window. As for this claim, the ALJ terminated the five-step inquiry at step two, the absence of a severe impairment. 

Glanden had a two-and-a-half-year gap in this receipt of medical treatment. In the middle of that two-and-a-half-year gap falls the narrow window, the seven months during which Glanden had the burden of proving that he met the disability requirements of the Social Security Act. 

The Court decision describes the medical expert as testifying that the record as a whole leads to an expectation that Glanden had symptoms serious enough to require treatment in those seven months. That description must entail an equal inference that Glanden's symptoms requiring treatment would continue after the date last insured and up to not more than 12 months prior to the date of application. 

The Court relies on Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005), as the basis for reversing and remanding. The Court distinguishes Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), the precedential case supporting the ALJ's finding of no severe impairments.

Judge Graber focuses on drug-seeking behavior. The presence of drug-seeking behavior does not prove or disprove the presence of severe physical or mental impairments. Judge Graber distinguishes Webb as not supporting the complete absence of medical evidence. Judge Grager describes the resort to wrist surgery prior to December 2017 and the absence of wrist complaints in 2019. Judge Graber also points to the resort to treatment for Glanden's back condition in 2019 after two separate traumas. One of those traumas consisted of an injury while engaged in yard work. 

The treatment notes for the 2019 yard-work injury described Glanden as stable before that incident. The medical expert set up a syllogism: "if that's correct then during the relevant period he wasn't all that symptomatic." 

The medical expert punted according to the majority and the dissent. "Wasn't all that symptomatic" does not mean asymptomatic. Serious symptoms are inconsistent with not "all that symptomatic."

And that is the problem. The ALJ adduces an ambiguity and instead of resolving it and demanding the expert give an opinion, the ALJ determines to resolve the ambiguity against the claimant. The representative at the hearing does not jump in and explore that ambiguity either hoping that the ALJ will go with the serious symptoms instead of the not all that symptomatic syllogism. Neither is the right approach. In the context of administrative hearings where no one knows what the experts will say before the hearing, the inquisitor ALJ and the retained representative must ask questions that they do not know the answer to. This is unless the ALJ announces the direction of the decision. The ALJ must develop the record for the claimant even if the claimant has professional representation. The representative must never trust the ALJ to develop the record for the client or to adopt a pro-claimant mindset in administering a safety-net social program. The Court rightly put the onus on the ALJ to do more. Some judges in the Ninth Circuit would have blamed the representative and voted with Judge Graber. 

Glanden is now precedent -- or will be 45 days after the publication of the decision. As for the gap in treatment scenario, consider Glanden fact specific. Glanden put up the bookends of treatment before and after the long period of no treatment and the medical expert testified to an expectation of serious symptoms. On those facts, Glanden is replicable. I expect those facts to represent the furthest reach of the inference with no treatment on the nonfrivolous legal conclusion at step two. The problem is establishing a listing or residual functional capacity, both burdens on the claimant. 

Glanden will prove useful in other treatment gap cases. Counsel should cite Glanden in response to a gap in treatment as requiring the ALJ to interpolate consistency between two data points absent evidence to suggest a parabola instead of a straight line. 

The first sentence of the last paragraph illustrates Glanden's problems on remand:

We express no view as to whether Glanden will succeed in proving that he is entitled to benefits; we hold only that denial at step two was premature. 

Whether Glanden can prevail on remand with a burden of proving up a residual functional capacity remains to be seen. 

Anticipation ...

___________________________

Suggested Citation:

Lawrence Rohlfing, Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi, California Social Security Attorney (November 17, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs

SkillTRAN publishes a list of 127 sedentary unskilled occupations that qualify as simple, repetitive. or routine work (reasoning levels 1 and 2). We have discussed this issue in the past. SkillTRAN estimates these job numbers as of May 3, 2021. That is not the publication date for the article, is the release date of the OES (now OEWS) data on May 3, 2021, for data as of May 2020. 

SkillTRAN estimates that there are 58,000 full-time jobs that are sedentary, unskilled, and SRT using the SkillTRAN methodology for estimating job numbers. Sounds significant, but do all those jobs count according to SkillTRAN?

The most numerous occupation accounting for almost 34,000 jobs is escort-vehicle driver (DOT 919.663-022). SkillTRAN does not describe the DOT as accurate or reliable for escort-vehicle driver as sedentary. 

1. Escort-vehicle driver requires eye-hand coordination level 3 (the average range, inconsistent with unskilled work). 
2. Escort-vehicle driver requires constant exertion of negligible force (inconsistent with frequent exertion of negligible force for sedentary work but consistent with light work). 
3. Escort-vehicle driver could require the rapid application of greater than 20 pounds of force on the brake pedal (inconsistent with sedentary and light work but consistent with medium work). 

If Job Browser Pro or any other SkillTRAN product describes the existence of work, this article addressing escort-vehicle driver in an inconsistent statement. If the vocational witness identifies escort-vehicle driver without using a SkillTRAN product, then careful examination needs to focus on the eye-hand coordination, the constant exertion of negligible force, and the occasional (from seldom to one-third of the day) application of greater than 20 pounds of force. Some vocational witnesses will voluntarily withdraw escort-vehicle driver, and they should. 

The second and third most numerous occupations on the list are addresser (DOT 209.587-010) and tube operator (DOT 239.687-014). These represent less than 2,400 and 2,300 jobs respectively. In a 2015 presentation at an ALJ Training, SkillTRAN laid out the problem with addresser -- it is hard to find. OIDAP calls that obsolete. On the OIDAP list of obsolete occupations, we find tube operator. The second and third most numerous occupations that fit the unskilled sedentary SRT hypothetical are obsolete. The ALJ training also labeled escort-vehicle driver as "not really sedentary." 

**SkillTRAN lists document preparer, election clerk, call-out operator, and surveillance-system monitor on its list of examples of sedentary unskilled occupations. These four occupations require reasoning level 3. SkillTRAN criticizes all six targets of vocational identification as the result of "rehabbers/occupational health." **

The first three occupations should not count. The count stands at fewer than 20,000 jobs. 

The next most numerous occupation is nut sorter (DOT 521.687-086). The 2021 estimate of job numbers comes in at a paltry 1,900 jobs. You may remember that the vocational expert in Biestek v. Berryhill, 139 S.Ct. 1148 (2019) testified under oath that her undisclosed personal labor market survey found 120,000 sorter jobs in the nation. The vocational witness in Biestek was at best unreasonably wrong. No one believes that nut sorter represents 120,000 jobs. This juxtaposition illustrates the depth of the vocational witness problem in Social Security disability cases. 

Ten DOT codes report no jobs. Ten DOT codes report 10 or fewer jobs. Thirty-four DOT codes report between 12 and 20 jobs. Twelve DOT codes report between 21 and 30 jobs.  Twenty-five DOT codes report between 31 and 100 jobs. Twenty-eight DOT codes report between 101 and 1,000 jobs. Six DOT codes, including nut sorter, report more than 1,000 but fewer than 2,000 jobs. 

Every claimant limited to sedentary SRT work at step 5 of the sequential evaluation process should win. There are not a significant number of jobs in the national economy that reliably exist. Adding in the most insignificant additional limitation (occasional contact with others, limiting sitting to six hours) solidifies the conclusion. Don't let vocational witnesses spread the Biestek lie. 

But you had me at sedentary SRT. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs, California Social Security Attorney (November 14, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

SkillTRAN's Analysis of Sedentary and Light Occupations

Our friends at SkillTRAN publish an Analysis of the Unskilled DOT Occupations (SVP < 3). Representatives should commit it to memory or keep a copy on their desk/in their briefcase. 

The page provides cumulative totals for a residual functional capacity for not present, occasional, frequent, and constant action. Constant represents no limitation and always represents 100% of jobs. The cumulative totals work across the exertion spectrum with the medium column including light and sedentary jobs. 

The categories are clear except DE:

1. 1. RE = reaching
2. 2. HA = handling
3. 3. FI = fingering
4. 4. DE = not clear
5. 5. ST = stooping

I will request that Jeff Truthan clarify the DE designation. It is not a Selected Characteristic of Occupations designation. 

This compilation of SCO data exposes problems with the Social Security Rulings. SSR 96-9p states that the inability to engage in stooping significantly impacts the sedentary occupational base. The SOC states that 95.6% of sedentary occupations require no stooping. SSR 85-15 states that the inability to engage in frequent stooping significantly impacts the medium range of work. The SCO classifies 329 occupations as requiring frequent stooping and 5 occupations as requiring constant stooping. 

SSR 96-9p states that sedentary work requires good use of the hands. The SCO identifies 92 occupations that require frequent reaching and handling as well as 75 that require frequent fingering. The SCO identifies 3 sedentary occupations that require occasional or no handling and 38 occupations that require occasional or no fingering. 

As to agency policy, the rulings are not true in all circumstances. SkillTRAN identifies occupations where the rulings suggest few jobs. Notice the difference in nomenclature. Occupations do not necessarily imply the existence of a "significant number of jobs." 

This information is foundational information. Without the foundation, representatives will get lost chasing non-issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Analysis of Sedentary and Light Occupations, California Social Security Attorney (November 13, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking

Vocational witness testifies at a hearing in response to the question, "if the person were limited to a total of six hours of standing/walking during a workday, could that person perform this occupation?" Vocational witness responds, "no." The ALJ asks for clarification mostly because it is permissible to interrupt cross-examination with a line of questions. 

The vocational witness explains that the occupation of marker is a stand/walk job all day long and that there is not an opportunity to sit during the workday. The witness then offers an absurd caveat to that explanation. 

1.         The worker gets two 15-minute breaks during the day and can sit down.
2.         The worker gets a 30-minute meal break and can sit down.
3.         Those three breaks total an hour a day. 

Point number 1: a person is marking product as part of their job. The time for a 15-minute break has arrived. 

1. When does the break start? 
2. Does it start when the person gets to the place to sit down or does the break start when the person walks away from the workstation? 
3. When does the break end? 
4. Does it end when the person starts to walk back to the duty station or does the break end when the person gets back to the workstation?

It is clear that the break begins and ends when the person stops working and starts to move away from the workstation. I am an expert in this question, I am an employer.

The marker is working diligently through the day and break time arrives. The clock starts running. The worker cannot drop straight down to the floor and sit. More time standing/walking is required. Whether headed to the restroom, the water fountain, or the locker, the worker must engage in more standing/walking. If the break lasts 15 minutes, the person will never get to sit for 15 minutes. 

Lunch break presents a different problem. The marker is scheduled for a full-time, eight-hour workday. The person clocks in at 8:30 am. The meal break arrives. What does the worker do? Certainly, the worker does not reach into a pocket, pull out a meal and drop straight down in the position to eat and rest for 30-minutes. The worker clocks out. The worker walks to the break area, retrieves the meal, and consumes the meal. The worker then clocks back in and walks back to the workstation. Even if the worker managed to sit for the entire 30-minute meal break, which is off-the-clock and not part of the work duties. If the meal break started at 12:30 pm, it ended at 1:00 pm, and the worker still has four hours of standing/walking on the clock. 

A person with a job that stands/walks over six hours in a day cannot accumulate one hour of sitting during two fifteen-minute breaks and a 30-minute meal. The worker must get to the designated area by walking, the person is off-the-clock for lunch, and the person must get back to work. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking, California Social Security Attorney (October 30, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Why Doesn't the Social Security Administration Use the O*NET?

The Department of Labor replaced the Dictionary of Occupational Titles with the Occupational Information Network (O*NET) with a preliminary version in 1997. Labor now publishes version 28 of the O*NET. The Department of Labor continues to host the DOT with a front-page statement:

Status of the Dictionary of Occupational Titles; use in Social Security disability adjudications

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.

In the decade-long journey toward and Occupational Information System, SSA explains in the first frequently asked question:

Why are you developing a new occupational information system (OIS)? Why can’t the Department of Labor (DOL) update the Dictionary of Occupational Tiles (DOT), or why can’t you use the Occupational Information Network (O*NET)?

The Department of Labor (DOL) developed the DOT in the late 1930s to match jobseekers to jobs. For almost 50 years, the DOT has been our primary source for occupational information. The DOL discontinued updating the DOT in 1991, and replaced it in 1998 with another job placement tool, the Occupational Information Network (O*NET). We studied whether O*NET could take the DOT’s place in our disability adjudication process but found it does not describe the physical requirements of occupations at the level of detail needed for claims adjudication.

The OIDAP observed that the O*NET differed in the assessment of work requirements:

RFC/O*NET Comparison 

• RFC: Lifting, standing, sitting, pushing; postural limitations on balancing, crouching, crawling 
• O*NET Work Context: Time spent sitting, standing, climbing, walking, etc. 
• Anchors differ: RFC specific time ranges vs. O*NET relative time 

If the only measure of work that matters is full-time work, the O*NET focus on relative time is truly irrelevant. More importantly, the DOT does not discuss the amount of sitting, standing, or walking in any exertional domain except for sedentary work. 

The OIDAP described the measures of RFC to the measure of environmental conditions in the O*NET. Like the environmental demands in the SCO, the O*NET describes exposure on a range. While RFC is defined by tolerance, Labor has always framed the issue as expected exposure. The same comparison of tolerances in RFC to the demands in the DOT and SCO compared to the O*NET applies. The later statement in the FAQ and the OIDAP observation about skill level remain the two issues that prevent application of the O*NET as the foundation of SSA's adjudication of disability. 

That the O*NET does not provide an adequate basis for assessing skill and exertion does not translate to the conclusion that the O*NET does not provide useful data for understanding current occupational information framed in the Work Context reports. 

Representatives should not use SVP estimates because those estimates apply to a wide range of work. Representatives should not use the standing, walking, and running estimates to gauge the difference between light, medium, and heavy work. 

Representatives should use the O*NET to assess the required need for contact or interaction with other people, dealing with the public, and teamwork. Representatives should use the O*NET to separate out part-time versus full-time work. Representatives can use the O*NET to narrow the range of sedentary work. It is clear (to me) that the O*NET meets the definition of reliable government publications subject to administrative notice under 20 CFR 404.1566(d). 

The DOT contains almost 13,000 codes. The DOT has a date last updated of 1977 for 10,000 codes. The use of 46-year-old data is not reliable and does not satisfy the reasonable mind test. Recognizing the limitations of the O*NET does not justify reverting back to the DOT and pretending that it covers the data points not contemplated in 1977. 

"Thus, if you are looking for current occupational information you should use the O*Net."

___________________________

Suggested Citation:

Lawrence Rohlfing, Why Doesn't the Social Security Administration Use the O*NET?, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi

We are back in Shawver v. Kijakazi looking at the limitations to superficial and brief contact with coworkers. We return to the district court decision in Misti Jo. S. v. Comm'r of Soc. Sec. for the residual functional capacity and occupations. In relevant part:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks [...] The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

Resulting in: 

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

We discussed the limitation to standing/walking for four hours yesterday. That exercise eroded routing clerk and mail clerk while eliminating marker. Vocational cross is a no quarter expedition, we seek to eliminate all jobs. The more common version of this genre of limitation is occasional contact or interaction with others. Superficial and brief is a separate classification having more to do with the quality of interaction, teamwork. 

Superficial and brief contact with others is not a vocationally relevant phrase. A person can have constant superficial and brief contact, nothing is in depth. Because it is conceivable and not classified by the data, the vocational witness gets carte blanche to pontificate. 

Routing clerk (222.687-022) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Shipping clerks have no or occasional contact with others in 0% of jobs according to the O*NET. A mere 1% do not coordinate or lead others. Dealing with external customers is "not important at all" in 4% of jobs. Never resolving conflict occurs in 16% of jobs. Working with a group or team is not important in 1% of jobs. 

Mail clerk (209.687-026) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Mail clerks have no or occasional contact with others in 8% of jobs according to the O*NET. Coordinating or leading others is not important in 15% of jobs. Dealing with external customers is "not important at all" in 10% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 0% of jobs. 

Marker (209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Stockers have no or occasional contact with others in 4% of jobs according to the O*NET. Coordinating or leading others is not important in 6% of jobs. Dealing with external customers is "not important at all" in 6% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 4% of jobs. 

In order to make this type and quality of evidence probative, we have to ask. 

    1. Is "contact with others (face-to-face, by telephone, or otherwise) in order to perform it" superficial and brief?

    2. Is "coordinate or lead others in accomplishing work activities in this job" superficial and brief?

    3. Is fairly important ability to "work with external customers or the public" superficial and brief?

    4. Is the encounter of "conflict situations" on the job superficial and brief?

    5. Is the ability to "work with others in a group or team" as fairly important superficial and brief?

It becomes a matter of extracting concessions from the witness. The follow up question is whether an occupation that required those five workplace requirements or expectations (BFOQ), would you agree that the work required more than superficial and brief contact with coworkers and the public?

When we allow a vocational witness to wax on about the existence of work without exploring the range of available data, we allow the witness and ALJ to take from our clients the benefits that were promised in the Social Security Act. We become a party to a breach of the social contract. 

Forge onward. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi

In Shawver v. Kijakazi, the claimant litigated the tried-and-true physician opinion evidence, the claimant testimony, the meeting or equaling of the listings, and the non-issue of whether the ALJ propounded a complete hypothetical question based on errors at step three, the assessment of residual functional capacity. 

But step five is always in play when the claimant establishes the inability to perform past relevant work. Misti Jo. S. v. Comm'r of Soc. Sec. gives us the rest of the story. The RFC:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks; occasionally balance, stoop, kneel, crouch, or crawl; occasionally climb ladders, ropes, or scaffolds; avoid exposure to hazardous machinery or equipment; and work in an environment with no more than ordinary office level lighting or noise. The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

And the step five occupations:

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

Standing/walking four hours in an eight-hour day does not represent a wide range of light work. Social Security Ruling 83-10 describes light work as requiring standing/walking six hours in an eight-hour day and sitting intermittently during the remaining time. There exists an apparent conflict between the agency's understanding of light work and the identification of light work that requires not more than four hours of standing/walking. 

Routing clerk (DOT 209.687-026) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Labor places 65 alternate titles including 20 DOT codes in this group. The Occupational Requirements Survey describes shipping clerks. Shipping clerks stand (including walk) half the day at the 25th percentile and 80% of the day at the 50th percentile (median). Shipping clerks engage in sedentary exertion in 7.5% of jobs and light exertion in 21.5% of jobs. Shipping clerks engage in unskilled work (SVP 2) in 46.3% of jobs. 

Mail clerk (DOT 222.687-022) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Labor places 60 alternate titles including 14 DOT codes in this group. The Occupational Requirements Survey describes mail clerks. Mail clerks stand (including walk) half the day at the 50th percentile and 75% of the day at the 75th percentile. Mail clerks lift/carry 20 pounds maximum in at the 25th percentile and 25 pounds at the 50th percentile. Mail clerks engage in unskilled work (SVP 2) in 67.4% of jobs. 

Marker (DOT 209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Labor places 209 alternate titles including 38 DOT codes in this group. The Occupational Requirements Survey describes stockers. Stockers stand (including walk) 80% of the day at the 10th percentile. Stockers lift/carry 25 pounds maximum in at the 10th percentile. Stockers engage in unskilled work (SVP 1 or 2) in 84.3% of jobs. 

To arrive at a reliable estimate of the number of light and unskilled work with standing/walking limited to four hours per day, a witness would have to assume the incidence of work that meets those criteria. The ORS and O*NET OnLine provides governmental data published according to OMB standards. The vocational witness has local (anecdotal) experience without a well-accepted methodology for extrapolating that experience to the national economy. 

In the case of these three occupations, markers are clearly eliminated. The intersection of unskilled and standing/walking four hours or less without crossing into sedentary work requires several assumptions. The expert must either assume that the exertional demands cut across the skill requirements OR must either have data or make assumptions about the requirements of skill and exertion correlation. Labor does not publish that data. 

Contact/interaction with coworkers and supervisors is cued up next. Teasing, none of the jobs make the cut. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi, California Social Security Attorney (October 17, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Step Five Is Not a Chance to Relitigate Step Three -- Shawver v. Kijakazi

In Social Security disability cases in federal court, the issues fall into predictable patterns. We examine what is not a separate issue in the context of Shawver v. Kijakazi. The issues addressed and rejected by the Court of Appeals:

    1. In a pre-March 27, 2017, application for benefits, the ALJ must state specific and legitimate reasons for rejecting the opinions of treating and examining physicians that are otherwise contradicted in the record. 

    2. The ALJ must state clear and convincing reasons for rejecting the claimant's testimony about the symptoms and limitations from the impairments established at step two of the sequential evaluation process. 

    3. The ALJ must state reasons supported by substantial evidence for rejecting the conclusion that the claimant has an impairment or combination of impairments that meet or equal a listed impairment. 

    4. Where the ALJ properly assesses the residual functional capacity at step three of the sequential evaluation process and propounds that RFC to the vocational witness the ALJ has no obligation to inquire about other limitations. 

The fourth issue is not an issue. It is never an issue. What the person submitted as a fourth issue is an argument for materiality of issues 1 and 2. The ALJ did not state legally adequate reasons for rejecting the physician opinion evidence or the claimant's testimony and those limitations were not included in the RFC or question to the vocational witness. The error is material. The question to the vocational expert, or the lack of the right question to the vocational expert, proves that the error in RFC assessment makes a difference in the outcome of the case. 

When does the issue that the vocational witness did not respond to a complete hypothetical constitute a separate issue? When the ALJ's question does not match the ALJ's RFC finding. That scenario constitutes a separate issue from any issue presented at the second half of step three, the assessment of RFC. This issue arose in Leach v. Kijakazi. The ALJ asked the witness to assume occasional changes but found that the claimant could tolerate few changes. Changes up to a third of the workday could amount to more than few. 

Save the incomplete hypothetical issue for fact patterns calling for that treatment. Use the incomplete hypothetical as a materiality argument when the RFC assessment is based on legal error or lacks the support of substantial evidence. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Step Five Is Not a Chance to Relitigate Step Three -- Shawver v. Kijakazi, California Social Security Attorney (October 16, 2023)   https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

  

A Disagreement from the Denial of Rehearing En Banc -- Rodriguez Diaz v. Garland

Rodriguez Diaz v. Garland, 53 F.4th 1189 (9th Cir. 2022) is an immigration case concerning a bond hearing during a prolonged detention. Judge Wardlaw dissented arguing that the majority opinion misapplied circuit precedent. Rodriguez filed for rehearing or rehearing en banc. And the drama begins. 

The short story explains that the Court denied rehearing and rehearing en banc. Judge Wardlaw voted to rehear the case by the panel and en banc. Judge Paez disagreed with the vote to deny en banc and issued an opinion to that effect. The first interesting point is that Judge Paez "disagreed" and did not dissent from the denial of rehearing en banc. I don't think that the Ninth Circuit is getting away from the labels of dissental and concurral. 

The judges disagreeing with the order denying rehearing Rodriguez Diaz en banc:

PAEZ,
MURGUIA, Chief Judge,
WARDLAW,
GOULD,
BERZON,
KOH,
SUNG,
SANCHEZ,
H.A. THOMAS,
MENDOZA, and
DESAI

Judge Paez and Judge Berzon took senior status. They actually don't get a vote on what cases get reheard en banc. They have simple disagreement, hence the lack of a dissental. That leaves nine judges with a vote that joined in the disagreement. There are 28 sitting active judges on the Ninth Circuit. Former Judge Watford's seat has a nomination pending before the Senate. To get the case reheard en hanc, a majority of non-recused judges must vote to grant the petition.

Judge Paez in his disagreement and Judge Wardlaw in her dissenting opinion make a strong case that the Court now has conflicting precedent. As a closet libertarian, I hoped that this kind of due process issue would garner greater attention from both sides of the aisle. None of the Trump appointees nor the remaining Bush appointees voted to rehear the case. Eight Obama and Biden appointees are also absent from the disagreement list.

The en banc process is closeted in judicial secrecy. We cannot discern whether any other judges also disagreed, only that they did not publicly join the disagreement. But I did unravel for myself why Judge Paez wrote a disagreement rather than a dissental.

Figured out one thing today. 

___________________________

Suggested Citation:

Lawrence Rohlfing, A Disagreement from the Denial of Rehearing En Banc -- Rodriguez Diaz v. Garland California Social Security Attorney (October 12, 2023)   https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

  

Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information -- Apparent Does Not Mean "Obvious"

What is an "apparent conflict" as described in Social Security Ruling 00-4p? The presence of a conflict or apparent conflict is one of the 10 most common grounds for remanding cases from the federal courts to the Social Security Administration for a new hearing in 2018-2020. Given the unsupported nature of vocational witness testimony, the ranking should be higher.

The ruling uses the expression conflicts and the parenthetical or apparent conflicts. This establishes that apparent conflicts represent a different range of tension between the testimony and the DOT as compared to plain conflict. The question is what does "apparent conflict" mean in this context. The adjective "apparent" is the key. Merriam Webster offers five definitions of "apparent:"

1 : open to view : VISIBLE
    The changes were readily apparent.

2 : clear or manifest to the understanding
    for reasons that are apparent

3 : appearing as actual to the eye or mind
    was in apparent danger

4 : manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid 
    died of an apparent heart attack
    The air of spontaneity is perhaps more apparent than real.—J. R. Sutherland

5 law : having an indefeasible right to succeed to a title or estate

The first definition gives the example "readily apparent." Open to view or visible, with the example, implies obviousness. If the instruction is to resolve "conflict (or obvious conflict)" then the parenthetical expression with the disjunctive "or" makes little sense. "Apparent" cannot mean "obvious" in this context because it is either redundant or offers a disjunctive and more restrictive option. 

The same problem applies to the use of clear or manifest. The "or" statement is more restrictive than the original use of unmodified "conflict." The fifth definition does not fit the context presented.

The third and fourth definitions of "apparent" add an alternative. "Appearing as actual to the eye or mind" and "manifest to the senses or mind ... that may or may be factually valid" put in a different concept -- the perceived conflict might be wrong. An apparent danger does not require a true threat to person or property. An apparent conflict does not imply that a myocardial infarct occurred. Those expressions require reasonable perception but not a probability or certainty of that perception. 

The Vocational Expert Handbook (SSA 2023) reinforces the presence of a reasonable perception of conflict as the correct construct of "apparent conflict." The VE Handbook (p. 40, n.50) describes the reasoning level 3 issue:

An occupation with reasoning level 3 requires individuals to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” It could be argued that occupations requiring reasoning level 3 are too complex for an individual limited to “simple” or “repetitive” tasks. Therefore, an apparent conflict exists.

And there it is. An apparent conflict exists because it could be argued. The proposition that a claimant could reasonably argue a conflict between the DOT and the testimony establishes an apparent conflict. Cases that suggest or hint that an apparent conflict means one that is open, obvious, or so patent that the ALJ could easily discern the presence of a conflict are wrong. Those cases reduce the expression "conflicts (or apparent conflicts)" as redundant or constricted by the disjunctive parenthetical expression. Any reasonable identification of an arguable conflict fits with the plain language of the ruling understood through the lens of dictionary and exemplified by the published VE Handbook places the burden on the ALJ to resolve that conflict sua sponte whether the representative is a potted plant or shouting from the mountain tops. 

Drop the mic. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information -- Apparent Does Not Mean "Obvious", California Social Security Attorney (October 5, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

  

Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues

Brown v. Arizona rests on horrific facts. Bradford abused three women while a student at the University of Arizona. Brown brought an action seeking to impose liability on the university (state) for the abuse that she endured under Title IX, 20 U.S.C. §§ 1681–1688. The District Court and the three-judge panel decision rules against Brown on the context, authority, and indifference elements (of five elements of the claim for relief) for imposing liability. The issue centers around the context element. Brown changed her theory before the en banc court. I write to discuss how and why the Court allowed Brown to change her theory of the case not advanced in the District Court and not advanced to the three-judge panel. 

From the panel decision, Brown argued that:

she does not have to show that the University controlled the context of her abuse, only that the University controlled the context in which it improperly failed to act, i.e., Bradford's assaults on [two other students].

Judge Forrest, joined by Judge Nelson, described the dissent as rejecting Brown's theory. Judge W. Fletcher characterized the briefing: 

Brown argues that because the University had control over the context of Bradford's assaults on Student A and DeGroote, it necessarily had control over the context of Bradford's subsequent assaults on other university students including Brown, regardless of where in the community the assaults took place.

Judge Fletcher rejected that theory of the case and describes the facts supporting a different theory that satisfies the "context" element. Brown petitioned for en banc review. The majority of nonrecused judges voted to rehear the case en banc. Ordinarily, the en banc panel rehears the case without further briefing. It is clear that on the theory pressed in the District Court and before the three-judge panel that Brown loses. No judge accepted her "context" theory of the case. Brown asks for and the Court grants the opportunity to submit further briefing. 

On en banc review, Brown wins 8-3. Judge Forrest wrote the panel majority decision but was not on the en banc panel. Judge Fletcher writes the majority opinion. Judge Nelson, Judge Rawlinson, and Judge Lee write separate dissents. Judge Friedland responds to the waiver argument raised by Judge Nelson and Judge Rawlinson. We start with Judge Nelson's dissent.

Judge Nelson describes Brown has having "expressly disclaimed that position below and before the three-judge panel on appeal." Judge Nelson worries that "the majority encourages future plaintiffs to hed the ball on their arguments for strategic litigation advantage." As a practitioner before the Court of Appeals, I want to go on record and assure Judge Nelson and the rest of the Court that plaintiffs and appellants actually try to make the best attempt to frame the issues and theories. That attempt does not bind the courts to doing something that is different. For instance, in the seminal Erie Railroad Co. v. Tompkins, no party advocated the proposition adopted -- that the federal courts adopt and apply state court decisions construing the common law in a diversity action. The courts have a responsibility to articulate the law correctly even when the parties have chased the wrong rabbit down the wrong hole. 

Judge Friedland says that in her concurrence. Judge Friedland posits that if the panel had rejected Brown's claim on the theory pressed in an unpublished memorandum decision, the case would have died. Because the panel published the opinion and discussed the law of "context" at length in both the majority and dissenting opinions, "it is crucial that we get the law right." 

Judge Rawlinson expresses the vigorous and rigorous adherence to the twin pillars of waiver and forfeiture. Citing Hamer v. Neighborhood Hous. Servs. of Chi.:

Waiver is the “intentional relinquishment or abandonment of a known right.” Id. (citation omitted). Forfeiture is the “failure to make the timely assertion of a right.” Id. 

Waived issues are not reviewable. Forfeited issues are reviewed for plain error. Judge Rawlinson characterizes the disclaimed issue as one of forfeiture by the majority. Judge Rawlinson argues that no case allows the courts to review an argument "affirmatively disclaimed by a party." Judge Rawlinson would instead treat the disclaiming of a theory as one of waiver barring review of that issue. 

Judge Friedland responds that the Court cannot permit a published opinion to incorrectly state the law. Published opinions constitute precedent. It is the obligation of the en banc court to ensure that the body of precedent correctly states the law. 

The Court let Brown off the hook. The case presents compelling facts that cry for relief. Shifting theories from the district court to the court of appeals will almost always result in a complete and total loss. That does not mean that the opening brief in the court of appeals should not address the holding of the district court, it should. But now, Brown is undeniably the law of the circuit not only on Title IX but on the procedural ability under the right facts to shift the theory of the case and pray for the court's discretion.

Not planning on trying this, intentionally.

___________________________

Suggested Citation:

Lawrence Rohlfing, Brown v. Arizona -- The Scope of En Banc Review and Resuscitating Waived or Forfeited Issues , California Social Security Attorney (September 28, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.