Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?

The March 2023 version of the Social Security Vocational Expert Handbook is out. Vocational Expert Handbook (SSA Mar. 2023). A video, not found on the SSA channel on YouTube.com, explains the Handbook. The mock hearing in the middle of it all provides an example of good testimony that shocks the conscience.  

ALJ: Assume a hypothetical individual with the claimant's age, education, and past work experience is able to perform light work as defined in the regulations, except they can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and can never climb ladders, ropes, or scaffolds; must avoid unprotected heights, moving mechanical parts, and operating a motor vehicle; can perform simple routine tasks; can make simple work-related decisions; and can occasionally interact with supervisors and coworkers, and never interact with the public. Could the hypothetical individual perform any work, and, if so, could you provide me with a few examples?

VE: Yes, jobs such as cleaner, housekeeping (DOT code 323.687-014). That is light, SVP 2, with 200,000 jobs nationally. Routing clerk (DOT code 222.687-022). That is light, SVP 2, with 40,000 jobs nationally. And marker (DOT code 209.587-034). That is light, SVP 2, with 200,000 jobs nationally.

Under SSR 83-10, the agency and the vocational experts are directed to assume that a limitation to light work includes a limitation to standing/walking six hours in an eight-hour workday. The vocational witness has stated that a housekeeping cleaner has a maximum stand/walk requirement of six hours. That is palpably false based on the DOT narrative, O*NET OnLine, and Occupational Requirements Survey. The vocational witness has claimed that the inherently clerical functions of a routing clerk have occasional or less contact with others. The witness lays claim that warehouse work has occasional or less contact with others, 

Housekeeping cleaner has the Lead Statement (after the number, title, industry, and alternate titles): "Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories" The Task Element Statements (how the Lead Statement gets accomplished) states: "Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title." Find two hours of sitting in the expected or essential work duties, every day without fail. 

The O*NET describes housekeeping cleaner under the broad heading of maids and housekeeping cleaners as having occasional or no contact with others in 18% of jobs. Maids have no important contact with the public is 8% of jobs. Maids do not work with a group or team as at least a fairly important job function in 4% of jobs. Maids never sit in 72% of jobs, less than half the time in 25% of jobs, and about half the time in 3% of jobs. 

The ORS describes maids as interacting with the general public in 76.3% of jobs. Maids require basic people skills in 97.1% of jobs. Maids stand (including walk) 87.5% of the day at the 10th percentile, 95% of the day at the 25% percentile, and 100% of the day at the median, 75th, and 90th percentiles. Maids engage in light exertion in 69.3% of jobs. 

 Routing clerk has the Lead Statement "Sorts bundles, boxes, or lots of articles for delivery." The Task Element Statements states: "Reads delivery or route numbers marked on articles or delivery slips, or determines locations of addresses indicated on delivery slips, using charts. Places or stacks articles in bins designated according to route, driver, or type. ay be designated according to workstation as Conveyor Belt Package Sorter (retail trade)." Sounds an awful lot like mail clerk, an R3 occupation. The DOT classifies routing clerk as R2. Routing clerk does have significant data functions of comparing: judging the readily observable functional, structural, or compositional characteristics (whether similar to or divergent from obvious standards) of data, people, or things.

The O*NET describes routing clerk under the broad heading of shipping, receiving, and inventory clerk as having occasional or no contact with others in 0% of jobs. Shipping clerks have no important contact with the public is 4% of jobs. Shipping clerks do not work with a group or team as at least a fairly important job function in 1% of jobs. 

The ORS describes Shipping clerks as interacting with the general public in 63.6% of jobs. Shipping clerks require basic people skills in 69.2% of jobs and more than basic people skills in 30.8% of jobs. Shipping clerks stand (including walk) 25% of the day at the 10th percentile, 50% of the day at the 25% percentile, 80% of the day at the median, 95% of the day at the 75th percentile, and 100% of the day at the 90th percentiles. Shipping clerks engage in light exertion in 21.5% of jobs and unskilled work in 46.3% of jobs. 

Marker has the Lead Statement "Marks and attaches price tickets to articles of merchandise to record price and identifying information." The Task Element Statements states: "Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket to article. ay record number and types of articles marked and pack them in boxes." The DOT classifies marker as R2. Marker does have significant data functions of copying: Transcribing, entering, or posting data.

The O*NET describes markers under the broad heading of stockers and order fillers as having occasional or no contact with others in 4% of jobs. Stockers have no important contact with the public is 6% of jobs. Stockers do not work with a group or team as at least a fairly important job function in 4% of jobs. 

The ORS describes stockers as interacting with the public in 73.6% of jobs. Stockers require basic people skills in 95% of jobs and more than basic people skills in 5% of jobs. Stocker stand (including walk) 80% of the day at the 10th percentile, 90% of the day at the 25% percentile, 95% of the day at the median, and 100% of the day at the 75th and 90th percentiles. Stockers lift up to 25 pounds at the 10th percentile, 50 pounds at the 25th percentile and median, 60 pounds at hte 75th percentile, and 75 pounds at the 90th percentile. 

The witness goes on to describe the 30 years' experience, but no experience related to these three occupations. The sample of cross-examination does not ask about other sources of job information or where the vocational witness obtained the idea that these occupations do not require prolonged standing/walking, interaction with the public, or more than occasional interaction with others. 

The agency needs to stop giving examples to strive to become that are facially unsupported. The fact that many vocational experts would give this kind of testimony does not make it reliable. It makes it ubiquitously wrong. 

Talk me off the cliff.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?, California Social Security Attorney (August 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

The Rehearing and En Banc Processes -- Settling the Law of the Circuit

Using an immigration case to illustrate the rehearing and en banc processes, the case in Salguero Sosa v. Garland. The Court published Salguero Sosa in December 2022, Judge Milan Smith writing the opinion and District Judge George Wu concurring. 

Judge Wu agreed that the case should be remanded under the Convention Against Torture but did not agree with the alleged past prosecution claim. Judge Wu argued that the requirement of cumulative review effect was not required by the precedent. Judge Wu queried about the detail required in a cumulative effect analysis. Judge Wu complained that the majority opinion did not state the elements or steps in a cumulative review analysis. 

The Attorney General sought panel rehearing. Judges Smith and Sidney Thomas voted to deny panel rehearing. Judge Wu voted to grant panel rehearing. Judge Smith describes that petition for panel rehearing in the concurrence to the denial of en banc review:

Indeed, it was not until its petition for panel rehearing only that the government made the remand-accepting argument on which the dissent now piggy-backs. By doing so, the government took a heads-I-win, tails-you-lose approach to this case. At the panel stage, the government argued: The court should not remand because cumulative-effect review is not a legal requirement. After we rejected that argument, the government then argued at the panel-rehearing stage: The court’s discussion of cumulative-effect review being a legal requirement was unnecessary—it should just remand. At a minimum, the government forfeited this remand-accepting argument by raising it for the first time in its petition for panel rehearing. 

So how did this en banc review process start? One judge called for a vote to rehear the matter en banc even though the AG did not ask for en banc review. 

Historically, the public knew two things about the en banc process, that it was granted or denied. See I Say Dissental, You Say Concurral. Alex Kozinski and James Burnham observed:

By our count, 45 judges have filed some 290 dissentals in over 230 cases in the Ninth Circuit. This includes 41 of the 71 who have served as active judges since 1970. 32 And all but 10 of those 71 have joined dissentals written by others.34 Hundreds more dissentals have been filed in the courts of appeals nationwide.35 Some judges are so dissental-happy they file two in the same case.36

Judge Wu is not a judge of the Court of Appeals. He cannot call for en banc review nor sit on an en banc panel. Someone else called for the en banc vote. And now we have a 33-page concurral and dissental opinion of the court that functions as a treatise on the cumulative review analysis, how to discern precedent from prior cases, and the dangers of misplacing the modifier on when facts may lead to a conclusion and when the agency must conduct an analysis. Judge Smith's concurral is mandatory reading for anyone serious about administrative law, not just immigration substantive law.

Enjoy the ride. 

_______________

1 Judge Wu identifies the person as Sosa. Judge Smith identifies the person as Salguero Sosa. I have a passing familiarity with Latin culture by immersion for 30+ years. Nery Adeli Salguero Sosa's surname (or his father's surname) is Salguero and his mother's surname is Sosa.  Adeli is what Anglos would call the middle name. If we identified Nery by a singular name in formal respectful address, it would be Senor Salguero. To call Nery by his mother's last name is culturally wrong. Nery is either Salguero or Salguero Sosa, but never Sosa.

Not to be outdone, Judge Callahan furthers the name confusion in her dissent from the denial of the sua spone en banc call. Judge Callahan identifies Sosa v. Callahan, 55 F.4th 1213 (9th Cir. 2022). Judge Smith identifies the case as Salguero Sosa v. Callahan, 55 F.4th 1213 (9th Cir. 2022). Misnaming a case will lead to confusion in the future.  

Example, the leader of the PRC from 1949 to his death was Mao Zedong (or Mao Tse Tung in the older translation). The world called him Chairman Mao not Zedong to Tse Tung. Why? Because it is common in East Asian culture to put the family surname first and the familiar name later in the sequence with variations between people groups. Where the person's surname appears in the full name is a matter of cultural history. 

Back to Latin culture, it gets confusing when a family assimilates into the predominant Anglo culture. There is no firm convention. Some keep a "maiden" name as a middle name and some hyphenate with the  maiden name before and the adopted name second. Some people insist on the hyphenated version of their name, others prefer just the terminal name in the sequence. How do we figure it out? Look at the way that the person signs or writes their name. The proper noun by which we identify is a culturally agreed upon and negotiated process that warrants respect. Does Salguero Sosa use the name Sosa alone? I doubt it. The observation that the majority opinion uses Salguero Sosa and the concurrence uses Sosa does tell us that one of the opinions is wrong. We don't refer to Chairman Zedong. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Rehearing and En Banc Processes -- Settling the Law of the Circuit, California Social Security Attorney (August 18, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Yet Another Example of Why Memorandum Dispositions Should Not Be Cited -- Fonseca-Fonseca v. Garland

Yes, Bucky, we do have to keep up on other areas of administrative law. And yes, we keep up on matters of general appellate concern. The case today is Fonseca-Fonseca v. Garland. 

The issue in Fonseca-Fonseca is whether the BIA reviews a motion to reopen under the "reasonable likelihood" or the "would likely change" standard. The BIA used the "would likely change" standard citing a 1992 BIA decision. Fonseca-Fonseca urged the use of the "reasonable likelihood" standard citing a 1996 BIA decision. The Court sides with Fonseca-Fonseca, writing:

Although our published cases properly cite the reasonable likelihood standard when addressing the prima facie ground, none provide a rationale or indeed any discussion of the appropriate standard. See, e.g., Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003); Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010); Kaur v. Garland, 2 F.4th 823, 833 (9th Cir. 2021). Further, our memorandum dispositions have introduced confusion by citing the two standards—“would likely change” the result and “reasonable likelihood” of eligibility for relief—loosely, and at times, interchangeably. See, e.g., Vejar Rodriguez v. Garland, No. 19-71714, 2021 WL 6067023, at *1 (9th Cir. Dec. 20, 2021); Larin-De Hernandez v. Garland, No. 18-70388, 2022 WL 16630273, at *1 (9th Cir. Nov. 2, 2022).

What is the law of the circuit? The first published opinion on the subject. Miller v. Gammie, 335 F. 3d 889, 892-93, 899 (9th Cir. 2003) (en banc). Ordonez and Kaur represent the law of the circuit. Fonseca-Fonseca could not overrule Ordonez and Kaur even if the panel thought the decisions wrong. Fonseca-Fonseca filled in the gap to provide the rationale for hte "reasonable likelihood" standard. 

DOJ argued that the two standards are the same despite BIA precedent describing the two standards as different with "reasonable likelihood" representing a lower standard. The question really is not why the standard should be "reasonable likelihood" but instead why the DOJ defended the BIA at all. This case should have been settled and sent back to the BIA voluntarily. 

The Court should find that hte DOJ and the BIA acted without substantial justification and award Fonseca-Fonseca fees and expenses under the Equal Access to Justice Act. 

This is why Congress should institute a new Article III court to make decisions in cases arising from the application of administrative law. Those judges would have independence and security similar to that of Magistrate Judges without being beholden to the administrative state. The executive and legislative branches have isolated the courts from performing their very important check on political power. The frank defense of use of the wrong standard used by the BIA is the tip of the iceberg. 

Convince me that I am wrong. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Yet Another Example of Why Memorandum Dispositions Should Not Be Cited -- Fonseca-Fonseca v. Garland, California Social Security Attorney (August 7, 2023) https://californiasocialsecurityattorney.blogspot.com

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

An Unpublished, Non-Precedential Memorandum Modified -- Lanham v. Kijakazi

We discussed Lanham v. Kijakazi in May in Lanham v. Kijakazi -- OMG. The panel amended the memorandum disposition to delete the last two sentences. Why?

Memorandum dispositions are not precedential and bind no one except the parties to the litigation in the context of that litigation. Garcia v. Commissioner. Assuming a mem dis is not precedential, why bother? The district courts love to cite the skeletons of a mem dis with the fervor that they are precedential. The Court should also omit statements of law that are just wrong. With that foundation, we examine the change. The panel decision in May ended with: 

In addition, Lanham did not cross-examine the VE regarding the job-numbers estimates. See Shaibi v. Berryhill, 883 F.3d 1102, 1110 (9th Cir. 2017), as amended. "We recognize that a claimant will rarely, if ever, be in a position to anticipate the particular occupations a VE might list[,]" but a claimant may "inquir[e] as to the evidentiary basis for a VE's estimated job numbers, or inquir[e] as to" the consistency of the numbers. Id.

The August order deletes the last two sentences. Is the failure to cross-examine the vocational witness (VW) fatal to the challenge of the job numbers later? It should not be. The record is open for post-hearing submissions and Appeals Council submissions of rebuttal evidence, evidence attacking foundation, and evidence attacking methodology. Lanham infers that the "may inquire" language from Shaibi imposes a duty to seek out the evidentiary basis for the job numbers estimate or the consistency of the job numbers estimate. Step 5 is the COSS burden of proof.

Should the representative inquire? Yes. The representative should inquire as to the definitions of terms and phrases contained in the hypothetical questions, the methodology used to estimate job numbers, and the data sources for estimating job numbers. 

There is a set of methodologies that are faithful to the DOT. That methodology starts with the DOT code and the industries cited in parentheses or teased out of the narrative. A methodology that does not consider is inconsistent with the DOT. Start there. 

Follow me into the abyss.

___________________________

Suggested Citation:

Lawrence Rohlfing, An Unpublished, Non-Precedential Memorandum Modified -- Lanham v. Kijakazi, California Social Security Attorney (August 7, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Since Hearings are Conducted in English, I Suggest that We Define Our Terms with a Dictionary -- TEAMWORK

In a recent disability hearing, the ALJ directed the vocational witness to assume "no teamwork." I really get excited when I hear this limitation because it means that the person cannot work, I will win this case. I start with John Donne's For Whom the Bell Tolls:

No man is an island,
Entire of itself.
Each is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thine own
Or of thine friend's were.
Each man's death diminishes me,
For I am involved in mankind.
Therefore, send not to know
For whom the bell tolls,
It tolls for thee.

First line, there it is, no man is an island. We are all interconnected in life, death, and especially in work. SSA knows this. POMS DI 25020.010.B.3 describes worker functions critical to performing unskilled work:

             3. 

Mental Abilities Critical For Performing Unskilled Work

g.  work in coordination with or proximity to others without being (unduly) distracted by them.

 The Department of Labor confirms the concept in the Occupational Requirements Survey. 

Series ID: ORUC1000000000001186

Not seasonally adjusted

Series Title: Percent of civilian workers; with basic people skills

Requirement: Cognitive And Mental Requirements

Occupation: All workers

Estimate: with basic people skills

Year	Period	Estimate
2022	Annual	38.8

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000000000001186

Only 38.8% of jobs require basic people skills? That means that basic people skills are not required in 61.2% of jobs! That's right Bucko, those jobs require "more than basic people skills." 

Series ID: ORUC1000000000001187

Not seasonally adjusted

Series Title: Percent of civilian workers; with more than basic people skills

Requirement: Cognitive And Mental Requirements

Occupation: All workers

Estimate: with more than basic people skills

Year	Period	Estimate
2022	Annual	61.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000000000001187

That is why I get excited when I hear "no teamwork." The person is unemployable. The child that comes home with a report card that plays well with others occasionally but does not play well with others 67% of the day or more has serious problems at school and has a very hard life ahead. No person is an island. We are all interconnected. For the lay person out there, lawyers are morbid people -- the worse the problem the more animated we become.

So the vocational witness testifies that a person limited to no teamwork can perform a couple hundred thousand jobs. I ask how the witness understands "teamwork." I get a bucket of drivel that defines teamwork to the point where people are in each other's pockets constantly during the day. I ask the witness to assume that teamwork means:

: work done by a group acting together so that each member does a part that contributes to the efficiency of the whole

I inform the witness and the ALJ that the definition comes from Merriam-Webster online dictionary.  

Well, if you want to define the term that way, then there are no jobs.

Let's be really clear on this point, that is no my definition of teamwork, it is the culturally and linguistically accepted meaning of the work as reported by the dictionary. This is not Humpty Dumpty:

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”

Witnesses do not get to use their own private definitions of words. Words have meaning and if we do not agree on the meaning of words, we cease to have the ability to communicate. The loss of communication for a social species means that we cease in the ability to be social. I read it in a book one time, maybe more, perhaps you have seen it too:

It is not good for the man to be alone. 

The administrative process is hard enough but when the administrative process signals a breakdown in culture, when the witnesses torture themselves to get to an outcome that is simple unsustainable, when words cease to mean what we have agreed as a culture that they mean, then we are all in serious trouble.


Talk me off the ledge.


___________________________

Suggested Citation:

Lawrence Rohlfing, Since Hearings are Conducted in English, I Suggest that We Define Our Terms with a Dictionary -- TEAMWORK, California Social Security Attorney (August 4, 2023) https://californiasocialsecurityattorney.blogspot.com

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