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.

  

An Unsuccessful Attack on the Job Browser Pro Methodology -- Warranted

The Northern District of Indiana, South Bend Division, decided William B.U. v. Comm'r of Soc. Sec. in May 2023. The issue is whether Mr. U could perform other light work with unstated "additional limitations." The vocational witness identified storage rental clerk (63,000 jobs), cafeteria attendant (29,000 jobs), and furniture rental clerk (58,000 jobs). The issue is that the attorney did not understand how Job Browser Pro works and the VW did not say.

SkillTRAN publishes Job Browser Pro. SkillTRAN explains its methodology. Job Browser Pro's methodology is not unknown, indecipherable, or incomprehensible. Justice Souter, sitting by designation, squarely addressed the issue in Purdy v. Berryhiill, 887 F.3d 7, 11 (1st Cir. 2018).

The question is not whether the VW should be able to regurgitate the published JBP methodology but instead whether any person representing claimants before the Social Security Administration should know the program better than the witness. The answer is "yes." The representative, attorney or not, should know the program better than the VW and better than the ALJ. If the representative does not know how job numbers get generated from JBP, the client will lose cases that the agency should have paid. The VW provides the evidence that allows the agency to wrongfully deny our clients' benefits.

We addressed storage facility rental clerk in May 2022. Of the 68,000 jobs currently attributed to storage facility rental clerk, 66,000 exist in the real estate subsector (NAICS 531000). Use of the real estate subsector has an apparent conflict with the purpose statement of the occupation: Leases storage space to customers of rental storage facility. SkillTRAN is not there to testify. Ask the VW to defend the use of that industry designation as opposed to the lessors of miniwarehouses and self-storage units (NAICS 531130), an industry representing about 3% of the real estate subsector. That is the issue.

Cafeteria attendant is one of those jobs that clearly does not permit sitting two hours per day. 

Furniture rental consultant had (past tense intentional) a serious problem in JBP. Version 1.7.4.1 fixed the problem discussed in the linked blog. JBP now estimates 2,654 jobs in the nation. JBP fixed the inconsistent use of three and four-digit NAICS codes (the non-zero digits) to eliminate the double counting. See the linked blog. 

When the medical expert testifies, we know the medical evidence and point out the inconsistencies between the testimony and the written record. When the vocational expert testifies, we must know the vocational data and point out inconsistencies between teh data and the relatively static data from BLS and how JBP uses that data. If we want to represent our clients well and seek a just result, we do not have a choice.

We can do better.

___________________________

Suggested Citation:

Lawrence Rohlfing, An Unsuccessful Attack on the Job Browser Pro Methodology -- Warranted, California Social Security Attorney (September 20, 2023)  https://californiasocialsecurityattorney.blogspot.com

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

The Court Genuflects to the Regulations -- Kitchen v. Kijakazi

The Ninth Circuit published Kitchen v. Kijakazi on September 14, 2023. The Court disposed of five issues:

    1. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (holding that an ALJ is required to address the Veterans Administration disability rating), is no longer good law.

    2. The ALJ decision complied with the clear and convincing standard for rejecting symptoms and limitation testimony.

    3. The ALJ complied with the articulation burden to reject opinion evidence. 

    4. The ALJ decision adequately addressed the criteria for the mental listings. 

    5. The ALJ did not propound an incomplete hypothetical. 

Kitchen is a veteran injured in the Iraq conflict. The VA awarded Kitchen a 70% rating for PTSD, 10% rating for synovitis, and 10% rating for limited knee motion. The VA does not add ratings together so 70 + 10 + 10 = 80. 

Two doctors examined Kitchen. On orthopedic examination, Kitchen had normal knee motion. On psychological evaluation, Kitchen had either mild or marked limitations in the ability to interact with others. VA doctors described Kitchen as markedly to extremely limited in mental functions. 

Kitchen filed three applications for benefits, all denied. Kitchen filed a fourth application in 2020 claiming disability based on PTSD, depression, anxiety, insomnia, headaches, and residuals of the right knee injury. A medical expert at the administrative hearing identified marked limitations in social function but that the mental residual functional capacity precluded public and close teamwork with other people but that he could tolerate supervision and his other areas of mental function were at or above the normal range.

The ALJ assessed Kitchen as retaining the residual functional capacity to perform light work, simple and routine tasks, no teamwork. The District Court quoted the mental RFC as: 

Regarding interaction with others, the claimant would work best in an environment in proximity to, but not close cooperation (i.e., teamwork), with co-workers and supervisors, and must work away from the public. The claimant does have the ability to interact appropriately with others.

and, 

Regarding the ability to adapt or manage; the claimant would work best in an environment that is routine and predictable, with goals set by others, low stress, not production or quota based. The claimant does have the ability to respond appropriately, distinguish between acceptable and unacceptable work performance; or be aware of normal hazards and take appropriate precautions.

The vocational witness described work for Kitchen's medical-vocational profile as a small product assembler, marker, or electronics worker. 

The Court disposed of the issues in short and predictable order. The Court expressly gave last rites to McCartey based on the 2017 regulatory changes. Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022) holds that the law of the circuit no longer controls in light of the change in regulations. Woods cites Lambert v. Saul, 980 F.3d 1266, 1274 (9th Cir. 2020) for that proposition. Kitchen cites the Fourth Circuit decision in Rogers v. Kijakazi, 62 F.4th 872, 879– 80 (4th Cir. 2023). 

Lambert and Rogers have one overriding characteristic in common -- invocation of the deference doctrine in Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs,, 545 U.S. 967 (2005); Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984). Brand X deference allows the agency to overturn settled law of the circuit by reinterpreting the statute. Congress gives the executive branch the power to do so. The grant of authority shields members of Congress from the ire of constituents. The grant of deference removes the power of the courts to say what the law is. Not advocating, just describing.

The remaining issues fall by the wayside having jettisoned McCartey. So let us get to what should have been. The fifth issue is not an issue. The disconnect, if any, between a physician opinion or claimant testimony and the RFC/hypothetical question to the vocational witness is a materiality factor, not a separate issue. The rejection of the opinion or testimony is material because those limitations were not included.

The District Court tells us that the mental RFC contained a production quota limitation in addition to the teamwork limitation. We must examine those issues but that examination is hampered by the lack of a DOT code for any of the three occupations cited. That being the case, I engage in the professional assumption game.

Small products assembler I (DICOT 706.684-022) is a production workers occupation. The essential job function is to work at production pace. The DOT describes the occupation as "Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker." On both the teamwork and production limitations, this occupation has an apparent conflict with the DOT requiring an explanation pursuant to SSR 0-4p.

Electronics worker (DICOT 726.687-010) is another production worker occupation. The DOT describes the summary function of the occupation as: "Performs any combination of following tasks to clean, trim, or prepare components or parts for assembly by other workers." This occupation requires production rate pace and teamwork and has the same apparent conflict with the DOT analyzed under SSR 00-4p.

Marker (DICOT 209.587-034) is warehouse work, or to use the Department of Labor label, stockers and order fillers. The overwhelming majority of stockers and order fillers have constant contact (face to face, by telephone, or otherwise) with others per the O*NET. Over 90% of stockers and order fillers work with a group or team as important, very important, or extremely important per the O*NET. More importantly, stockers and order fillers engage in medium work per the ORS.

We will lose on the deference doctrine. The odds are stacked against us. But we have other tools on our belts -- to eviscerate the vocational witnesses. They are making it up, it is not even close. For anyone to offer up small products assembler and electronics worker as not engaged in production rate pace and not involved in teamwork screams that the witness cannot be believed.

Convince me otherwise.

___________________________

Suggested Citation:

Lawrence Rohlfing, The Court Genuflects to the Regulations -- Kitchen v. Kijakazi, California Social Security Attorney (September 16, 2023) https://californiasocialsecurityattorney.blogspot.com

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

 

Temp to Hire and Temporary Help Services -- There Is a Difference and the Latter Does Not Count for Sustained Employment

Could you please tell me how many of the jobs you identified for the occupation of small products assembler actually work in the temporary help services industry?

That is the question. If the vocational witness uses Job Browser Pro, the program will answer the question (assuming the VW knows how JBP works). If the vocational witness is not using JBP, that person will give a blank stare, silence over the phone, or have to say that he/she just doesn't know. 

The answer matters. For this example, looking at small products assembler I, the answer means the difference between significant and insignificant numbers of jobs. We start with the observations that small product assembler I falls in the production workers, all other (51-9199) classification. The Occupational Outlook Handbook (2003) (and the Employment Projections upon which the OOH is based) describe production workers all other as representing 275,300 jobs in the nation in self-employment and wage and salary employment. The manufacturing sector employs 111,200 production workers. An additional 102,000 jobs work in the administrative and support and waste management and remediation services sector. Almost all of those jobs exist in administrative and support services subsector, 101,300 jobs. The employment services industry group employs 98,400 production workers. The temporary help services sector employs 90,400 of the 102,000 jobs in the administrative and support and waste management and remediation services sector. 

The Occupational Employment and Wages (2022) reports 252,660 production workers, all other jobs. The industry that employs the largest number of production workers is ... employment services at 99,840 jobs. Over a third of jobs for production workers exist in this industry. 

The OEWS reports that employment services employs 99,840 production workers, all other. Temporary help services employ over 90% of them, 91,950 production workers. Employment services reports all the job numbers for that industry group with an additional note:

Industries within NAICS 561300 - Employment Services

• NAICS 561320 - Temporary Help Services

The industry group contains the specific industry. This is called "drilling down." The sector includes one or more subsectors which include one or more industry groups which includes one or more industries (five digits) which may include more specific industry designations (six non-zero digits).

Let's go back to small product assembler. The non-JBP sources are too varied with anecdotal and unsupportable methodologies to even begin to guess. I start with JBP because it is the only published methodology that does not have an apparent conflict with the DOT designation of industry (in the parentheses) or the narrative description of what and where the occupation exists. JBP reports a 2023 job number for small products assembler I of 16,138 full-time jobs. The very long list of industries (58) contains the 56th entry, temporary help services representing 11,593 jobs. 

For purposes of discussion, we assume that the industry selections and the DOT assignments within each industry selection are appropriate. The question is simple, do jobs in the temporary help services industry (NAICS 5621320) count at step five of the sequential evaluation process -- the existence of other work that fits the claimant's medical-vocational profile. 

We know that residual functional capacity represents the most that a person could do on a sustained basis under SSR 83-10, 96-9p. SSR 96-8p makes clear that sustained employment means regular and continuing, eight hours a day, five days a week, or an equivalent work schedule. Does part-time work count? Only for past relevant work that was done on a part-time basis according to fn. 2. The exceptions to regular and continuing work for part-time work and seasonal work apply to past relevant work under POMS DI 24005.015. Even when the regulations permitted consideration of a capacity to perform part-time work at step five, that permission extended to "reasonably regular part-time work."68 Fed. Reg. 51153, 51158 (Aug. 6, 2003) (deleting “reasonably regular part-time” work from 20 C.F.R. §§ 404.1562, 416.962). Work that is not reasonably regular has never counted at step five of the sequential evaluation process.  

The North American Industry Classification System (2022) describes the industries that exist in North America (the United States, Canada, and Mexico). Canada and Mexico use the five-digit system. The US uses the six-digit system to provide additional granular data. There are other differences described in the introduction at page 4. 

For purposes of understanding the 11,000+ jobs attributed to small products assembler I in the temporary help services industry, we need to understand that the industry designation means. The first two digits (56) refer to administrate and support and waste management and remediation services, the industry sector. The first three digits (561) refer to administrative and support services), the industry subsector. The first four digits (5613) refers to employment services, the industry group. The five (56132) and six-digit (561320) designations describe temporary help services, the specific industry. NAICS Manual at 61-62. The NAICS Manual differentiates other industries that the supply of its own employees for limited periods of time to supplement the work force of a client's business are classified in Industry 56132, temporary help services. NAICS Manual at 487 (56131 and 561311), 488 (561312). Temporary help services means:

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

NAICS Manual at 488. Workers employed in this industry must meet the physical and mental demands of multiple clients of their employer. The jobs last for indefinite but "limited periods of time." The temp to hire paradigm is classified under employment placement services (NAICS 561311) and not temporary help services (NAICS 561320). 

When the VW explains that the jobs in temporary help services are primarily temp to hire positions, the VW misunderstands or misrepresents the classificatory scheme presented by the NAICS Manual. Working for a limited time as a small products assembler I is not regular and continuing employment under SSR 86-8p. That work does not count at step five of the sequential evaluation process. 

Let's hear the witness's analysis. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Temp to Hire and Temporary Help Services -- There Is a Difference and the Latter Does Not Count for Sustained Employment, California Social Security Attorney (September 7, 2023, revised October 14, 2023) https://californiasocialsecurityattorney.blogspot.com 

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

Vocational Expert Handbook Video Presentation -- Sedentary Work ID'd -- The O*NET and Interaction with Others

This is part 3 of the analysis of the vocational testimony. 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.  

HYPO: Assume a hypothetical individual with the claimant's age, education, and past work experience is able to perform sedentary work as defined in the regulations; 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?

Document preparer: DOT code 249.587-018; sedentary, unskilled at SVP 2 with 30,000 jobs nationally.

Addresser: DOT code 209.587-010, sedentary, SVP 2, 25,000 jobs nationally.

And cutter-and-paster: DOT code 249.587-014, sedentary, SVP 2, with 10,000 jobs nationally. 

Let me see if I have this right: three clerical jobs in an office setting have no more than occasional interaction with other people, none of whom are members of the public? That cannot be right, ever. 

The O*NET OnLine gathers data from three sources: (1) incumbents; (2) analysts; and occupational experts. General office clerks (SOC 43-9061) contains 74 DOT codes, 99 alternate titles, and both document preparer and cutter-and-paster. The O*NET data last updated in 2018 comes from incumbent responses, how people performing the work view their job duties.

The category is contact with others. ALJs will say, "I said interact, not contact." The O*NET defines contact with others:

How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

The parenthetical examples are not mere proximity but interactive in nature. Merriam-Webster defines contact as a relationship association, communication connection, and as a go-between. Contact is not mere proximity as the word is used in the O*NET nor as an agreed upon definition in American English. 

General office clerks have contact with others:

Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?	82	Constant contact with others
	14	Contact with others most of the time
	2	Contact with others about half the time
	0	Occasional contact with others
	2	No contact with others

General office clerks engage in work with a group or team:

Work With Work Group or Team — How important is it to work with others in a group or team in this job?	64	Extremely important
	24	Very important
	7	Important
	2	Fairly important
	2	Not important at all

And general office clerks deal with the public:

Deal With External Customers — How important is it to work with external customers or the public in this job?	65	Extremely important
	14	Very important
	13	Important
	2	Fairly important
	6	Not important at all

Word processors or typists (SOC 43-9022) (the occupational group containing addresser) has similar data:

Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?	69	Constant contact with others
	31	Contact with others most of the time
	0	Contact with others about half the time
	0	Occasional contact with others
	0	No contact with others

Work With Work Group or Team — How important is it to work with others in a group or team in this job?	49	Extremely important
	19	Very important
	20	Important
	12	Fairly important
	0	Not important at all

Deal With External Customers — How important is it to work with external customers or the public in this job?	64	Extremely important
	19	Very important
	17	Important
	0	Fairly important
	0	Not important at all

Very few general office clerks have occasional contact with others, do not engage in teamwork, and/oir do not deal with external customers. No word processors or typists have any of those characteristics. 

Agency policy confirms what the O*NET says as a matter of published administrative notice. POMS DI 25020.010 sec. B.3g. says:

3. Mental Abilities Critical For Performing Unskilled Work

The claimant/beneficiary must show the ability to:

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

When the O*NET describes these two occupational groups as having the bona fide occupational qualification (the expected tolerances if not the essential functions) of work, the O*NET provides the date for the Commissioner's published observation. What kind of work does not require working with a group or team? More likely, but not necessarily, semi-skilled and skilled work:

4. Mental Abilities Needed to Do Semiskilled and Skilled Work

b.  Often, there is an increasing requirement for understanding and memory and for concentration and persistence, e.g.: the ability to:

• set realistic goals or make plans independently of others.

People engaged in skilled and semi-skilled work are more likely to have work duties and do not require coordination and teamwork as compared to unskilled work. 

Commonsense tells us that clerical work is not performed with occasional interactions with others. The Commissioner knows this. The O*NET confirms commonsense and POMS (administrative notice). 

Now for something extra for no extra charge. Word processors and typists are a rapidly shrinking occupational group. It is faster for me to type than to handwrite. Dictation is a lost art. The number of clerk typists has plummeted in the last 35 years. In 1997, BLS counted typists including word processors as representing 404,570 jobs. The 2021 OOH tallies up word processors and typists at a paltry 46,100 jobs. The 2022 OEWS estimates 41,990. So please humble vocational witness, explain to me how more than half of the currently existing word processors and typists simply affix labels to outgoing mail. 

Asking for a friend. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational Expert Handbook Video Presentation -- Sedentary Work ID'd -- The O*NET and Interaction with Others, California Social Security Attorney (September 6, 2023) https://californiasocialsecurityattorney.blogspot.com

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

                        

Vocational Expert Handbook Video Presentation -- Sedentary Work ID'd -- Sitting, Reasoning, and Job Browser Pro

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?

...

Now, assume the same limitations I stated in the first hypothetical except the individual is limited to sedentary work as defined in the regulations. Can that person perform any work?

VW: Yes, jobs such as document preparer: DOT code 249.587-018; sedentary, unskilled at SVP 2 with 30,000 jobs nationally.

Addresser: DOT code 209.587-010, sedentary, SVP 2, 25,000 jobs nationally.

And cutter-and-paster: DOT code 249.587-014, sedentary, SVP 2, with 10,000 jobs nationally. 

There are some differences in how the document preparer and addresser jobs are performed and currently as compared to the description and requirements in the DOT due to the availability of more modern technology now. For example, the description for document preparer says a person prepares documents, such as brochures, pamphlets, and catalogs, for microfilming, using a paper cutter, photocopying machine, rubber stamps, and other work devices. Microfilming technology has changed over time and now scanners are used to copy and help prepare documents for indexing and storage.

The rationale is the same for cutter and paster position, which is described in the DOT as tearing or cutting out marked articles or advertisements from newspapers and magazines, using a knife or scissors, and recording the name of the publication, page, location, date, and name of the customer on the label, and affixing the label to a clipping. More modern tools are used to perform this job, but the position is the same and it requires essentially the same functional abilities.

As for the addresser job, one of the tasks in the description in the DOT states "addresses by hand or by typewriter, envelopes, cares, advertising literature, and packages, and similar items for mailing." Now, envelopes, cards, advertising literature, packages and similar items for mailing are still sent, but the job may be performed by placing pre-printed labels on these items instead of doing them by hand or by typewriter, but they can still be performed by hand too.

Overall, more modern tools are used to perform these jobs, but the positional and functional requirements are effectively the same as explained in the DOT. My testimony is based on my experience and knowledge in the job market, including over 30 years of placing individuals into jobs and observing how the performance of these jobs has changed over time as well as vocational and rehabilitation counseling.

Under the guise of SSR 83-10, the agency and the vocational experts assume that a limitation to sedentary work includes a limitation to sitting six hours in an eight-hour workday. The first question is whether that assumption is true. The ruling states: 

Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. By its very nature, work performed primarily in a seated position entails no significant stooping.

Sedentary jobs are primarily seated and standing/walking are required occasionally. The ruling defines occasionally:

"Occasionally" means occurring from very little up to one-third of the time. 

Very little is less than two hours and one-third of the time is more than two hours. Standing/walking 

should generally total no more than about 2 hours of in 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.

1. Sedentary work does not have a rigid and fixed 6-2 split of sitting versus standing/walking. The no more than two hours and approximately six hours with the deciding factor contained in the processes of the specific jobs forms the exceptions that swallow the rule. That and of course facts. Do these jobs ever require as an essential job function or a bona fide occupational qualification the need to sit for more than two hours in an eight-hour day? Ask that question somewhere in the cross-examination. 

2. Reasoning level rests at the heart of work complexity. The Vocational Expert Handbook describes reasoning ability as part of the education component of the vocational profile. Pages 29-30. The Vocational Expert Handbook states clearly that simple or repetitive tasks have an apparent conflict with reasoning level 3 and directs the VW to "be prepared to explain how the hypothetical individual could perform this job." Pages 39-40. Document preparer requires reasoning level 3. The witness did not explain the apparent conflict. This issue does not require cross-examination. The issue must be argued at the close of the case. 

3. Job Browser Pro is the ubiquitous source for job numbers. The VW says

Document preparer: 30,000 jobs nationally.

Addresser: 25,000 jobs nationally.

Cutter-and-paster: 10,000 jobs nationally. 

JBP (ver. 1.7.4.1) says:

Document preparer: 15,670 jobs nationally in 2023.

Addresser: 2,068 jobs nationally.

Cutter-and-paster: 702 jobs nationally. 

This evidence must be presented to the ALJ before the decision is made. Some ALJs will not permit post-hearing evidence. They are wrong but put the evidence into the record during the hearing. 

In the next post on this subject, we will deal with the methodology problem including how the testimony plays into the JBP methodology. 

Stay tuned. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational Expert Handbook Video Presentation -- Sedentary Work ID'd -- Sitting, Reasoning, and Job Browser Pro, California Social Security Attorney (September 3, 2023) https://californiasocialsecurityattorney.blogspot.com

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