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.