February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley

 Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at a second of those dispositions. 

2. Cuestas v. O'Malley - Cuestas argued that the ALJ did not explain how the agency considered supportability and consistency. The Court disagreed, but did not give examples.

Cuestas argued that the ALJ relied on objective basis for symptoms and limitations. The Court found that the ALJ did and could rely on the failure to comply with medical advice and failed to attend pain management. 

Cuestas argued that the ALJ did not pose all the limitations to the vocational witness. This is a rehash of the opinion and subjective testimony issue -- not a separate issue. 

Cuestas argued that the ALJ disregarded evidence of interaction with other people as stated by the Bureau of Labor Statistics. The Court found that the ALJ could rely on the DOT and the vocational testimony to reach the conclusion that Cuestas could perform other work.

COMMENT: The courts have this issue wrong. Heckler v. Campbell, 461 U.S. 458, 469, n.13 (1983):

Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.^[13] See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

13 The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980)." Id., at 298.

(Emphasis added). The COSS takes administrative notice of the DOT by regulation and expands that notice to include the SCO. Most of the DOT codes have a Date Last Updated code of 1977. Vocational witnesses have local experience, not national experience. An ALJ can rely on unrebutted nonsense. Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). But if the vocational testimony is "feeble" or "contradicted," the testimony is no longer unrebutted. Id. at 1156. The claimant can show that the testimony was "untrustworthy" or "contradicted." Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). 

Cuestas rebutted the vocational testimony with BLS data. The testimony is now contradicted under Biestek and Ford. Why did the ALJ reject the BLS data? The Court does not say why. The Court says that the ALJ may rely on vocational testimony and the DOT regardless of what BLS publishes. 

As a society, we continue with the national consternation over whether private parties or the government can count. The vocational witnesses called by the COSS should travel under two names: Rudy and Sidney. We should label the data published by the Department of Labor -- when the O*NET, ORS, EP, or OEWS -- as the national election bureau. Believing that housekeeping cleaner, photocopy machine operator, or marker don't have extensive contact with others is nonsense. From the District Court decision:

The VE stated that she had no data to refuse the BLS statistic indicating that for the job of Photocopy Machine Operator, up to 82 percent of the people who do that job have contact with others constantly or most of the time. AR 65-66. For the job of Marketer, the BLS data indicated that 90 percent of people performing that job had contact with others most of the time or constantly. The VE stated that she had no data to refute that statistic. AR 66-67.

The record has statistical data from the Department of Labor that the vast majority of photocopy machine operators and markers have frequent or constant contact with others. The witness does not have a statistical basis for refuting what DOL reports according to OMB standards. That is not substantial evidence. That is garbage. 

1. The DOT does not address work contact with coworkers. 

2. The witness does not have a basis for overcoming DOL data (the source that describes contact with others is the O*NET, published by the ETA, not BLS). 

3. Would a reasonable mind accept Rudy and Sidney's word as election experts over the Georgia Secretary of State? No. Nor should the courts accept every bile that vomits from the vocational witnesses mouth. 

The unaddressed issue of housekeeping cleaners is the problem. About 18% of those jobs have occasional (8%) or no (10%) contact with others. That probably makes the contact with others harmless. But the ORS (a BLS product) confirms that housekeeping cleaners do not sit two hours a day. 

Cuestas is wrong at step five. I vigorously dissent, but I'm not a judge. 

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Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley, California Social Security Attorney (March 17, 2024)

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.

The Medical Baseline and Excess Pain -- Murray v. Kijakazi

Keeping up with the cases as they come out is critical to the practice of law. That is true not only for the attorneys engaged in court practice, but also the attorneys and representatives that handle the hearings. Claimants do not win every case, nor do they win every case that they should win. Keeping up with precedent is critical. Keeping up with unpublished memoranda dispositions keep a finger on the pulse of the court and the presence of warring panels. 

Murray v. KIjakazi -- Murray litigated four errors. First, the ALJ was wrong in assessing whether Murray met or equaled the listing for spine impairment by finding no evidence of nerve root compression. The record showed that Murray did have cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. But the error was harmless because Murray did not have evidence of motor loss.

Second, the ALJ articulated clear and convincing reasons for rejecting Murray's testimony. The memorandum does not tell us what the ALJ said -- it is a memorandum, after all. The memorandum cites two cases for the proposition that drug-seeking behavior and part-time work are permissive factors.

Third, the ALJ did not err in considering treating physician opinion evidenced where Murray could not cite to an opinion. 

Fourth, the ALJ need not calculate absenteeism based on frequency of medical appointments in formulating residual functional capacity. 

Comment - the first issue should not have been raised alone but in the context of Murray's testimony (based on the very thin memorandum). Excess pain is the doctrine that the levels of pain or limitation exceed the medical expectation. The assessment of pain and limitation testimony evaluates the consistency of that testimony with the medical baseline. Here, we see that Murray has a degree of pain and limitation that exceeds what the ALJ drew as the medical baseline. But the ALJ drew the incorrect medical baseline. The ALJ did not include in the medical baseline the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. 

SSR 16-3p is the key. 

        This ruling clarifies how we consider:

• The intensity, persistence, and functionally limiting effects of symptoms,
• Objective medical evidence when evaluating symptoms,
• Other evidence when evaluating symptoms,
• The factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3),
• The extent to which an individual's symptoms affect his or her ability to perform work-related activities or function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim, and
• Adjudication standards for evaluating symptoms in the sequential evaluation process.

Paragraph 1 addresses consideration of objective medical evidence. The court agreed that the ALJ did not consider the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. It is the most important factor -- it is the medical baseline. Either the briefing or the memorandum or both failed to include cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing.as the key factor in assessing Murray's testimony.

The memorandum cites Ford v. Saul for the proposition that the ALJ could consider part-time work in assessing pain and limitation testimony. That just is not what Ford says. Ford holds that the ALJ could consider occasional eight-hour shifts in assessing the treating physician's opinion that Ford could not maintain regular work attendance, deal with stress, and lacked pace -- all rated at poor. The ability to perform occasional eight-hour shifts is inconsistent with a poor ranking of ability. Ford relies on Drouin v. Sullivan for its holding. Drouin had worked part-time. Drouin found that the ALJ had stated clear and convincing reasons for rejecting allegations of severe, disabling pain because she did not lose jobs because of pain, did not have pain treatment, her impairments did not necessarily cause pain, the activities of daily living translated to work tasks, and Drouin did not exhibit pain during the hearing. Ford did not cite ongoing part-time work as a basis rejecting pain and limitation testimony. Drouin did not cite ongoing part-time work as a basis for rejecting pain and limitation testimony. 

The Act and the regulations, as well as well-founded public expectations, expect people with impairments to work as much as they can. The inability to engage in substantial gainful activity does not mean that the person cannot engage in lesser gainful activity. Impaired human beings are not relegated to vegetating in a dark room while the agency decides the disability claim. 

This dissection of the Murray memorandum is now longer than the memorandum. 

Rant mode

____________________

Suggested Citation:

Lawrence Rohlfing, The Medical Baseline and Excess Pain -- Murray v. Kijakazi, California Social Security Attorney (May 11, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Don't Call Saul -- Ford v. Saul

“On June 17, 2019, Saul was officially sworn in as the Commissioner of Social Security at the agency's offices in Washington, D.C. […] On July 9, 2021, Saul was removed from his position as commissioner by President Joe Biden, after he refused a request to resign.” Wikipedia. During that period, the Ninth Circuit decided eight cases resulting in published and precedential decisions. We start with Ford v. Saul.

Ford v. Saul – The vocational expert testified to 130,000 addresser and 9,800 ink-printing jobs in the national economy. The vocational expert testified that she averaged the number of jobs reported by the Department of Labor, the Chamber of Commerce, Social Security, the Census Bureau, the International Trade Association, and adding that Alaska had good national number job numbers. The vocational expert did not have his notes to explain the averaging.

Held, the ALJ had adequate reasons for rejecting the opinions of treating physicians that Ford could work (and did work) part-time. The opinions were inconsistent with objective findings and Ford’s activities including working part-time six to eight hours per day. Finally, the opinions were not explained.

Ford requested a subpoena post-hearing to further address the vocational evidence. The ALJ denied that request. The Court—incorrectly—applied the five-day evidence rule, that Ford should have anticipated the vocational testimony and asked for the subpoena before ever hearing the testimony. The agency need not require that a vocational expert “always” produce the underlying data upon request. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court found no evidence of a lack of qualifications, untrustworthiness, or contradiction. “There is no need for an ALJ to assess [vocational testimony] reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). 

Biestek lays out the foundation issue with the conjunctive tail: “extrapolating those findings to the national economy by means of a well-accepted methodology.” Biestek, 139 S. Ct. at 1155. According to the decision in Ford, the vocational testimony did not cite to a single source—not one, not any. The testimony cited to agencies but not a source of data within that agency. Let’s take a look at them:

Department of Labor – the DOL publishes the Employment Projections that form the basis of the Occupational Outlook Handbook and O*NET, and the Occupational Employment Statistics (now the Occupational Employment and Wage Statistics). The EP and OOH update every two years, more or less. The OEWS updates every May. Which one is the witness using? We have no idea.

          The OES described word processors and typists (the occupational group for addresser) as representing 47,460 jobs in 2019 and 41,930 in 2021.

          The EP described word processors and typists (the occupational group for addresser) as representing 46,100 in 2021.

Chamber of Commerce – the Chamber of Commerce does not provide easily accessible job numbers data sorted by Standard Occupational Classification codes that would point to addresser jobs in the nation.

Social Security – does not publish job numbers.

Census Bureau – the Census Bureau publishes the Current Population Survey and County Business Patterns. The CPS counts jobs by SOC (occupational) code. The CBP counts jobs by industry (NAICS) code.

          The Census Bureau does not make Table A26 readily available to the public.

          CBP does not provide occupation specific job numbers.

International Trade Administration – is a government resource for competing in the global marketplace. 

The question that Biestek poses and Ford answers in the negative, does the witness have to provide a “well-accepted methodology” when asked on cross-examination even in the complete absence of any obligation to disgorge the actual documents relied upon?

___________________________

Suggested Citation:

Lawrence Rohlfing, 2021 Unpublished Memorada Dispositions of the Ninth Circuit, California Social Security Attorney (March 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Ford v. Saul and the Five-Day Rule for VE Rebuttal

Ford v. Saul holds that a request to subpoena records from the vocational expert is too late under 20 C.F.R. § 404.935(a) (the five-day rule).  We analyze why that holding is wrong and why it does not constitute law of the circuit.  

We start with our premise:  the five-day rule does not apply to rebuttal evidence at step five of the sequential evaluation process.  That position rests on plain error of law.  We start with the regulation:

When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. §§ 404.935(a), 416.1435(a).   The required (404.1512 and 416.912) sections describe the claimant’s responsibility:

you must inform us about:

(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.

 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).  Paragraph (2) describes the completeness issue:

The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—

(i) The nature and severity of your impairment(s) for any period in question;
(ii) Whether the duration requirement described in § 404.1509 [§ 416.909] is met; and
(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) [§ 416.920(e) or (f)(1)] apply.

20 C.F.R. §§ 404.1512(a)(2), 416.912(a)(2).  The regulations do not impose a duty on the claimants to present evidence about the step five question before the hearing.  That duty rests on the Commissioner.  20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3):

In order to determine under § 404.1520(g) [§ 416.920(g)] that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a [§§ 416.960 through 416.969a]), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e) [§ 416.920(e)]), age, education, and work experience.

 The five-day rule does not apply to evidence in rebuttal to (b)(3).  The five-day rule does not embrace evidence after the step three interim finding of residual functional capacity for completeness.  While a claimant must inform the Commissioner about work experience, the evidentiary hearings typically spend time on that subject — the five-day rule does not apply to developing and completing the record for past relevant work purposes. The Commissioner recognizes the problem of surprise at a hearing generally.  81 Fed. Reg. 90987, 90991 (Dec. 16, 2016):

 if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As  previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.

Ford v. Saul, ___ F.3d ___, part D (9th Cir. Feb. 20, 2020) cites the five-day rule for the purposes of requesting a subpoena.  Ford does not analyze the scope of §404.1512.  Ford does not control the analysis of §404.1512 to the five-day rule by failing to discuss it.  See Miranda B. v. Kitzhaber,328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’” (quoting United States v. Johnson,256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J. concurring)).  Ford does not confront the scope of §404.1512 and fails the law of the circuit test. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul and the Five-Day Rule for VE Rebuttal, California Social Security Attorney (March 13, 2020) edited (March 13, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-and-five-day-rule-for-ve.html

Ford v. Saul -- What Jobs and How Many?

The Ninth Circuit decided Ford v. Saul on February 20, 2020.  Ford is capable of a limited range of sedentary work.  We consult the District Court decision to fill in some of the gaps.  Ford can perform sedentary work with no climbing of ladders, ropes, or scaffolds; no climbing of stairs, crouching, crawling, or kneeling; occasional stooping; frequent handling and fingering; avoiding concentrated exposure to extreme cold; understand, remember, and carry out simple and routine tasks; no fast-paced production work; superficial contact with the public; can work in small groups; can interact with co-workers and supervisors to complete tasks.

The Ninth Circuit reports that the vocational expert identified 130,000 jobs as an addresser and 9,800 jobs as ink-printing.  Addresser belongs to the occupatinal group of word processors and typists (SOC 43-9022)..  Ink printer belongs to the occupational group of printing press operators (SOC 51-5112).

Addresser is obsolete.  Addresser is a word processor and typist (SOC 43-9022) occupation.  Word processors and typists contains eight DOT codes.  BLS reported in May 2015 (data that would have been published in 2016 and have been the most current data in the November 2016 hearing) that there were 68,660 word processors and typists in the nation.  The OOH relied on the 2014-24 employment projections as of November 2016, estimating the number of word processors and typists at 90,700.  That would represent the number for the O*NET OnLine as of November 2016.  The two BLS sources (EP and OES) do no support the 130,000 jobs as an addresser in 2016 or even 130,000 jobs in the group of word processors and typists.  The vocational expert lied and the failure to submit available evidence from the BLS allowed the witness to get away with it. 

An “everything report” from OccuCollect gives the data that we need to destroy the testimony.  The O*NET reports that addresser is the only unskilled DOT code.  The O*NET Resource Center reports that 51.54% of word processors and typists have 30 days or less of on-the-job training; 4.05% do not require related work experience of more than 30 days; and 51.57% of jobs require a high school education or less.  SVP is a function of training, work experience, and education.  The SVP can never be lower than the smallest component.  The exception is the exchange of experience or education where those criteria are treated interchangeably as qualifications.  Then the lowest of the two defines the SVP.  For word processors and typists, the requirement for six months to two years of related work experience means that most of the jobs are skilled.  Relatively few (8.12%) of word processors and typists are semi-skilled. 

The O*NET Resource Center does not support the presence of more than 4,500 addresser jobs in the nation in 2016. Current OOH job numbers permit the inference of 3,000 addressers.  Current OES job numbers permit the inference of 2,600 addressers.  The testimony of the vocational expert in Ford, that there were 130,000 addresser jobs, is patently false. 

Ink printer is a printing press operator (SOC 51-5112) occupation.  The ORS component of the  “everything report” from OccuCollect tells us that the OOH describes printing press operators stand/walk five hours per day at the 10th percentile.  Printing press operators engage in unskilled work in 23.8% of jobs.  Printing press operators engage in medium work in 62.7% of jobs and lift up to 25 pounds at the 25th percentile.  That data point tells us that at least 13% of the jobs require heavy or greater exertion (62% above the 25th percentile is 87%).  If there are sedentary printing press operators, they represent less than 10% of the jobs.  The testimony that ink printer represent 9,800 jobs is possible. 

Ford waived the important issues at the hearing level.  The vocational expert gave unreliable testimony.  The court embarrassed itself by allowing junk to decide the entitlement to benefits.  SSA embarrassed itself by defending that kind of testimony.  The public confidence in the system of administrative justice should go down. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul -- What Jobs and How Many?, California Social Security Attorney (March 1, 2020) edited (March 2, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-what-jobs-and-how-many.html