Larson v. Saul and Skidmore Deference

 When you cannot possibly sleep at night and need a brain game as a complete distraction from the world, the deference doctrine is a good choice.  This is the Chevron watershed that stands at the heart of administrative law in the last 35 years. Deference is the doctrine that fills in the gaps where the law is ambiguous by a publication from the agency that is not law.  Deference to a statutory construct is the core of Chevron deference.  

If a statute is genuinely ambiguous, the path opens for the executive agency to interpret the statute.  Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc..  The courts will defer to the agency's construction of the statute unless plainly erroneous or inconsistent with the statute.  

If a regulation is ambiguous, the agency can interpret is own lack of clarity.  Kisor v. Wilkie.  The courts will defer to the agency's construction of the regulation unless plainly erroneous or inconsistent with the statute or regulation.  

But when the statute is ambiguous and either the regulations do not interpret the statute or Congress did not delegate to the agency, full-blown deference under Chevron or Kisor does not attach.  Then the agency gets the power to persuade deference.   Skidmore v. Swift & Co.

Enter Larson v. Saul and the Windfall Elimination Provision of the Social Security Act.  42 U.S.C. § 415(a)(7).  The Eighth Circuit decided Petersen v. Astrue, finding that the WEP did not apply to dual status technicians (civilian workers that are members of the uniformed services).  The COSS responded to Petersen with Acquiescence Ruling 12-1(8).  POMS 00605.380 regurgitates the ruling.  

After the publication of Peterson, the ruling, and POMS, three other circuits weighed in on the dual service technician issue.  In the Eleventh Circuit, Martin v. Social Security Administration Commissioner  relied at least in part on Skidmore deference to agree with the COSS.  The Sixth and Tenth Circuits did not get past the step one question (is the statute ambiguous) to require resort to a deference doctrine.  Babcock v. Soc. Sec. Comm'r; Kientz v. Comm'r, SSA. 

Larson rejected the non-ambiguity findings of Babcock and Kientz.  Larson found the WEP provisions truly ambiguous and that both the claimant and the COSS made reasonable arguments for the construction of the statute.  Based on that equipoise, Larson granted Skidmore deference to the ruling and POMS.  Larson's benefits were subject to the windfall elimination provision of the Act.  

There are two problems with the grant of deference by the Ninth and Eleventh Circuits.  The administrative state makes a decision about whether dual service technicians without input from the stakeholders and weighing of policy considerations in public.  Without notice and comment, the legislation by administrative fiat should not form part of the social contract.  Second, Congress punted.  Congress either did not consider in the statute whether dual service technicians would get unreduced Social Security benefits or did not want to make that decision public for fear of retribution by voters impacted by the WEP.  Members of Congress have plausible deniability in the effectuation of a statute on constituents.  

The four circuits and the COSS create another problem.  Dual service technicians should move to geographic boundaries of the Eighth Circuit before applying for Social Security retirement or disability benefits.  A national program lacks uniform application across the country.  But that is the nature of every Acquiescence Ruling that cabins a decision to a circuit -- a lack of uniform application of a national standard to residents of different states.  Nor is this the kind of problem that will ever get before the Supreme Court to resolve the split in the circuits.  It is not likely that any of the remaining circuits will ever disagree with the duo of decisions disagreeing with Petersen or the duo of decisions yielding under the deference doctrine to cabin Petersen to the Eighth Circuit.  

The practice pointer is simple.  A claimant for benefits in the dual service technician role should move to the Eighth Circuit before applying for benefits.  A concern for uniform application of a statute should prompt the agency to rescind the Acquiescence Ruling  and POMS with a regulation that addresses the problem and move forward with a request for Brand X deference.    

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Suggested Citation:

Lawrence Rohlfing, Larson v. Saul and Skidmore Deference, California Social Security Attorney (August 27, 2020) http://californiasocialsecurityattorney.blogspot.com/2020/08/larson-v-saul-and-skidmore-deference.html

The Death of SSR 00-4p

This is the brief in Anthony D. v. Saul raising the colorable claim that SSR 00-4p is not entitled to deference:

A.   The Death of Social Security Ruling 00-40p

The substantial evidence question involves two discrete components: (1) is there a discernible path from the vocational expert’s local knowledge that uses a reliable method to extrapolate to national data; and (2) is the vocational expert testimony feeble or contradicted. Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019). There is no discernible path from the vocational expert’s testimony from local data to national statistics because no one asked.

Kisor v. Wilkie, 139 S.Ct. 2400 (2019) retools the deference doctrine found in Auer v. Robbins, 519 U.S. 452, 461 (1997). To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation. Social Security Rulings are frequent recipients of deference. Quang Han Van v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989); Wellington v. Berryhill, 878 F.3d 687, 872 (9th Cir. 2017). The rulings bind all components of the agency. 20 C.F.R. § 402.35(b). Under Kisor, that automatic deference is now up for reconsideration. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). [D.] examines deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. [D.] starts with the text of the administrative notice regulation:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;

(2) County Business Patterns, published by the Bureau of the Census;

(3) Census Reports, also published by the Bureau of the Census;

(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and

(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

The Commissioner takes administrative notice of reliable job information from various governmental and other publications. Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:

In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.

And:

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.

The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook. Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:

The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.

The first Kisor question returns to the Chevron watershed: is the regulation ambiguous? 139 U.S. at 2415. If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore v. Swift & Co., 323 U.S. 134 (1944), but it does not get deference. There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples. Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses. Because the regulations are not ambiguous, the ruling gets no deference.

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity? 139 U.S. at 2415-16. Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed. Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. The Commissioner cannot create a new regulation by interpreting a clear one to say something that the regulation does not suggest. Christensen v. Harris County, 529 U.S. 576, 588 (2000).

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner. That is the third Kisor question. 139 U.S. at 2416. There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy.

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency. Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration. But here is what Labor says about the subject:

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.

Dept. of Labor, Office of Administrative Law Judges, Dictionary of Occupational Titles –  Fourth Edition, Revised 1991, electronic version at https://www.oalj.dol.‌gov/‌‌LIBDOT.HTM.  The O*NET is an ongoing process of data collection and refinement.  See 84 Fed.Reg. 24822 (May 29, 2019). 

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek. The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published. The O*NET is updated every year. Most of the DOT is over 40 years out-of-date. When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek. With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.

The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set version 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT as to the descriptions contained in the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.

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SUGGESTED CITATION:

Lawrence Rohlfing, The Death of SSR 00-4p, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/the-death-of-ssr-00-4p.html

The ALJ Says that the COSS Rejects the O*NET -- What do I do Now?

Our friends at SkillTran post a memorandum from SSA stating that the O*NET is not suitable for use in disability litigation.  The memorandum is in response to a request for information (RFI) dated June 4, 2004.  The question is whether this memorandum licenses the adjudicator to reject O*NET-based information without any other reason. 

As with any question, we start with the law - the statute and regulations.  The statute is silent as to the sources of vocational information.  The regulations provide for administrative notice of reliable job information from governmental and private resources.  Let's assume that in a memorandum that is not published in HALLEX or POMS that the COSS can describe a data set as not reliable.  Let's also assume that this unavailable memorandum survives the Kisor v. Wilkie test for deference or that a court would find it persuasive under Skidmore. 

The response to the RFI is clear:

SSA has determined through contracted research and through further investigation that O*NET, as it currently exists, cannot be used in SSA’s disability determination process (see Bibliography of research and investigations following).

The critical phrase from the 2004 response to the RFI is as it currently exists.  The question is whether the O*NET exists today as it did in 2004.  The O*NET has updated vocational data over every occupation for work context -- the data that Social Security representative are most interested.  Three occupations were last updated in 2004 and nine in 2005.  The other 1,004 have been updated between 2006 and 2019.  The O*NET does not exist today as it existed in 2004. 

The O*NET changed its taxonomy to version 10.0 in 2006.  The 2019 data set reflects version 24.0.  The O*NET does not exist today as it existed in 2004.  The O*NET now describes:

Occupational Requirements

A comprehensive set of variables or detailed elements that describe what various occupations require.

This domain includes information about typical activities required across occupations. Task information is often too specific to describe an occupation or occupational group. The O*NET approach is to identify generalized work activities (GWAs) and detailed work activities (DWAs) to summarize the broad and more specific types of job behaviors and tasks that may be performed within multiple occupations. Using this framework makes it possible to use a single set of descriptors to describe many occupations. Contextual variables such as the physical, social, or structural context of work that may impose specific demands on the worker or activities are also included in this section.

Generalized Work ActivitiesWork activities that are common across a very large number of occupations. They are performed in almost all job families and industries.
Intermediate Work ActivitiesWork activities that are common across many occupations. They are performed in many job families and industries.
Detailed Work ActivitiesSpecific work activities that are performed across a small to moderate number of occupations within a job family.
Organizational ContextCharacteristics of the organization that influence how people do their work
Work ContextPhysical and social factors that influence the nature of work

It is the work context description.  The physical and social factors that influence work are important to the disability analysis.  The data presentation describing the percentages of work within an occupation that require constant contact with others or very important work function of working with a group or team are exactly the kind of data that resolves holes in the DOT. 

And that brings the question back full circle to the Kisor question about deference and the Skidmore question about respect to the ability to persuade.  The Department of Labor is the agency that has the expertise to determine which of its publications constitutes the best source of information about the existence and requirements of work in the national economy.  Labor states about 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.

Whether the DOT, SCO, O*NET, or ORS answers every question about work represents a different question than whether any of those sources answer one or more questions about the number of jobs, the erosion of the occupational base, and the requirements of work.  Which takes us back to the first Kisor question, the regulation is not ambiguous.  The COSS takes administrative notice of reliable governmental data.  The only question is whether the O*NET is reliable and if so whether is answers the specific question that we have today. 
 

SSR 83-10 and the Sitting and Standing/Walking Requirements of Work

Kisor v. Wilkie retools the deference doctrine found in Auer v. Robbins.  To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation.  Social Security Rulings are frequent recipients of deference.  The rulings bind all components of the agency.  Under Kisor, that automatic deference in most circuits is now up for reconsideration.  Today, we examine deference owed to Social Security Ruling 83-10 in its description of the exertion levels defined Dictionary of Occupational Titles as requiring sitting six hours for sedentary work and standing/walking six hours for light and medium work. 

We start with the text of the administrative notice regulation:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;

The Commissioner takes administrative notice of reliable nob information from various governmental and other publications.  Social Security Ruling 83-10 makes statements about the exertional demands of sedentary, light, and medium work:

"Occasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 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.

"Frequent" means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.

A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds.

 Let's first review the DOT definitions of sedentary, light, and medium work:

S-Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

L-Light Work - Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.

M-Medium Work - Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.

Run the thought experiment.  If an occupation requires no lifting but sitting 7.8 hours per day, what is the exertional demand of that work?  If an occupation requires frequent lifting up to 10 pounds and no more than that even occasionally, but requires standing/walking 7.8 hours per day, what is the exertional demand of that work?  If an occupation requires lifting up to 25 pounds frequently and no more than that even occasionally, but requires standing/walking 7.8 hours per day, what is the exertional demand of that work?  According to the DOT structure, the answers are (1) sedentary; (2) light; and (3) medium.  The DOT is not ambiguous. 

Let's look at the regulatory definitions of sedentary, light, and medium work:

(a) Sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.

(b) Light work. Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

Same thought experiment.  Same answers.  The regulations are not ambiguous. 

The first Kisor question returns to the Chevron watershed:  is the regulation ambiguous?  If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore, but it does not get deference.  There is nothing ambiguous about the definitions of sedentary, light and medium work in the DOT or the regulation.  Because the regulation and DOT are not ambiguous, the ruling gets no deference. 

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity?  Assuming that either the regulation or the DOT were ambiguous, any identifiable ambiguity is not related to defining occasionally as 25% of the day or frequently to constantly as 75% of the day.  Because the regulation and the DOT define occasionally and frequently as ranges from very little to a third of the day or more than a third of the day up to two-thirds of the day, picking precise percentages is not reasonable.  

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner.  That is the third Kisor question.  There is no doubt that Social Security Ruling 83-10 represents the Commissioner’s binding agency policy. 

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency.  Whether and how the DOT defines work as sedentary, light, or medium is not within the Commissioner of Social Security’s expertise.  That expertise belongs to the Secretary of Labor.  Labor publishes the DOT.   Here are the modern definitions of sedentary, light, and medium work from the Occupational Requirements Survey:

Strength

BLS derives strength estimates from several job requirements’ estimates; and measures it with five levels: sedentary, light work, medium work, heavy work, and very heavy work. The levels are determined by how much weight a worker is required to lift or carry, how often, and whether standing or walking is required as part of the workday, in some special cases. BLS determines the strength level when at least one of the lifting or carrying conditions shown in the table below are satisfied, or as defined by the “Strength Level - Special Cases” table. The highest strength level satisfied is the level that represents that sampled job. For example, if a job requires a worker to lift or carry 11–20 pounds occasionally, then it is classified as light work. However, if that same job were to require lifting or carrying that same weight frequently, then it is medium work.

 Exhibit 5. Determining strength level based on duration of lifting or carrying

Strength level	Duration of lifting or carrying
	Seldom	Occasionally	Frequently	Constantly
Light work	11-20 pounds	11-20 pounds	1-10 pounds	Negligible weight
Medium work	21-50 pounds	21-50 pounds	11-25 pounds	1-10 pounds
Heavy work	51-100 pounds	51-100 pounds	26-50 pounds	11-20 pounds
Very heavy work	>100 pounds	>100 pounds	>50 pounds	>20 pounds
Source: U.S. Bureau of Labor Statistics.

As noted, there are special cases for strength. The following table outlines the special cases. In instances where field economists are unable to determine certain job requirements from the respondent, they record these data as “unknown” and strength level handle derivation through imputation. See the section “Weighting, imputation, and benchmarking” for more information.

 Exhibits 6. Special cases for calculating strength level

Strength level	Description
Unknown	If it is unknown whether lifting or carrying occurs occasionally, frequently, or constantly or none of the conditions in the strength level chart are met and standing or walking or sitting are unknown.
Sedentary	If none of the conditions in the strength level chart are met and standing or walking occurs less than or equal to 1/3 of the work schedule.
Light work	If none of the conditions in the strength chart are met and does not meet the special conditions for unknown or sedentary.
Source: U.S. Bureau of Labor Statistics

Sedentary work requires standing/walking up to occasionally.  No standing/walking, seldom standing/walking, and occasional standing/walking qualifies work as sedentary.  Light work exceeds sedentary, either in lifting/carrying, standing/walking, or other reasons.  But the difference between light, medium, and heavy have nothing to do with the amount of standing/walking done in a day.  Where does SSA get six hours?  It made it up and the ruling did not undergo notice and comment for the public to tell the agency it was wrong.  

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill.  The DOT lists about 137 sedentary unskilled DOT codes, 1,586 light unskilled DOT codes, and 981 medium unskilled DOT codes.  If the intent of SSR 83-10 is to describe when the agency will invoke the grids -- at the six hour capacity limit -- that is a matter of agency discretion, but subject to rebuttal.  But if the intent was to actually describe every unskilled sedentary, light, or medium occupation as generally requiring six hours of sitting or standing/walking in a workday, the Commissioner gets no deference.  

Next, we will explain why the courts should not defer to the Commissioner's continued use of the DOT as reliable -- which it is not.  It is useful for some purposes, but not reliable for the disposition of claims. 

SSR 00-4p Describing the DOT as Primary and as Setting Out Maximum Requirements Does Not Survive Kisor

Kisor v. Wilkie retools the deference doctrine found in Auer v. Robbins.  To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation.  Social Security Rulings are frequent recipients of deference.  The rulings bind all components of the agency.  Under Kisor, that automatic deference in most circuits is now up for reconsideration.  Today, we examine deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. 

We start with the text of the administrative notice regulation:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

The Commissioner takes administrative notice of reliable nob information from various governmental and other publications.  Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:

In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.

And

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.

The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook.  Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:

The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.

The first Kisor question returns to the Chevron watershed:  is the regulation ambiguous?  If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore, but it does not get deference.  There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples.  Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses.  Because the regulations are not ambiguous, the ruling gets no deference. 

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity?  Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed.  Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. 

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner.  That is the third Kisor question.  There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy. 

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency.  Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise.  That expertise belongs to the Secretary of Labor.  Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration.  But here is what Labor says about the subject:

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.

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill.  The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published.  The O*NET is updated every year.  Most of the DOT is over 40 years out-of-date.  When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek.  With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.

The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.