The
case is McMahon v. Saul. The Ninth Circuit affirms the finding that
McMahon could perform three occupations: document preparer, call-out operator,
and final assembler. Experience tells us that this is a sedentary occupational
base. We review the District Court decision to get the particulars. The District Court
decision (titled Steven M. v. Andrew M. Saul but the representation line
states his full name and that of his counsel) confirms that this case is about
a younger individual with a high school education and no relevant work
experience. The recitation of residual functional capacity
The ALJ found Plaintiff capable of
performing a range of sedentary work, with the following exertional
limitations: he can never climb ladders, ropes, or scaffolds. He can
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl.
He can occasionally operate foot controls bilaterally. He can have occasional
exposure to vibration, loud noise, bright lights, and extreme cold
temperatures. He must use a cane when ambulating.
Two concerns arise from this residual functional capacity
assessment. First, the ALJ did not find
any sitting limitation. Many sedentary
jobs do not have a work environment or list of duties that permit the
accumulation of two hours of standing/walking during the workday – everyday. When the agency fails to include a sitting,
standing, or walking limitation, that omission violates the function-by-function
assessment of Social
Security Ruling 96-8p as the interpretation of the residual functional
capacity assessment regulation.
The second problem, and the focus of this post, is occasional
exposure to bright lights. What does bright
lights mean? If you know what that phrase
means, then tell me that the ALJ and the vocational expert share your insight
into the language. The most common
definition of bright lights from the web
describe the lighting of a city at night, not very bright.
The O*NET OnLine has a category for extremely bright or
inadequate lighting. General office
clerks have exposure to extremely bright or inadequate lighting everyday in 5%
of jobs. That is the exposure to
extremely bright lighting, not bright lighting.
OSHA
defines the minimum lighting required in different work settings.
TABLE D-3 - MINIMUM
ILLUMINATION INTENSITIES IN FOOT-CANDLES
____________________________________________________________________
|
Foot-Candles | Area of Operation
______________|_____________________________________________________
|
5.............| General
construction area lighting.
3.............| General
construction areas, concrete placement,
|
excavation and waste areas, access ways, active
| storage areas, loading platforms, refueling,
and
| field maintenance areas.
5.............| Indoors:
warehouses, corridors, hallways, and
| exitways.
5.............| Tunnels,
shafts, and general underground work areas:
| (Exception: minimum of 10 foot-candles is
required
| at tunnel and shaft heading during drilling,
| mucking, and scaling. Bureau of Mines
approved cap
| lights shall be acceptable for use in the
tunnel
| heading)
10............| General
construction plant and shops (e.g., batch
| plants, screening plants, mechanical and
|
electrical equipment rooms, carpenter shops,
| rigging lofts and active store rooms, mess
halls,
| and indoor toilets and workrooms.)
30............| First aid
stations, infirmaries, and offices.
______________|____________________________________________________
We glean from this data that the brightest lighting occurs in
three environments: first aid stations,
infirmaries, and offices. If McMahon
cannot tolerate bright lighting, then he cannot tolerate the workspaces that
have the most intense lighting.
We measure lighting in foot-candles as OSHA has done or in lux. I found this chart:
|
Light Levels |
||
|
Outdoor |
FC |
LUX |
|
Direct Sunlight |
10,000 |
100,000 |
|
Full Daylight |
1,000 |
10,000 |
|
Overcast Day |
100 |
1,000 |
|
Dusk |
10 |
100 |
|
Twilight |
1 |
10 |
|
Deep Twilight |
0.1 |
1 |
|
Full Moon |
0.01 |
0.1 |
|
Quarter Moon |
0.001 |
0.01 |
|
Moonless Night |
0.0001 |
0.001 |
|
Overcast Night |
0.00001 |
0.0001 |
Staring at the sun will cause blindness. Walking in the snow or ice with no eye
protection getting full daylight and reflected sunlight will cause snow
blindness. The need for eye protection in full daylight is not a workplace
limitation. That would represent a limitation
to occasional work outdoors. The
limitation against bright lighting is something less than occasional work
outdoors.
Occasional bright lights constitutes a vague limitation. Vagueness forms the proper basis for the
objection to a question. If the phrase
is not defined linguistically, then the phrase warrants a definition
technologically.
Q.
When the judge asked you to assume occasional exposure to bright lights,
what did you understand that phrase to mean?
Q.
When you study a work environment, do you ever measure lighting?
Q.
How do you measure lighting?
Q.
Does OSHA prescribe lighting standards for the workplace?
Q.
In what work environments does OSHA require the most lighting?
Q.
If we consider the highest level of lighting required, like in a first
aid station, to represent bright lighting, could the person described in the
question perform the three occupations that you identified?
Q.
Why would you ever answer a question that anyone poses where you do not
understand the question asked?
Document preparer works in an office setting using a paper
cutter, razor knife, and uses a photocopy machine. Document preparer and bright lights are conjoined. Call-out operator and final assembler warrant
full-throated contradiction on the number jobs.
They do not exist.
While we push the agency on the residual functional capacity
question through the medical evidence that the testimonial evidence, we must
continue the assault through step five on the existence of other work.
Remember in law school, an injury claim from a defective
product required a contract analysis, a negligence analysis, and a product
liability analysis? Same process
here. We use all the tools on the
belt. We don’t throw some of them away just
because math is hard.
___________________________
Suggested Citation:
Lawrence Rohlfing, A Limitation Precluding Exposure to Bright Lights -- What Does that Even Mean?, California Social Security Attorney (April 20, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/a-limitation-precluding-exposure-to.html
