Minimal or Superficial Contact with Coworkers and Supervisors -- A Debilitating Limitation

The ALJ finds a limitation to simple, repetitive tasks with limited or no contact with the public, coworkers, or supervisors.  Can that person work?  The answer is "no."

According to the Social Security Administration's regulations, a basic work function includes responding appropriately to supervision, coworkers, and usual work situations.  20 CFR §404.1521(b)(5).   So far we have a severe impairment, this person cannot tolerate and cannot respond appropriately to supervisors or coworkers according to the residual functional capacity assessment described by the ALJ.   The Commissioner of Social Security specifically recognizes that limitations in the amount of supervision a person can tolerate constitutes an important part of the rating of the ability to perform the social requirements of work activity.  20 CFR §404.1520a(c)(2).   The ability to respond appropriately to supervision and coworkers is also at the core of a residual functional capacity assessment.  20 CFR §404.1545(c).

So in this hypothetical situation, the ALJ finds a person cannot tolerate coworkers or supervisors, or at most can tolerate limited contact with coworkers or supervisors.  People engaged an unskilled work, or anyone who acts as an employee, must have the ability to interact with coworkers and supervisors unless that person works alone.   The Social Security Administration has a published policy that describes the ability to respond appropriately to supervision, coworkers, and work situations as a basic mental demand of competitive, remunerative, unskilled work activity.   POMS DI 25020.010 ¶ A.3.   Later, the policy memorandum states that mental abilities for performing unskilled work includes the ability to work in coordination with our proximity to others without being unduly distracted by them; asking simple questions or requesting assistance; accepting instruction and responding appropriately to criticism from supervisors; getting along with coworkers were peers without unduly distracting them or exhibiting behavioral extremes; and responding appropriately to changes in a routine work setting.   POMS DI 25020.010 ¶ B.3.

A common theme of this log has stressed that vocational experts will testify to pretty much anything depending on the identity of the person asking them the question.  I call that professional prevarication.

The Social Security Administration deals with the problem of a vocational experts testifying contrary to agency policy.  Social Security Ruling 00-4p.   An ALJ can accept vocational expert testimony that contradicts the DOT or other sources of administrative notice for any reasonable articulated basis.  However, no Social Security Administration adjudicators may accept testimony that is based on underlying assumptions or definitions that are inconsistent with regulatory policies.  Evidence That Conflicts with SSA Policy.   The regulatory policies are explained in POMS.   Social Security Ruling 13-2p.

The forewarned, the ALJ or the attorneys representing the agency before a court will claim that the vocational expert has special expertise that permits them to point to jobs and occupations that do not require interacting with coworkers or supervisors on any significant level.  We do not leave commonsense at the door to the hearing office.  The Social Security Administration adjudicates nearly 3 million disability claims every year.  Based upon that vast experience, the agency publishes POMS and sets out agency policy that an individual who cannot tolerate direction and criticism from supervisors, ask questions of supervisors, or get a passing grade in the "plays well with others" requirement of work activity — that person cannot engage in a function that is critical to performing unskilled work.  A vocational expert may be entitled to her opinion, but she is not entitled to her own national economy.

The Fallacy of the Labor Value Matrix - Contingency Fees

I start with the assumption that a "lawyer's time and advice are his stock in trade."  Abraham Lincoln.  Lincoln identified two components that a lawyer sells:  time; and advice.  They represent two different commodities that do not share a correlation.  The problem comes in the value of time spent by a lawyer.

Time does not Determine Value

The value of services provided to a client does not depend on the amount of time that a lawyer spends on an endeavor.  Rather, the time that an endeavor requires may determine that the value conferred is not worth the expense.  Time does not correlate to value.

Time correlates to complexity or lack of skill of the practitioner.  The more complex a matter, the more time it will require.  That provides a direct correlation between complexity and time.  The more experienced and adept the lawyer, the less time the matter will require.  That provides an inverse correlation between skill and time.  Neither implicates the value conferred.

In Burlington v. Dague, the Court observed that it had held in the lodestar (reasonable time multiplied by a reasonable hourly rate) had "become the guiding light of our fee-shifting jurisprudence."  Dauge relied on Pennsylvania v. Delaware Valley Citizens' Council for Clean Air.  The Court did not hold that a lodestar represented the best measure for assessing the value conferred on the client.  Rather, the Court consistently holds that the lodestar is the beacon by which to shift fees from the loser to the winner in cases where the statute shifts fees.  The lodestar does not implicate value.

Value has Intrinsic Measurement

A client walks in with a contract proposal from a potential customer.  The contract has the potential of making the client $1,000.  The lawyer agrees to look over the contract at $300 per hour with an estimated completion time of two hours.  Is it worth the client's expense to hire the lawyer for $600 on the assumption that the deal could make $1,000 later?  Probably not.  The value of the services anticipated absorbs most of the value in expectation.

Same situation but the client anticipates making $1 million.  The lawyer agrees to look over the contract proposal at $300 per hour and anticipates that the project will take 33.3 hours of time.  The client assesses the $10,000 anticipated charges against the $1 million in anticipated net income.  Same type of services but a much higher estimated cost but the client sees the value in the cost of the services as 1% of the anticipated benefit.

In neither situation does the amount of time dictate the value to the client.  The value is in the deal, not in the ancillary cost of the services provided.  In the Dague and Delaware Valley scenarios, the client opts to retain the services of the lawyer, value be damned, because someone else is going to have to pay the bill.

The idea that labor determines or influences value has its roots in ancient civilization.  David Ricardo, Karl Marx, and others advocated that labor determines or influences value.  But the person digging a ditch for drainage and the person digging the ditch to extract gold from the hill have the same effort involved but the prospector provides more value and will receive more compensation -- if they find gold -- than the ditch digger providing drainage.  The property owner assesses value of the ditch and makes a decision to excavate based on the exchange value of the services versus the change in the property.  The prospector speculates on the gold market and the chance of finding more gold.

Time does not determine value.  Rather, value determines whether to invest time.  Scott Turow makes a powerful pitch that The Billable Hour Must Die.  The time equals value of services model encourages investing more time on cases or issues that don't warrant more time. 

Contingent Fee Rests on Value

Contingency fees are common in the United States.  They open the doors of the courthouse to those that cannot afford to pay for legal services on an hourly basis by exchanging part of the value of the claim for the lawyer's time and advice.  No reasonable lawyer would exchange time and advice for a claim that had little or no value (absent the market-distorting impact of fee shifting).  The presence of time and advice from lawyers depends on the presence of value.  The time and advice do not create the value but arise because of the value.

There are several arenas where the lawyer and the client may not take a joint interest in the value of the services provided.  ABA Model Rule 1.5(d) provides

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

Outside of those identified areas of law, contingency fees are generally ethical under the ABA Model Rules. 

The contingency model tracks value and makes the lawyer a partner in the outcome of the claim.  The lawyer stops working on claims that have no perceivable merit because of the improbability of receiving value in the end.  Lawyers will take cases that have perceived value assessing the time expected to be invested against that eventual outcome.  Again, time does not create or transfer value but operates as a lever counseling for or against cases with high time expectations and low value.  Conversely, time counsels in favor of claims that have relatively low time expectations and relatively high value. 

Lockwood is Dead, Long Live HALLEX

This goes in the category of "I told you so." 

Lockwood v. Commissioner Soc. Sec. Admin.  stands for the proposition that an ALJ need not discuss why she didn't use a higher age category in a borderline age situation.  The court rejected use of POMS  DI 25015.005(B)(4) as applying to the burden of explaining the decision to use the chronological age -- because it wasn't in force when the ALJ decided the case; because it conflicted with HALLEX II-3-5-2; and because the courts don't enforce either HALLEX or POMS. 

We know that when the agency tells us what a regulation means, that interpretation of the regulation is controlling unless plainly erroneous or inconsistent with the regulation.  Washington State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler ("While [POMS]administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect."  Keffeler continues:

In short, the Commissioner's interpretation of her own regulations is eminently sensible and should have been given deference under Auer v. Robbins. 

Auer gives controlling deference to an interpretation of a regulation unless plainly erroneous or inconsistent with the regulation.  We eliminate strike three against POMS; let's look at strikes one and two. 

Strike two and inconsistency with HALLEX falls today.  HALLEX I-2-2-42 states clearly that the ALJ will explain why she used the chronological age instead of the higher age category whenever the borderline age situation occurs.  HALLEX and POMS now agree, an explanation is due. 

Strike one and applying the interpretation to the case the court has before it -- IS NOT A RETROACTIVE PROBLEM.  In re Schooner Peggy holds that the court applies the law in effect at the time of decision, not the law in effect at the time of the act.  The Supreme Court grants an exception to prevent manifest injustice.  The ALJ is not a party to court proceedings and it is not unjust to have administrative decisions get decided according to the law as we now understand it. 

Lockwood is dead.  Long live HALLEX ... and POMS too. 

 

Vocational Experts Will Say Anything

Woman is closely approaching retirement age, limited education, and past relevant work as a sample maker in the garment industry -- light as generally performed and medium as actually performed.

Q. Assume an individual this lady's age, education, and past work history, and let's say she could -- she is literate, not fluent in English and she could perform at a reduced range of light, in that she can only stand and walk up to four hours in an eight-hour day, she can only occasionally bend, stoop, squat, kneel. No crawling, or ladders, or scaffolds. Would that preclude the past work?

A.  No, it should not.

Q. At least. as it's typically performed, I gather?

A. As it's typically performed, yes.

Q. Okay, thank you.

A. Because there's going to be -- obviously, there's -- a sample makers doing multiple functions, but clearly, they are doing a lot of sewing. So, clearly, there would be standing four hours. Could be standing four hours, sitting four hours.

What's Wrong?

The vocational expert affirmatively testified that the claimant could perform work as the occupation is typically performed.  Check that box, the claimant loses at step four of the sequential evaluation process.  20 CFR 404.1520.  But did the witness hold that line?

Clearly there would be standing four hours.  Clearly at least or clearly at most?  Just to make sure that the witness did not walk it back, check the next sentence.  "Could be standing four hour, sitting four hours."  Really?  Could be?

As I say when I travel in Mexico and with Spanish speaking friends and relatives, yo tiengo una pregunta para ti.  I have a question for you.

All the time four and four?  Everyday four and four?  Some days exceed four hours of standing and walking?  One day a week/month/semi-monthly as typically performed more than four hours of standing and walking?  DOT 785.361-018 --

sewer; sample tailor Marks and cuts out material and sews parts of new style garments, following patterns, sketches, and design specifications, to prepare sample garments: Selects garment parts and threads, according to design specifications. Positions and aligns parts of sample garment together, following markings on parts, sketches, and patterns. Sews parts and attaches accessories and ornamentations, using needle and thread or sewing machine. Drapes garment on model form, examines fit and hang of garment, and marks garment to indicate position of fasteners and trimmings, such as sashes, belts, and emblems.

STRENGTH: L GED: R4 M3 L3 SVP: 6 DLU: 77.

And the claimant is not fluent in English. This occupation requires Language level 3. DOT Appendix C:

03 LANGUAGE DEVELOPMENT
Reading:
Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.
Writing:
Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech.
Speaking:
Speak before an audience with poise, voice control, and confidence, using correct English and well-modulated voice.

Perhaps the employer arranged work for a claimant that was not fluent in English and part of that trade-off is the greater exertion, medium instead of light.  But the question did not call for the ability to read, write, and speak in English according to the DOT protocol.  See Pinto v. Massanari. 

Vocational experts will say just about anything.  An opinion that does not withstand scrutiny.  Equivocated and failed to explain the language problem. 

Rudolph Patterson, NOSSCR founder, has passed

Rudolph Patterson passed away this past weekend.

I had the pleasure of working with Rudolph for eight years on the NOSSCR board.  Rudolph was the quasi-permanent member of the board elected by the Council of Past Presidents to counsel the current board of directors elected by the various circuit members.  I served as the Ninth Circuit representative for two years and then followed the executive committee track through treasurer, secretary, vice president, and then president.  I then served on the board ex officio as the immediate past president and the second immediate past president.  I now cycle on when my turn arises.

It was there that I knew Rudolph.  He reported on matters of attorney/representative discipline.  These always involved one of my favorite subjects -- ethics.  Rudolph provided wise counsel to the board on matters big and small.  The organization had the privilege of his institutional knowledge not for years but for decades.

NOSSCR is less with his passing.

Turning Down the Heat on the "Remand for the Payment of Benefits"

I wrote about Dominguez v. Colvin last month.  The discussion focused on the intra-circuit battle over the Credit-as-True doctrine and the remand for the payment of benefits.  The Ninth Circuit issued an amended opinion in Dominguez.  The Court removed:

 "Only when all factual issues in the record have been resolved,
overwhelming evidence establishes that the claimant is disabled, and the government points to no evidence to the contrary, have we held a district court abused its discretion in failing to remand for benefits. See Garrison, 759 F.3d at 1022." 

That wasn't an accurate statement of the law and warranted removal from the decision.  The panel turned down the heat in the warring panels.

3. May a Representative that Worked on a Case and Subsequently Appointed Annotate on the Itemization Services Provided Before the Actual Appointment?

When the fee agreement process does not apply, a representative can charge and receive a fee only upon authorization of the Commissioner.  Before 1991, the fee petition process was the norm.  Now the fee petition process is the exception to the rule.  42 U.S.C. § 406(a)(1) describes the exception to the rule.    The fee petition process applies whenever the fee agreement process does not with limited exceptions.  HALLEX I-1-2-51.  The fee petition process is set out in the regulations.  See, 20 C.F.R. §§ 404.1720 and 416.1520.  Subsections (b) and (c) of those two sections both provide for the petition, decision, and review process.  This raises the question of the parameters of agency discretion in setting fees. 

A claimant can appoint a representative and that appointed representative can delegate to other persons work on a claim other than the actual appearance at a hearing.  POMS GN 03910.025.B.3.  That subsection states:

3. Delegation of Duties

Although an appointed representative may not redelegate his/her authority to represent the claimant to another person whom the claimant has not appointed, the appointed representative is not required to perform every task related to the representation personally. Appointed representatives often delegate such tasks as developing the claimant's medical record or preparing written materials regarding an appeal to an assistant. An unappointed assistant who is supervised and directed by the appointed representative may perform tasks of this nature, as long as the appointed representative personally makes the decisions central to presenting the claimant's case before SSA.

A representative may not delegate to an unappointed assistant the authority to undertake tasks that require making significant decisions regarding the case. Whoever performs such tasks is, by definition, a representative, and must be appointed as such by the claimant. Appearing as the claimant's advocate in a hearing before an Administrative Law Judge (ALJ), for example, requires making decisions about presenting evidence, cross-examining witnesses, arguing facts and law, and appealing any adverse ruling. Only an individual whom the claimant has appointed, and whom SSA has accepted, as the claimant's representative has the authority to perform such tasks.

The presentation of the arguments on the request for review would appear to cross the line into a non-delegable duty.  The question is whether a person not named on a form 1696 may perform duties tantamount to representation.  The regulations do not require an attorney to use form 1696.  20 C.F.R. § 416.1507.  That regulation states in relevant part that:

We will recognize a person as your representative if the following things are done:

(a) You sign a written notice stating that you want the person to be your representative in dealings with us.

(b) That person signs the notice, agreeing to be your representative, if the person is not an attorney. An attorney does not have to sign a notice of appointment.

In footnote 2 of the inquiry, SSA states that a claimant may only appoint a representative and that the agency does not represent a law firm.[i] 

     A reasonable reading of secs. 404.905 and 416.1505 permit an attorney to act as a representative in this matter in an independent capacity.  To the extent that only the appointee could act as a representative in this matter, the services rendered to a claimant, the appointee can delegate those duties.  This conclusion finds support where the Appeals Council accepts the presentation of those arguments.   

     The appointee should be the only person that submits a fee petition.  But a claimant can appoint more than one representative.  POMS GN 03910.040 ¶ B.3.  Where the claimant subsequently appoints the de facto representative with a form 1696, that person becomes the appointed representative nunc pro tunc.  A claimant that signs that form 1696 knowing that a de facto representative or delegee had undertaken substantial efforts on his/her behalf.  Validating representational activities nunc pro tunc constitutes a reasonable understanding by a subsequently appointed and ratified representative. 

     The question then becomes how to account for all the time.  The fee petition form does not permit a representative to parse out services rendered as a delegee from those as an appointment representative.  Paragraph 1 of the form SSA-1560-U4 directs:

Itemize on a separate page or pages the services you rendered before the Social Security Administration (SSA). […]  Attach to this petition the list showing the dates, the descriptions of each service, the actual time spent in each, and the total hours.

     The form calls for the itemization of all services rendered, not just those rendered after the appointment of representative got executed.  Whether those services are compensable under the petition of the ultimate representative or the earlier representative as the delegor of those prior acts constitutes a question that elevates form over substance.  To refrain from making full disclosure would have the net effect of misleading the agency as to the services rendered and by whom those services were rendered.  Whether those services are compensable to the ultimate representative or a prior representative forms the core of the question that the ALJ must ask as part of the fee authorization process. 

     The fee petition form cannot direct the representative in the situation of co-representation with overlapping or adjoining delegee and representative status to violate the call of the question by both listing and not listing the services the representative rendered from the Social Security Administration both before and after date of appointment.  If a delegee does not list all the services rendered before the Social Security Administration, then the agency could raise a concern that the delegee failed to make a full disclosure. 

     The fee petition form requires full disclosure and a delegee possessing a later formal appointment should always list all services rendered.  Where that second representative performed all the services under the two hats, the agency would waste scarce resources by requiring a fee petition for a supervising appointed representative and a second petition from the later appointed primary representative.  This observation rests not only on the nunc pro tunc later appointment but also on the patent proposition that the claimant does not retain a firm or a representative to invest time but to secure a result.  Factors 3, 4, 6, 7, and 8 do not focus on time and time should never become more than a guidepost to assess reasonableness to avoid an unconscionable fee. 

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[i] Please note that a claimant can retain a firm, partnership, or corporation.  HALLEX I-1-2-12.