Essential, Integral, or Expected Job Functions

Ruiz v. Berryhill is an unpublished opinion of the Ninth Circuit.  Ruiz warrants consideration because of how it applies Gutierrez v. Colvin and basically guts Pinto v. Massanari.  Ruiz uses the essential, integral, or expected job functions test to dispose of an otherwise apparent conflict between vocational expert testimony and the Dictionary of Occupational Titles. 

Pinto does not give us the DOT code for the hand packager occupation discussed.  It is probably hand packager, DOT 920.587-018.  Pinto performed the occupation with constant stooping.  The Selected Characteristics of Occupations defines the occupation as requiring occasional stooping.  Pinto loses because she could perform her past relevant work as generally performed -- so the ALJ found.  But Pinto had a marginal education, was illiterate and unable to communicate orally in English.   As generally performed, hand packagers require reasoning level 2, language level 1, and mathematics level 1.  The ALJ did not resolve the language level problem and Pinto reversed.  

Gutierrez affirmed the denial of benefits where the ALJ found that the claimant could perform the work of a cashier despite a limitation to no overhead reaching with the right dominant arm juxtaposed against the SCO description of cashier as requiring frequent reaching.  The SCO, Revised Handbook for Analyzing Jobs, and SSR 85-15 define a reaching description as "any direction."  Gutierrez used experience to conclude that it is uncommon for cashiers to reach overhead.  

Ruiz winds the two published decision and provides insight into how the courts will resolve apparent conflict in the future.  Ruiz is not precedential.  Ruiz worked as a sewing machine operator.  The DOT describes the occupation cited:

787.682-030 MENDER (any industry)

    Operates sewing machine to repair defects, such as tears and holes in garments, linens, curtains, draperies, and blankets: Patches, darns, or reweaves holes or tears in garments, curtains, or linens, and resews ripped seams. Sews fringe, tassels, and ruffles onto drapes and curtains. Sews buttons and trimming on garments after they have been cleaned. Operates sewing machine to restitch or replace binding ribbon on edge of blankets. May cut curtains to specified measurements and hem edges. May shorten or lengthen hems to alter size of garments. May replace pockets in coats or trousers. May sew identifying labels and emblems on uniforms, linens, or diapers for linen supply or diaper service. May repair defective stitching on articles. May be designated according to type of article sewn as Sewer, Linen Room (hotel & rest.) or machine used as Darning-Machine Operator (any industry). May examine lace webbing for defects and be designated Examiner-Mender (tex. prod., nec). Performs duties as described under SEWING-MACHINE OPERATOR, REGULAR EQUIPMENT (any industry) Master Title.
GOE: 06.02.05 STRENGTH: L GED: R3 M1 L2 SVP: 4 DLU: 78

Ruiz is apparently illiterate or unable to communicate in English orally.  Mender requires language level 2.  If Pinto applies, Ruiz gets a remand.  The court applied Gutierrez.  The DOT occupation does not imply the ability to read or speak/listen.  The master title of Sewing-Machine Operator, Regular Equipment does not imply reading or speaking/listening.  Ruiz found that English was not essential, integral, or expected on the job.  

Essential points to essential job functions.  Essential job functions is an ADA concept; if a person cannot perform the essential job functions, workplace accommodation is not applicable.  These are core job functions.  Teachers teach but it is not essential to write on the board.  

Integral has the dictionary definition in two of three offerings that uses the word essential.  Treat that as pointing to essential job functions.  Redundant, yes, but so is cease and desist.  

Expected points to a different concept.  Teachers teach and we expect that teachers will write on the board.  It is the bona fide occupational qualification standard.  The BFOQ standard generally means "traits are reasonably necessary to the normal operation of doing business."  42 U.S.C. § 2000e-2(e).

The BFOQ standard applies in Social Security disability cases. SSR 00-1c. Accommodation is irrelevant in claims adjudicated by SSA. Would an employer of menders expect that workers operating sewing machines to repair defects to speak, read, and write in English. Common experience of the world of work says -- probably not. Ruiz lost.

The SCO does describe mender as requiring occasional hearing. Hearing can point to essential, integral, or expected job functions of hearing noise or communicating orally. Menders don't require talking, just hearing. That SCO described function is not described in Ruiz and was presumably waived.

Cashiers and the Work Week -- Part Time is Not Presumptive SGA

Cashiers -- a favorite for vocational experts to identify when the claimant does not have a public contact limitation or a limitation to simple, repetitive tasks.  Cashiers require reasoning level 3.  The middle digit of the DOT (6) tells us that the occupation requires speaking-signalling.  Cashiers need average verbal aptitude to succeed in the job.  Cashiers frequently talk and hear.  DICOT 211.462-010.

The Occupational Outlook Handbook estimates that cashiers represent 3,555,500 jobs in the nation. That is a lot of jobs considering that BLS estimates the entire national workforce at 142,549,250 jobs. But are cashiers working at substantial gainful activity?

The O*NET OnLine reports that 80% of cashiers work less than 40 hours per week.  The residual 20% do work full-time and that leaves over 70,000 jobs.  We do not have to cut the head of the dragon but slay it with a thousand cuts.  Removing 80% from the equation is a gash.

SSA defines substantial gainful activity as more than $1,180 per month.  The O*NET and the OOH report $10.11 as the hourly wage.  Those two tandem sources report $21,030 as annual wages which is exactly 40 hours per week, 52 weeks per year.  A cashier not working a 40-hour workweek will not make $21,030 in the year; nor will a worker that takes time off for illness, vacation, or other reason.  The annual wages pretends that the person will work 40 hours per week, 52 weeks a year.

Half of any large statistical group will be below average.  Assuming the average hourly wage, a worker would have to work more than 27 hours per week to get over $1,180 -- about 117 hours per month.  If most cashiers work part-time, where is the statistical basis for assuming that those workers average 117 hours per month for an entire year.  Absent evidence of the number of hours, the report that 80% of cashiers do not work a 40-hour workweek or more should exclude 80% of cashiers.

As an aside, Social Security Ruling 96-8p defines a residual functional capacity as a full-time capacity.  But if a claimant has a full-time capacity for work at step 5 of the sequential evaluation process, part-time work can satisfy the Commissioner's burden if that work amounts to substantial gainful activity.  Some ALJs have taken that tact and some courts have affirmed such a finding.  It becomes incumbent to challenge the data source for the vocational expert's testimony.

Below Average Finger Dexterity -- Hearing Examination Develops the Vocational Cross

We discuss average finger dexterity last year with some examples out of the Revised Handbook for Analyzing Jobs.  Most unskilled jobs do not require average or better dexterity; they require below average dexterity.  

The regulations introduce the concept of dexterity as a work function as an example of how the ability to perform light work may not include the ability to perform sedentary work because of a loss of fine dexterity.  The electronic files of the SCO classify dexterity as an aptitude.  We see that in the West, US Publishing, and SkillTran regurgitations of the DOT/SCO.    

The RHAJ, SCO, DOT, and GOE all come out of the same data set last updated in 1991.  We have the reference in the regulations to dexterity and the inclusion in the electronic files classifying work by dexterity.  It is fair game.  First things first, define the terms.  We start with finger dexterity:

The ability to move the fingers and manipulate small objects with the fingers rapidly or accurately.

Immediately we see that frequency has very little to do with finger dexterity.  Rapidity and accuracy form the kernel of the question.  Examples clarify:

F-4:1 Mixes and bakes ingredients according to recipes to produce breads, pastries, and other baked goods:

Finger dexterity is required to work with ingredients and utensils and to perform such tasks as arranging strips of dough across tops of pies, and placing cut or formed dough in pans or on baking boards or trays.

F-4:2 Prepares, seasons, and cooks soups, meats, vegetables, desserts, and other foodstuffs for consumption in medical institutions:

Finger dexterity is required in using knives, brushes, scrapers, and other tools to clean, trim, slice, and dice vegetables, fruits, and meats; in ponioning foods; in turning dials and valves on kitchen equipment; in removing dishes, napkins, and waste materials from food carts; in sorting and stacking dishes; and in lining pans and shelves with paper

The last three examples in the RHAJ for finger dexterity address sewing; turning knobs, buttons, and switches; and using handtools and power tools.    But cooking a meal is a basic activity of daily living that warrants a relevant line of questioning.  

Q:  You told the judge that you cook meals for yourself.  Do you bake?

Q:  You told the judge that you cook meals for yourself.  Do you prepare, season, and cook meats, vegetables, desserts, and other foodstuffs?

 If the answer is no, the followup question is always why?  This gives the client the opportunity to describe weakness, pain, or difficulty moving the joints -- using the word dexterity should be avoided, describing the difficulty should be sought.  If the client cannot perform these activities because of a medically determinable impairment affecting the fingers, you have a basis for asking for a finger dexterity level 5 occupation. 

Manual dexterity provides examples that have ADL application:

M-4:4 Finishes household linens, such as sheets, pillowcases, tablecloths, and napkins:

Manual dexterity is required to shake. sort. fold. and stack laundry; to tie bundles of laundry together. and to feed and guide material into ironer.

M-4:7 Sorts rags and old clothing: 

Manual dexterity is required to rip off buttons, pockets, hooks and eyes. snaps. and other foreign matter.

A careful description of laundry and what the client does to shake, sort, fold, stack, and disassemble articles of clothing points to manual dexterity.  

A limitation to occasional use of the hands/fingers does not address the qualitative functions of hand/finger use.  But we have to ask the question to get it into the record:

Q:  How do the DOT/SCO rate the dexterity requirements for the work that you identified here today?

Then ask the question that assumes a level of dexterity consistent with the testimony and the examples.  Make the record and develop the evidence.  

Keeping the Theory of the Case in Mind During VE Cross

A claimant has a hearing.  She is 57, high school plus education, and a skilled background performing work as a court clerk (DOT 243.362-010).  She worked in covered employment. 

ALJ asks the vocational expert to assume that vocational background and a limitation to sedentary work with occasional use of the right dominant hand for gross and fine manipulation.  The SCO classifies the occupation as requiring occasional reaching, handling, and fingering.  At this point, the case is looking at a step 4 denial -- the claimant can return to her past relevant work.  The VE testifies to that. 

The record contains a good medical source statement.  That statement describes the claimant as able to use the right hand minimally.  The claimant had multiple surgeries on the hand and wrist which developed into reflex sympathetic dystrophy or regional pain syndrome.  This is a solid opinion based on good objective findings.  The representative asked the VE to assume less than occasional  of the right hand. 

This is a bad question.  We should use the MSS words whenever possible.  When we translate medical source opinions because we are trained not to plagiarize, we play the telephone game.  The meaning gets lost because less than occasional means something different than minimal.  If we think that minimal is ambiguous, we can offer a reasonable explanation.  Minimal does not mean zero.

Minimal implies less than the full range of occasional.  The SCO defines occasionally as up to a third of the time.  It includes one.  In the world of physical activity, we cannot use negative numbers so there is literally no less than occasional.  What does minimal mean in these circumstances?  We should offer definitions that fit the facts of the case and the context of the doctor's report -- we could offer the definition of rarely, or quantify it to the lower half of the occasional range, 0-16% of the day. 

The VE responds to the bad question with a response that eliminates the past relevant work.  The representative asked if other work was available.  STOP.  We have an obligation to represent the claimant, not sustain the Commissioner's burden of proof.  We should not ask that question -- unless we know that the answer is none. 

The VE responds with our favorite sedentary unskilled occupation, surveillance systems monitor. The SCO describes SSM as having no reaching, handling, and fingering.   The representative then proceeded to ask questions about the incidence of this occupation and whether it had changed.  STOP.  This claimant grids out under rule 201.06.  We do not want to confuse the record, the ALJ, or a reviewing court with a colloquy about SSM and whether it exists in significant numbers and whether the occupation had changed.  We must keep the theory of the case in mind and know the structure of the grids. 

It is that last question that forms the heart of consternation.  Had the occupation of SSM changed since the date last update?  Change that question to: has the occupation of court clerk changed since the date last updated in 1977?  Those are computer-based jobs.  Ask that question.  The ALJ in this case asked a question that leads to a step four denial; rip that concept to shreds. 

Another tact appears.  The court clerk occupation requires average motor coordination, finger dexterity, and manual dexterity per the SCO.  Ask that question, assume a person that has below average dexterity or can tolerate minimal dexterity demands, can that person perform the work of a court clerk either as actually performed or as generally performed? 

Dexterity is rated in the SCO electronic files.  It is listed in WestLaw for each DOT code as well as the SOS Manual from US Publishing and the products from SkillTran.  Dexterity is an SCO component.  Dexterity is part of the agency's regulatory consideration of work. 

The representative gets a point for reading the treating doctor's MSS.  He loses a point for using an inappropriate definition of the words used by the doctor; loses another point for asking about other work; loses another point for chasing the unskilled sedentary occupation down the rabbit-hole; and loses five points for failing to chase the nature of the past work up the tree.  The representative failed the claimant and now the case is in federal court.  We have to do better. 

Questions on Fees from NOSSCR Spring 2018

We ran out of time at the NOSSCR conference in the discussion of attorney fees.  I answer those questions here:

I have had several instances recently where I did all the case prep, but then did not rep the client at the hearing (fired the week before the hearing, client with dementia doesn't remember hiring me and then hires another attorney, client became unresponsive). The ALJs awarded fees in all cases after fee petition, but fee is not withheld. Clients refuse to pay-- what do I do?

 The agency does not withhold fees for a discharged or withdrawing representative.  You have to collect the fee from the claimant or representative payee.  The only way to turn that award into something collectible is to turn it into a state court judgment.  Consult your state rules about suing your client -- most carriers frown on it and if the claimant is demented, that person may try to relitigate the fee award from the ALJ.

Is it proper for an ALJ to reduce a requested fee on a fee petition on the basis that the fee petition was "delayed," e.g., 6 months after the Notice of Award was issued?

Is there a reason for the delay other than the press of business?  If the fee petition seeks less than the entire withholding, then the delay has prejudiced the claimant by delaying the receipt of the residual withholding.

Do we have any recourse for this scenario: we had an AC remand awarded upon second hearing for a closed period of benefits. Even though the rep paperwork and fee agreement were on file, SSA failed to withhold our fee. The client won't return our calls. HELP! 

I successfully represented a client and the Judge approved the fee agreement.  The client was paid the full amount of the back pay but SSA mistakenly did not withhold my fee.  Suggestions... 

Ask the field office in an SSI case or the processing center/OCO in a DIB case to create an overpayment and pay you directly -- assuming that you are eligible for direct payment.  You need to document your collection efforts to qualify for the creation of the overpayment.  The agency will not declare an overpayment without that showing nor if the claimant is deceased.

I've had problems in which SSA is failing to release past-due benefits to my clients while my fee petitions are pending. Shouldn't SSA be releasing 75% of those benefits to my clients in the interim? (Instead of telling my clients that "your lawyer is holding up payment of your benefits?")

A writ of mandate comes to mind.  Don't file one, threaten to file one.  If this is a Title II claim, it is a rogue in the office.  If this is a Title XVI claim, the claimant gets the benefit in three payments with the bulk coming at the end of 12 months.

How should I handle getting a 1099 from SSA every year? Why does no one ever directly address this with NOSSCR or SSA or IRS?

File a schedule C that declares the income reported on the 1099 and then report the transfer of the entire corpus of those funds to the firm or other entity.  NOSSCR cannot control the IRS reporting requirements; nor does SSA.

 how do you address the fee with the client at signup in cases where the ALJ finds disability 5 1/2 months prior or say 7 months prior?

Anticipate the scenario as part of the fee agreement.  You can reserve the right to seek administrative review of the fee agreement or opt into a fee petition process in those cases.  We take risk in representing claimants of either a small fee or no fee.  This is part of the process.

What is the review process available if the Payment Center disapproves your fee agreement after an ALJ approved it (Assuming the PC disapproved for an incorrect reason)?

Seek administrative review of the fee agreement disapproval by the PC.  Due process requires a notice and opportunity to be heard.   See HALLEX I-1-2-49. 

Prior attorney withdraws but does not waive.  Does SSA send copy of favorable decision or award letter.  You file fee petition.  How does prior attorney know when to file?

SSA notifies the representative to file a fee petition and/or the representative files a fee petition on discharge/withdrawal. 

If a client fires a rep and hires someone else, and the previous rep withdraws, why does the new rep still have to do a fee petition?

Because the withdrawing representative still has the right to seek a fee.  If the previous representative waives, then the ALJ can approve the current representative fee's fee agreement.

It took almost a year for my fee agreement to be approved. SS told me my clients full backpay would not be disbursed until my fee agreement was approved. This didn't happen. They gave her everything. Now I have to collect from her direct. How can I prevent this from happening in the future?

The backpay should be released and the withholding held back.  If I were told that SSA would not release the PDB until my fee was set, I would demand that the agency release that 75% of the PDB to the client.  As to release of the withholding, it happens because the agency makes mistakes. 

The Occupational Outlook Handbook -- Equivalence to the DOT

A number of district court cases have rejected the proposition that an ALJ must consider the occupational information contained in the Occupational Outlook Handbook to the vocational expert testimony.  The district court decisions rest on Shaibi v. Berryill, 883 F.3d 1102, 1109 (9th Cir. 2018).  The quest is to fill in the gaps.  

Shaibi rejected the theory that the ALJ had a sua sponte obligation to compare County Business Patterns and the OOH to the vocational expert's job numbers.  The court found no authority for forcing the ALJ to take sua sponte administrative notice of the economic data contained in CBP or the OOH.  Slip op. at 16.  The court continued to apply the existing precedent that the ALJ could rely on the vocational expert testimony as to job numbers.  Slip op. at 17.  

The OOH states not only the number of jobs but also the typical education, training, and experience requirements of work.  For example, production workers, all other (SOC 51-9199) provides:

Production workers, all other

All production workers not listed separately.

• 2016 employment: 263,500
• May 2017 median annual wage: $28,890
• Wages come from the Occupational Employment Statistics (OES) program, click here for more OES data on this occupation
• Projected employment change, 2016–26:
  • Number of new jobs: 11,600
  • Growth rate: 4 percent (Slower than average)
• Education and training:
  • Typical entry-level education: High school diploma or equivalent
  • Work experience in a related occupation: None
  • Typical on-the-job training: Moderate-term on-the-job training
• O*NET links:
• 51-9199.00 - Production Workers, All Other
• 51-9199.01 - Recycling and Reclamation Workers

Education and training are not economic data.  They are baseline requirements.  The OOH glossary defines the terms -- moderate means more than 30 days. The glossary defines entry level as the starting level for those new to the job.  Education, training, and experience are phrased in terms of the level typically needed.  

Is that different from the DOT?  The DOT states that it describes the typical way in which occupations are performed.  DOT App. D.  Compare that statement in the DOT to the SSA view of the DOT -- that it describes the maximum requirements that the occupations requires.  SSR 00-4p.  So if the ALJ should compare the VE testimony to the maximum requirements of work, then the ALJ ought to glance at the typical requirements.  

Some of the district court cases are pending in the Court of Appeal.  I will report back to you in 24 months.  

Cross-examination on the Sit vs. Stand/Walk Option

This is a common fact pattern with nearly infinite variety -- assume the person needs a sit vs. stand/walk option at will, every 30 minutes, every hour, etc.  Vocational experts identify cashier, assembly, and bench work.  Some identify clerical occupations.  The key is curiosity.  

I am fascinated by how people know bits and pieces of information.  Did you read that; someone tell you that; or just have anecdotal experience with that particular phenomenon?  When vocational experts testify to the existence of work, they bring out the enigma box with the label, "I have 30 years of experience."  That is sufficient if we let that statement ride.  

How many times have you performed a job analysis on this cashier occupation?
How many different regions of the country have you been to and conducted a job analysis of this cashier occupation? 
Do you believe that you have a statistically relevant sample on which to extrapolate to the 155 million jobs in the US economy?

It is not enough to complain that the vocational expert has just made up testimony out of whole cloth.  The representative needs to ask questions that prove the lack of statistical basis for the testimony and either a concession that the Department of Labor does or that the vocational expert is ignorant of whether the Department of Labor collects that data.  Then go get and present the data to the ALJ.  

Cashiers have the option of sitting vs. standing/walking at will in 5.6% of jobs. 
Cashiers are on their feet 87.5% of the day at the 10th percentile.  

The vocational expert testified to 300,000 cashier positions requiring light exertion with standing/walking limited to six hours in a day.  The add-on of the sitting vs. standing/walking option led to the vocational expert eroding that number by half.  The ALJ will find 150,000 jobs significant; everyone in process knows that.  These two Occupational Requirements Survey reports first gutted the existence of light cashier jobs that require six hours of standing/walking and then eviscerated the concept that half of light cashier jobs have the sitting vs. standing/walking option.  

There are 3.55 million cashier jobs in the nation.  Cashiers don't require a high school education nor do they require either work experience or the acquisition of work skills per the OOH.  The ORS tells us that 20.8% of those jobs require light exertion.  How many cashiers get to sit for at least two hours per day, when they want to sit, for as long as they want to sit?  The statistics don't parse down to answer that question but our first quest is to prove that the vocational expert lacks the foundation to tell us that the number is half the cashier II jobs cited by Job Browser Pro.