Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function

This is one of those questions where the circuits are split:  simple work and the reasoning level distinctions.  Hackett v. Barnhart found reasoning level 3 incompatible with simple routine work (call-out operator and surveillance systems monitor). Renfrow v. Astrue found no conflict between reasoning level 3 and simple work (telephone quotation clerk and charge account clerk). Terry v. Astrue found no conflict between reasoning level 3 and simple instructions in light of a high school diploma, training as a certified nurse's assistant, and capacity to follow simple instructions. Zavalin v. Colvin found reasoning level 3 in conflict with simple routine work (surveillance systems monitor and cashier). This is not an exhaustive list, but a broad view of the circuit split. Today we look at dealing with people.

The DOT classifies three DOT codes (all actors) as light, unskilled, reasoning level 2, and have significant worker functions with people:

People: 4 - Significant
Diverting: Amusing others, usually through the medium of stage, screen, television, or radio.

The DOT classifies five DOT codes (all door-to-door sales workers) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:

People: 5 - Significant
Persuading: Influencing others in favor of a product, service, or point of view.

The DOT classifies 29 DOT codes (in 19 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:

People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.

The DOT classifies 39 DOT codes (in 17 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:

People: 7 - Significant

Serving: Attending to the needs or requests of people or animals or the expressed or implicit wishes of people. Immediate response is involved.

None of those worker functions appear to be simple. Diverting, persuading, communicating, or serving people is to address the multi-factored character of human beings. This observation gives life to the second half of the reasoning level 2 definition:

Deal with problems involving a few concrete variables in or from standardized situations.

Skilled work may require dealing with people at a high level of complexity. 20 CFR § 404.1568(c). Significant worker functions with people, even in unskilled work, reflect a low level of complexity that exceeds the boundaries of simple. In this regard, we uncover the problem with Renfrow, it isn't the frequency of dealing with people, it is the that the work requires dealing with people.

 

The DOT defines 76 occupations as reasoning level 2 that deal with people as a significant worker function. Addressing that observation at the hearing with the vocational expert provides fodder for productive cross-examination.

Next we address worker functions of data as a basis for differentiating reasoning levels 1 and 2 work as not simple and routine.

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SUGGESTED CITATION:

Lawrence Rohlfing, Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function, California Social Security Attorney (June 22, 2020) edited (June 29,2020)

https://californiasocialsecurityattorney.blogspot.com/2020/06/simple-work-moving-beyond-r1-r2-r3.html

BLS Releases the 2019 ORS Data Set

The Bureau of Labor Statistics released the 2019 Occupational Requirements Survey on May 28, 2020. It is always good to have new data describing the national economy that meets OMB standards.  The problem is that Labor changed the Standard Occupational Classification system in 2018.  The ORS is the first Labor publication to use the structure on data.  That leads to some awkward incompatibility problems.  Awkward, not impossible.  We have the crosswalks as part of O*NET OnLine. 

Because Labor has divided, combined, and otherwise rearranged about 100 SOC codes, the 2018 data set is not usable in the 2018 SOC system.  The 2019 data started over.  The 2019 data set is back to 2016 as a first round of data collection, BLS started over.  The 2019 data set covers fewer occupational groups compared to the 2018 data set.  The 2019 data set did reinsert the cognitive category so it now addresses that contact with others category.  

Going forward, representatives should use the 2019 data set when it speaks to an occupational group.  Any use should carry the caveat that presentation uses the 2019 ORS data set based on the 2018 SOC system for occupational requirements and 2018 job numbers incidence found in the 2018 Occupational Outlook Handbook and/or the 2019 Occupational Employment Statistics based on the 2010 SOC system.   This process will take about a year or two to level out as the rest of BLS catches up to the ORS in using the 2018 SOC system.  

The Employment and Training Administration should follow suit in the next year in updating the O*NET to follow the 2018 SOC system.  The O*NET has announced that version 25.1 slated for release in November will report data using the 2018 SOC system. (For those with long memories or research skills, the Employment and Training Administration is the same arm of Labor that published the DOT).  

One quick highlight:  Stock Clerks and Order Fillers (SOC 43-5081) has changed its designation to 53-7065.  The O*NET detailed groups for Stock Clerks, Sales Floor (O*NET 43-5081.01), Marking Clerks (O*NET 43-5081.02), Stock Clerks - Stockroom, Warehouse, or Storage Yard (O*NET 43-5081.03), and Order Fillers, Wholesale and Retail Sales (O*NET 43-5081.04) will retire.  The expected 2020 O*NET release in November will report occupational characteristics for Stock Clerks and Order Fillers but not for the four detailed groups.  This is the occupational group that contains marker.  The new ORS data does not support the existence of 200,000 markers in the category of marking clerks.  Those jobs require medium and heavy exertion.  Look for that dissection coming here, soon.  

One quick low point: major group of Production Occupations contains 110 detailed occupations in nine minor groups.  The 2019 ORS reports the summary category of Production Occupations and three detailed occupations.  OccuCollect recommends using the 2018 data set for the analysis of characteristics of work in those detailed occupations.  Lumping supervisors in the data set with helpers makes the data to divergent for tiered or layered analysis.

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SUGGESTED CITATION:

Lawrence Rohlfing, BLS Releases the 2019 ORS Data Set, California Social Security Attorney (June 5, 2020) 

https://californiasocialsecurityattorney.blogspot.com/2020/06/bls-releases-2019-ors-data-set.html

A Step Five Finding of Transferable Skills -- Flawed for Three Reasons

The claimant resides within the boundaries of the Ninth Circuit.  The claimant is advanced age on the alleged onset date and closely approaching retirement age before the date of decision.  The claimant has past relevant work as a production materials coordinator (DOT 221.387-046) and operations manager (DOT 186.137-014).  The ALJ found that the claimant could not perform past relevant work.  The ALJ relied on a vocational expert that an individual of the claimant's age, education, work experience, and residual functional capacity could perform the work of sales records clerk (DOT 216.382-062) and sales associate (DOT 299.357-014).  The vocational expert testified that in terms of adjustment, it would take the claimant a minimal amount of time to learn the other work.  This fact pattern raises three issues. 

1.  The amount of time does not dictate the amount of adjustment.  20 CFR 404.1568(d).  The regulation requires that any transferability of skills meet the requirements of the other work.  There is never a significant amount of time to learn the other work.  If it did take a significant amount of time, then the person does not have the pre-existing skill set to meet the requirements of the other work.  This person wins at age 60.  

2. Two occupations is not a range of occupations for transferability of a person of advanced age and limited to light semi-skilled or skilled work.  Appendix 2, 202.00(c); Lounsburry v. Barnhart.  Two district court cases disagree on whether two occupations represent a range.  Daniel v. Colvin and Susan M. v. Berryhill, 2018 WL 4692468 (D. Or. Aug. 24, 2018). A set of two is not a range.  It is a set of two.  A range covers a span with two end points.  A range requires a third point.  

3.  The work skills do not transfer to at least one of the occupations.  Transferability is based on Work Fields (WF) and Materials, Products, Subject Matter, and Services (MPSMS) codes as the ambiguous regulation is explained in POMS.  POMS also lists GOE codes, first three digits of the DOT code, and industry.  Those categories apply to adjustment, not plain transferability according to OIDAP.  

	DOT	WF	MPSMS
production materials coordinator	221387046	231	898
operations manager	186137014	232	894
sales records clerk	216382062	232	891
sales associate	299357014	292	888

Sales associate (telephone solicitation clerk) does not have a similar WF or MPSMS code.  Sales records clerk has the same WF as operations manager and same first two digits (similar) MPSMS code as both prior occupations.  This person wins at age 55 based on Lounsburry.  

A brief on this issue would need to break out the Revised Handbook for Analyzing Jobs available as a free download from your google play store.  

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SUGGESTED CITATION:

Lawrence Rohlfing, A Step Five Finding of Transferable Skills -- Flawed for Three Reasons, California Social Security Attorney (June 4, 2020) revised (June 8, 2020) 

https://californiasocialsecurityattorney.blogspot.com/2020/06/a-step-five-finding-of-transferable.html

Vague Hypothetical Questions - Defining Temperature and Hazards

ALJs ask questions that contain vague terms and do not always define them.  There are circumstances where the vagueness does not present a material question.  In other circumstances, resolving vagueness will mean the difference between a favorable and an unfavorable decision.  

No exposure to temperature extremes is one of the limitations that arises.  The Selected Characteristics of Occupations defines exposure to extreme cold and extreme heat in Appendix D:

2. EXTREME COLD
Exposure to nonweather-related cold temperatures. In Part A, the rating for the Extreme Cold component appears second in the Environmental Conditions column under the vertical heading Co.

3. EXTREME HEAT
Exposure to non weather-related hot temperatures. In Part A, the rating for the Extreme Heat component appears third in the Environmental Conditions column under the vertical heading Ho.  

What are the measurements for extreme?  These are vocational factors that should not be left to silent definition by the vocational witness.  The Occupational Requirements Survey Collection Manual (found in the downloads section of www.occucollect.com) defines extreme cold (non-weather only) as:

40 degrees or below when exposed 2/3 or more of the time, or
32 degrees or below when exposed up to 2/3 of the time

Collection Manual, page 134.  Examples that meet one of those criteria are a meat cutter working in a 40 degree cooler more that 3/4 of the day or a freeze tunnel operator that wears protective clothing and enters that tunnel for short periods in -34 degree temperature.   Page 137.  Not included is the worker that shovels snow in the winter because it is weather related, a forklift operator that works in a non-temperature controlled warehouse as weather related, or the restaurant waiter that retrieves supplies from the freezer for the cook or food preparation staff when those workers are busy as incidental  

We defined our terms but now have other ambiguities.  The question asked about exposure to temperature extremes and the vocational witness relied on the SCO to identify jobs.  But the question did not permit exposure to weather related cold/heat.  Nor did the question permit incidental exposure to temperature extremes for the food server.  If the ALJ used the phrase temperature extremes, or the longer equivalent expression, the representative should question the witness when it matters.  

We find the same ambiguity in exposure to hazards, such as moving mechanical parts and unprotected heights.  We resort back to the SCO, App. D for the starting point definition:

8. PROXIMITY TO MOVING MECHANICAL PARTS
Exposure to possible bodily injury from moving mechanical parts of equipment, tools, or machinery. In Part A, the rating for the Proximity to Moving Mechanical Parts component appears eighth in the Environmental Conditions column under the vertical heading MP

The phrase such as typically precedes the examples.  The Collection Manual defines what Labor means by proximity to moving mechanical parts and high, exposed places:  the exposure must present a risk of bodily injury.  Collection Manual, page 134.  The presence of an environment where momentary loss of attention could result in bodily injury from the machine or falling, for example, represents a broader range of workplace prohibitions.  The Collection Manual provides examples of moving mechanical parts that could result in bodily injury:

• A deli worker operates a slicer to cut meats and cheeses. Even with required safety guards in place, injury is possible.
• A landscaper uses a chipper/shredder to mulch branches and tree debris.
• A worker who removes products from a machine or conveyor belt works close and could be injured while off-loading when machine is in motion.
• Mechanics working on running engines and moving vehicle parts while performing repairs.

An accountant using a crosscut shredder, use of a knife, the conveyor belt at the grocery store, using hand tools, or operating a taxi cab do not meet the threshold of a dangerous work environment.  Clearly the lethal weapon of a motor vehicle that could result in injury or death from a loss of concentration or focus but the ORS is more concerned with moving mechanical parts inside the vehicle.  

When addressing environmental limitations, the important part of cross-examination may turn to defining the terms.  One way to uncover the ambiguity of a hypothetical question is to object on vagueness.  The more subtle approach is the ask the vocational expert to state his/her understanding of the key terms.  

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SUGGESTED CITATION:

Lawrence Rohlfing, Vague Hypothetical Questions - Defining Temperature and Hazards, California Social Security Attorney (May 30, 2020) 
https://californiasocialsecurityattorney.blogspot.com/2020/05/vague-hypothetical-questions-defining.html

Laundry Worker and Literacy

In Sutherland v. Saul, the Ninth Circuit affirmed on the basis that the vocational testimony about laundry worker did not have an apparent conflict with the DOT in an unpublished opinion.  The court did not address the finding of the ALJ that Sutherland could perform past work or other occupations beside laundry worker.  Nor does the court tell us the boundaries of the medical-vocational profile.  The vocational testimony asserted that some laundry worker jobs required literacy, but not all.  The court reasoned:

The Dictionary thus describes "maximum requirements" of jobs as "generally performed," and not what every job within that occupational field requires. [Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016)] (quoting SSR 00-4P, 2000 WL 1898704, at *2-3). Here, the vocational expert testified that some, but not all, jobs that fall within the relevant occupational category of "laundry worker" require literacy. That is not an "obvious or apparent" conflict with the Dictionary's requirements for the relevant laundry worker occupation, which says almost nothing about literacy. Id. at 808; see also DICOT 361.685-018, 1991 WL 672987

It bears repeating, the DOT does not describe the maximum requirements of occupations as they are generally found.  The DOT describes the typical requirements of occupations as they are generally found.  DICOT Appendix D.  Gutierrez implicitly defers to a ruling that is not entitled to deference.

But that is not the question here.  The question is whether laundry workers require literacy.  The Occupational Outlook Handbook (available on for free www.occucollect.com) states that laundry and dry-cleaning workers (SOC 51-6011) represents 218,600 jobs.  Laundry and dry-cleaning workers contains 23 DOT codes and 168 alternate occupational titles.  Laundry and dry-cleaning workers require a high school or equivalent education in 20.6% of jobs.  Laundry and dry-cleaning workers do not have a minimum educational requirement in 79.4% of jobs.  Laundry and dry-cleaning workers do not require literacy in 18.5% of jobs.  Occupational Requirements Survey (2018).

The number of jobs that do not require literacy is approximately 40,400 jobs.  The data supports the testimony of the vocational witness as to the existence of a significant number of jobs that do not require literacy.  Whether other limitations (whether eroding exertion or other cognitive requirements of work) would erode that number is not discernible based on the face of the court's unpublished opinion.

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SUGGESTED CITATION:

Lawrence Rohlfing, Laundry Worker and Literacy, California Social Security Attorney (May 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/laundry-worker-and-literacy.html

Preschool Teacher -- An Illustration of the Outdated DOT

Preschool teacher (DOT 092.227-018) is a fairly common occupation representing 523,600 jobs in the national economy.  OOH (2018) 25-2011 -- Preschool teachers, except special education.  Preschool teacher is the only DOT code in the group.  The DOT classifies preschool teacher as a light skilled occupation, SVP 7.

The O*NET Resource Center states that preschool teachers require one month of training or less in 30.43% of jobs.  Preschool teachers require related work experience of 30 days or less in 19% of jobs.   Preschool teachers require a high school diploma or equivalent in 28.75% of jobs.  From these three data points, 19% of preschool teachers could represent unskilled work.  A small minority of jobs require either on-the-job training or related work experience in excess of two years.  Less than 38% require more than an associate's degree.  O*NET OnLine Resource Center (2019) 25-2011.00 -- Preschool teachers, except special education.  The SVP of Preschool teachers appears overstated.

The Occupational Requirements Survey estimates that preschool teachers represent SVP 7 work in 37.5% of jobs and SVP 6 work in 26.3% of jobs.  The ORS does not describe the remaining 36% of jobs in terms of skill level.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require SVP 2-5 or 8-10, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The Occupational Requirements Survey estimates that preschool teachers require light exertion in 24.3% of jobs and medium exertion in 54.3% of jobs.  The ORS does not describe the remaining 25% of jobs in terms of exertion.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require sedentary or heavy exertion, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The SCO describes preschool teacher as requiring frequent reaching and handling with occasional fingering.  DOT 092.227-018.  The aptitudes, as part of the DOT dataset not in the SCO or DOT, describes preschool teacher as requiring below average motor coordination and finger dexterity but requiring average manual dexterity.

The O*NET OnLine states that preschool teachers use their hands to handle, control, or feel objects continually or almost continually in 17% of jobs, more than half the time in 37% of jobs, about half the time in 5 percent of jobs, less than half the time in 8% of jobs ,and never in 33% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers require fine manipulation in all jobs.  Preschool teachers engage in fine manipulation occasionally in 75.8% of jobs and frequently in 19.2% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  In addition to fine manipulation, preschool teacher must keyboard in 67.7% of jobs occasionally in 33.1% of jobs.  Id.

The Occupational Requirements Survey states that preschool teachers require gross manipulation in all jobs.  Preschool teachers engage in gross manipulation occasionally in 52.8% of jobs and frequently in 36.3% of jobs. Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers reach at or below shoulder level in 88.8% of jobs.  Preschool teachers reach at or below shoulder level occasionally in 45.7% of jobs. Preschool teachers reach overhead in 40.6% of jobs, using both hands in 36% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey describes preschool teachers as standing/walking 75% of day at the mean, half the day at the 25% percentile, and 90% of the day at the 90th percentile.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The O*NET OnLine reports that preschool teachers work less than 40 hours per week in 52.1% of jobs.  Preschool teachers work full-time or more in 47.8% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

For a step four analysis of ability to perform past relevant work, it is important to first classify the nature of the work as actually performed.  Did the work require SVP 7 skill level while engage in light work?  Did the claimant work full-time or part-time?  What were the standing/walking requirements of the job as actually performed.

Once the claimant establishes an inability to perform preschool teacher as actually performed, the attention must turn to the occupation as generally performed.  If the claimant worked part-time as past relevant work, then the existence of part-time work counts as generally performed.  Careful attention must be given to the question of as generally performed in terms of staying at or below the claimant's skill level, excluding jobs that require too much exertion, or have requirements that the claimant does not or no longer possesses.

The as generally performed analysis begs the question:  what does generally mean?  If generally means typical, then preschool teacher typically requires medium exertion.  If generally performed means something other than typically performed, then the claimant has a much more difficult burden to establish the inability to perform past relevant work as generally performed.  Because the DOT presents occupations as typically found in the national economy (DICOT App. D), typicality represents the best approximation of as generally performed.  Whether that range falls around the median, a plurality, or an average will turn to a case-dependent fact.

What is clear is that DOT as to preschool teacher no longer describes work that exists in the national economy.  The DOT does not describe typical skill, exertion, or manipulative requirements.

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SUGGESTED CITATION:

Lawrence Rohlfing, Preschool Teacher -- An Illustration of the Outdated DOT, California Social Security Attorney (May 14, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/preschool-teacher-illustration-of.html

Conflating the Stand/Walk Limitation to Eight Hours

A vocational witness responds to a hypothetical question that assumes a capacity for light work and a limitation to standing/walking for six hours in an eight hour day.  The claimant is advanced age, high school education, and past relevant work as a pharmacy technician (DOT 074.382-010, SVP 3, light).

The question did not contain any mental limitations but did have a limitation to occasional postural activities. The absence of a mental limitation, even slight or mild, made the case difficult. The limitation to occasional postural activities is unimportant. The vocational witness states that the person could perform past work as a pharmacy technician.

ATTY: What SOC code does pharmacy tech sort into?
VW: 29-2052 pharmacy technicians.
ATTY: What is your understanding of generally performed?
VW: [silence].
ATTY: Well, does it mean the majority of jobs, the median, the mean, what does generally performed mean to you?
VW: Generally performed as described by the DOT.
ATTY: What if we consider generally performed in the national economy. (that is the standard 20 C.F.R. § 416.960(b)(2)) If someone can only stand/walk six hours in an eight hour day, so that person must sit for two hours, can this individual perform work as a pharmacy tech as generally performed in the national economy?
VW: [mumbles, then silence.]

ATTY: If I presented you with data from the Department of Labor that reports jobs in this occupational group do not sit at the 25th percentile, do not sit at the median, and only sit for 1.1 hours at the mean, would that change your answer as to whether an individual could perform work as a pharmacy tech, as generally performed in the national economy, when that individual cannot stand/walk more than six hours in an eight hour day?

The vocational witness agreed that past work as a pharmacy tech requires more than six hours of standing/walking as actually and generally performed in the national economy.  Skills did not transfer to work that permitted six hours or less of standing/walking in an eight-hour day.  A colloquy ensued between the ALJ and counsel that "about six hours" of standing and/or walking found in the initial and reconsideration medical opinions/findings does not permit eight hours of combined standing/walking.  

In this case, counsel had submitted the Occupational Requirements Survey for Pharmacy Technicians (29-2052.00) from www.OccuCollect.com.  The ORS data and the vocational witness concession put the claimant into grid rule 202.06 once the claimant carried his burden of proof that he could not perform his past work as actually or as generally performed.  

Data wins.  Disabusing the witness of the notion that six hour of standing and/or walking does not mean six hours of each wins. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Conflating the Stand/Walk Limitation to Eight Hours, California Social Security Attorney (May 11, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/conflating-standwalk-limitation-to.html