Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi

 The Ninth Circuit published Glanden v. Kijakazi on November 16, 2023. Judge Paez wrote the decision joined by Judge Gould. Judge Graber dissented. Glanden sought disability insurance benefits based on an alleged onset date of December 1, 2017, and date last insured of June 30, 2018. 

In the course of practice, representatives are often tasked with the job of proving disability in a small window. This is one of those cases, a small window. As for this claim, the ALJ terminated the five-step inquiry at step two, the absence of a severe impairment. 

Glanden had a two-and-a-half-year gap in this receipt of medical treatment. In the middle of that two-and-a-half-year gap falls the narrow window, the seven months during which Glanden had the burden of proving that he met the disability requirements of the Social Security Act. 

The Court decision describes the medical expert as testifying that the record as a whole leads to an expectation that Glanden had symptoms serious enough to require treatment in those seven months. That description must entail an equal inference that Glanden's symptoms requiring treatment would continue after the date last insured and up to not more than 12 months prior to the date of application. 

The Court relies on Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005), as the basis for reversing and remanding. The Court distinguishes Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), the precedential case supporting the ALJ's finding of no severe impairments.

Judge Graber focuses on drug-seeking behavior. The presence of drug-seeking behavior does not prove or disprove the presence of severe physical or mental impairments. Judge Graber distinguishes Webb as not supporting the complete absence of medical evidence. Judge Grager describes the resort to wrist surgery prior to December 2017 and the absence of wrist complaints in 2019. Judge Graber also points to the resort to treatment for Glanden's back condition in 2019 after two separate traumas. One of those traumas consisted of an injury while engaged in yard work. 

The treatment notes for the 2019 yard-work injury described Glanden as stable before that incident. The medical expert set up a syllogism: "if that's correct then during the relevant period he wasn't all that symptomatic." 

The medical expert punted according to the majority and the dissent. "Wasn't all that symptomatic" does not mean asymptomatic. Serious symptoms are inconsistent with not "all that symptomatic."

And that is the problem. The ALJ adduces an ambiguity and instead of resolving it and demanding the expert give an opinion, the ALJ determines to resolve the ambiguity against the claimant. The representative at the hearing does not jump in and explore that ambiguity either hoping that the ALJ will go with the serious symptoms instead of the not all that symptomatic syllogism. Neither is the right approach. In the context of administrative hearings where no one knows what the experts will say before the hearing, the inquisitor ALJ and the retained representative must ask questions that they do not know the answer to. This is unless the ALJ announces the direction of the decision. The ALJ must develop the record for the claimant even if the claimant has professional representation. The representative must never trust the ALJ to develop the record for the client or to adopt a pro-claimant mindset in administering a safety-net social program. The Court rightly put the onus on the ALJ to do more. Some judges in the Ninth Circuit would have blamed the representative and voted with Judge Graber. 

Glanden is now precedent -- or will be 45 days after the publication of the decision. As for the gap in treatment scenario, consider Glanden fact specific. Glanden put up the bookends of treatment before and after the long period of no treatment and the medical expert testified to an expectation of serious symptoms. On those facts, Glanden is replicable. I expect those facts to represent the furthest reach of the inference with no treatment on the nonfrivolous legal conclusion at step two. The problem is establishing a listing or residual functional capacity, both burdens on the claimant. 

Glanden will prove useful in other treatment gap cases. Counsel should cite Glanden in response to a gap in treatment as requiring the ALJ to interpolate consistency between two data points absent evidence to suggest a parabola instead of a straight line. 

The first sentence of the last paragraph illustrates Glanden's problems on remand:

We express no view as to whether Glanden will succeed in proving that he is entitled to benefits; we hold only that denial at step two was premature. 

Whether Glanden can prevail on remand with a burden of proving up a residual functional capacity remains to be seen. 

Anticipation ...

___________________________

Suggested Citation:

Lawrence Rohlfing, Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi, California Social Security Attorney (November 17, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs

SkillTRAN publishes a list of 127 sedentary unskilled occupations that qualify as simple, repetitive. or routine work (reasoning levels 1 and 2). We have discussed this issue in the past. SkillTRAN estimates these job numbers as of May 3, 2021. That is not the publication date for the article, is the release date of the OES (now OEWS) data on May 3, 2021, for data as of May 2020. 

SkillTRAN estimates that there are 58,000 full-time jobs that are sedentary, unskilled, and SRT using the SkillTRAN methodology for estimating job numbers. Sounds significant, but do all those jobs count according to SkillTRAN?

The most numerous occupation accounting for almost 34,000 jobs is escort-vehicle driver (DOT 919.663-022). SkillTRAN does not describe the DOT as accurate or reliable for escort-vehicle driver as sedentary. 

1. Escort-vehicle driver requires eye-hand coordination level 3 (the average range, inconsistent with unskilled work). 
2. Escort-vehicle driver requires constant exertion of negligible force (inconsistent with frequent exertion of negligible force for sedentary work but consistent with light work). 
3. Escort-vehicle driver could require the rapid application of greater than 20 pounds of force on the brake pedal (inconsistent with sedentary and light work but consistent with medium work). 

If Job Browser Pro or any other SkillTRAN product describes the existence of work, this article addressing escort-vehicle driver in an inconsistent statement. If the vocational witness identifies escort-vehicle driver without using a SkillTRAN product, then careful examination needs to focus on the eye-hand coordination, the constant exertion of negligible force, and the occasional (from seldom to one-third of the day) application of greater than 20 pounds of force. Some vocational witnesses will voluntarily withdraw escort-vehicle driver, and they should. 

The second and third most numerous occupations on the list are addresser (DOT 209.587-010) and tube operator (DOT 239.687-014). These represent less than 2,400 and 2,300 jobs respectively. In a 2015 presentation at an ALJ Training, SkillTRAN laid out the problem with addresser -- it is hard to find. OIDAP calls that obsolete. On the OIDAP list of obsolete occupations, we find tube operator. The second and third most numerous occupations that fit the unskilled sedentary SRT hypothetical are obsolete. The ALJ training also labeled escort-vehicle driver as "not really sedentary." 

**SkillTRAN lists document preparer, election clerk, call-out operator, and surveillance-system monitor on its list of examples of sedentary unskilled occupations. These four occupations require reasoning level 3. SkillTRAN criticizes all six targets of vocational identification as the result of "rehabbers/occupational health." **

The first three occupations should not count. The count stands at fewer than 20,000 jobs. 

The next most numerous occupation is nut sorter (DOT 521.687-086). The 2021 estimate of job numbers comes in at a paltry 1,900 jobs. You may remember that the vocational expert in Biestek v. Berryhill, 139 S.Ct. 1148 (2019) testified under oath that her undisclosed personal labor market survey found 120,000 sorter jobs in the nation. The vocational witness in Biestek was at best unreasonably wrong. No one believes that nut sorter represents 120,000 jobs. This juxtaposition illustrates the depth of the vocational witness problem in Social Security disability cases. 

Ten DOT codes report no jobs. Ten DOT codes report 10 or fewer jobs. Thirty-four DOT codes report between 12 and 20 jobs. Twelve DOT codes report between 21 and 30 jobs.  Twenty-five DOT codes report between 31 and 100 jobs. Twenty-eight DOT codes report between 101 and 1,000 jobs. Six DOT codes, including nut sorter, report more than 1,000 but fewer than 2,000 jobs. 

Every claimant limited to sedentary SRT work at step 5 of the sequential evaluation process should win. There are not a significant number of jobs in the national economy that reliably exist. Adding in the most insignificant additional limitation (occasional contact with others, limiting sitting to six hours) solidifies the conclusion. Don't let vocational witnesses spread the Biestek lie. 

But you had me at sedentary SRT. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs, California Social Security Attorney (November 14, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

SkillTRAN's Analysis of Sedentary and Light Occupations

Our friends at SkillTRAN publish an Analysis of the Unskilled DOT Occupations (SVP < 3). Representatives should commit it to memory or keep a copy on their desk/in their briefcase. 

The page provides cumulative totals for a residual functional capacity for not present, occasional, frequent, and constant action. Constant represents no limitation and always represents 100% of jobs. The cumulative totals work across the exertion spectrum with the medium column including light and sedentary jobs. 

The categories are clear except DE:

1. 1. RE = reaching
2. 2. HA = handling
3. 3. FI = fingering
4. 4. DE = not clear
5. 5. ST = stooping

I will request that Jeff Truthan clarify the DE designation. It is not a Selected Characteristic of Occupations designation. 

This compilation of SCO data exposes problems with the Social Security Rulings. SSR 96-9p states that the inability to engage in stooping significantly impacts the sedentary occupational base. The SOC states that 95.6% of sedentary occupations require no stooping. SSR 85-15 states that the inability to engage in frequent stooping significantly impacts the medium range of work. The SCO classifies 329 occupations as requiring frequent stooping and 5 occupations as requiring constant stooping. 

SSR 96-9p states that sedentary work requires good use of the hands. The SCO identifies 92 occupations that require frequent reaching and handling as well as 75 that require frequent fingering. The SCO identifies 3 sedentary occupations that require occasional or no handling and 38 occupations that require occasional or no fingering. 

As to agency policy, the rulings are not true in all circumstances. SkillTRAN identifies occupations where the rulings suggest few jobs. Notice the difference in nomenclature. Occupations do not necessarily imply the existence of a "significant number of jobs." 

This information is foundational information. Without the foundation, representatives will get lost chasing non-issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Analysis of Sedentary and Light Occupations, California Social Security Attorney (November 13, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking

Vocational witness testifies at a hearing in response to the question, "if the person were limited to a total of six hours of standing/walking during a workday, could that person perform this occupation?" Vocational witness responds, "no." The ALJ asks for clarification mostly because it is permissible to interrupt cross-examination with a line of questions. 

The vocational witness explains that the occupation of marker is a stand/walk job all day long and that there is not an opportunity to sit during the workday. The witness then offers an absurd caveat to that explanation. 

1.         The worker gets two 15-minute breaks during the day and can sit down.
2.         The worker gets a 30-minute meal break and can sit down.
3.         Those three breaks total an hour a day. 

Point number 1: a person is marking product as part of their job. The time for a 15-minute break has arrived. 

1. When does the break start? 
2. Does it start when the person gets to the place to sit down or does the break start when the person walks away from the workstation? 
3. When does the break end? 
4. Does it end when the person starts to walk back to the duty station or does the break end when the person gets back to the workstation?

It is clear that the break begins and ends when the person stops working and starts to move away from the workstation. I am an expert in this question, I am an employer.

The marker is working diligently through the day and break time arrives. The clock starts running. The worker cannot drop straight down to the floor and sit. More time standing/walking is required. Whether headed to the restroom, the water fountain, or the locker, the worker must engage in more standing/walking. If the break lasts 15 minutes, the person will never get to sit for 15 minutes. 

Lunch break presents a different problem. The marker is scheduled for a full-time, eight-hour workday. The person clocks in at 8:30 am. The meal break arrives. What does the worker do? Certainly, the worker does not reach into a pocket, pull out a meal and drop straight down in the position to eat and rest for 30-minutes. The worker clocks out. The worker walks to the break area, retrieves the meal, and consumes the meal. The worker then clocks back in and walks back to the workstation. Even if the worker managed to sit for the entire 30-minute meal break, which is off-the-clock and not part of the work duties. If the meal break started at 12:30 pm, it ended at 1:00 pm, and the worker still has four hours of standing/walking on the clock. 

A person with a job that stands/walks over six hours in a day cannot accumulate one hour of sitting during two fifteen-minute breaks and a 30-minute meal. The worker must get to the designated area by walking, the person is off-the-clock for lunch, and the person must get back to work. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Breaks and Meals in the Context of Aggregate Sitting, Standing, and Walking, California Social Security Attorney (October 30, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Why Doesn't the Social Security Administration Use the O*NET?

The Department of Labor replaced the Dictionary of Occupational Titles with the Occupational Information Network (O*NET) with a preliminary version in 1997. Labor now publishes version 28 of the O*NET. The Department of Labor continues to host the DOT with a front-page statement:

Status of the Dictionary of Occupational Titles; use in Social Security disability adjudications

The Dictionary of Occupational Titles (DOT) was created under the sponsorship by the Employment and Training Administration (ETA), and was last updated in 1991. The DOT was replaced by the O*Net, and ETA no longer supports 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.

In the decade-long journey toward and Occupational Information System, SSA explains in the first frequently asked question:

Why are you developing a new occupational information system (OIS)? Why can’t the Department of Labor (DOL) update the Dictionary of Occupational Tiles (DOT), or why can’t you use the Occupational Information Network (O*NET)?

The Department of Labor (DOL) developed the DOT in the late 1930s to match jobseekers to jobs. For almost 50 years, the DOT has been our primary source for occupational information. The DOL discontinued updating the DOT in 1991, and replaced it in 1998 with another job placement tool, the Occupational Information Network (O*NET). We studied whether O*NET could take the DOT’s place in our disability adjudication process but found it does not describe the physical requirements of occupations at the level of detail needed for claims adjudication.

The OIDAP observed that the O*NET differed in the assessment of work requirements:

RFC/O*NET Comparison 

• RFC: Lifting, standing, sitting, pushing; postural limitations on balancing, crouching, crawling 
• O*NET Work Context: Time spent sitting, standing, climbing, walking, etc. 
• Anchors differ: RFC specific time ranges vs. O*NET relative time 

If the only measure of work that matters is full-time work, the O*NET focus on relative time is truly irrelevant. More importantly, the DOT does not discuss the amount of sitting, standing, or walking in any exertional domain except for sedentary work. 

The OIDAP described the measures of RFC to the measure of environmental conditions in the O*NET. Like the environmental demands in the SCO, the O*NET describes exposure on a range. While RFC is defined by tolerance, Labor has always framed the issue as expected exposure. The same comparison of tolerances in RFC to the demands in the DOT and SCO compared to the O*NET applies. The later statement in the FAQ and the OIDAP observation about skill level remain the two issues that prevent application of the O*NET as the foundation of SSA's adjudication of disability. 

That the O*NET does not provide an adequate basis for assessing skill and exertion does not translate to the conclusion that the O*NET does not provide useful data for understanding current occupational information framed in the Work Context reports. 

Representatives should not use SVP estimates because those estimates apply to a wide range of work. Representatives should not use the standing, walking, and running estimates to gauge the difference between light, medium, and heavy work. 

Representatives should use the O*NET to assess the required need for contact or interaction with other people, dealing with the public, and teamwork. Representatives should use the O*NET to separate out part-time versus full-time work. Representatives can use the O*NET to narrow the range of sedentary work. It is clear (to me) that the O*NET meets the definition of reliable government publications subject to administrative notice under 20 CFR 404.1566(d). 

The DOT contains almost 13,000 codes. The DOT has a date last updated of 1977 for 10,000 codes. The use of 46-year-old data is not reliable and does not satisfy the reasonable mind test. Recognizing the limitations of the O*NET does not justify reverting back to the DOT and pretending that it covers the data points not contemplated in 1977. 

"Thus, if you are looking for current occupational information you should use the O*Net."

___________________________

Suggested Citation:

Lawrence Rohlfing, Why Doesn't the Social Security Administration Use the O*NET?, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi

We are back in Shawver v. Kijakazi looking at the limitations to superficial and brief contact with coworkers. We return to the district court decision in Misti Jo. S. v. Comm'r of Soc. Sec. for the residual functional capacity and occupations. In relevant part:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks [...] The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

Resulting in: 

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

We discussed the limitation to standing/walking for four hours yesterday. That exercise eroded routing clerk and mail clerk while eliminating marker. Vocational cross is a no quarter expedition, we seek to eliminate all jobs. The more common version of this genre of limitation is occasional contact or interaction with others. Superficial and brief is a separate classification having more to do with the quality of interaction, teamwork. 

Superficial and brief contact with others is not a vocationally relevant phrase. A person can have constant superficial and brief contact, nothing is in depth. Because it is conceivable and not classified by the data, the vocational witness gets carte blanche to pontificate. 

Routing clerk (222.687-022) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Shipping clerks have no or occasional contact with others in 0% of jobs according to the O*NET. A mere 1% do not coordinate or lead others. Dealing with external customers is "not important at all" in 4% of jobs. Never resolving conflict occurs in 16% of jobs. Working with a group or team is not important in 1% of jobs. 

Mail clerk (209.687-026) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Mail clerks have no or occasional contact with others in 8% of jobs according to the O*NET. Coordinating or leading others is not important in 15% of jobs. Dealing with external customers is "not important at all" in 10% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 0% of jobs. 

Marker (209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Stockers have no or occasional contact with others in 4% of jobs according to the O*NET. Coordinating or leading others is not important in 6% of jobs. Dealing with external customers is "not important at all" in 6% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 4% of jobs. 

In order to make this type and quality of evidence probative, we have to ask. 

    1. Is "contact with others (face-to-face, by telephone, or otherwise) in order to perform it" superficial and brief?

    2. Is "coordinate or lead others in accomplishing work activities in this job" superficial and brief?

    3. Is fairly important ability to "work with external customers or the public" superficial and brief?

    4. Is the encounter of "conflict situations" on the job superficial and brief?

    5. Is the ability to "work with others in a group or team" as fairly important superficial and brief?

It becomes a matter of extracting concessions from the witness. The follow up question is whether an occupation that required those five workplace requirements or expectations (BFOQ), would you agree that the work required more than superficial and brief contact with coworkers and the public?

When we allow a vocational witness to wax on about the existence of work without exploring the range of available data, we allow the witness and ALJ to take from our clients the benefits that were promised in the Social Security Act. We become a party to a breach of the social contract. 

Forge onward. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi

In Shawver v. Kijakazi, the claimant litigated the tried-and-true physician opinion evidence, the claimant testimony, the meeting or equaling of the listings, and the non-issue of whether the ALJ propounded a complete hypothetical question based on errors at step three, the assessment of residual functional capacity. 

But step five is always in play when the claimant establishes the inability to perform past relevant work. Misti Jo. S. v. Comm'r of Soc. Sec. gives us the rest of the story. The RFC:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks; occasionally balance, stoop, kneel, crouch, or crawl; occasionally climb ladders, ropes, or scaffolds; avoid exposure to hazardous machinery or equipment; and work in an environment with no more than ordinary office level lighting or noise. The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

And the step five occupations:

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

Standing/walking four hours in an eight-hour day does not represent a wide range of light work. Social Security Ruling 83-10 describes light work as requiring standing/walking six hours in an eight-hour day and sitting intermittently during the remaining time. There exists an apparent conflict between the agency's understanding of light work and the identification of light work that requires not more than four hours of standing/walking. 

Routing clerk (DOT 209.687-026) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Labor places 65 alternate titles including 20 DOT codes in this group. The Occupational Requirements Survey describes shipping clerks. Shipping clerks stand (including walk) half the day at the 25th percentile and 80% of the day at the 50th percentile (median). Shipping clerks engage in sedentary exertion in 7.5% of jobs and light exertion in 21.5% of jobs. Shipping clerks engage in unskilled work (SVP 2) in 46.3% of jobs. 

Mail clerk (DOT 222.687-022) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Labor places 60 alternate titles including 14 DOT codes in this group. The Occupational Requirements Survey describes mail clerks. Mail clerks stand (including walk) half the day at the 50th percentile and 75% of the day at the 75th percentile. Mail clerks lift/carry 20 pounds maximum in at the 25th percentile and 25 pounds at the 50th percentile. Mail clerks engage in unskilled work (SVP 2) in 67.4% of jobs. 

Marker (DOT 209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Labor places 209 alternate titles including 38 DOT codes in this group. The Occupational Requirements Survey describes stockers. Stockers stand (including walk) 80% of the day at the 10th percentile. Stockers lift/carry 25 pounds maximum in at the 10th percentile. Stockers engage in unskilled work (SVP 1 or 2) in 84.3% of jobs. 

To arrive at a reliable estimate of the number of light and unskilled work with standing/walking limited to four hours per day, a witness would have to assume the incidence of work that meets those criteria. The ORS and O*NET OnLine provides governmental data published according to OMB standards. The vocational witness has local (anecdotal) experience without a well-accepted methodology for extrapolating that experience to the national economy. 

In the case of these three occupations, markers are clearly eliminated. The intersection of unskilled and standing/walking four hours or less without crossing into sedentary work requires several assumptions. The expert must either assume that the exertional demands cut across the skill requirements OR must either have data or make assumptions about the requirements of skill and exertion correlation. Labor does not publish that data. 

Contact/interaction with coworkers and supervisors is cued up next. Teasing, none of the jobs make the cut. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi, California Social Security Attorney (October 17, 2023) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.