February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley

 Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at a second of those dispositions. 

2. Cuestas v. O'Malley - Cuestas argued that the ALJ did not explain how the agency considered supportability and consistency. The Court disagreed, but did not give examples.

Cuestas argued that the ALJ relied on objective basis for symptoms and limitations. The Court found that the ALJ did and could rely on the failure to comply with medical advice and failed to attend pain management. 

Cuestas argued that the ALJ did not pose all the limitations to the vocational witness. This is a rehash of the opinion and subjective testimony issue -- not a separate issue. 

Cuestas argued that the ALJ disregarded evidence of interaction with other people as stated by the Bureau of Labor Statistics. The Court found that the ALJ could rely on the DOT and the vocational testimony to reach the conclusion that Cuestas could perform other work.

COMMENT: The courts have this issue wrong. Heckler v. Campbell, 461 U.S. 458, 469, n.13 (1983):

Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.^[13] See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

13 The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980)." Id., at 298.

(Emphasis added). The COSS takes administrative notice of the DOT by regulation and expands that notice to include the SCO. Most of the DOT codes have a Date Last Updated code of 1977. Vocational witnesses have local experience, not national experience. An ALJ can rely on unrebutted nonsense. Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). But if the vocational testimony is "feeble" or "contradicted," the testimony is no longer unrebutted. Id. at 1156. The claimant can show that the testimony was "untrustworthy" or "contradicted." Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). 

Cuestas rebutted the vocational testimony with BLS data. The testimony is now contradicted under Biestek and Ford. Why did the ALJ reject the BLS data? The Court does not say why. The Court says that the ALJ may rely on vocational testimony and the DOT regardless of what BLS publishes. 

As a society, we continue with the national consternation over whether private parties or the government can count. The vocational witnesses called by the COSS should travel under two names: Rudy and Sidney. We should label the data published by the Department of Labor -- when the O*NET, ORS, EP, or OEWS -- as the national election bureau. Believing that housekeeping cleaner, photocopy machine operator, or marker don't have extensive contact with others is nonsense. From the District Court decision:

The VE stated that she had no data to refuse the BLS statistic indicating that for the job of Photocopy Machine Operator, up to 82 percent of the people who do that job have contact with others constantly or most of the time. AR 65-66. For the job of Marketer, the BLS data indicated that 90 percent of people performing that job had contact with others most of the time or constantly. The VE stated that she had no data to refute that statistic. AR 66-67.

The record has statistical data from the Department of Labor that the vast majority of photocopy machine operators and markers have frequent or constant contact with others. The witness does not have a statistical basis for refuting what DOL reports according to OMB standards. That is not substantial evidence. That is garbage. 

1. The DOT does not address work contact with coworkers. 

2. The witness does not have a basis for overcoming DOL data (the source that describes contact with others is the O*NET, published by the ETA, not BLS). 

3. Would a reasonable mind accept Rudy and Sidney's word as election experts over the Georgia Secretary of State? No. Nor should the courts accept every bile that vomits from the vocational witnesses mouth. 

The unaddressed issue of housekeeping cleaners is the problem. About 18% of those jobs have occasional (8%) or no (10%) contact with others. That probably makes the contact with others harmless. But the ORS (a BLS product) confirms that housekeeping cleaners do not sit two hours a day. 

Cuestas is wrong at step five. I vigorously dissent, but I'm not a judge. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at one of those seven dispositions, all losses for the claimant-appellant. 

1. Slayton v. O'Malley - the Court affirmed.

    a. Dr. Haggerty opined that Slayton could sit or stand for just 15 minutes and lift no more than 10 pounds, limited to working one hour in a workday with high levels of absenteeism. The record contains contradicting evidence. The ALJ rejected Dr. Haggerty's opinions citing contradiction, minimal treatment, and easily performed activities of daily living. The ALJ found that the opinion was "largely conclusory" and had little to objectively support the extreme limitations. 

    b. Dr. Rado described Slayton as needing a 10 minute break every hour. The ALJ found the opinion contradicted and at odds with the objective record including normal neurological examinations. 

    COMMENT: The presence of contradiction with other opinions is never a reason to reject the evidence. The presence of contradiction triggers the need to state why the ALJ rejected the opinion evidence. When an ALJ uses adverbs that exclude always, the ALJ is fudging the record. Largely, mostly, normally, frequently -- all of those words mean that some of the objective findings were abnormal. For some opinion sources, the glass is half full, when the findings are normal, the person can function. For other opinion sources, the glass is half empty, when the findings are abnormal, the person has limited function. When the half empty view casts the limited function as persistent or always, the source has exaggerated. That allows the ALJ to reject the evidence. It is equally true that the half full opinion is flawed. Counsel should focus on why the ALJ erred in accepting that opinion for the reasons stated to reject the other evidence. 

    c. The ALJ rejected Slayton's symptom and limitation testimony. The ALJ relied on conservative treatment and activities of daily living. 

    COMMENT: The Ninth Circuit has dueling panels. The Court cites "Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding that a claimant’s daily activities suggested that his “claims about the severity of his limitations were exaggerated”); Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (explaining that evidence of conservative treatment 'is sufficient to discount a claimant’s testimony regarding severity of an impairment')." The Court does not consider the other line of case finding that activities of daily living do not translate easily to the rigors of work. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). There is a synthesis that turns first on the denial or minimizing of ADL. The nature of a memorandum disposition does not lend itself to the hard consideration of nuanced questions. We must remain diligent to and address those nuanced questions. 

    d. Slayton raised a step four question. Courts and parties sometimes conflate the RFC assessment as a step four finding. It is not. It is the second half of step three, or what I call an interim step. The consideration of vocational questions is never an opportunity to argue about the RFC -- again. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley

 In Terry v. Saul, 998 F.3d 1010 (9th Cir. 2021), the court ruled that if an ALJ told the vocational expert to assume an ability to perform medium work, that direction implied and everyone knows that the ability to perform medium work includes a limit to standing/walking in combination for six hours in a workday. A different panel extended Terry to light work in Guillermina R. v. Kijakazi. The Tenth Circuit agreed with the reasoning without citing Terry in Sewell v. Comm'r, SSA. Those three cases have two things in common: (1) they are all wrong; and (2) I handled them. 

On March 26, 2024, the Ninth Circuit rolled back on Terry. In Conway v. O'Malley, ___ F.4th ___ (9th Cir. 2024), The court started with the Terry presumption, medium work includes a limit to standing/walking six hours in a workday. Undaunted by the identification of work requiring medium exertion, From the court decision:

"if someone's only able to be on their feet for six out of eight hours, maximum, would they be able to do any medium work or the jobs you listed?" The expert responded, "The three sample occupations would not comport with that additional work restriction and [sic] would be difficult for me to provide substitute unskilled, medium occupations where a worker would be capped at being on their feet no more than six hours in a workday."

The Commissioner argued that the original hypothetical question included the limitation to six hours by inference. Conway argued that cross-examination rebutted the presumption. The court noted that Terry's counsel at the hearing did not attempt to rebut the presumption or meaningfully cross-examine the vocational expert. (That's true but Terry did submit Occupational Requirements Survey data that showed that the work identified required more than six hours of standing/walking in a workday; I didn't handle the hearing). The court then noted that presumptions are generally rebuttable. 

The court held that the cross-examination revealed that the vocational expert "did not understand" that the limitation to medium work included a six-hour limitation. The Commissioner argued that the limitation described in cross-examination did not accurately reflect the state agency findings -- about six hours. The court rejected the "about" discrepancy as meaningful. 

Let's examine this "about" problem from a different angle. The state agency doctors are charged with finding a residual functional capacity (RFC). 20 CFR sec. 404.1546(a). An RFC is always the most that the person can do. 20 CFR sec. 404.1545(a). When the state agency finds "about six hours" as the most that the person could do, the state agency put a ceiling of six hours and recognizes that there may be times with the capacity is less but not more. Using "about six hours" as allowing 6.4 hours per day every day would mean that the RFC finding was not accurate and complete. "About six hours" is not an average of six hours, it is at most six hours. 

Undaunted, Judge Rawlinson dissented. The facts are clear, if Conway is limited to six hours of standing/walking in a workday, he cannot perform medium jobs identified. Judge Rawlinson took the vocational expert statement that capping standing and walking at six hours is an additional work restriction. That's right. The witnesses do not assume a six-hour limitation, they have to be told explicitly that there is a six-hour limitation in standing/walking. More importantly, the six hours is implied, not as an about limitation, but as a clear limitation. That's what Terry says. Everyone knows that medium work as defined in SSR 83-10 has a limit of six hours. Conway shows that the vocational witnesses do not know that, assume that, or care about that. 

Conway demonstrates that the Terry presumption is wrong. In my anecdotal experience, vocational witnesses assume that "stand and/or walk for six hours" means that the person could stand/walk for a total of eight hours. A few hours standing here, a little walking there, some more standing, and some more walking. Most unskilled medium jobs do not allow sitting on the job. 

Some vocational experts will state that the person gets to sit for 15 minutes during the morning and afternoon break and 30 minutes at the meal break. That makes an hour so sneaking in another 60 minutes is not hard to do. This is the kind of sophistry to which VW resort. By sophistry, I mean that they lie. 

Assume a person engaged in medium cleaner work. The bell rings and the person gets 10 to 15 minutes for a break. The person gets not more than 15 minutes (California is it 10). To sit the entire 15 minutes, the person must drop down and sit exactly where they stand when the bell rings. If the person needs to engage in body functions and the restroom is 2 minutes away, the person cannot sit for 15 minutes because getting to the restroom takes 2 minutes there and 2 minutes back. 

The meal break is worse. The 10-15 minute rest breaks are generally paid breaks. The meal break is not paid unless the person has a working lunch under federal law. The meal break is not part of the eight-hour day, it does not count. Even if it did, getting to sit the entire 30 minutes implies that the worker has lunch in the back pocket and can stop, sit, and eat right where they stand at the whistle. Dumb, just dumb. The person must walk to retrieve the meal, walk to the break room/area, consume the meal, dispose of rubbish, use the restroom, and get back to the work station in 30 minutes. 

The VW in Conway did not indulge in that nonsense. Some VW do. Representatives with claimants over 55 must come prepared to win a medium RFC case by proving up the six hours of standing/walking as preclusive of unskilled medium work that exists in significant numbers. The ORS is that backup available in Job Browser Pro and at Occucollect.com. 

Paul Warren argued and Kevin Kerr wrote the briefs in Conway. Kerr Robichaux & Carroll continue to do outstanding work for the disabled community and continue to provide great cases for the Social Security bar. 

Genuflecting.

___________________________

Suggested Citation:

Lawrence Rohlfing, No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley, California Social Security Attorney (April 3, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection

The Ninth Circuit published Ferguson v. O'Malley on March 14, 2024. The divided panel used the clear and convincing standard to reverse the decision denying Ferguson's benefits. The dissent would affirm. 

The decision affirms the proposition that an administrative decision lacks the support of substantial evidence if the ALJ improperly rejected the symptom testimony. The decision relies on Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) and Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 

Judge Rawlinson in dissent asserts that the substantial evidence standard is not high and some evidence supports the ALJ decision. Judge Rawlinson relies on Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) and Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 

The characterization of a decision that does not properly address the testimony as stripping the ALJ decision of a foundation in substantial evidence is the source of the problem. Substantial evidence is a low bar. It gets the case past a directed verdict and is grounds for denying a motion for judgment not withstanding the verdict. According to Judge Rawlinson, there is evidence that Ferguson had less severe symptoms, i.e., the medical evidence. Could a factfinder rely on the medical evidence and reject Ferguson's testimony? In a civil trial, clearly that is the case. 

But this is administrative law. The ALJ must not only reach a permissible result but also reach that result for permissible reasons. The permissible result is the foundation of substantial evidence. The permissible reasons turns on the articulation standards. In essence, the decision holds that the ALJ did not have sufficient reasons for rejecting Ferguson's testimony. That sounds more an error of law rather than a failure of evidence. Therein lies the nuance. The reasons articulated were insufficient to persuade the reasonable mind under Biestek and therefore the decision lacks the support of substantial evidence. It would be easier and avoid Judge Rawlinson's dissent if the decision -- and the decades of precedent -- called a failure to state clear and convincing reasons for rejecting the symptom testimony an error of law and a failure of substantial evidence. The clear and convincing standard does invoke a mixed question of law and fact. 

Judge Rawlinson rails against the decision because the ALJ did not reject Ferguson's testimony but actually incorporated the testimony into the residual functional capacity assessment. The decision summarizes the record that the ALJ discounted the testimony about the severity and frequency of headaches caused by a history of epilepsy, Arnold-Chiari malformation, and headaches as a separate impairment. Ferguson has headaches that occur two to three times per week and last for up to two days. Judge Rawlinson says that the ALJ accepted the symptom testimony. The ALJ did find headaches but rejected the intensity and persistence of those headaches. This part of the dissent is semantically wrong. 

Judge Rawlinson doubles down on the ALJ reliance of activities of daily living. Ferguson watched television and played video games daily (Judge Rawlinson's emphasis). We should play along. Ferguson turns on the TV and plays games every day. He plays for hours and hours. Two or three days a week, he has a headache that lasts for two hours and he cannot watch TV or play games for those two hours. Is the fact that Ferguson watches TV or plays games for eight hours a day evidence that Ferguson could perform the sustained requirements of work on a regular work schedule? Of course not. One or two interruptions per week for up to two hours is an unacceptable interruption of the work pace and productivity required of competitive work. Taking car of wild cats, making meals, building models, attending to self-care, possessing the knowledge and ability to drive do not detract from an episodic impairment. 

If Ferguson had testified that he had headaches 16 hours a day and slept the other 8 hours, having any activity that required concentration to task would contradict the testimony. That was not his testimony according to the decision and the dissent. The substantial evidence standard is not high but it is not a trough either. Substantial evidence satisfies the reasonable mind. Having a host of activities of daily living does not negate the interruption of those activities two or three times per week for up to two hours per day. Garrison, 759 F.3d at 1016 addresses the difficulty in applying activities of daily living performed when the person can or wants to perform them to the rigors of performing work functions when the employer wants them done. 

Judge Sung joined by Judge Bea reached the right result. The ALJ does not have discretion to reject the testimony about the severity, persistence, and impact of symptoms on the ability to function simply by pointing to the medical evidence or that the claimant does not vegetate in a dark room. That is not the standard. The question is and has always been whether the person could get to work every day, remain productive throughout the day, and continue that pattern week after week, month after month. 

You are an employer. You have a simple job for Ferguson to do. He leaves early, arrives late, or is unproductive for up to two hours at a time twice a week. How long does that pattern last before Ferguson gets fired -- by you. Severe headaches that render the person unable to function in a work setting on a repeating basis cannot sustain work. 

The dissent is wrong. 

Hat tip to Alyson Young and Kevin Kerr. Lawyers do not make enough money on SSI cases in federal court. Lawyers do not make enough money in Social Security cases to warrant a trip to the Court of Appeals in any case. We take the cases because someone has to hold the agency's feet to the fire and someone has to correct persistent errors in the district courts. It is a loss leader. It is the right thing to do. We who journey into the federal courts have more lucrative things to do. But we seek justice because the system needs it.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection, California Social Security Attorney (March 15, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, two in January. We take a look at those two dispositions to get a sense of what works and what does not work. 

1. Cross v. O'Malley - We discussed using the APA as a basis for reviewing SSA decisions and actions in the discussion of published part of the disposition of this case. The court affirmed the Commissioner. 

    a. In the memorandum, the court repeats the conclusion that the refusal to reopen or revise a prior decision/determination is not subject to judicial review. 

    b. Dr. Loreli suggested caution in relying on test results and observed that Cross gave up quickly. The ALJ relied on inconsistencies (not specified in the memorandum) between Dr. Loreli's opinion and the medical records.

    c. Cross raised error in failing to include PCOS (polycystic ovary syndrome) is the list of severe impairments. The ALJ proceeded past step two. The ALJ would include limitations from severe and non-severe impairments in the residual functional capacity assessment. Counsel conceded at oral argument that the record did not include evidence of limitations from PCOS during the relevant period. 

    d. Cross contended that the ALJ did not properly consider the symptoms and limitations. The memorandum cites the ALJ reliance on inconsistencies about the presence of seizures, the need for daytime sleeping, the ability to drive, and activities of daily living. 

    e. Cross contended that the ALJ failed to include all limitations in the examination of the vocational witness. This is not a separate issue but a rehash of the opinion evidence and testimonial evidence issue. The step five hypothetical question issue compares the question to the RFC. This issue is otherwise relegated to a materiality component of the second, third, and fourth issues. 

2. Kennedy v. O'Malley - The court affirmed the Commissioner. 

    a. Kennedy provided evidence that Dr. Pickett provided false evidence in another case, not this case but another case. Kennedy did not provide that evidence to the ALJ. Nor did Kennedy present the evidence to the district court. The issue was waived. Nor could Kennedy point to any part of the report in this case that was false. 

    b. Kennedy raised the issue rejected in Cross. A panel cannot override a precedential decision of another panel. 

    c. Kennedy contended that the ALJ improperly rejected parts of one consultative examiner's opinions and all of the other CE. The ALJ relied on normal EMG studies to reject lifting limitations below the 10/20 required by the definition of light work. The ALJ (referred to as IJ in the memorandum) could reject an unexplained conclusion as neither inherently valuable or persuasive. 

    d. Kennedy raised the excess pain argument. The ALJ pointed to evidence of malingering and the lack of objective findings. Kennedy participated in pain management but stopped taking the medication. 

    e. The ALJ did not address the observations of the SSA employee citing 20 CFR § 404.1520c(d). The panel got it wrong. The regulations bind the ALJ to "consider all of the evidence presented, including [...] observations by our employees." 20 CFR § 404.1529(c)(3). "Consider" means what it means in grade school, "show your work." 

    f. Kennedy contended that the ALJ failed to include all limitations in the examination of the vocational witness. See the discussion of Cross, supra, at paragraph e. 

The common thread is Cross and Kennedy is mistaking an incomplete hypothetical that matches the RFC assessed as an independent issue. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (requiring remand and reconsideration because the ALJ's hypothetical did not reflect all of the claimant's limitations). It is not. The incomplete hypothetical show materiality of an RFC that lacks the support of substantial evidence. Bruton v. Massanari, 268 F.3d 824, 828 n.1 (9th Cir. 2001) (ALJ could not rely on the grids where the RFC has a non-exertional limitation not considered, that the ALJ did not find to be true).

___________________________

Suggested Citation:

Lawrence Rohlfing, January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working, California Social Security Attorney (March 8, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

Accessing ORS Reports from Job Browser Pro -- Marker for Example

  Vocational witnesses identify marker, DOT 209.587-034, as a go to light occupation with simple routine or repetitive duties involving occasional contact. With reasoning level 2, marker fits the simple work mantra in many jurisdictions. VW find refuge in this occupation; Job Browser Pro estimates 165,000 jobs. 

One of the features of JBP is the hyperlink button to the ORS data. JBP reports the first final and second final wave estimates. For marker, the hyperlink button to "Show ORS Data" is greyed out. With 2,8 million jobs in the occupational group and 165,000 jobs in the DOT code, certainly the Bureau of Labor Statistics has gotten to this occupational group. It has. 

The 2018 revisions of the Standard Occupational Classification moved SOC 43-5081, stock clerks and order fillers, to SOC 53-7065, stockers and order fillers. The O*NET divided stock clerks and order fillers into detailed categories:

1.     SOC 43-5081.01, Stock Clerks, Sales Floor
2.     SOC 43-5081.02, Marking Clerks
3.     SOC 43-5081.03, Stock Clerks - Stockroom, Warehouses, or Storage Yard
4.     SOC 43-5081.04, Order Fillers, Wholesale and Retail Sales

The 2018 ORS dataset provided provides data for the first, third, and fourth, but not for marking clerks. The 2018 SOC moved the category to 53-7065. The O*NET did not maintain the four detailed classifications. Subsequent editions of the ORS also dropped the four O*NET detailed data and adopted the singular SOC classification for the numerous jobs and occupations.

The ORS did not cover marking clerks, including marker, in the 2018 data set. The ORS covers the entire range in the 2023 data set. Occu Collect provides all the reports in the front page or in archives. The question is how to extract the data from JBP and SkillTRAN.

Clicking on the hyperlink button takes the user to https://online.skilltran.com/cbp/orsResults.php?dot=XXXXXXXXX. If you try to go there directly, it won't work. That URL works from JBP but not natively. The nine Xs are the DOT code. Open JPB to any occupation that has ORS data. I use lens inserter. When you get to the DOT estimate for that other occupation, click on the ORS hyperlink. When JBP opens your browser to that page, change the URL with the DOT code for your occupation to the DOT code for marker, no hyphen, no spaces, "209387034." You now have the 2023 ORS data for stockers and order fillers.

What does the ORS tell us about stockers and order fillers? The jobs require SSA defined medium exertion and require more than six hours of standing and walking, 

Some may notice the the "SSA definition of medium exertion." BLS defines light exertion as lifting, carrying, pushing, and pulling up to 25 pounds occasionally. The DOT used 20 pounds as do the SSA regulations. No matter what the ruling, ALJ, VW, or court may say, there is not soft much less a hard limit on the amount of standing and walking required of any range of work except sedentary, 2.7 hours. 

Use of other resources in Occu Collect as well as hyperlinked in JBP on the detailed job specialty page, the O*NET OnLine in particular, confirm the pedestrian observation that unskilled work requires working on conjunction with or proximity to others. Stockers and order fillers of occasional or no contact with others in 4% of jobs and do not have at least a fairly important job function of working with a group or team in 4% of jobs. 

If the question asks for light work (SSA definition), standing/walking six hours combined in a workday, simple and routine/repetitive tasks, involving no more than occasional contact/interaction with other, the occupation of marker does not fit based on exertion, standing/walking, and contact with others. JBP does not integrate the data from the ORS or the O*NET into its job number estimates. Those estimates arrive from an occupation-industry intersection divided by the DOT codes at that intersection. 

Some limitations in the tools we use have a workaround. This is one of them. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Accessing ORS Reports from Job Browser Pro -- Marker for Example, California Social Security Attorney (February 24, 2024, corrected March 8, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

The 2023 Occupational Requirements Survey Data Set -- A Must Use Resource

The Bureau of Labor Statistics released the 2023 data set for the ORS. BLS has finally filled in the gaps and reported significantly more data than in either the first wave culminating in the 2018 first wave or any data set from 2019 to 2022. I examined the data for the go to occupations for vocational experts in the light and sedentary categories -- Production Workers, All Other (SOC 51-9199). This list contains 52 of 137 sedentary unskilled codes and over 400 of the 1,400 light unskilled DOT codes. The testimony that any of those occupations represent more than a handful of jobs is unsupportable. 

The ORS reports that production workers require:

1.   strength required is sedentary: -
2.   strength required is light: 11.1%
3.   strength required is medium: 84.5%
4.   strength required is heavy: 4.2%

The Occupational Outlook Handbook reports that production workers represent 226,900 jobs in the nation. The Occupational Employment & Wage Statistics reports that production workers represent 252,660 jobs in the nation. Trusting government statistics reported to OMB standards, there are no jobs in the sedentary exertion and fewer than 28,000 jobs in the light exertion categories. The ORS reports that production workers have: 

1.   specific vocational preparation is beyond short demonstration through 1 month: 26.4%   
2.   specific vocational preparation is over 1 month through 3 months: 35.6%
3.   specific vocational preparation is over 6 months through 1 year: -
4.   specific vocational preparation is over 1 year through 2 years: 1.4%
5.   specific vocational preparation is over 2 years through 4 years: 13.5%

On the issue of how much standing and walking is required for production workers:

1.    hours of standing (10th percentile): 6
2.    hours of standing (25th percentile): 6
3.    hours of standing (50th percentile - median): 8
4.    hours of standing (75th percentile): 8
5.    hours of standing (90th percentile): 8

The percent of the day reports suggest that some of the jobs are part-time:

1.    percent of day standing is required (10th percentile): 75%
2.    percent of day standing is required (25th percentile): 100%

The existence of sedentary and light unskilled work that exists in significant numbers is less than 7,000 jobs --  total. That gross estimate assumes that skill levels cross exertional levels with the same relative frequency. If skill level and exertion level as inversely correlated (sedentary and light work are more likely to represent skilled or semi-skilled work), then the estimate goes down. If the person has a limit to standing and walking 6 hours in a workday, the estimate drops by over half. 

Job Browser Pro hyperlinks to the ORS data reporting the 2018 final first wave and the 2023 final second wave data side-by-side. OccuCollect reports the data files for 2017 through 2022 in the Archives and 2023 final second wave data on the main page. Note that Job Browser Pro reports the ORS data but does not incorporate that data into job number estimates. 

Vocational testimony that any unskilled production worker occupation represents a significant number of jobs, go after the issue. The witness is wrong. 

Don't let vocational witnesses rob your clients of benefits or you of hard-earned fees. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The 2023 Occupational Requirements Survey Data Set -- A Must Use Resource, California Social Security Attorney (February 19, 2024)

https://californiasocialsecurityattorney.blogspot.com

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