Saturday, January 25, 2020

A Plain Conflict Between the Regulation, Ruling, and POMS

In 2003, Social Security amended the regulations concerning adverse medical-vocational profiles that warrant a finding of disability without the assessment of residual functional capacity. Social Security added paragraph (b) to §§ 404.1562, 416.962Prior to the 2003 amendment, the regulations provided:
If you have only a marginal education and work experience of 35 years or more during which you did arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s), we will consider you unable to do lighter work, and therefore, disabled. However, if you are working or have worked despite your impairment(s) (except where the work is sporadic or is not medically advisable), we will review all the facts in your case, and we may find that you are not disabled. In addition, we will consider that you are not disabled if the evidence shows that you have training or past work experience which enables you to do substantial gainful activity in another occupation with your impairment, either on a full-time or a reasonably regular part-time basis.
(Example omitted).  The regulation now reads:
(a) If you have done only arduous unskilled physical labor. If you have no more than a marginal education (see § 404.1564) and work experience of 35 years or more during which you did only arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), we will consider you unable to do lighter work, and therefore, disabled.
(b) If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), are of advanced age (age 55 or older, see § 404.1563), have a limited education or less (see § 404.1564), and have no past relevant work experience (see § 404.1565), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to this subpart.
The concept of a person of advanced age, lacking past relevant work, and limited to medium exertion was presumptively disabled.  Appendix 2, Rules 203.02, 203.10.   The explanation for the rules contained in Social Security Ruling 82-63. In that ruling, the agency expands:
Rules 203.02 and 203.10 in Table No. 3 of Appendix 2 reflect the policy decision in July 1975 with respect to persons who have a severe exertional impairment which limits them to the medium level of work exertion. However, should only rules 203.02 and 203.10 be considered, a person with a severe nonexertional impairment who is of advanced age, has a limited education, and has no recent and relevant work experience might not be found to be disabled.
The 1982 ruling states that a person of advanced age, limited education, and severe mental impairment "might not be found to be disabled." The 2003 regulation states that if a person is of advanced age, possesses no more than a limited education, has no past relevant work experience, and has a severe medically determinable impairment, that person is presumptively disabled.  The regulations are clearly positive law. The ruling is binding on agency adjudicators. Something is wrong.

The SSA also issues POMS DI 25010.001. There, the agency describes the paragraph (a) arduous unskilled work profile, the paragraph (b) no work experience profile, and a third lifetime commitment profile (not currently working at SGA levels; lifetime commitment of 30 years or more to a field of work that is either unskilled or leaves no transferable skills; no longer able to perform past work because of a severe impairment; closely approaching retirement age; and having no more than a limited education).

To resolve the tension between the ruling, amended regulation, and current POMS provision, we need to understand that rulings are not positive law but are instead policy statements or interpretations of regulations or the statute. SSR 83-63 properly interpreted the provisions of rules 203.02 and 203.10, but did not anticipate the 2003 regulatory changes. The statement that a person with a nonexertional impairment otherwise meeting the adverse vocational profile "might not be found disabled" is inconsistent with the regulatory language. Because it is inconsistent with the regulatory language, it is not entitled to deference.

The POMS provision is more troublesome in its addition of the lifetime commitment profile for an individual at least 60 years of age.  The current version of the adverse vocational profile regulation does not include this profile. Whether an ALJ would apply the lifetime commitment profile to an individual age 60 or over represents a fair question.

The take away from this is simple: just because a ruling is still in place does not mean that it is entitled to deference. It might be wrong. It might not be consistent with amended regulations. Or it might not be entitled to deference for other reasons.

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SUGGESTED CITATION:

Lawrence Rohlfing, A Plain Conflict Between the Regulation, Ruling, and POMS," California Social Security Attorney (January 25, 2020), revised (January 27, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/01/a-plain-conflict-between-regulation.html




Wednesday, January 22, 2020

Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work

Sometimes it is worth examining our presumptions about what terms and phrases of art mean.  We explore the issue of the exertional demands of the different ranges of work.  The Occupational Requirements Survey is a creature of the Bureau of Labor Statistics.  The ORS is intended as the eventual replacement for the Dictionary of Occupational Titles.  Here is the ORS definitions of light through very heavy work.

Table 1. Determining strength level based on duration of lifting or carrying
Strength level
Duration of lifting or carrying
Seldom
Occasionally
Frequently
Constantly
Light work
11-20 pounds
11-20 pounds
1-10 pounds
Negligible weight
Medium work
21-50 pounds
21-50 pounds
11-25 pounds
1-10 pounds
Heavy work
51-100 pounds
51-100 pounds
26-50 pounds
11-20 pounds
Very heavy work
>100 pounds
>100 pounds
>50 pounds
>20 pounds


The definition of sedentary is a residual category, a process of excluding other ranges of work. 

Table 2. Special cases for calculating strength level
Strength level
Description
Unknown
If it is unknown whether lifting or carrying occurs occasionally, frequently, or constantly or none of the conditions in the strength level chart are met and standing or walking or sitting are unknown.
Sedentary
If none of the conditions in the strength level chart are met and standing or walking occurs less than or equal to 1/3 of the work schedule.
Light work
If none of the conditions in the strength chart are met and does not meet the special conditions for unknown or sedentary.

The amount of standing/walking in a day is a factor only in differentiating between sedentary and light work.  The statement is SSR 83-10 that the primary difference between sedentary and light work is the amount of standing/walking conforms to Labor definitions.  The statements in SSR 83-10 that light and medium work involve standing/walking six hours in a workday was not correct in 1983, not correct in 1991, and not correct today.  Light work involves standing/walking from zero to eight hours per day. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work," California Social Security Attorney (January 22, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/01/definitions-of-sedentary-light-medium.html

Saturday, January 11, 2020

The Industries Assigned to Small Products Assembler I -- DOT Conflict

We addressed the use of DOT industry designations and narrative job descriptions to create unexplained conflict between the DOT and Job Browser Pro using lens inserter as our example.  We can now examine a bigger and more damaging problem in the occupation of small products assembler I (DOT 706.684-022).  We start with the DOT entry for the occupation:
706.684-022 ASSEMBLER, SMALL PRODUCTS I (any industry) alternate titles: bench assembler 
Performs any combination of following repetitive tasks on assembly line to mass produce small products, such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors: Positions parts in specified relationship to each other, using hands, tweezers, or tongs. Bolts, screws, clips, cements, or otherwise fastens parts together by hand or using handtools or portable powered tools. Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker. Loads and unloads previously setup machines, such as arbor presses, drill presses, taps, spot-welding machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or light metal-cutting operation on assembly line. May be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor. May be known according to product assembled.
GOE: 06.04.23 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 79
 The first thing to notice is the designation of any industry.  Here is what the DOT says about that any industry designation:
Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry."
The mass production of small products such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors do not occur in nearly all industries but do occur n a number of industries, not most industries.  When the vocational expert identifies small products assembler, it is incumbent to establish those self-evident facts.

So what does JBP describe as the industries?  We take them groups as a time.
311100 Animal food manufacturing
311200 Grain and oilseed milling
311300 Sugar and confectionery product manufacturing
311400 Fruit and vegetable preserving and specialty food manufa
311500 Dairy product manufacturing
311600 Animal slaughtering and processing
311700 Seafood product preparation and packaging
311800 Bakeries and tortilla manufacturing
312100 Beverage manufacturing
314000 Textile product mills
316000 Leather and allied product manufacturing
321100 Sawmills and wood preservation
321200 Veneer plywood and engineered wood product manufact
321900 Other wood product manufacturing
322000 Paper manufacturing
323000 Printing and related support activities
324000 Petroleum and coal products manufacturing
3250A1 Chemical manufacturing
3250A2 Chemical manufacturing
325400 Pharmaceutical and medicine manufacturing
These industries would not appear to manufacture small products on an assembly line.
326100 Plastics product manufacturing
326200 Rubber product manufacturing
These categories are possible and do not create an easily established apparent conflict.
331200 Steel product manufacturing from purchased steel
331300 Alumina and aluminum production and processing
331400 Nonferrous metal (except aluminum) production and proc
331500 Foundries
3320A1 Fabricated metal product manufacturing
3320A2 Fabricated metal product manufacturing
332710 Machine shops
332800 Coating engraving heat treating and allied activities
More questionable industries.  
3330A1 Machinery manufacturing
333300 Commercial and service industry machinery manufacturin
333500 Metalworking machinery manufacturing
333600 Engine turbine and power transmission equipment manuf
334100 Computer and peripheral equipment manufacturing
334200 Communications equipment manufacturing
334300 Audio and video equipment manufacturing
334400 Semiconductor and other electronic component manufact
334500 Navigational measuring electromedical and control instr
334600 Manufacturing and reproducing magnetic and optical medi
335100 Electric lighting equipment manufacturing
335200 Household appliance manufacturing
335300 Electrical equipment manufacturing
335900 Other electrical equipment and component manufacturing
336100 Motor vehicle manufacturing
336200 Motor vehicle body and trailer manufacturing
336300 Motor vehicle parts manufacturing
336400 Aerospace product and parts manufacturing
336900 Other transportation equipment manufacturing
337000 Furniture and related product manufacturing
339000 Miscellaneous manufacturing
339100 Medical equipment and supplies manufacturing
Some of these facially fit the DOT occupation description.  Others require an explanation. 
4230A1 Merchant wholesalers durable goods
423100 Motor vehicle and motor vehicle parts and supplies merch
423400 Professional and commercial equipment and supplies mer
423800 Machinery equipment and supplies merchant wholesaler
4240A1 Merchant wholesalers nondurable goods
4240A2 Merchant wholesalers nondurable goods
4240A3 Merchant wholesalers nondurable goods
424300 Apparel piece goods and notions merchant wholesalers
424500 Farm product raw material merchant wholesalers
425000 Wholesale electronic markets and agents and brokers
441000 Motor vehicle and parts dealers
444000 Building material and garden equipment and supplies deal
445000 Food and beverage stores
448000 Clothing and clothing accessories stores
451000 Sporting goods hobby musical instrument and book stor
453000 Miscellaneous store retailers
454000 Nonstore retailers
493000 Warehousing and storage
561320 Temporary help services
Wholesalers and retailers do not manufacture.  They employ production workers, all other, but not this DOT code, not without a reasonable explanation.
624300 Vocational rehabilitation services
Sheltered work does not count. 
811200 Electronic and precision equipment repair and maintenanc
Workers repairing and maintaining do not manufacture. 
TE1100 TESelf-employed workers
 This last category of self-employed production workers probably does not fit the unskilled mantra.

The industries listed by JBP for small products assembler are questionable for many of those listed.  This is fertile grounds for cross-examining the VE.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, The Industries Assigned to Small Products Assembler I -- DOT Conflict," California Social Security Attorney (January 11, 2020),
http://californiasocialsecurityattorney.blogspot.com/2020/01/the-industries-assigned-to-small.html





Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro

We talked about the release of Job Browser Pro 1.7 last year.  Here is the most important features of ver. 1.7 that differ from prior versions:
Because the extensive research we have done has enabled estimation of employment at a weighted average of 88.3% for each SOC/OES group, we no longer allow customers to immediately modify NAICS industries for a DOT occupation. We do allow customers to submit suggestions, which we will review and incorporate into a subsequent update as appropriate. We want to prevent double counting and inappropriate NAICS, so we will study each suggestion in the context of the impact of that suggestion on the entire SOC/OES Group.
The emphasis belongs to SkillTran.  A vocational expert that uses a prior version of JBP can add industry codes, double count two, three, four, five, and six digit NAICS codes.  That makes the job number estimate unreliable.

 Our objective is to establish that the industry code (NAICS) assignments either double count or are just wrong.  We can start with lens inserter (DOT 713.687-026).  JBP assigns lens inserter to jewelry and silverware (NAICS 332210) and estimate 183 jobs.  But the DOT industry assignment is optical goods manufacturing, not jewelry and silverware.

We can show the correct industry assignment for occupations in the optical goods industry by examining final assembler (DOT 713.687-018).  JBP assigns final assembler to the medical equipment and supplies manufacturing industry group (NAICS 339100).  JBP links to its restatement of County Business Patterns, the blue CBP link.  That leads here.  Once there, we can click on the Show Products for this NAICS button.  Medical equipment and supplies manufacturing group includes the manufacture o eyeglass frames (NAICS 339115), the focus of final assembler job duties.  NAICS 339115 is the specific industry for ophthalmic goods manufacturing, a subset of medical equipment and supplies manufacturing industry.

We return to lens inserter and find the duties involve fitting lenses into sunglass frames.  The manufacture of sunglasses and goggles is a medical equipment and supplies manufacturing industry group is found in NAICS 339115, the ophthalmic goods manufacturing manufacturing industry.  Clearly lens inserter should include NAICS 339100 as the industry group that includes NAICS 339115.  But should it include NAICS 332210, jewelry and silverware manufacturing?

No.  Following the blue CBP link for jewelry and silverware manufacturing leads here.  The Show Products for this NAICS button displays the products manufactured in this specific industry.  The manufacture of glass(es), frame(s), lens(es), or anything related to the optical goods industry and the narrative description of lens inserter is missing.

That leads to the SSR 00-4p question of apparent conflict with the DOT.  There is an apparent conflict if and only if the JBP report for lens inserter is in the record.  The DOT is in the record by virtue of the ruling.  But the submission of the JBP report is the representative's responsibility on a post-hearing submission.  We must create a record that shows an apparent conflict and then ask the ALJ to resolve the conflict based on a reliable methodology.

Obviously the report of 183 jobs is rarely a concern.  The VE probably did not identify 183 jobs reported by JBP.  The VE probably identified what most of them identify, circa 20,000 jobs.  Submission of the JBP report for lens inserter establishes a conflict point and the submission of final assembler represents a more reliable estimate.  JBP reports 281,335 employees in the medical equipment and supplies manufacturing industry group.  If anyone believes that 9% of those jobs are unskilled sedentary production workers, all other, I do have a bridge to sell.

A more common problem is identification of unskilled light work, e.g. small products assembler I (DOT 706.684-022).  We address that occupation in the next blog.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro," California Social Security Attorney (January 11, 2020),
http://californiasocialsecurityattorney.blogspot.com/2020/01/using-dot-industry-designation-to-erode.html



Tuesday, December 31, 2019

Occupations Identified as "An Example"

Vocational experts have been trained to use the phrase "as an example" when identifying jobs within an occupation.  That "as an example" allows significant slough in the evidence that dutiful representation must clarify.  ALJ discretion is the bane of the claimant's representative.

The first task is to define "as an example."  That phrase could mean 20,000 jobs as a lens inserter including other similar sedentary unskilled occupations aggregating to 20,000 jobs.  Alternatively, the phrase could mean 20,000 jobs as a lens inserter and there are a lot more jobs that are similar to lens inserter.  The two alternatives make a difference.  If the testimony contends that there are 20,000 lens inserter jobs, that is an easy rebuttal.  If the testimony contends that there are 20,000 sedentary unskilled production worker jobs, that is a more cumbersome rebuttal.

1. 20,000 Lens Inserter Jobs

That specific testimony, which does occur, is statistically unsustainable.  Job Browser Pro provides an estimate of 208 jobs.  That's wrong.  JBP provides the estimate placing lens inserter in the jewelry and silverware manufacturing industry.  The DOT places lens inserter in the optical goods industry.  The optical goods industry corresponds to the ophthalmic goods manufacturing industry, part of the medical equipment and supplies manufacturing industry group (four digits).  The similar occupation of final assembler has a JBP estimate of 32 jobs.  That is based on the assumption that 65 DOT codes made up 2,077 jobs at the SOC-NAICS intersection. 2,077 / 65 = 31.95.  Round it off to 32.  Equal distribution rules the day.

But if the occupation exists in the ophthalmic goods manufacturing industry, we need to examine County Business Patterns.   Medical equipment and supplies manufacturing industry group represents 281,335 jobs in the nation.   The OES Query System estimates:

Occupation (SOC code)Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)
12790
Ophthalmic Laboratory Technicians(519083)
9560
Helpers--Production Workers(519198)
2300
Production Workers, All Other(519199)
2210
Packers and Packagers, Hand(537064)
2810
The production workers, all other number of jobs is slightly in excess of the intersection reported by JBP.

Ophthalmic goods manufacturing industry represents 24,988 jobs in the nation.  That is 8.9% of the medical equipment and supplies manufacturing industry group total employment.  Assuming similar staffing in the  ophthalmic goods manufacturing industry, we would get:

Occupation (SOC code)Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)
1,136
Ophthalmic Laboratory Technicians(519083)
849
Helpers--Production Workers(519198)
204
Production Workers, All Other(519199)
196
Packers and Packagers, Hand(537064)
250
There are 20 DOT codes assigned to the optical goods industry.  How many jobs are there as a lens inserter or final assembler?  Less than 10 each.

2. 20,000 Sedentary Unskilled Production Worker All Other Jobs, e.g. Lens Inserter

To respond to this testimony takes knowing some basic facts -- asking the vocational expert to state them or profess ignorance.

a. How many DOT codes exist within production workers, all other?  (1,590 by the O*NET, 1,589 by US Publishing, 1,526 by JBP).

b. How many sedentary unskilled DOT codes exist within production workers, all other? (52 by all three sources).

c. Do all 52 DOT codes have the characteristics that meet the hypothetical question posed?  (2 SVP 1, 50 SVP 2; 19 R1, 33 R2; 19 constant handling, 33 frequent handling).

d. How many jobs exist for this DOT example?  (See analysis for Scenario 1).

e. If the Department of Labor, Bureau of Labor Statistics published data that suggested that there are significantly fewer jobs at the unskilled sedentary variety within production workers, all other, would you defer to the BLS data?

The fluid use the DOT/SCO, O*NET, OOH, and ORS (all available on OccuCollect.com) along with CBP and JBP allows us to find out exactly what the vocational expert means and then to prove the lack of reliability.

Happy New Year!

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Occupations Identified as "An Example," California Social Security Attorney (December 31, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/occupations-identified-as-example.html


Wednesday, December 18, 2019

OccuCollect Lift & Carry Report

The OccuCollect Lift & Carry Report sets out the DOT with its strength rating; the OOH statement of education, experience, training, and number of jobs; the O*NET statement of full-time versus part-time; and the ORS statements of SVP, and all the lifting/carrying statements.

Using the advertising-material distributor (DOT 230.687-010) as an example, we have a light occupation.  The work typically requires a high school diploma or equivalent, no related work experience, short-term training, and 354,600 jobs as of 2018 in the category of helpers -- production workers (SOC 51-9198).  The O*NET describes helpers as working part-time in 6% of jobs.

The ORS states that helpers engage in unskilled SVP 2 work in 68.3% of jobs.  Helpers engage in medium work in 49.2% of jobs.  At this point, the data gets interesting.  Helpers lift/carry greater than 20 pounds and less than 50 pounds seldom in 66.3% of jobs.  That is clearly a lift/carry requirement that exceeds light exertion.  The ORS states that helpers lift/carry 25 pounds at the 25th percentile and 15 pounds at the 10th percentile.  At least 75% of this category have work requirements that exceed the demands light exertion.

The only available inference to draw is that the 25.8% of jobs engage in heavy or very heavy work (75% minus 49.2%).  This is consistent with the maximum lift/carry 50 pounds at the 50th and 75th percentiles and 60 pounds at the 90th percentile.  The number of light and/or sedentary jobs that are classified as helpers is less than 25%.

The maximum number of light and sedentary jobs is 88,650.  The unskilled jobs cannot exceed 60,548 applying the O*NET part-time reduction.  That is the starting point for any further reduction for limitations on standing/walking, posturing, environmental conditions, or interaction with others.  Helpers contains 31 SVP 1 occupations and 126 SVP 2 light occupation.  That observation provides significant variability in the numbers for any particular occupation.

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SUGGESTED CITATION:

Lawrence Rohlfing, OccuCollect Lift & Carry Report, California Social Security Attorney (December 18, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/occucollect-lift-carry-report.html

Tuesday, December 17, 2019

Supreme Court Review -- Was There a Case or Controversy?

I tell people that I really don't practice law, I just do administrative law.  The Social Security practice is non-adversarial; hearings last 30 minutes; and even federal court review is labeled "transcript litigation."  We do not take depositions, propound interrogatories, or examine witnesses in open court.  And yet, the practice of administrative law has been intellectually and professionally rewarding.  Today, we look at two Social Security cases decided in the last term with a constitutional question: was there a case or controversy?

The first case is Culbertson v. Berryhill.  This case ended the view of a minority of circuits that attorney fees for federal court under 42 U.S.C. § 406(b) were both capped by the 25% statutory maximum but that ceiling included any and all fees awarded by the agency to attorneys that represented the claimant before the agency.  Culbertson maintained that there was no such unified cap.  Before the district court and the court of appeals, the Commissioner asserted that there was, convincing both courts that Culbertson was wrong.  Culbertson sought certiorari.

The Commissioner argued in the Eleventh Circuit that the district court had decided the issue correctly.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:
Because no party defends the judgment, we appointed Amy Weil to brief and argue this case as amicus curiae in support of the judgment below. 584 U.S. ___, 139 S.Ct. 304, 2042, 202 L.Ed.2d 14 (2018). Amicus Weil has ably discharged her assigned responsibilities.
 If the parties agree, where is the case or controversy?  Isn't the public policy to encourage parties to resolve their disputes and not to ask the court to issue advisory opinions resolving a split in the circuits?  The answer is typically yes but fees under §406(b) are different.  As the Eleventh Circuit said 20 years ago, Congress designated the courts with the responsibility of interfering with the financial particulars of the attorney-client relationship, in parens patriae.  From the Wiki:
Parens patriae is Latin for "parent of the nation" (lit., "parent of the fatherland"). In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child or individual who is in need of protection.
The controversy in Culbertson was between the court and Culbertson, not the agency and Culbertson.  The capitulation in response to the petition for certiorari that Culbertson had correctly interpreted the fee statute did not relieve the court of discharging its parens patriae obligation.

The second case is Smith v. Berryhill.  This case ended the problem of the Appeals Council losing the request for review, dismissing the request for review as untimely, and then barring an evidentiary inquiry in court whether the claimant had timely filed a request for review.

Undeterred by the Commissioner's view of the review process, Smith filed in federal court.  The Commissioner moved to dismiss.  The district court agreed with the Commissioner and dismissed the suit for want of jurisdiction.  Smith appealed.  The Sixth Circuit affirmed.  But when the case got to the certiorari stage, the Commissioner changed her mind -- or the Solicitor General changed the government's mind:
We granted certiorari to resolve a conflict among the Courts of Appeals. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018).[6] Because the Government agrees with Smith that the Appeals Council's dismissal meets § 405(g)'s terms, we appointed Deepak Gupta as amicus curiae to defend the judgment below. 586 U.S. ___, 139 S.Ct. 451, 202 L.Ed.2d 345 (2018). He has ably discharged his duties.
The footnote surveyed the conflict in the circuits: seven courts no jurisdiction and two jurisdiction existed to hear the claim.  Smith cites to Mathews for the settled proposition that jurisdiction based on exhaustion of administrative remedies is waivable.  The controversy is resolved as to the motion to dismiss.  The Commissioner should not have filed the motion to dismiss.  Despite the admission that the agency erred, the Supreme Court issues an opinion to resolve a conflict among the circuits to publicly affirm that Commissioner changed her mind.  There was no case or controversy.  The Appeals Council issues a new order finding that Smith did not file a request for review in a timely manner and inviting review by the district court.  The case starts over rather than using/wasting the Supreme Court's time to fix that which the executive branch acknowledged it should not have done.

Perhaps erasing seven obnoxious sets of circuit precedent depriving claimants of review is laudable.  But that ignores the cost to scarce resources and the constitutional requirement of a case or controversy.  The better solution would have been for the Supreme Court to issue an order vacating the decision of Sixth Circuit with directions to remand to the district court to hear the exhaustion question on the merits.

Two cases involving the Commissioner's capitulation on the issue before the Supreme Court.  Not a good track record for agency attorneys: that they have litigated issues contrary to the correct interpretation of the statute.  In one, the Supreme Court need to proceed because of role of the courts in protecting claimants from their own attorneys; in the other, the Supreme Court to issue an advisory opinion without telling us why it infringed on the plain meaning of case or controversy.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Supreme Court Review -- Was There a Case or Controversy?, California Social Security Attorney (December 17, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/12/supreme-court-review-was-there-case-or.html