Thursday, October 3, 2019

Parking Lot Attendants -- Sit-Stand Option?

Some variation of light unskilled work with limitations on standing/walking and even a sit-stand option (SSO) will frequently get a vocational expert to identify parking-lot attendant. The free DOT-SOC/O*NET Crosswalk from www.occucollect.com lists three DOT codes in the group:

53-6021.00-Parking Lot Attendants
DOT Code
DOT Title
SVP
Strength
915.473-010
PARKING-LOT ATTENDANT
2
L
915.583-010
LOT ATTENDANT
3
L
915.667-014
PARKING LOT SIGNALER
2
L

The list of DOT codes suggests that all the jobs are light, but that is not true.  The DOT lists typical performance, not maximum performance.  SSR 00-4p is wrong and does not survive application of Kisor v. Wilkie.  The quest involves proof of the strength and skill requirements.

The Occupational Requirements Survey reports:

Series ID: ORUP1000065A00000233
Not seasonally adjusted
Series Title: parking lot attendants; pounds maximum weight lifted/carried, mean
Requirement: Physical Demands
Occupation: Parking Lot Attendants
Estimate: pounds maximum weight lifted/carried, mean
YearPeriodEstimate
2018Annual21.94
Series ID: ORUP1000065A00000235
Not seasonally adjusted
Series Title: parking lot attendants; pounds maximum weight lifted/carried (25th percentile)
Requirement: Physical Demands
Occupation: Parking Lot Attendants
Estimate: pounds maximum weight lifted/carried (25th percentile)
YearPeriodEstimate
2018Annual7.46
Series ID: ORUP1000065A00000237
Not seasonally adjusted
Series Title: parking lot attendants; pounds maximum weight lifted/carried (75th percentile)
Requirement: Physical Demands
Occupation: Parking Lot Attendants
Estimate: pounds maximum weight lifted/carried (75th percentile)
YearPeriodEstimate
2018Annual34.57
Series ID: ORUP1000065A00000238
Not seasonally adjusted
Series Title: parking lot attendants; pounds maximum weight lifted/carried (90th percentile)
Requirement: Physical Demands
Occupation: Parking Lot Attendants
Estimate: pounds maximum weight lifted/carried (90th percentile)
YearPeriodEstimate
2018Annual44.11

The mean suggests that the average parking lot attendant requires medium exertion because the worker lifts/carries more than the maximum of light work, 20 pounds.  We also can find that most of the jobs are indeed unskilled.  

Series ID: ORUV1000065A00000065
Not seasonally adjusted
Series Title: % of parking lot attendants; svp is beyond short demonstration, up to & including 1 month
Requirement: Education, Training, And Experience
Occupation: Parking Lot Attendants
Estimate: svp is beyond short demonstration, up to & including 1 month
YearPeriodEstimate
2018Annual84.3

And there, the ORS runs cold.  To determine the availability of light work, we must resort to the O*NET OnLine.


53-6021.00 - Parking Lot Attendants

Exertional
%
Response
Spend Time Sitting — How much does this job require sitting?
18
Continually or almost continually
9
More than half the time
42
About half the time
24
Less than half the time
7
Never
Exertional
%
Response
Spend Time Standing — How much does this job require standing?
9
Continually or almost continually
19
More than half the time
45
About half the time
25
Less than half the time
2
Never
Exertional
%
Response
Spend Time Walking and Running — How much does this job require walking and running?
54
Continually or almost continually
13
More than half the time
6
About half the time
18
Less than half the time
8
Never
Structural Job Characteristics
%
Response
Duration of Typical Work Week — Number of hours typically worked in one week.
1
More than 40 hours
80
40 hours
19
Less than 40 hours

The majority of parking lot attendants walk/run all day long.  Potential for an SSO exists only in those jobs that permit sitting continually or almost continually.  That is how labor defines the SSO. Because of the lifting, some of those jobs might be sedentary.  Now we turn to the number of jobs reported by the Occupational Outlook Handbook:


53-6021 - Parking lot attendants

Typical Education Needed
No formal educational credential
Work Experience in a Related Occupation
None
Typical On-The-Job Training Needed to Attain Competency
Short-term on-the-job training
2018 Employment
150,700

We erode the 150,700 jobs by the number that are unskilled, 84.3% of the jobs, and get 126,588.  The O*NET reports that 81% are full-time, lowering that number to 102,536.  We now apply the percentage of jobs that are reported as sitting continually or almost continually in an eight-hour day, 18%, and get 18,456.  

The 18,456 number of jobs includes both sedentary and light jobs.  Without better data, further exploration of that division is not possible.  We can point to the broad description of Transportation and Material Moving Occupations (53-0000.00):

Series ID: ORUP1000048P00000661
Not seasonally adjusted
Series Title: % of workers in transportation and material moving occupations; strength is sedentary
Requirement: Physical Demands
Occupation: Transportation and Material Moving Occupations
Estimate: strength is sedentary
YearPeriodEstimate
2018Annual11.2

The proposition that some or most of the sit down parking lot jobs is sustainable.  Of course, the question is whether the vocational expert has a reliable methodology that beats cold application of statistics.  

Wednesday, September 25, 2019

Establishing the Vocational Expert's Methodology Requires Verification

The objective of cross-examination of the vocational expert must hone in one establishing that the vocational expert testimony is feeble or contradicted.  Biestek v. Berryhill instructs:
And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.
The Ninth Circuit decision in Buck v. Berryhill establishes the same proposition:
"An ALJ may take administrative notice of any reliable job information, including information provided by a VE." Bayliss, 427 F.3d at 1218. "A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id.
Buck erroneously reads the above language from Bayliss to require that the ALJ independently assess the reliability of VE testimony. However, as is clear from the language of Bayliss, at least in the absence of any contrary evidence, a VE's testimony is one type of job information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its reliability.
The representative must present contrary evidence and show that the vocational expert is not reliable. 

In a hearing yesterday out of Evanston, Illinois, with the claimant appearing in Rockford by video conference and me on phone from sunny Santa Fe Springs, the vocational expert testified that the claimant's medical vocational profile permitted such a person to perform work as a mail clerk (DOT 209.687-026) as representing 10,400 jobs in the nation and office helper (DOT 239.567-010) representing 55,000 jobs in the nation.  After dancing around claiming to use the Occupational Employment Statistics and disavowing knowledge or use of the NAICS industry codes, the VE  distilled her methodology for estimating job numbers as relying on Job Browser Pro published by SkillTran.

Rebutting JBP is tough business.  Rebutting JBP requires reverse engineering and understanding the limits of the program as well as its use of equal distribution at the occupation-industry intersection.  But we don't have to go there.  We need to compare the VE testimony to the content of JBP. 

JBP describes mail clerk as representing 2,130 jobs as of 2018.  That is a far cry from 10,400 jobs and marks substantial progress in showing conflict and feebleness of the VE testimony. 

JBP describes office helper as representing 3,711 jobs as of 2018.  The drop from 55,000 jobs to 3,711 jobs is a change from clearly significant to insignificant. 

Here is the probable explanation:  VEs do not go back and check their data.  Establishing conflict is as simple as owning a copy of JBP and running the numbers.  I take screen shots of the DOT estimate page to capture all of the statements of the aggregate number of jobs at the SOC-OES/NAICS intersection, the number of DOT codes, and the estimate applicable to the specific DOT code.  I then print the formal report that restates the DOT narrative (sans the industry designation), the number of DOT codes in the group, the incidence of full-time versus part-time, and then the SOC-OES/NAICS intersection without the statement of the number of DOT codes in that intersection. 

In this case, the vocational expert has not offered testimony that is reliable.  In her own stated methodology, the number of jobs is wrong.  The testimony is feeble and contradicted.  The ALJ now has to deal with that conflict in the evidence. 

Thursday, September 19, 2019

Labor Classifies the Sit-Stand Option as Sitting

The Occupational Requirements Survey is the intended replacement for the Dictionary of Occupational Titles.  Question 2 of the General Questions and Answers states:
SSA uses five steps of Sequential Evaluation to determine whether disability applicants qualify for benefits. At steps 4 and 5 of this process, adjudicators need information about a representative sample of occupations in the national economy to determine whether people with functional limitations resulting from severe impairments can still perform work. Currently, SSA uses the Dictionary of Occupational Titles (DOT) at steps 4 and 5, and it has not been updated in more than 20 years. SSA is developing an Occupational Information System to replace the DOT which will incorporate the data collected through ORS. This information is crucial to the equitable and efficient operation of SSA‘s disability programs.
The ORS gathers data according to Labor's understanding of SSA needs.   The Collection Manual, Third Edition, describes the data and defines the terms.  Chapter 7 describes the physical demands of work to perform the critical tasks.  Sitting vs. standing/walking at will exists when:
  • Workers typically have the flexibility to choose between sitting and standing throughout the day.  
  • There is no assigned time during the day to sit or stand/walk. 
  • No external factors determine whether workers must sit or stand/walk.
Collection Manual, page 78.  Examples of sitting vs. standing/walking at will include:
  1. An office clerk can choose when to file and typically stands while filing invoices. 
  2. A pharmaceutical sales rep driving to clients can choose when to make trips and additional stops.
  3. An elementary teacher may sit or stand to instruct students and while monitoring them on duties.
Id.  Examples of work that is not classified as sitting vs. standing/walking at will include:
  1. An over-the-road truck driver must meet a delivery schedule. He stops to refuel and for weigh stations.
  2. An event parking lot attendant must stand when cars are entering the parking lot to accept payment and direct cars.
  3. A security guard chooses to sit or stand, except when she walks to investigate suspicious situations.
Id.  The SSO envisions the worker performing the same tasks while either sitting or standing.  If that option exists for all workers, it is not an accommodation.  Id., page 9.  

The phrasing of a sit/stand option (SSO) represents a different problem than sitting v. standing/walking at will.  The ORS defines sitting as the function critical to performing work:
  • Workers remain in a seated position. This includes active sitting. For instance, bicyclists sit but pushes/pulls with their feet/legs.
  • Workers are inactive and seated or prone. For instance, a medical resident on call for a thirty-hour shift taking a strategic nap is sitting.
  • Workers may choose between sitting and standing for a given task. For example, office workers can choose a standing desk.
Id., page 73.  An occupation that permits the worker to choose between sitting and standing at will throughout the day to perform the sames tasks carries the descriptor of sitting, not standing/walking.

The broad classification of production occupations (SOC 51-0000.00) would not permit an SSO throughout the day:

Series ID: 
ORUP1000047P00001002
Not seasonally adjusted
Series Title: production occupations; % of day sitting is required (90th percentile)
Requirement: Physical Demands
Occupation: Production Occupations
Estimate: % of day sitting is required (90th percentile)
YearPeriodEstimate
2018Annual66.7

A significant range of production occupations do have the ability to change tasks during the workday:

Series ID: 
ORUP1000047P00000139
Not seasonally adjusted
Series Title: % of workers in production occupations; sitting vs. standing/walking at will is allowed
Requirement: Physical Demands
Occupation: Production Occupations
Estimate: sitting vs. standing/walking at will is allowed
YearPeriodEstimate
2018Annual15.1

Production occupations represent 9.4 million jobs in the economy and 6.5 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 51.  Production occupations (SOC 51-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The broad classification of transportation and material moving occupations (SOC 53-0000.00) warrants individual occupational group investigation on the question of SSO:

Series ID: 
ORUP1000048P00001002
Not seasonally adjusted
Series Title: transportation and material moving occupations; % of day sitting is required (90th percentile)
Requirement: Physical Demands
Occupation: Transportation and Material Moving Occupations
Estimate: % of day sitting is required (90th percentile)
YearPeriodEstimate
2018Annual90

A less significant range of transportation and material moving occupations do have the ability to change tasks during the workday:

Series ID: 
ORUP1000048P00000139
Not seasonally adjusted
Series Title: % of workers in transportation and material moving occupations; sitting vs. standing/walking at will is allowed
Requirement: Physical Demands
Occupation: Transportation and Material Moving Occupations
Estimate: sitting vs. standing/walking at will is allowed
YearPeriodEstimate
2018Annual9.4

Transportation and material moving occupations represent 10.8 million jobs in the economy and just under 1 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 53.  Transportation and material moving occupations (SOC 53-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The cross-examination path when a vocational expert identifies work permitting an SSO focuses first on the availability of the SSO to all workers.  If the SSO is not available to all workers, it is an accommodation.  

Second, cross-examination must establish whether the worker has more than one critical work function that requires different positions (sitting or standing/walking).  Those occupations do not have an SSO, they have the ability to choose when to perform other tasks as long as all the sitting and standing/walking tasks are done during the workday.  

Third, cross-examination or post-hearing development must establish whether the ORS classifies the critical work functions as performed sitting or standing/walking.  If the ORS classifies the work functions as standing/walking, the work does not permit an SSO.  If the ORS classifies the work functions as sitting, then the work might permit an SSO.  That might require further exploration of the first question.  

An SSO is a devastating work limitation as described in SSR 83-12.  
Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.
An SSO for unskilled jobs should be the exception, not the rule  -- unless the Commissioner intends to rescind the statement of binding agency policy. 

Saturday, September 14, 2019

The ALJ Says that the COSS Rejects the O*NET -- What do I do Now?

Our friends at SkillTran post a memorandum from SSA stating that the O*NET is not suitable for use in disability litigation.  The memorandum is in response to a request for information (RFI) dated June 4, 2004.  The question is whether this memorandum licenses the adjudicator to reject O*NET-based information without any other reason. 

As with any question, we start with the law - the statute and regulations.  The statute is silent as to the sources of vocational information.  The regulations provide for administrative notice of reliable job information from governmental and private resources.  Let's assume that in a memorandum that is not published in HALLEX or POMS that the COSS can describe a data set as not reliable.  Let's also assume that this unavailable memorandum survives the Kisor v. Wilkie test for deference or that a court would find it persuasive under Skidmore

The response to the RFI is clear:
SSA has determined through contracted research and through further investigation that O*NET, as it currently exists, cannot be used in SSA’s disability determination process (see Bibliography of research and investigations following).
The critical phrase from the 2004 response to the RFI is as it currently exists.  The question is whether the O*NET exists today as it did in 2004.  The O*NET has updated vocational data over every occupation for work context -- the data that Social Security representative are most interested.  Three occupations were last updated in 2004 and nine in 2005.  The other 1,004 have been updated between 2006 and 2019.  The O*NET does not exist today as it existed in 2004. 

The O*NET changed its taxonomy to version 10.0 in 2006.  The 2019 data set reflects version 24.0.  The O*NET does not exist today as it existed in 2004.  The O*NET now describes:
Occupational Requirements
A comprehensive set of variables or detailed elements that describe what various occupations require.
This domain includes information about typical activities required across occupations. Task information is often too specific to describe an occupation or occupational group. The O*NET approach is to identify generalized work activities (GWAs) and detailed work activities (DWAs) to summarize the broad and more specific types of job behaviors and tasks that may be performed within multiple occupations. Using this framework makes it possible to use a single set of descriptors to describe many occupations. Contextual variables such as the physical, social, or structural context of work that may impose specific demands on the worker or activities are also included in this section.
Work activities that are common across a very large number of occupations. They are performed in almost all job families and industries.
Work activities that are common across many occupations. They are performed in many job families and industries.
Specific work activities that are performed across a small to moderate number of occupations within a job family.
Characteristics of the organization that influence how people do their work
Physical and social factors that influence the nature of work
It is the work context description.  The physical and social factors that influence work are important to the disability analysis.  The data presentation describing the percentages of work within an occupation that require constant contact with others or very important work function of working with a group or team are exactly the kind of data that resolves holes in the DOT. 

And that brings the question back full circle to the Kisor question about deference and the Skidmore question about respect to the ability to persuade.  The Department of Labor is the agency that has the expertise to determine which of its publications constitutes the best source of information about the existence and requirements of work in the national economy.  Labor states about 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.
Whether the DOT, SCO, O*NET, or ORS answers every question about work represents a different question than whether any of those sources answer one or more questions about the number of jobs, the erosion of the occupational base, and the requirements of work.  Which takes us back to the first Kisor question, the regulation is not ambiguous.  The COSS takes administrative notice of reliable governmental data.  The only question is whether the O*NET is reliable and if so whether is answers the specific question that we have today. 
 

Friday, September 13, 2019

Answers to Questions from the New Orleans NOSSCR Conference


20           An example of a cross or rebuttal to “no fast pace production or piece rate quota” ?
The O*NET OnLine describes pace requirement in the work setting.  The data for cashier, for example:
Environmental
%
Response
Pace Determined by Speed of Equipment — How important is it to this job that the pace is determined by the speed of equipment or machinery? (This does not refer to keeping busy at all times on this job.)
0
Extremely important
0
Very important
20
Important
13
Fairly important
67
Not important at all

So cashiers are not pace determined by speed of equipment as extremely important or very important. 

14           Can you please post your slides on your blog?

I posted from:

9             But if you ask the VW, they will say the cashier slides the case of water across the scanner, they will say the VW is not lifting that weight.

The BLS (ORS) states that:
Series ID: ORUP1000066700000663
Not seasonally adjusted
Series Title: % of cashiers; strength is medium work
Requirement: Physical Demands
Occupation: Cashiers
Estimate: strength is medium work
Year
Period
Estimate
2018
Annual
58.6

What is your basis for disagreeing with that finding. 

9             What is the citation for SVP 1 is 4hours demonstration?


5             How do counter a vocational witness that you know is not being forthcoming or honest?

I just want an answer to the question that the Supreme Court directs me to ask:  do you have a reliable methodology for extrapolating your local experience to the national economy?

5             In my experience, if my cross of the VE possibly works, the ALJ finds on another issue, so it is difficult to tell how my cross was received. How can you tell if what you are doing is winning more hearings? Are you just preserving the record for appeal?

I can do this all day long.  If the claimant has significant limitations, you can erase any occupation.  Just persevere. 

4             The payment of MEs/VEs is available through FOIA. How do you suggest we use that as a bias argument?

I don’t have to prove bias.  I have to prove that the testimony is feeble and contradicted.  Stick to what the claimant must prove. 

4             the answer VEs give to cashier lifting a case of water is that it is left in the cast & they don't have to lift it.

The BLS states that cashiers engage in medium work in most jobs, do you have a statistical basis to show that the BLS is wrong?

4             Please zoom in!

Get your free 30 days at www.occucollect.com. 

4             Has SSA formally accepted the ORS data for use in administrative hearings?

ORS provides information about the requirements of work in the national economy conducted under an interagency agreement with the Social Security Administration (SSA).

2             How do you know that JBP uses an equal distribution method? Where does it say that?


2             With the cashier issue and 60% being medium, couldn't the VE just say they could do one of the 40% that is not medium and that's still a significant number of jobs?

The 60% medium is a response to “as generally performed.”  AGP, cashiers are medium. 
If your client can perform the full range of light work, including stand/walk 7+ hours per day, the client is not disabled.  To prove disability for the sub-55 claimant, the record needs to prove a stand/walk limitation, an interaction with others limitation, or something else. 

2             Do you need to buy a subscription to Occu Collect to get all the screens you showed?

www.occucollect.com reproduces in one location the DOT, SCO, O*NET work context, O*NET work abilities, and the ORS.  You can go to four different websites and cobble the data together.  I have done it.  It takes about two hours per occupation.  If you use occucollect, it takes about 20 minutes per occupation once you have done it a handful of time.  The reports that are not available in a report format are the specialty reports that I did not cover, the Sedentary Compendium in the store, and the O*NET education training and experience report.   

2             When a VW says, "this is how the job is generally performed," when we ask about reliable method for extrapolating local experience to national economy, the VW inevitably says it is discussed at conferences, their VW chat groups, etc... how do we knock it out at that point?

What was the reliable methods used in the group?  Did you ask your chat club members about their reliable methods? 
Remember that 100 scientists got together and told the world that Einstein was wrong about relativity. 

2             If you don’t have a letter from the treating physician and the CE puts the claimant at medium. How do you come up with hypotheticals to the VE? How do we assume the amount off task in a day and/or any supportive hypothetical

The CE will typically describe a limitation to six hours of standing/walking.  Medium work requires seven or eight hours of standing/walking.  The CE might have described a limited range of motion for forward flexion.  This is sometimes a fruitful avenue.  Look for gait disturbance in the record, that might give you more. 

2             Is there a Federal Court case that you can cite where the court said the equal distribution method is not a valid way to calculate job numbers?

Chavez v. Berryhill, 895 F.3d 962 (2018)
Brault v. SSA Comm’r, 683 F.3d 443 (2012)

2             Which website was it in which the BLS writes that they maintain DOT only because of SSA, and that if you want reliable current data, go to the O*Net? I'd love to have that webpage so I can print it and submit in every case.


1             What is the BLS?

Bureau of Labor Statistics

1             Good case law on VE - DOT conflict in 11th Circuit (Washington) & 4th. Extend to VE conflict with O-NET etc?

Wait for it.  This depends on Kisor v. Wilkie application to SSR 00-4p.  See the blog at: