Tuesday, May 21, 2019

Past Relevant Work as a Sewing Machine Operator -- Over 55

A claimant is limited to sedentary exertion.  She is over 55; a limited education; marginally capable of speaking, reading, and writing in English.  This claimant has past relevant work as a sack repairer, DOT 782.687-046.  The ALJ defines and the opinion evidence supports a version of sedentary work that limits sitting to six hours in an eight-hour day.  The vocational expert testified that such a person could perform her past relevant work.

Capable counsel asks the vocational expert the quickest path to prevailing on the claim -- can a person perform the sustained requirements of sack repairer while sitting just six hours a day as opposed to seven or more hours per day.  The vocational concedes the obvious -- these jobs require prolonged sitting beyond six hours in a day.  The ALJ interrupts that if the claimant can sit for six hours, she can perform sedentary work, period and end of story.  The ALJ is wrong.

The DOT definition describes the range of work:
Sedentary Work - Exerting up to 10 pounds of force occasionally (Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
 /The regulatory definition is substantially the same:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
The critical part of both definitions is "if walking and standing are required only occasionally."   Per the DOT, occasionally means up to 1/3 of the time.  Up to does not mean always, it means not more than.  We turn to SSR 83-10 to chase down the definition:
"Occasionally" means occurring from very little up to one-third of the time. Since being on one's feet is required "occasionally" at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.
The ruling uses the phrase not more than about two hours, imprinting the concept that a singular gloss of how sedentary work gets performed does not apply.  There is a ceiling for the amount of standing/walking required but the ceiling is not a floor.  The confusion intensifies when the ruling states that sedentary work requires six hours of sitting in a workday.  But that is not what the ruling says.  The ruling describes "sitting should generally total approximately six hours in an eight-hour workday."  Generally points to the typical, average, or median occupation -- generally does not mean all or almost all. Even if the latter almost all applied, the proof would need to exclude the exception.

We are looking at sack repairer and return to reliable governmental published data.  We start with the O*NET OnLine:

51-6031.00 - Sewing Machine Operators

Exertional%Response
Spend Time Sitting — How much does this job require sitting?
70
Continually or almost continually
14
More than half the time
8
About half the time
9
Less than half the time
0
Never
The group of sewing machine operators has some variation but the majority require continual or almost continual sitting (70% of the jobs).  We should have the suspicion that sewing machine operators sit more than six hours per day.  That data confirms the vocational expert's testimony in this test case -- sewing machine operators sit more than six hours in a day.  We search for statistical confirmation of that suspicion in the Occupational Requirements Survey:

51-6031.00 - sewing machine operators

Sitting, Standing, Walking Report


Hours Sitting Calculations
HoursPercentileJobsCalculation
5.56Mean153,900Not Applicable
010%153,90015,390
<= 750%153,90076,950
<= 7.8375%153,900115,425
<= 890%153,900138,510

We see that 10% of the jobs have negligible or no sitting but median requires 7 hours of sitting in a workday. The percentages of the day shed more light on the question:

Sitting is Required Calculations
% Of DayPercentileJobsCalculation
<= 69%Mean153,900Not Applicable
<= -%10%153,90015,390
<= 87.5%50%153,90076,950
<= 95%75%153,900115,425
<= 100%90%153,900138,510

The BLS statistics confirm the ETA conclusions that the majority of jobs require sitting more than six hours in a workday.  If the claimant describes past relevant work as sitting all day, a limitation to sitting six hours in a day eliminates the ability to perform past work as actually performed.  The Department of Labor takes care of the occupation as generally performed.  This claimant cannot perform past relevant work either as actually performed or as generally performed.  She takes advantage of the sedentary grid table and is irrebuttably presumed disabled.

Let us assume that the Commissioner takes administrative notice that sedentary work requires about six hours of sitting in a workday.  That notice is not part of rulemaking with notice and comment.  Therefore, the claimant has the right to notice and an opportunity to show the contrary under Heckler v. Campbell.  Even if SSR 83-10 stated that sedentary work required six hours of sitting and two hours of standing/walking as invariable facts, which the ruling does not imply when read completely, we can and must prove the contrary in appropriate cases.

Friday, May 10, 2019

Case Study -- Younger Individual, Limited Range of Light, Non-Exertional Impairments

Sometimes the resources of the O*NET and ORS just are not useful.  Take the example of a younger individual with a limited range of light.  ALJ asks the questions that don't get "there."  The ALJ asked eight hypothetical questions. 
1. Seizure precautions - past work available.
2. 1+ medium work - past work available.
3. 1+ light work - no past work, but other work as an information clerk; ticket taker; and parking lot attendant.
4. 3+ limited to four hours of standing and walking - other work as an information clerk; ticket taker; and parking lot attendant.
5. One absence a month - no change.
6. Two absences a month - no work.
7. Off task 5% of the day - other work as an information clerk; ticket taker; and parking lot attendant.
8. Off task 10% of the day - no work.
Cross-examination considers first -- can we knock this down to sedentary.  The SSA form says 2 hours of standing and separately 2 hours of walking. 
9. Seizure precaution and two hours of standing/walking combined - other work as an information clerk; ticket taker; and parking lot attendant.  
I know that information clerks and receptionists have a broad range of sitting and it does not matter if the work is light or sedentary.  VE confirms that these three occupations can sit all day. There is no medical evidence of a sitting limitation.  Move one. 
10.  Extreme limitations in the social functioning caused by poor judgment - no jobs.  
That is what the psychiatrist CE said.  The answer is expected.  Idle it back. 
11. Marked limitations in the social functioning caused by poor judgment - no jobs. 
12. Moderate limitations in the social functioning caused by poor judgment, chronic and recurring - no jobs.  
The minimalist approach works. 
13.  Rare, once a week, inappropriate with supervisors in accepting instruction and responding appropriately to criticism from supervisors - no jobs.  
Accepting a small part of the psych CE and pushing the limitation way down equals no jobs.  The lesson is when a limitation is potentially overstated, understate it in such a way that the answer is still no jobs.  See POMS DI 25020.010 for Mental Limitations for the critical requirements of unskilled work. 

Wednesday, May 8, 2019

A Case Study -- ALJ Finds the Vocational Expert Not Reliable and Schedules a Supplemental Hearing

The first hypothetical question to the vocational expert had no exertional limitations; no ladders, ropes, scaffolds, heights, proximity to moving machinery, hazards, or commercial driving; and limited to simple routine tasks.  Vocational expert identifies bagger (920.687-014) with 136,000 jobs in the nation. 

ALJ interrupts and adds light exertion to the residual functional capacity.  Vocational expert identifies cashier (211.462-010) with 682,000 jobs in the nation and garment sorter (222.687-014) with 72,000 jobs in the nation. 

ALJ adds no work with small objects, no printed circuit boards.  The vocational expert states the prior testimony still applies.  The ALJ asks about coins.  Vocational expert stands her ground.  ALJ asks for another occupation anyway.  The vocational expert identifies housekeeper (323.687-014) with 377,000 jobs in the nation.

The case is about a mental impairment.  The ALJ asks the vocational expert to assume occasional interaction with the public, coworkers, and supervisors.  The vocational expert eliminates cashier and bagger.  The vocational expert offers an alternate occupation -- office helper (239.567-010) with 62,000 jobs in the nation.  The vocational expert describes office helper as more or less filing, working more with office machinery than people and certainly not dangerous. 
ALJ: Any questions, counsel?
ATTY:  Yes.
We have office helper, housekeeper, and garment sorter to address.  I first focus on office helper.  I ask the vocational expert to read the DOT narrative into the record.  She doesn't have it in front of her, so I read it to her. Office helpers:
Performs any combination of following duties in business office of commercial or industrial establishment:
Furnishes workers with clerical supplies.
Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail.
Delivers oral or written messages.
Collects and distributes paperwork, such as records or timecards, from one department to another.
Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine.
That sounds different than what you described.  The vocational expert concedes. 
Q: What is the occupational group in which office helper is classified by Labor?
A: SOC 43-5021.
Q: What is the name for that group.
A: Couriers and messengers.
Q: Is it your testimony that couriers and messengers have occasional contact with other people?
A: I rely on my experience.
Q: If I represent to you that the Department of Labor classifies this occupation as having frequent or constant contact with other is 99% of jobs, do you have a statistical basis for rebutting that classification?
A: No.
The occupation might be out but only if the residual jobs do not add up to 62,000 jobs. 
Q: Do you agree with the estimate from Labor that this group represents 95,000 jobs?
A: That sounds right.  
At this point, the ALJ continued the hearing to that afternoon.  When we come back, the ALJ states that she reviewed her notes and the vocational expert in this case was just not reliable.  Knocked out the witness. 

The next item on the cross list was housekeeping cleaners.  That kind of work requires more than occasional contact with others in 95% of jobs.  Maids and housekeeping cleaners work with a group or team in 99% of jobs.  Maids and housekeeping cleaners work work part-time in 60% of jobs. 

The last occupation on the list is garment sorter.  This occupation belongs to the ubiquitous group of production workers, all other (SOC 51-9199).  Production workers are not addressed in the O*NET.  The 2018 data set of the ORS describes the occupational group as 53% unskilled and not more than 36.1% light exertion.  The 2018 data set does not have the cognitive data, so I would have flipped back to the 2017 data set.  Contact with regular contacts is continuous in 24% of jobs and more than once per hours in 43.8 % of jobs.  The 2016 data collection that lead to the 2017 data release had four categories for contact with regular contacts and contact with other contacts:
(A) Constantly, every few minutes.
(B) More than once per hour, but not constantly.
(C) More than once per day, but not more than once per hour.
(D) No more than once per day; includes never.
(A) = constant; (B) = frequent; (C) = occasional; and (D) = seldom or never.  

BLS did not collect cognitive data for the 2018 data set but tells me that it will in the 2019 data set.  The 2018 Occupational Requirements Survey (ORS) Collection Manual, Version 4.0 lists the same hierarchy.  

The data exists and the vocational experts cannot rebut the statistical data from Labor.  They can differentiate occupations based on variance within the economy but when the variance is addressed by the data, then the vocational expert is there as a guide and not much more.  

To have all of this data ready on the fly, I use www.occucollect.com.  When the vocational expert relies on Job Browser Pro, I use the program post hearing.  When the vocational expert relies on the Occupational Employment Quarterly, I address the equal distribution method as unreliable. 

Saturday, May 4, 2019

Case Study - Limited Range of Sedentary - No Work

We look at a prior denied claim subject to the continuing presumption of non-disability.  The presumption attaches in the Ninth Circuit, Sixth Circuit, and the Fourth Circuit.  The Sixth Circuit has an additional Acquiescence Ruling to address.  The continuing presumption shifts the burden to the claimant to show changed circumstances.  We start the case study with the prior residual functional capacity assessment:
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except she can climb ramps and stairs occasionally. She can never climb ladders, ropes, or scaffold. She can stoop occasionally, but never kneel, crouch, or crawl. She can balance frequently. She should avoid unprotected heights, moving machinery, and vibration. She should be in a clean-air work environment meaning low levels of pollutants and stable temperatures. She would require a sit/stand option in thirty-minute intervals. She should work in a moderate noise environment. She is limited to simple, routine, and repetitive work and a low-stress work environment, which means none production-oriented work, but can do goal-oriented work. She can have only occasional contact with supervisors and coworkers. She could interact with small group of coworkers, as long as those interactions were infrequent and superficial. She can have little to no interaction with general public. She can have only occasional changes in the work setting. She cannot do work that would require directing others, abstract thought, or planning. She can only make simple, work related decisions.

The vocational profile is a younger individual, at least a high school education, able to communicate and literate in English, and no past relevant work.  ALJ announces that he will find changed circumstances, that the claimant has additional impairments or additional limitations and asks for an opening statement.  Claimant argues that she wins on the prior residual functional capacity and if that isn't enough, she wins on the additional limitations.  ALJ propounds the  residual functional capacity to the vocational expert -- no jobs. 

The prior ALJ decision accepted vocational expert testimony identifying work as:
inspector (DOT: 669.687-014), with 100,000 jobs in the national economy; assembler (DOT: 734.687-074), with 100,000 jobs in the national economy; and packer (DOT: 209.587-010), with 80,000 jobs in the national economy.
Put aside the question of the job numbers.  They are utter garbage.  We are focused on the first question of whether occupations exist regardless of job numbers.  Inspector is dowel inspector in the woodworking industry.   The woodworking industry exists in the manufacturing sector.  It is repetitive work.  It is a production occupation. 

Assembler is slide-fastener-chain assembler in the button and notion industry.  The button and notion industry exists in the manufacturing sector.  Assembler is repetitive work.  It is a production occupation. 

Packer is misidentified.  The DOT code refers to addresser.  That occupation is obsolete.  Packers could point to ampoule sealer or hand bander -- both production related work. 

The world of work for simple tasks involves mostly production work.  Simple and limited contact with others wipe out clerical unskilled work.  We must see limitations as erosive and cutting.  When the limitations attack the world of work from opposite directions, there is rarely anything left. 

The ALJ accepted the vocational testimony and stated the intent to issue a favorable decision -- on this application.  The other application is too far gone to reopen and revise. 

Tuesday, April 30, 2019

What You Need to Effectively Cross-Examine Vocational Experts

We talked about Biestek v. Berryhill, 139 S. Ct. 1148 (2019) last week.  The question is how to create conflict.  It starts with basic curiosity.  "How do you know that?"  "How does that work?"  Once the curiosity takes root, we begin to use the data sources available to disassemble the vocational expert's testimony; we begin to understand.  Here's is what a representative handling Social Security disability cases needs to be minimally ready to follow along with the vocational expert's testimony on cross-examination:

  1. Access to the Dictionary of Occupational Titles;
  2. Access to the Selected Characteristics of Occupations
  3. Access to the electronic files of the DOT/SCO;
  4. Access to the Revised Handbook for Analyzing Jobs:
  5. Access to the O*NET OnLine;
  6. Access to the O*NET Resource Center;
  7. Access to the Occupational Outlook Handbook
  8. Access to the Employment Projections;
  9. Access to the Occupational Employment Statistics;
  10. Access to the County Business Patterns; and 
  11. Access to the Occupational Requirements Survey.  

Those 11 sources form the foundation of the statistics that most vocational experts do not grasp.  They cite to the Bureau of Labor Statistics without understanding or knowing that a difference exists between the OES and the EP.  But we have to know the differences exist and the significance of those differences.  Vocational experts cite to the DOT/SCO, act as if it is controlling, and then deviate unknowingly.  We have to know when they deviate and when that deviation matters. 

For items 1-3, the U.S. Publishing provides the data in the Specific Occupation Selector.  USP uses current population surveys for job numbers.  USP uses equal distribution to estimate job numbers for occupational groups, SOC codes. 

For items 1-4, WestLaw provides the data in a single page report by DOT code.  WestLaw does not provide job numbers or access to job numbers, correlation with the O*NET, OOH, OES, EP, CBP, or the ORS. 

For items 1-4 and 9, Job Browser Pro provides access to the data.  JBP integrates the OES with industry designations found in the EP and the CBP.  JBP hyperlinks to the O*NET.  JBP lists data from out-of-date versions of the OOH.  JBP uses an intersection of occupational group and industry to estimate job numbers at the intersection and then equal distribution within that intersection of SOC and NAICS codes. 

For items 1-8 and 11, OccuCollect provides the data.  OccuCollect does not provide data for the OES (coming later this year) or integrate CBP.  The focus is on the incidence of work across the occupational group using a DOT code as an example.  OccuCollect estimates job numbers based on a cascaded approach to characteristics within an occupational group across (or ignoring) industry designations. 

We need to have access to all the data.  We need the data to ask whether occupations exist and if occupations exist, how many jobs exist.  Those are the two Biestek questions.  If we don't create a conflict, the vocational expert testimony will stand.  Create the conflict. 

Monday, April 29, 2019

How Does the Department of Labor Define the Sit-Stand Option?

The sit-stand option is a common thread in the adjudication of Social Security disability cases.  The ability to sit or stand at will of the worker to address the presence of pain or other physical discomfort arises with regularity.

Some ALJs describe the sit-stand option as changing positions with the loss of productivity or efficiency.  That assumption -- that a person can change positions at will without the loss of productivity or efficiency -- lacks the support of substantial evidence.  Getting up requires diverting the hands and arms while using the feet or legs for balance with the added concept of core strength that necessarily distracts from the productivity or efficiency of the job functions, unless the person has a job that is not physical.  These jobs have "not significant" codes for data and things at the fourth and sixth digits of the DOT codes.  See DICOT Appendix B and the free DOC/SCO/SCO summary report for all 13,000 DOT codes on OccuCollect.  (You must register to get free reports, that is all).

The observation starts the inquiry with the premise that SSA adjudicators do not know what a sit-stand option means.  It starts with the training and extends with adjudicatory bias.  The analysis starts with the Department of Labor nomenclature: "sitting vs. standing/walking at will."
Sitting or standing at will - workers can alternate between sitting and standing. Sitting or standing at will is present when the following conditions exist:
  • Workers typically have the flexibility to choose between sitting and standing throughout the workday. Riding a bicycle includes pushing or pulling with feet and legs; while mowing may include gross manipulation or pulling and pulling with the hands and arms.
  • There is no assigned time during the day to sit or stand.
  • No external factors determine whether an employee must sit or stand.
While there may be tasks that require workers to be sitting or standing, if workers can determine when to perform that specific critical tasks, then they may still have the ability to sit or stand at will. For example, 95.4 percent of computer systems analysts can choose between sitting, standing, or walking at will while 97.7 percent of workers in food preparation and serving related occupations cannot choose between these physical demands.
 The three elements that make up the sitting vs standing/walking at will are flexibility, the absence of an assigned time to sit or stand, and the absence of external factors that require the worker to sit or stand.  The first sentence of the explanation synthesizes the three elements: when a job requires sitting or standing to perform job duties, the sitting vs standing/walking at will exists when the worker can choose "when" to perform those critical tasks.

The 2016 and 2017 data sets had very limited estimates for sitting vs standing/walking at will.  The 2018 data set, released April 25, 2019, has a more expansive list of occupations that permit the sitting vs standing/walking at will.  These include the ubiquitous production workers, all other, (SOC 51-9199).

Don't let the inclusion of a sitting vs standing/walking at will get too overwhelming -- the number of jobs that permit sitting vs standing/walking at will is 23.6%.  That does not change 53% of jobs that do not require skills (SVP 2),  the 63.9% that require medium exertion, or that production workers stand/walk 87.5% of the day at the 25th percentile.  Sitting vs standing/walking at will does not represent an elimination of whether the worker must sit or stand, it changes the when the worker will sit or stand.

Labor will continue to describe work as it is actually performed in the national economy and SSA will likely continue to listen to its own institutional bias and uninformed vocational experts.  Labor does not have a dog in the fight and is therefore inherently more trustworthy.  SSA must abide by its promise to take administrative notice.

Wednesday, April 24, 2019

Biestek v. Berryhill -- Some Plums to Pick

Biestek v. Berryhill, 139 S. Ct. 1148 (2019) is in the books and it is the law of land.  The proposition that the agency will lever is the restatement of substantial evidence:
Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938)(emphasis deleted). And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." Ibid.; see, e.g., Perales, 402 U. S., at 401 (internal quotation marks omitted). It means—and means only—"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527 U. S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
 The question for the practitioner, that the majority did not answer, is whether 240,000 bench assembler jobs or 120,000 sorter jobs nationwide is adequate to persuade the reasonable mind.  The Court found on the uncontradicted record that the naked testimony of vocational evidence was substantial evidence.  The majority opinion observes, "And nothing in the rest of the record conflicts with anything she says."  When that happens, the claimant always loses absent frank conflict with the DOT/SCO. 

There is no "gotcha" in cross-examining vocational experts.  No one question that guts the evidence spewed out. 
Biestek v. Commissioner of Social Security, 880 F. 3d 778 (2018) [...] recognized that the Seventh Circuit had adopted the categorical rule Biestek proposed, precluding a vocational expert's testimony from qualifying as substantial if the expert had declined an applicant's request to provide supporting data. See id., at 790 (citing McKinnie v. Barnhart, 368 F. 3d 907, 910-911 (2004)). But that rule, the Sixth Circuit observed in joining the ranks of unconvinced courts, "ha[d] not been a popular export." 880 F. 3d, at 790 (internal quotation marks omitted). 
And no more is it so today.
No key that unravels the vocational expert testimony. 

Biestek gives the out. Because the claimant loses in the absence of contradictory evidence.  The obverse is therefore the path to changing the vocational evidence into insubstantial evidence.  Just old fashioned bare knuckle lawyering. 
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 task of the representative at the hearing or on review to the Appeals Council is to make the vocational expert look feeble.  The representative must gut the vocational expert, from top to bottom.  
She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.
The attack examines the survey, looks at the specific information, explores the process of extrapolation, and assesses whether the witness used a well-accepted methodology.  The agency won the battle in Biestek but cannot win the war.  The vocational experts either use a well-accepted methodology or the representative goes to the mattresses.  Of course the representative that does not eviscerate the vocational expert during the hearing or in a post-hearing submission to the agency falls below the standard of care.  Some people call that malpractice.