Friday, March 25, 2016

Lockwood is Dead, Long Live HALLEX

This goes in the category of "I told you so." 

Lockwood v. Commissioner Soc. Sec. Admin.  stands for the proposition that an ALJ need not discuss why she didn't use a higher age category in a borderline age situation.  The court rejected use of POMS  DI 25015.005(B)(4) as applying to the burden of explaining the decision to use the chronological age -- because it wasn't in force when the ALJ decided the case; because it conflicted with HALLEX II-3-5-2; and because the courts don't enforce either HALLEX or POMS. 

We know that when the agency tells us what a regulation means, that interpretation of the regulation is controlling unless plainly erroneous or inconsistent with the regulation.  Washington State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler ("While [POMS]administrative interpretations are not products of formal rulemaking, they nevertheless warrant respect."  Keffeler continues:
In short, the Commissioner's interpretation of her own regulations is eminently sensible and should have been given deference under Auer v. Robbins
Auer gives controlling deference to an interpretation of a regulation unless plainly erroneous or inconsistent with the regulation.  We eliminate strike three against POMS; let's look at strikes one and two. 

Strike two and inconsistency with HALLEX falls today.  HALLEX I-2-2-42 states clearly that the ALJ will explain why she used the chronological age instead of the higher age category whenever the borderline age situation occurs.  HALLEX and POMS now agree, an explanation is due. 

Strike one and applying the interpretation to the case the court has before it -- IS NOT A RETROACTIVE PROBLEM.  In re Schooner Peggy holds that the court applies the law in effect at the time of decision, not the law in effect at the time of the act.  The Supreme Court grants an exception to prevent manifest injustice.  The ALJ is not a party to court proceedings and it is not unjust to have administrative decisions get decided according to the law as we now understand it. 

Lockwood is dead.  Long live HALLEX ... and POMS too. 


Vocational Experts Will Say Anything

Woman is closely approaching retirement age, limited education, and past relevant work as a sample maker in the garment industry -- light as generally performed and medium as actually performed.

Q. Assume an individual this lady's age, education, and past work history, and let's say she could -- she is literate, not fluent in English and she could perform at a reduced range of light, in that she can only stand and walk up to four hours in an eight-hour day, she can only occasionally bend, stoop, squat, kneel. No crawling, or ladders, or scaffolds. Would that preclude the past work?

A.  No, it should not.

Q. At least. as it's typically performed, I gather?

A. As it's typically performed, yes.

Q. Okay, thank you.

A. Because there's going to be -- obviously, there's -- a sample makers doing multiple functions, but clearly, they are doing a lot of sewing. So, clearly, there would be standing four hours. Could be standing four hours, sitting four hours.

What's Wrong?

The vocational expert affirmatively testified that the claimant could perform work as the occupation is typically performed.  Check that box, the claimant loses at step four of the sequential evaluation process.  20 CFR 404.1520.  But did the witness hold that line?

Clearly there would be standing four hours.  Clearly at least or clearly at most?  Just to make sure that the witness did not walk it back, check the next sentence.  "Could be standing four hour, sitting four hours."  Really?  Could be?

As I say when I travel in Mexico and with Spanish speaking friends and relatives, yo tiengo una pregunta para ti.  I have a question for you.

All the time four and four?  Everyday four and four?  Some days exceed four hours of standing and walking?  One day a week/month/semi-monthly as typically performed more than four hours of standing and walking?  DOT 785.361-018 --
sewer; sample tailor Marks and cuts out material and sews parts of new style garments, following patterns, sketches, and design specifications, to prepare sample garments: Selects garment parts and threads, according to design specifications. Positions and aligns parts of sample garment together, following markings on parts, sketches, and patterns. Sews parts and attaches accessories and ornamentations, using needle and thread or sewing machine. Drapes garment on model form, examines fit and hang of garment, and marks garment to indicate position of fasteners and trimmings, such as sashes, belts, and emblems.

And the claimant is not fluent in English. This occupation requires Language level 3. DOT Appendix C:
Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.
Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech.
Speak before an audience with poise, voice control, and confidence, using correct English and well-modulated voice.
Perhaps the employer arranged work for a claimant that was not fluent in English and part of that trade-off is the greater exertion, medium instead of light.  But the question did not call for the ability to read, write, and speak in English according to the DOT protocol.  See Pinto v. Massanari

Vocational experts will say just about anything.  An opinion that does not withstand scrutiny.  Equivocated and failed to explain the language problem. 

Wednesday, March 2, 2016

Rudolph Patterson, NOSSCR founder, has passed

Rudolph Patterson passed away this past weekend.

I had the pleasure of working with Rudolph for eight years on the NOSSCR board.  Rudolph was the quasi-permanent member of the board elected by the Council of Past Presidents to counsel the current board of directors elected by the various circuit members.  I served as the Ninth Circuit representative for two years and then followed the executive committee track through treasurer, secretary, vice president, and then president.  I then served on the board ex officio as the immediate past president and the second immediate past president.  I now cycle on when my turn arises.

It was there that I knew Rudolph.  He reported on matters of attorney/representative discipline.  These always involved one of my favorite subjects -- ethics.  Rudolph provided wise counsel to the board on matters big and small.  The organization had the privilege of his institutional knowledge not for years but for decades.

NOSSCR is less with his passing.