Serial Hypothetical Questions - Makes Cross Impossible

ALJ -- I will now ask you a series of hypothetical questions that will the same age, education, and work experience of the claimant. 

The ALJ goes on to ask anywhere from two to seven hypothetical questions.  Which one, if any, represents the eventual finding that will find its way into the ALJ decision denying the claim for benefits.  Does the ALJ know or have a pretty good idea which one of the hypothetical questions constitutes the most likely residual functional capacity?  Pretty sure that the ALJ has more going on mentally than to have a flaccid notion of which question will reflect the finding. 

How does the representative at the hearing cross-examine the vocational expert about the content of three hypothetical questions, each with the identification of jobs existing in the national economy?  The representative must pick apart the material components of the hypothetical questions, one at a time.  Each construct will take time. 

On occasion, the ALJ will announce that the finding will reflect a reduced range of standing and walking as opposed to the first question that assumed an unlimited standing and walking with normal breaks.  But if the ALJ does not favor the record and the claimant with a statement of which one will constitute the finding, the representative must cross on every question that did not result in a statement from the witness of "no jobs." 

In a civil or criminal trial under and adversarial process, no reasonable attorney would try to confuse the jury or judge with a blast of hypothetical questions to the expert.  The attorney would advocate the key factual finding urged and ask the expert to give an opinion about how that fact impacts the ultimate question of fact.  So why would an ALJ ask serial hypothetical questions? 

Part of that answer rests in the attempt to placate the claimant with the thought that the ALJ will pay the case.  After all, the vocational expert said that the claimant could not work in the third hypothetical question that assumed the limitations described by claimant's testimony.  It dampens any consternation of the claimant that the ALJ didn't listen to the testimony or understand what the claimant said.  The last hypothetical question is the placebo and rarely the ultimate finding of the ALJ. 

The rest of the answer rests in the preclusion of intelligent cross-examination.  The ALJ tries to anticipate the other hypothetical questions that the representative or claimant might ask.  But that wastes time.  The representative can ask the question and no representative needs the ALJ to recast the question into words and phrases that change the tenor of the question.  The ALJ asks one to five questions when none of them reflect the theory of the case; the representative would have asked one question; and now we are out of time. 

And that forms the core of the problem.  When an administrative hearing proceeds on the premise that the ALJ seeks to cross the t's and dot the i's to award the claim, that hearing takes about 15 minutes.  When the hearing proceeds on the premise that the ALJ will deny the claim, that case can and should take an hour and maybe two hours.  Most hearings get scheduled 30 to 45 minutes apart, depending on the ALJ.  When the ALJ dallies through hypothetical questions that have no bearing on the eventual disposition of the case, burning up precious time, the ALJ precludes intelligent examination on the bona fide occupational qualifications of the jobs identified, the statistical methods used for estimating the number of jobs, and what the sources of administrative notice say about jobs and numbers. 

The bottom line is simple.  Don't ask serial questions of the vocational expert.  The ALJ is wasting time, preventing cross-examination, and making the process unwieldy.  If the ALJ really does need or want to build a stick figure, one limitation at a time, then the ALJ should tell the representative or claimant which one should form the focus of the cross-examination.  Making representatives and claimants guess with five minutes left in the hearing does not constitute due process. 

Glossary of Terms for the Occupational Outlook Handbook

The Occupational Outlook Handbook proves a glossary of terms.  The important terms and phrases for disability adjudication purposes are:  

Current Population Survey (CPS): a national survey that samples 60,000 households on a monthly basis and collects information on labor force characteristics of the U.S. civilian noninstitutional population; the CPS is conducted by the Census Bureau for the Bureau of Labor Statistics

CPS is an important concept because the Occupational Employment Quarterly uses it -- despite the fact that the employment side of the CPS is not readily available.  It is flawed because it uses a frank aggregation methodology.  See.  

Education: levels of education typically needed for entry into an occupation are classified as follows:

Doctoral or professional degree: degree awarded usually for at least 3 years of full-time academic work beyond a bachelor’s degree; e.g., lawyers,physicians and surgeons, and dentists

Master’s degree: degree awarded usually for 1 or 2 years of full-time academic study beyond a bachelor’s degree

Bachelor’s degree: degree awarded usually for at least 4 years of full-time academic study beyond high school

Associate’s degree: degree awarded usually for at least 2 years of full-time academic study beyond high school

Postsecondary nondegree award: usually a certificate or other award that is not a degree. Certifications issued by professional organizations or certifying bodies are not included in this category. Programs may last only a few weeks to 2 years. e.g., nursing assistants, emergency medical technicians (EMTs) and paramedics, and hairstylists

Some college, no degree: a high school diploma or the equivalent, plus the completion of one or more postsecondary courses that did not result in any degree or award

High school diploma or equivalent: the completion of high school or the equivalent, resulting in the award of a high school diploma or the equivalent

No formal educational credential: signifies that a formal credential issued by an educational institution, such as a high school diploma or postsecondary certificate, is not typically needed for entry into the occupation; e.g., janitors and cleaners, cashiers, and agricultural equipment operators

Work experience in a related occupation: the level of work experience in an occupation related to a given occupation; the work experience captures work experience that is commonly considered necessary by employers or is a commonly accepted substitute for other, more formal types of training or education

Five years or more: the number of years of experience in a related occupation typically needed for entry into a given occupation is more than 5 years

Less than 5 years: the number of years of experience in a related occupation typically needed for entry into a given occupation is less than 5 years

None: No work experience in a related occupation is typically needed for entry into a given occupation 

Education is one of four factors for consideration at step five of the sequential evaluation process.

Employment: the number of jobs in an occupation, including full-time jobs, part-time jobs, and self-employment

We can't establish the number of jobs if we don't have a number to start.

Work schedules: the number of daily hours, weekly hours, and annual weeks that employees in an occupation are scheduled to, and do, work. Short-term fluctuations and one-time events are not considered unless the change becomes permanent

Fixed work schedules: schedules under which employees who work those schedules do so on a continual basis, such as 9 a.m. to 5 p.m.

Flexible work schedules: schedules under which employees set their own hours within guidelines and with a fixed number of total hours

Nonfixed work schedules: schedules of employees who work different hours on one job; often utilized to accommodate particular traits of individual workers or because the work required varies by individual

Rotating work schedules: schedules that have a fixed number of hours and time off over a period of more than 1 week, but not the same set hours

Full time: between 35 and 40 hours, inclusive, of work per week

Greater than full time: more than 40 hours of work per week

Part time: Less than 35 hours of work per week

This may require SSA to rethink the definition of substantial gainful activity as requiring a capacity for an eight-hour workday, forty-hour workweek.  Social Security Ruling 96-8p.

Important qualities: characteristics and personality traits that are likely needed for workers to be successful in given occupations

Qualifications: personality traits, education, training, work experience, or other qualities workers need to enter an occupation 

Qualities: characteristics and personality traits that are likely needed for workers to be successful in given occupations 

Think occupational adjustment.  This forms the substitute for temperaments from the occupational characteristics found in the published versions of the DOT and its companion publications.  One of the unselected characteristics is the temperaments.

On-the-job training: training or preparation that is typically needed, once employed in an occupation, to attain competency in the occupation. Training is occupation specific rather than job specific; skills learned can be transferred to another job in the same occupation.

Internship/Residency: training that involves preparation in a field such as medicine or teaching, generally under supervision in a professional setting, such as a hospital or classroom. This type of training may occur before one is employed. Completion of an internship or residency program is commonly required for state licensure or certification in a number of fields, including medicine, counseling, architecture, and teaching. This category does not include internships that are suggested for advancement.

Apprenticeship: a formal relationship between a worker and sponsor that consists of a combination of on-the-job training and related occupation-specific instruction in which the worker learns the practical and theoretical aspects of an occupation. Apprenticeship programs are sponsored by individual employers, joint employer-and-labor groups, and employee associations. Apprenticeship programs usually provide at least 144 hours of occupation-specific technical instruction and 2,000 hours of on-the-job training per year over a 3- to-5-year period. Examples of occupations that utilize apprenticeships include electricians and structural iron and steel workers.

Long-term on-the-job training: more than 12 months of on-the-job training, or, alternatively, combined work experience and formal classroom instruction, that is needed for workers to develop the skills to attain competency in an occupation. This on-the-job training category also includes employer-sponsored training programs, such as those offered by fire academies and schools for air traffic controllers. In other occupations—nuclear power reactor operators, for example—trainees take formal courses, often provided at the jobsite, to prepare for the required licensing exams. This category also includes occupations in which workers typically need to possess a natural ability or talent—musicians and singers, athletes, dancers, photographers, and actors, among others—and that ability or talent must be cultivated over several years, sometimes in a nonwork setting. The category excludes apprenticeships.

Moderate-term on-the-job training: more than 1 month, and up to 12 months, of combined on-the-job experience and informal training that is needed for the worker to develop the skills to attain competency in the occupation; this on-the-job training category also includes employer-sponsored training programs.

Short-term on-the-job training: 1 month or less of combined on-the-job experience and informal training that is needed for the worker to develop the skills to attain competency in the occupation; this on-the-job training category also includes employer-sponsored training programs.

None: no additional occupation-specific training or preparation is typically required to attain competency in the occupation.

Think SVP.  If the focus is on unskilled work, then none and short-term on-the-job training fit the model.  Everything else requires an explanation.

O*NET: an online research source that provides detailed descriptions of occupations for use by jobseekers, workforce development and human resources professionals, students, and researchers. Created for the U.S. Department of Labor, Employment and Training Administration, by the National Center for O*NET Development

Until we get a replacement for the DOT, this is it.  A lot of the titles are 40 years since last updated.  Industries and occupations have changed.  The O*NET gives a wealth of information about the world of work -- including the sit-stand option.

There isn't a good substitute for examining the glossary personally.

Call-Out Operator (DOT 237.367-014) No Longer Exists

The question today is whether the often cited occupation of a call-out operator continues to exist in the national economy.  Vocational experts cite this occupation in response to hypothetical questions with sedentary exertion and occasional use of the hands.  We start with the concept of administrative notice.

The Commissioner takes administrative notice of the Occupational Outlook Handbook (OOH).  20 C.F.R. § 404.1566(d)(5).  The regulation does not differentiate between the DOT and the OOH age as a source of reliable occupational data of which the Commissioner "will" take administrative notice.  No valid reason exists for comparing vocational expert testimony to the DOT (25 years out-of-date and out-of-print) and refusing to compare vocational expert testimony to the OOH (up-to-date, in print, and available online with its companion publications).

The OOH classifies financial clerks in a broad group of 10 smaller groups.  Included in that broad group is the occupational cluster of credit authorizes, checkers, and clerks.  Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2016-17 Edition, Financial Clerks, The small group designation for credit authorizes, checkers, and clerks bears the SOC code designation of 43-4041.  Id.  

For more information, the OOH refers users to the O*NET, including credit authorizers; credit authorizers, checkers, and clerks; and credit checkers.  Id.  The O*NET for SOC code 43-4041.00, credit authorizes, checkers, and clerks makes clear that it operates as a superset for two more precise designations: credit authorizers (SOC code 43-4041.01); and credit checkers (SOC code 43-4041.02).  O*NET OnLine, Summary Report for: 43-4041.00 - Credit Authorizes,Checkers, and Clerks, OOH states that the occupational group represents 46,100 jobs in the nation; the O*NET describes employment at an even 46,000 jobs. 
  
The sub-group of credit authorizes (SOC code 43-4041.01) contains a single DOT code of credit authorizer (DOT 249.367-022).  O*NET OnLine, Custom Report for: 43-4041.01 - Credit Authorizers.  The O*NET reports the same number of jobs – 46,000 employees.  O*NET OnLine, Detail Report for: 43-4041.01 - Credit Authorizers.  The O*NET describes the occupation as requiring SVP 6 to 7.  Id. 

The sub-group of credit checkers (SOC code 43-4041.02) contains three DOT codes for credit reference clerk (DOT 209.362-018); call-out operator (DOT 237.367-014); and investigator (DOT 241.267-030).  O*NET OnLine, Custom Report for: 43-4041.02 - Credit Checkers.  The O*NET reports the same number of jobs – 46,000 employees.  O*NET OnLine, Detail Report for: 43-4041.02 - Credit Checkers.  The O*NET describes the occupation as requiring SVP 4 to < 6.  Id.  

It is clear and without a doubt that the DOT classified the occupation of a call-out operator as requiring sedentary exertion, reasoning level 3, and SVP 2 (unskilled) in 1991, with a date last updated reference of 1977.  DICOT 237.367-014.  The Commissioner takes administrative notice of that fact.  It is equally clear and without a doubt that the economy has changed slightly in the last 40 years since the occupation was last updated by the Department of Labor for DOT purposes.  Labor now takes the position that the three occupations within the generic classification of credit checkers requires at least specific vocational preparation code 4 and less than 6, i.e. 5. The O*NET defines specific vocational preparation (SVP) in the same manner as the DOT.  O*NET OnLine Help, Specific VocationalPreparation (SVP).  Because the OOH incorporates the O*NET and the latter states clearly that unskilled credit checker work no longer exists.

A vocational expert owes the obligation to explain by reasonable evidence why it is appropriate to rely on a 1977 description of the occupation instead of a 2010 classification.   20 C.F.R. § 404.1566(d)(5).  Administrative notice establishes facts without evidence.  The O*NET establishes that the unskilled variety of this occupation does not exist. 

The EAJA Offset and 406(b) Fees

The Equal Access to Justice Act permits an attorney to obtain a fee outside of the confines of the Social Security Act.  The savings provision (Section 206 of Pub. L. 96–481, as amended by Pub. L. 99–80, §3, Aug. 5, 1985, 99 Stat. 186) provides in relevant part that:

Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code. Section 206(b)(2) of the Social Security Act shall not apply with respect to any such award but only if, where the claimant's attorney receives fees for the same work under both section 206(b) of that Act and section 2412(d) of title 28, United States Code, the claimant's attorney refunds to the claimant the amount of the smaller fee.

 Parish v. Comm'r of Soc. Sec. Admin. reads the same work provision broadly, to include all civil actions on the application.  Morales v. Colvin applied the offset to EAJA fees paid for the work before the agency after remand under sentence six pursuant to Sullivan v. Hudson.

Enter the fray and apply Clark v. Astrue.  Clark holds that the plain text of 42 USC § 406(b) limited the dollar amount of fees awarded for cart work, not the combined fees for administrative work under §406(a) and (b).  The District Court held that it should reduce the amount of withholding by the administrative fee and by the EAJA fee.  The footnote in Clark explains the math:

The district court arrived at this figure as follows: $18,017 (25% of Clark's past-due benefits) minus $5,300 (amount awarded to Ms. Cook under § 406(a)) minus $6,058.68 (amount previously awarded to Mr. Halpern under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, for his representation of Clark in this matter). The district court's $6,058.68 deduction for the prior EAJA award is not at issue in this appeal.

Clark answered the question of whether the court could award $18,017 or whether it could only award $14,717, the amount of the withholding less the administrative fee.  The real question is whether it matters.

The agency will only withhold $18,017 under the facts of Clark.  The Commissioner certifies to the treasury the payment of the administrative fee of $5300.  The Commissioner continues to withhold $14,717.  Once the award exceeds $14,717, the most that the Commissioner will ever pay is $14,717.  The only time in which Clark makes sense is if the motion seeks in the order sets out a payment of $18,017 to the attorneys representing the plaintiff in the civil action for review by the District Court net of the EAJA fees already paid.  If the motion for fees seeks a "net" payment $11,958.32 on the premise that the net payment reimburses the client for the amount of the EAJA fees, all the while ignoring the administrative fee of $5300, and the proposition that the net fee award $758.68 in fee relief, then the savings provision of the EAJA has been satisfied.  In the real world, the most that the Commissioner would ever certify from the withholding is $14,717.  The Commissioner already certified $5300 to the administrative representative.  If the court ordered the fee of $18,017 and the attorney representing the claimant in court received $14,717, the savings provision requiring reimbursement of the smaller of the two fees for the same work would apply, resulting in a reimbursement to the claimant of $6058.68.

The question would then be whether the attorney could engage in self-help to make up the difference in the field awarded by the court ($18,017) in the amount actually certified by the Commissioner and paid by Treasury ($14,717) to the tune of $5300, and then reimbursing the client $758.68 and satisfy the statute.  To be sure, Clark is correct that the court fees and the administrative fees are separately calculated.  But that does not mean that when the available withholding is reduced by an administrative fee award and the residual was paid over to the court attorneys that those attorneys can then invade the reimbursement provisions of the savings award.

The court should never award a "net" fee under 42 USC § 406(b).  The 11th circuit got it wrong, completely wrong in Jackson v. Comm'r of Soc. Sec. Permitting the net fee award simply allows the attorney to evade the reimbursement.  Why else would the attorney have appealed the order in Jackson.   To keep the $3,371.93 in the EAJA fee.  Appealing for an accounting problem -- please.

Production Workers, All Other, and the Occupational Employment Quarterly

Despite the availability of better data, vocational experts continue to rely upon the Occupational Employment Quarterly (OEQ) from United Statistics Publishing (USP)  Confession is good for the soul and here is mine -- for years I defended the OEQ as the only game in town and we needed some source of data as a starting point.  That was more than a decade ago and now I know better.  Today we explore the OEQ and our favorite occupational group, production workers, all other in SOC code 51-9199.

According to the Bureau of Labor Statistics, this occupational group represents 241,910 jobs in the nation.   The Occupational Employment Statistics (OES) relies upon employer's surveys to estimate numbers of jobs in the nation within specific O*NET occupational groups.  The corresponding Census Code, 8965, represents the results of the Current Population Survey.   The Current Population Survey is the result of a survey of households, workers, asking them what they do.  BLS publishes a compilation of the current population survey stating that production workers, all other, represents 944,000 jobs.  That leaves a discrepancy of over 700,000 jobs between the two data sets, a discrepancy beyond the focus of this article.

In the fourth quarter of 2016, USP states that production workers, all other represents 760,983 jobs in the nation.  USP accurately states that the occupational group represents 1589 distinct DOT codes.  In the unskilled range of work, USP estimates the number of sedentary, light, medium, and heavy jobs:

Sed.         Light        Med.       Heavy +
24,903     193,957    88,598    20,593

Let's do the math, just for fun.

760,983 / 1589 = 478.91

The average number of jobs within production workers, all other, assuming the accuracy of the aggregate job numbers reported by USP is thus 478.91.  I rounded up, use your calculator to get a more accurate number.

If we assume 52 sedentary unskilled the DOT codes within the SOC code/OES group/Census code, we get 24,903.  How many sedentary unskilled DOT codes exist within 51-9199/8965?  The answer is 52.

Dividing 193,957 by 478.91 yields 405.  How many light unskilled DOT codes exist within 51/9199 and 51-3099 or census code 8965?  The answer is 405.

Dividing 88,598 by 478.91 yields 184.999 or 185.  How many medium unskilled DOT codes exist within 51/9199 and 51-3099 or census code 8965?  The answer is 185.

Dividing 20,593 by 478.91 yields 42.9997 or 43.  How many heavy unskilled DOT codes exist within 51/9199 and 51-3099 or census code 8965?  The answer is 43.

USP states that the semiskilled and skilled ranges of work aggregate two 432,933 jobs.  Dividing that number by the average number of jobs per DOT code comes out to 904.  Adding together the results of our divide and conquer request from the sedentary, light, medium, and heavy ranges of work brings the total number of occupations to 1,589.   By doing the math, we have ascertained that USP uses an aggregation methodology that starts at the aggregate number of jobs within the Census code.  The methodology assumes that every occupation within the group represents the same number of jobs.  Statisticians call this aggregation error.

If we take a look at USP's other publication, The specific Occupational-Unskilled Quarterly (SOEQ), we can readily ascertain that the number of jobs described in the OEQ as belonging in 51-9199/8965 is wrong.  Adding up the 52 sedentary occupations totals 14,432 jobs.

If USP has used a valid measure for estimating the number of sedentary unskilled jobs, then USP would have the same result in both publications.  USP does not have the same result in both publications because the two publications use a vastly different methodology for estimating the number of jobs.  The OEQ uses a frank aggregation, dividing the number of jobs by the total number of DOT codes and then multiplying by the number of DOT codes within a specific classification, e.g. sedentary and unskilled.

The SOEQ uses the industries to estimate the number of sedentary unskilled jobs.  But the SOEQ reports that 11 different DOT codes have exactly the same number of jobs, 193.  There are several sets of pairs were two occupations have the same number of jobs.

What is clear is that it is unreasonable to rely upon the OEQ to estimate the number of jobs.  USP does not start with the BLS job number reported in the OES.  USP does not start with the number of jobs reported in the Occupational Outlook Handbook.  The starting point for the number of jobs is unreliable; the methodology is invalid; and the other publications from USP demonstrate that the OEQ is not substantial evidence.