Friday, June 30, 2017

Social Security Ruling 00-4p Warrants No Deference

Social Security Ruling 00-4p warrants no deference concerning the content of the Dictionary of Occupational Titles (DOT).  The ruling states in relevant part that:
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.
It all started in 1995 with the Eighth Circuit decision in Jones v. Chater. The court said:
In other words, in our view, the reference book gives the approximate maximum requirements for each position, rather than their range.
Several courts (in about 30 cases) cite to Jones for that proposition.   The Commissioner published SSR 00-4p with the statement we looked at above.  The question is whether the DOT lists the maximum requirements or something else.  Examining the DOT answers that question:
Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.
See DOT Appendix D.   Typical does not imply maximum.  Typical implies the average.  Don't take my word for it, use the dictionary.  Merriam Webster defines typical:
1. a :  combining or exhibiting the essential characteristics of a group typical suburban housesb :  conforming to a type a specimen typical of the species
By defining the DOT descriptions as typical and using the English language to do so, the Department of Labor set forth the naked proposition that the DOT characteristics set forth the essential characteristics of the work set forth in the DOT itself.

When the Commissioner or a court says that the DOT describes the maximum requirements of the occupations defined, put on the brakes and cite to the DOT Appendix D.  The DOT does not belong to SSA and the SSA does not get to construe the DOT contrary to the construction provided by Labor.  The ruling gets no deference in defining the content of the DOT.  The ruling defines the concept of administrative notice.  On that latter point, the Commissioner gets deference.  

1 comment: