Sunday, December 31, 2017

The Occupation-Industry Matrix Gives a Labor Check on Census Numbers

We looked yesterday at the tobacco industry.  I know, some of you are saying, "but that was the last post of the year."  Changed my mind, fickle like that. 

The Census Bureau gave us 2015 job numbers for the tobacco industry of 13,872. 

BLS told us that there were 600 hand laborers and 100 hand packers.  To get those numbers, we used the employment projections sorted by occupation and scrolled to the line for NAICS 312200, tobacco manufacturing.  The BLS provides another useful tool that checks that 13,872 and tells us at a glance how the industry staffs itself:  the occupation-industry matrix by industry.  The industry sort has the line for tobacco manufacturing and the XLSX link to the data. 

BLS reports 2016 industry employment of 12,900 jobs.  That is less than 10% difference, looking at 2015 versus 2016.  BLS projects that the industry will continue to shrink to about 8,000 jobs in 2026.  BLS reports the data for the industry in red, to tell us without reading that this industry is going up in smoke. 

The industry sort gives additional data that makes sense of occupational data from the occupation sort and CBP.  By making sense of the data, I mean ripping the lies out of the vocational expert's mouth. 

Saturday, December 30, 2017

ALJ Says that Leaf Tier Exists in Significant Numbers -- Based on His Anecdotal Experience

The ALJ practiced in Kentucky and he knows that tobacco is a big industry.  There are a couple of problems with his personal opinion.  The first is that the ALJ is wrong. 

Agricultural jobs are seasonal.  The people that pull tobacco (yes, that is the right word, harvesting tobacco is pulling the leaves) do so when the plant is ready for harvest.  It isn't a permanent job that exists in March of any year when County Business Patterns establishes its statistics.  Seasonal work can be relevant.  But agricultural work rides the different harvesting cycles of different crops in different areas.  The Wiki, citing the New York Times, says that tobacco farms employ 30,000 workers annually.  This ranges from planting, cultivating, topping, suckering, and pulling.  The DOT lists the titles and alternate titles that exist in the tobacco farming industry:
TOBACCO CURER 523.682-038
Tobacco Farmworker 404.687-010
Tobacco Grader 409.687-010
Tobacco Grower 404.161-010
Tobacco Packer 920.687-134
Tobacco Weigher 222.387-074
None of these occupations work in the stemming and manufacturing of cigarettes, cigars, chewing tobacco. smoking tobacco, and snuff.  The Appendix for Occupational Titles Arranged by Industry Designation in the DOT lists 390 occupations involved in the tobacco manufacturing industry.  And no, I did not count them.  I copied and pasted into an excel spreadsheet and let software count for me.  

That long list includes hand bander and leaf tier.  

    Wraps trademark band around cigars: Moistens or applies paste to tip end of band and presses ends of band together around cigars. Places banded cigars aside for further processing. 
GOE: 06.04.38 STRENGTH: S GED: R2 M1 L1 SVP: 2 DLU: 77

    Ties tobacco leaves in hands (bundles) to facilitate processing: Selects loose leaves for hand and arranges leaves with butt ends together. Winds tie leaf around butts and pulls end of tie leaf into hand.  GOE: 06.04.28 STRENGTH: S GED: R1 M1 L1 SVP: 1 DLU: 77
So back to the ALJ and his personal experience living around the tobacco agricultural industry.  These two occupations are not in the agricultural industry.  These are manufacturing jobs per the DOT.  

County Business Patterns states that as of March 12, 2015, the entire tobacco manufacturing industry employed a grand total of 13,872 people.  

The OOH puts both of these groups into hand laborers and material movers.  The OOH says:
Hand laborers and freight, stock, and material movers move materials to and from storage and production areas, loading docks, delivery trucks, ships, and containers. Although their specific duties may vary, most of these movers, often called pickers, work in warehouses. Some workers retrieve products from storage and move them to loading areas. Other workers load and unload cargo from a truck. When moving a package, pickers keep track of the package number, sometimes with a hand-held scanner, to ensure proper delivery. Sometimes they open containers and sort the material.
Hand packers and packagers package a variety of materials by hand. They may label cartons, inspect items for defects, and keep records of items packed. Some of these workers pack materials for shipment and move them to a loading dock. Hand packers in grocery stores, also known as grocery baggers, bag groceries for customers at checkout.

Industry 2016
Code Title Employment        Percent of             industry Percent of occupation
TE1000 Total employment 2,628.40        1.7     100
Tobacco manufacturing
0.6         5        0

All hand laborers in the tobacco manufacturing industry, from sedentary to heavy and from unskilled to skilled, represent 600 jobs.  

Industry 2016
Sort Order Code Title Employment Percent of industry Percent of occupation
1 TE1000 Total employment 710.8 0.5 100.0
25 312200
Tobacco manufacturing
0.1 0.9 0.0

All hand packers in the tobacco manufacturing industry, from sedentary to heavy and from unskilled to skilled, represent 100 jobs.

There are a lot of laborers and packers, just not in the tobacco industry.  

Hand laborers don't sit more than 40% of the day or about 3.2 hours.  

Hand packagers sit less, about 10% of the day or about 0.8 hours.  

The ALJ did concede that the tobacco manufacturing jobs probably weren't sedentary.  So he does have that right.  


Saturday, December 23, 2017

Defining Terms - Critical to Proving Disablity

Moderate, simple, routine ... these are just some of the terms that we read and hear in medical records and testimony.  I know what I mean when I use those words, but I am not sure what anyone else means when they use what are essentially terms of art.  The rescinded SSR 96-5p cautioned agency adjudicators against assuming that they know what witnesses meant when using banal terms like light.  The Commissioner promises to provide guidance later on that issue:
However, we are not revising our rules to add text about considering context or to provide examples because we intend to further clarify and provide examples, as appropriate, in our subregulatory instructions.

This draws into focus the need for the representative to demand that medical and non-medical sources define their terms.  Objective phrases need no definition -- 20 pounds.  Periodicity terms have context.  In California workers' compensation, occasional means up to 25% of the day; intermittent means up to 50% of the day; and frequent means up to 75% of the day.  Under that same regulation, a slight pain causes some handicap and a moderate pain causes a marked handicap in the activities percipitating the pain.  The terms have different meanings even though they sound the same that requires a great deal of care in assessing and ascertaining what the doctors meant.  I wrestled with this 20 years ago in Desrosiers v. Secretary of HHS.  The enduring concept of context and that context matters a great deal endures.  

The context bringing the matter to a boil today occurs in a hearing with an awful ALJ from San Francisco.  The ALJ calls a psychiatric medical expert.  ALJs call medical experts to either lock down a denial or to provide a basis to pay and the inherent bias of that ALJ dictates the reason.  The ALJ is looking for a way to deny.  The medical expert testifies to the conclusion that the person could perform simple, repetitive tasks.  If he had left it there, the claimant would have lost on SRT sedentary work.  That work doesn't exist anymore but it takes a Shaibi analysis to prove it.  

But this ALJ really wanted to lock it down, not knowing that he tied his own rope.  
By simple, repetitive tasks, do you mean one and two steps for unskilled work or do you mean three and four steps for semiskilled work?
The medical expert does not respond with unskilled.  The medical expert defines simple, repetitive tasks as one and two steps.  This took the case from eliminating reasoning level 3 work under Zavalin to eliminating reasoning level 2 work under Rounds.  Maybe not eliminating, but at least requiring a reasonable explanation.  Vocational experts rarely confess their deviation and cling to the idea that the DOT is soft and that anything other than a sit-stand option requires no explanation.  After all, "I have 30 years of experience."  

Here the ALJ in one question disclosed his patent bias and latent misunderstanding of the world of work.  I already knew he was a low paying, ready to deny, not a nice guy of an ALJ.  But now I know that he thinks that unskilled work is one- and two-step instructions and that anything beyond that is semi-skilled.  He hasn't read the DOT, is unaware of the world of work, and wants to deny anyone limited to one- and two-step work with identification of cashiers, furniture clerks, and others.  

This colloquy between an ALJ and medical expert racing down the track to hurry up and deny the claim reinforced the need to define the terms and just how important our job is to disabuse those ALJs of their misunderstanding of work and disability.  

Thursday, December 21, 2017

The Pincers of Limitations the Cut Out Unskilled Work

Vocational witnesses will concede the obvious ... sometimes.  This scenario exemplifies that cutting edges of limitations that cut off sedentary unskilled work.

1. No public contact.  A good substitute for no public contact is a limitation to simple repetitive tasks.

Either variation knocks out the ranges of clerical types of work.  Charge-account clerks, election clerks, order clerks, call-out operators, etc. all require reasoning level three and the temperament for dealing with people.  There are fourteen sedentary DOT codes with reasoning level 3 and most require dealing with people.

2.  A unilateral limitation to occasional handling and fingering.  A loss of dexterity substitutes for a loss of frequency but requires a good deal of cross-examination and research to get there.

Of the 137 unskilled sedentary DOT codes, 52 of them are production workers, all other.  These jobs require assembly.  Fourteen of the DOT codes work in quality control.  Twelve are helpers - production workers.  Ten are painting and coating workers.  Six occupations are hand laborers.

Two or more limitations that impact the world of work in different ways, each eliminating a different class of work can result in a concession from the vocational witness that competitive work does not exist for that person, regardless of age.  The problem takes on greater complexity at the light and medium ranges of exertion without an adversity of age because witnesses will rely on presumptive part-time work like ushers and ticket takers.

Wednesday, December 20, 2017

Judge Says He Has No Discretion to Roll Back Three Months

Yep, that is what the ALJ told me in a pre-hearing conference.  I was taken aback.  That isn't my recollection and I have a grasp of the regulations.   Client turned 55 some eight years ago, three months after the date last insured.  I expect a grid finding on the remote onset at the DLI so the judge's statement leaves me scratching my head.  My client was in the waiting room reviewing her E exhibit statements in this USDC remand. I pull out my Google Pixel phone and I do what every representative should do, google it. 

Tying it in:  Social Security Ruling ... no, that isn't right, it is in HALLEX.  Start over:  HALLEX borderline age.  Boom  Feeling like I might have missed something so I verbally dance while reading quickly on the first entry:  HALLEX I-2-2-42.  "Judge, the HALLEX says you have discretion at a few months before the age change to find disability as of the date last insured." 

Judge asks for the cite.  HALLEX I-2-2-42 paragraph B, 1, second bullet.  "You have it backwards counsel."  Deep breath.  Just read the pertinent parts out loud and the judge will get it:

ALJs will assess whether the claimant reaches or will reach the next higher age category within a few days to a few months after the:
 . Date last insured;

Judge reads along.  "Oh, I read that wrong before.  I stand corrected.  Go get your client." 


Serendipity for the day:  HALLEX refers to POMS DI 25015.006 for additional guidance on the borderline age situation.  Need to remember that the next time an ALJ tells me that the corps is not bound by POMS.  

Lesson for the day, the ALJ will get it absolutely legally wrong.  Don't back down; correct the mistake.  Use your smartphone or other device.  It is impossible to anticipate every wrong thing a judicial officer or witness might say.  It is our obligation to correct on the fly and dance like a person possessed as we figure it out. 

Tuesday, December 19, 2017

A Loss for Liberty and Accountability

I had a conversation with a friend over the sexual harassment scandal that sweeps the nation.  One commentator suggested that men over 50 should wake up every morning worrying if their name will come up next.  Last week it started and yesterday it happened; Judge Alex Kozinski of the Ninth Circuit Court of Appeals resigned, effective immediately. 

Whatever label you would like to place on the former jurist, he exuded excellence.  Others can write the biography and highlight his career.  I write to reflect. 

My first argument with Judge Kozinski on the panel was Desrosiers v. Secretary.  That was my first win in the Ninth Circuit, a published opinion that established the proposition that when a doctor says heavy, don't assume that doctor opened up the DOT. 

In MacDonald v. Pan American World Airways, Inc. ESOP, Kozinski dissented and I lost.  I take comfort that he and I were right and the other people in the room were wrong.  "And" is conjunctive and not ambiguous. 

I had a few unpublished cases with Judge Kozinski along the way.  Jantzen sticks out in my mind.  A pure regulatory construction.  Suspension and resumption is not a new start but on the first set of rules. 

In Hearn v. Western Conf. of Teamsters Pension Fund, Judge Kozinski reinforced the notion of statutory construction -- that regardless of the published legislative history, we don't cross words out or make them superfluous in reading the statute.  Start with the ordinary meaning of the words. 

My run with Judge Kozinski ran out in Meanel v. Apfel.  I have long had a growing irritation and disgust with vocational experts.  Here, the court held that we cannot bring in new privately published data to the courts to trump the vocational expert. 

That run continued in Hart v. Massanari.  I cited an unpublished slip opinion in a footnote that literally said there is no authority for a proposition.  That was a "no-no" and I got an OSC from the court ... Judge Kozinski.  I explained my thought process, fell on my sword, and added that the Tenth Circuit thought the no citation of unpublished opinions rule unconstitutional.  Judge Kozinki stood on my corpse and told Judge Arnold from the Tenth that he was wrong. 

A decade later, Judge Kozinski commented "how fond" I was about citing unpublished opinions.  Garcia v. Comm'r of Soc. Sec.  I literally laughed out loud.  Listen to the audio

The other published opinion where I appeared before Judge Kozinski took place in the en banc argument in Crawford v. Astrue.  This case eviscerated the desire of the district courts to use a hybrid lodestar in calculating contingency fees.  Judge Kozinski agreed that the district courts had erred by dissented from the relief sought ... just pay me.  The majority of the 11-judge panel agreed on the error and the relief and chalked that one up for a win. 

Judge Kozinski appointed me as an Appellate Lawyer Representative to the Ninth Circuit.  I went to judicial conferences, rubbed elbows with the judges, and conversed about the mechanics of the court.  Through the arguments, the work as an ALR, and reading Judge Kozinski's opinions in other cases, I attest to the loss to the court, the judiciary, and society.  The sexual McCarthyism seeking to purge will catch good people and rob society of their talents and contributions. 

I am reminded of a thief, adulterer, and murderer.  His name was David.  None of us goes through life perfect or error free.  We need room for reconciliation and forgiveness.  Prosecute the crimes and work on the rest.  When we force excellence out of positions of service because we suspect a character flaw or exercise of poor judgment in the past, ask not for whom the bell tolls.  It tolls for thee. 

Thursday, December 14, 2017

Preschool Teacher -- Not Light Work -- Rebut the DOT

I am getting ready for a hearing but you really need to know this.  You can rebut the DOT.  My case is for a preschool teacher of advanced age and capable of light work.  I expect the vocational expert to tell the ALJ that the job is light per the DOT and thus as generally performed.

    Instructs children in activities designed to promote social, physical, and intellectual growth needed for primary school in preschool, day care center, or other child development facility. Plans individual and group activities to stimulate growth in language, social, and motor skills, such as learning to listen to instructions, playing with others, and using play equipment. May be required to have certification from state. May be designated Teacher, Child Development Center (education); Teacher, Day Care Center (education); Teacher, Early Childhood Development (education); Teacher, Nursery School (education).
GOE: 10.02.03 STRENGTH: L GED: R4 M2 L3 SVP: 7 DLU: 81

There it is light.  But is it.  I checked the Occupational Requirements Survey published by the Bureau of Labor Statistics.  

Latest Observation:Annual 201730.00

Annual 2017 - Annual 2017Minimum Value: Annual 201730.00
Maximum Value: Annual 201730.00
Data Availability:2017 - 2017
Data extracted on: Dec 14, 2017 (11:24:47 AM)
Occupational Requirements Survey

Series Title:Civilian workers; preschool teachers, except special education; pounds maximum weight lifted/carried (25th percentile)
Series ID:ORUP1000037400000235
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Pounds
Industry:All workers
Occupation:Preschool Teachers, Except Special Education
Class of Worker:All workers
Requirements:Physical demands
Type of cases:Maximum weight lifted/carried

That is the 25th percentile and 30 pounds is well beyond light.  

Latest Observation:Annual 201740.00

Annual 2017 - Annual 2017Minimum Value: Annual 201740.00
Maximum Value: Annual 201740.00
Data Availability:2017 - 2017
Data extracted on: Dec 14, 2017 (11:26:14 AM)
Occupational Requirements Survey

Series Title:Civilian workers; preschool teachers, except special education; pounds maximum weight lifted/carried (50th percentile - median)
Series ID:ORUP1000037400000236
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Pounds
Industry:All workers
Occupation:Preschool Teachers, Except Special Education
Class of Worker:All workers
Requirements:Physical demands
Type of cases:Maximum weight lifted/carried
That is the 50th percentile.  As generally performed, the work is not light.  

Latest Observation:Annual 201780.8

Annual 2017 - Annual 2017Minimum Value: Annual 201780.8
Maximum Value: Annual 201780.8
Data Availability:2017 - 2017
Data extracted on: Dec 14, 2017 (11:27:22 AM)
Occupational Requirements Survey

Series Title:Civilian workers; % of preschool teachers, except special education; strength is medium work
Series ID:ORUP1000037400000663
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Preschool Teachers, Except Special Education
Class of Worker:All workers
Requirements:Physical demands
Type of cases:Strength
Now that is definitive.  Preschool teachers require medium exertion.  The DOT is rebutted by governmental data.  

Latest Observation:Annual 201715.8

Annual 2017 - Annual 2017Minimum Value: Annual 201715.8
Maximum Value: Annual 201715.8
Data Availability:2017 - 2017
Data extracted on: Dec 14, 2017 (11:28:28 AM)
Occupational Requirements Survey

Series Title:Civilian workers; % of preschool teachers, except special education; strength is light work
Series ID:ORUP1000037400000662
Seasonality:Not Seasonally Adjusted
Survey Name:Occupational Requirements Survey
Measure Data Type:Percentage
Industry:All workers
Occupation:Preschool Teachers, Except Special Education
Class of Worker:All workers
Requirements:Physical demands
Type of cases:Strength
Makes sense, some preschool teachers engage in light exertion.  We get past step four and straight into step five.  Transferability is present but it is one occupation.  That does not qualify as a range of work.  

Telephone Quotation Clerk as Representative of Other Unskilled Information Clerks

A pure DOT-based assault on the vocational expert's identification of an occupation followed by the dance off the hook, it represents other occupations in other industries.  The depth of vocational expert push to identify work regardless of the truth and to defend the indefensible never surprises me, anymore.  I expect it.  

The vocational expert testified to information clerk, DOT 237.367-046.  This identification came in response to a question that assumed a range of sedentary work with simple, repetitive tasks.  

237.367-046 TELEPHONE QUOTATION CLERK (financial) alternate titles: information clerk, brokerage; quote clerk; telephone-information clerk
    Answers telephone calls from customers requesting current stock quotations and provides information posted on electronic quote board. Relays calls to REGISTERED REPRESENTATIVE (financial) 250.257-018 as requested by customer. May call customers to inform them of stock quotations.
GOE: 07.04.04 STRENGTH: S GED: R3 M2 L3 SVP: 2 DLU: 77

The vocational expert identified this occupation as requiring reasoning level 2.  The DOT describes the work as requiring reasoning level 3.  The DOT defines reasoning level as:

Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.

Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.

Quotation clerk or information clerk is not simple, repetitive work.  The testimony conflicts with and fails to provide a reasonable basis for resolving that conflict.  20 C.F.R. § 404.1566(d)(1); Social Security Ruling 00-4p.

The vocational expert conceded that the occupation with a primary function of answering phone calls for current stock quotations and providing information posted no longer exists.  The vocational expert suggested that other types of information giving clerks could exist in the national economy.  The testimony lacks specificity and did not rely on a labor market survey.  

An information clerk in the clerical industry (and thus applicable across industry lines) requires reasoning level 4 and is semi-skilled. 

237.367-022 INFORMATION CLERK (clerical)
    Answers inquiries from persons entering establishment: Provides information regarding activities conducted at establishment, and location of departments, offices, and employees within organization. Informs customer of location of store merchandise in retail establishment. Provides information concerning services, such as laundry and valet services, in hotel. Receives and answers requests for information from company officials and employees. May call employees or officials to information desk to answer inquiries. May keep record of questions asked.
GOE: 07.04.04 STRENGTH: S GED: R4 M2 L3 SVP: 4 DLU: 86

The oft-cited information clerk in thetransportation-related industries requires reasoning level 4 and requires light exertion because of the standing. 

237.367-018 INFORMATION CLERK (motor trans.; r.r. trans.; water trans.) alternate titles: travel clerk
    Provides travel information for bus or train patrons: Answers inquiries regarding departures, arrivals, stops, and destinations of scheduled buses or trains. Describes routes, services, and accommodations available. Furnishes patrons with timetables and travel literature. Computes and quotes rates for interline trips, group tours, and special discounts for children and military personnel, using rate tables.
GOE: 07.04.04 STRENGTH: L GED: R4 M2 L3 SVP: 2 DLU: 77

The vocational expert’s concession that the telephone quotation clerk does not continue to exist as described in the DOT but that other occupations provide information over the telephone finds its answer in the DOT — information clerks are semi-skilled and require reasoning level 4.  The failure of the vocational expert to identify the occupation identified as requiring reasoning level 3 provides ample basis to conclude that the occupation fails to meet the requirements of the hypothetical posed.  

Monday, December 11, 2017

Boat-Rental Clerk and County Business Patterns Table Presented

The boat-rental clerk ... County Business Patterns report for 532200 and its specific industries including the all other category that contains pleasure boat rentals.

Table Name
Geography Area Series: County Business Patterns: 2015
Release Schedule
The data in this file were released on April 20, 2017.
Key Table Information
Beginning with reference year 2007, CBP data are released using the Noise disclosure methodology to protect confidentiality. See Survey Methodology for complete information on the coverage and methodology of the County Business Patterns data series.
The universe of this file is all operating establishments with one or more paid employees. This universe includes most establishments classified in the North American Industry Classification System (NAICS) Codes 11 through 813990. For specific exclusions and inclusions, see Industry Classification of Establishments.
Geography Coverage
The data are shown at the U.S. level and by State, County, Metropolitan and Micropolitan Statistical Areas, and Congressional District. Also available are data for the District of Columbia, Puerto Rico, and the Island Areas (American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, and the U.S. Virgin Islands) at the state and county equivalent levels.
Industry Coverage
The data are shown at the 2- through 6-digit NAICS code levels for all sectors with published data.
Data Items and Other Identifying Records
This file contains data on the number of establishments, total employment, first quarter payroll and annual payroll.
Sort Order
Data are presented in ascending geography by NAICS code sequence.
FTP Download
Download the entire table at
Contact Information
U.S. Census Bureau
Economy-Wide Statistics Division
Business Statistics Branch
Tel: (301)763-2580

Geographic area name2012 NAICS codeMeaning of 2012 NAICS codeYearNumber of establishmentsPaid employees for pay period including March 12 (number)First-quarter payroll ($1,000)Annual payroll ($1,000)
United States5322Consumer goods rental201519,952143,6701,142,9745,054,050
United States53221Consumer electronics and appliances rental20156,85039,146336,0941,353,400
United States532210Consumer electronics and appliances rental20156,85039,146336,0941,353,400
United States53222Formal wear and costume rental20151,0266,50441,354183,667
United States532220Formal wear and costume rental20151,0266,50441,354183,667
United States53223Video tape and disc rental20152,14815,28794,374398,759
United States532230Video tape and disc rental20152,14815,28794,374398,759
United States53229Other consumer goods rental20159,92882,733671,1523,118,224
United States532291Home health equipment rental20153,19731,972313,2861,297,040
United States532292Recreational goods rental20152,1629,14250,670286,277
United States532299All other consumer goods rental20154,56941,619307,1961,534,907
 Source: U.S. Census Bureau, 2015 County Business Patterns.