Thursday, May 10, 2018

Cashiers and the Work Week -- Part Time is Not Presumptive SGA

Cashiers -- a favorite for vocational experts to identify when the claimant does not have a public contact limitation or a limitation to simple, repetitive tasks.  Cashiers require reasoning level 3.  The middle digit of the DOT (6) tells us that the occupation requires speaking-signalling.  Cashiers need average verbal aptitude to succeed in the job.  Cashiers frequently talk and hear.  DICOT 211.462-010.

The Occupational Outlook Handbook estimates that cashiers represent 3,555,500 jobs in the nation. That is a lot of jobs considering that BLS estimates the entire national workforce at 142,549,250 jobs. But are cashiers working at substantial gainful activity?

The O*NET OnLine reports that 80% of cashiers work less than 40 hours per week.  The residual 20% do work full-time and that leaves over 70,000 jobs.  We do not have to cut the head of the dragon but slay it with a thousand cuts.  Removing 80% from the equation is a gash.

SSA defines substantial gainful activity as more than $1,180 per month.  The O*NET and the OOH report $10.11 as the hourly wage.  Those two tandem sources report $21,030 as annual wages which is exactly 40 hours per week, 52 weeks per year.  A cashier not working a 40-hour workweek will not make $21,030 in the year; nor will a worker that takes time off for illness, vacation, or other reason.  The annual wages pretends that the person will work 40 hours per week, 52 weeks a year.

Half of any large statistical group will be below average.  Assuming the average hourly wage, a worker would have to work more than 27 hours per week to get over $1,180 -- about 117 hours per month.  If most cashiers work part-time, where is the statistical basis for assuming that those workers average 117 hours per month for an entire year.  Absent evidence of the number of hours, the report that 80% of cashiers do not work a 40-hour workweek or more should exclude 80% of cashiers.

As an aside, Social Security Ruling 96-8p defines a residual functional capacity as a full-time capacity.  But if a claimant has a full-time capacity for work at step 5 of the sequential evaluation process, part-time work can satisfy the Commissioner's burden if that work amounts to substantial gainful activity.  Some ALJs have taken that tact and some courts have affirmed such a finding.  It becomes incumbent to challenge the data source for the vocational expert's testimony.

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