Thursday, July 30, 2020

Postmortem on Goode v. Commissioner -- the Court Got Half the Story

The Eleventh Circuit reversed in a huge win for claimants on the reliability of vocational expert testimony. Goode v. Commissioner of Soc. Sec. The court called out the vocational expert and ALJ (but neither by name). Goode v. Berryhill. The decisions are a good read and available to everyone to read for themselves. Today we pull back the curtain to disccover that the vocational expert was reckless, tried to cover his tracks, and I think I know why. 

We start with the district court decision:
Plaintiff notes that the VE testified that he got these job numbers from the Occupational Employment Quarterly ("OES), which does not provide job numbers by Dictionary of Occupational Title numbers, but by Specific Occupational Code (SOC) group. (Doc. 22 p. 8).
We continue with the circuit court decision: 
the vocational expert must look to other sources like the Occupational Employment Quarterly (OEQ), which is compiled by a private organization called U.S. Publishing, to find employment statistics. See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Brault v. Soc. Sec. Adm., 683 F.3d 443, 446 (2d Cir. 2012). The OEQ database, however, does not compile data by DOT codes, but rather through the Standard Occupational Classification (SOC) system. See Brault, 683 F.3d at 446; Occupational Employment Statistics, Bureau of Labor Statistics, https://www.bls.gov/oes/ (last visited April 30, 2020).
Both courts reference the OEQ.  Neither quotes the VE referencing the OEQ.  

Assuming that the VE did rely on the OEQ to identify bakery worker (bakery worker, conveyor line) as belonging to SOC 51-3099, there is a huge problem for the veracity of the VE.  In no publication of OEQ has US Publishing ever listed food processing workers, all other (SOC 51-3099) as an occupational group.  Why would the OEQ omit SOC 51-3099?  As Goode argued successfully to the circuit court, the Department of Labor does not assign any DOT codes to SOC 51-3099, none.  

The question has to turn to the VE's source for the idea that bakery workers belong in SOC 51-3099.  That honor belongs exclusively to Job Browser Pro.  JBP does list bakery worker, conveyor line (DOT 524.687-022) as belonging to SOC 51-3099.  JBP did so in 2014 and does so today.  Why not confess to use of JBP as the source for the job numbers?  As the circuit court found, the VE aggregated the occupational group identifying all the jobs in the group, not just bakery worker.  JBP states now and in 2014 that bakery worker, conveyor line represents fewer than 500 jobs.

Goode argued and the circuit court found that bakery worker belongs to production workers, all other (SOC 51-9199).  For the 2010 SOC, that is true.  Bakery worker is one of 1,590 DOT codes and one of 405 light unskilled DOT codes that belong to production workers, all other.  None of those occupations represent 43,000 jobs in the nation.  

One final point for the day is warranted.  Labor lists the titles of occupations that belong to food processing workers, all other (SOC 51-3099).  They are:
  1. Olive Pitter
  2. Pasta Press Operator
  3. Poultry Hnager
  4. Yeast Maker
The VE did not honestly identify the source for his testimony.  If the VE did, it would have been easy to check the job numbers against the source to prove them wrong.  But the VE corps needs to please the ALJ to remain on the rotation.  Not identifying significant numbers of jobs will lead to removal from the rotation.  The VE and ALJ got slammed in this case but their deceit rests just below the surface.  

_______________________________________________________

Suggested Citation:

Lawrence Rohlfing, Post Mortem on Goode v. Commissioner -- the Court Got Half the Story, California Social Security Attorney (July 30,  2020) 

Monday, July 13, 2020

ALJ Relies on Occu Collect Data to Find VE Unpersuasive

Counsel for the claimant submitted the Occupational Requirements Survey data about standing and walking showing that waiters and waitresses stand/walk more than six hours in an eight hour day.  Vocational expert says nay nay, waiters and waitresses sit down to fold napkins and fill salt shakers.  Here is what the ALJ said about the conflict in the evidence:

At the June 2020, the vocational expert testified that the claimant had transferable skills from her previous work as a Cocktail Waitress that would transfer to work as an Informal Waitress, DOT 311.477-030, which is also considered light, semi-skilled work with an SVP of 3 and of which there are 7,500 full-time jobs in the national economy. According to the vocational expert, individuals performing this work often work split shifts and do not stand and/or walk for more than six hours in an eight-hour workday. However, the claimant's representative challenged the accuracy of this testimony, as it appeared inconsistent with accepted vocational resources (Ex. B22E; Hearing Testimony). In weight and evaluating the vocational expert's testimony, the undersigned finds the vocational expert's testimony that the claimant could perform work as an Informal Waitress but not her very similar past relevant work as a Cocktail Waitress inconsistent.  
According to the vocational expert's own testimony, an Informal Waitress must perform set up such as folding napkins and filling condiments that could be performed seated, but there is insufficient evidence that this would occupy a sufficient amount of time to accommodate the claimant's exertional limitations. The vocational expert's testimony did not adequately satisfy the requirements of SSR 00-4p to resolve these inconsistencies. Accordingly, the undersigned finds the claimant does not have any transferable skills within the residual functional capacity defined above.
Relying on statistical evidence to rebut VE folly wins again.

_______________________________________________________

Suggested Citation:

Lawrence Rohlfing, ALJ Relies on Occu Collect Data to Find VE Unpersuasive, California Social Security Attorney (July 13, 2020)

Tuesday, June 30, 2020

Counter and Rental Clerks (SOC 41-2021) and the Simple Problem

Labor puts 11 DOT codes in the group of counter and rental clerks (SOC 41-2021).  The DOT classifies seven of those codes as requiring reasoning level 3; four with reasoning level 2.  In the simple versus complex debate, reasoning level 3 is typically enough to remove that level of work from the step 5 analysis.  The other four occupations, indeed all 11, require multiple significant worker functions in data, people, or things, except furniture-rental consultant.  The entire occupational group:

DOTCode DOTTitle STRENGTH DATA PEOPLE THINGS GEDR
249.366-010 COUNTER CLERK L 3S 6S 6S 2
290.477-010 COUPON-REDEMPTION CLERK L 4S 7S 7N 3
295.357-018 FURNITURE-RENTAL CONSULTANT L 3N 5S 7N 3
295.367-014 BABY-STROLLER AND WHEELCHAIR RENTAL CLERK L 3S 6S 7N 3
295.367-026 STORAGE-FACILITY RENTAL CLERK L 3S 6S 7S 3
295.467-010 BICYCLE-RENTAL CLERK L 4S 6S 7N 2
295.467-014 BOAT-RENTAL CLERK L 4S 6S 7S 3
295.467-018 HOSPITAL-TELEVISION-RENTAL CLERK L 4S 6S 7N 2
369.477-010 CURB ATTENDANT M 4S 7S 7N 2
369.677-010 SELF-SERVICE-LAUNDRY-AND-DRY-CLEANING ATTENDANT M 6N 7S 7S 3

All counter and rental clerks require dealing with people as a significant worker function.  That is the common thread running through group.  The O*NET OnLine describes counter and rental clerks as having constant contact with others in 91% of jobs and frequent contact with others in 9% of jobs.  Dealing with external customers is fairly important in 18% of jobs; important or very important in 1% of jobs, each; and extremely important in 80% of jobs.  Counter and rental clerks face conflict situations in 99% of jobs.  Counter and rental clerks work with a group or team in all jobs.  Counter and rental clerks work part-time in 40% of jobs.  

The O*NET OnLine describes counter and rental clerks as having 30 days or less of training time in less than 14% of jobs.  The Occupational Requirements Survey assigns SVP 2 to 68.7% of jobs.  The O*NET is based primarily on incumbent surveys.  The ORS is based on human resource surveys.  

The ORS reports that counter and rental clerks have their workload controlled by people in 99.5% of jobs and work at a varying pace in 89.8% of jobs.  Counter and rental clerks require basic people skills in 50.4% of jobs and more than basic people skills in 49.6% of jobs.  Counter and rental clerks interact with the public in 100% of jobs and telework is never available.  

The DOT data set confirms that counter and rental clerks are not simple work.  That confirmation is supported by the findings of the O*NET and ORS.  

Of the reasoning level 2 occupations within the group of counter and rental clerks, counter clerk is the most often cited.  Vocational experts cite counter clerk in response to the light exertion; simple work; occasional reaching, handling, and fingering; and intact for contact with the public.  Counter clerk requires significant worker functions in all three data-people-things categories:
Data: 3 - Significant
Compiling: Gathering, collating, or classifying information about data, people, or things. Reporting or carrying out a prescribed action in relation to the information is frequently involved.
People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.
Things: 6 - Significant
Feeding Off Bearing: Inserting, throwing, dumping, or placing materials in or removing them from machines or equipment which are automatic or tended or operated by other workers.
 The DOT narrative is descriptive of varied duties, broken down:
249.366-010 COUNTER CLERK (photofinishing)
1. Receives film for processing,
2. loads film into equipment that automatically processes film for subsequent photo printing, and
3. collects payment from customers of photofinishing establishment:
4. Answers customer's questions regarding prices and services.
5. Receives film to be processed from customer and
6. enters identification data and printing instructions on service log and customer order envelope.
7. Loads film into equipment that automatically processes film, and routes processed film for subsequent photo printing.
8. Files processed film and photographic prints according to customer's name.
9. Locates processed film and prints for customer.
10. Totals charges, using cash register, collects payment, and returns prints and processed film to customer.
11. Sells photo supplies, such as film, batteries, and flashcubes.
Counter clerk has one temperament: dealing with people beyond receiving work instructions.  

Counter clerk carries two work field designations (use the DOT/SCO summary report from OccuCollect).  The first listed work field:
232 NUMERICAL RECORDING-RECORD KEEPING
Systematizing information on transactions and activities into accounts and numerical records through the application of arithmetic. bookkeeping, statistics, and other quantitative procedures (including paying and receiving money). Distinguish from Verbal Recording-Record Keeping (231), in which the primary activity is the keeping of records without computation.
The second work field:  
202 DEVELOPING-PRINTING
Reproducing records of data and designs by chemical means.
The presence of two work fields, the required temperament for dealing with people, the presence of significant worker functions in the three categories measured, and the list of 11 serial job duties suggest strongly that this is not simple, routine, and repetitive work that viewing reasoning alone would suggest.   

The integrated use of the entire DOT data set is often necessary to understand the nature and requirements of a specific occupation as it is typically performed in the national economy.  

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Counter and Rental Clerks (SOC 41-2021) and the Simple Problem, California Social Security Attorney (June 30, 2020)

Monday, June 29, 2020

Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with Data as a Significant Worker Function

This is one of those questions where the circuits are split:  simple work and the reasoning level distinctions.  Hackett v. Barnhart found reasoning level 3 incompatible with simple routine work (call-out operator and surveillance systems monitor). Renfrow v. Astrue found no conflict between reasoning level 3 and simple work (telephone quotation clerk and charge account clerk). Terry v. Astrue found no conflict between reasoning level 3 and simple instructions in light of a high school diploma, training as a certified nurse's assistant, and capacity to follow simple instructions. Zavalin v. Colvin found reasoning level 3 in conflict with simple routine work (surveillance systems monitor and cashier). This is a view of the circuit split. Today we look at worker function and dealing with data. 

The DOT classifies four DOT codes (in four different occupational groups) as light, unskilled, reasoning level 2, and have significant worker functions with data: 
Data: 3 - Significant
Compiling: Gathering, collating, or classifying information about data, people, or things. Reporting or carrying out a prescribed action in relation to the information is frequently involved.
Compiling requires decision-making in at least the collating or classifying of information and in performing prescribed action in response to data.  The key work here is frequently.  Simple work with occasional decision-making should be excluded.    

The DOT classifies 11 DOT codes (in eight occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with data: 
Data: 4 - Significant
Computing: Performing arithmetic operations and reporting on or carrying out a prescribed action in relation to them. Does not include counting.
Computing requires the manipulation of data.  It does not include simple counting.  Computing requires either reporting or taking prescribed action.  

The DOT classifies 32 DOT codes (in 15 occupational groups) as sedentary, light, or medium work; unskilled; reasoning level 2; and have significant worker functions with data: 
Data: 5 - Significant
Copying: Transcribing, entering, or posting data.
Copying is incompatible with off-task and making errors 5% of the workday.  A BFOQ of having the data correct is reasonable.  

The DOT classifies 165 DOT codes (in 32 occupational groups) as sedentary, light, medium, or heavy work; unskilled; 140 reasoning level 2; 25 reasoning level 1; and have significant worker functions with data: 
Data: 6 - Significant
Comparing: Judging the readily observable functional, structural, or compositional characteristics (whether similar to or divergent from obvious standards) of data, people, or things.
 Comparing requires judgment.  The presence of judgment as an important worker function takes the work out of basic work functions.  

Next we address significant worker functions of in more than one category in reasoning level 2 work.  

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with Data as a Significant Worker Function, California Social Security Attorney (June 29, 2020) 

Monday, June 22, 2020

Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function

This is one of those questions where the circuits are split:  simple work and the reasoning level distinctions.  Hackett v. Barnhart found reasoning level 3 incompatible with simple routine work (call-out operator and surveillance systems monitor). Renfrow v. Astrue found no conflict between reasoning level 3 and simple work (telephone quotation clerk and charge account clerk). Terry v. Astrue found no conflict between reasoning level 3 and simple instructions in light of a high school diploma, training as a certified nurse's assistant, and capacity to follow simple instructions. Zavalin v. Colvin found reasoning level 3 in conflict with simple routine work (surveillance systems monitor and cashier). This is not an exhaustive list, but a broad view of the circuit split. Today we look at dealing with people.

The DOT classifies three DOT codes (all actors) as light, unskilled, reasoning level 2, and have significant worker functions with people:
People: 4 - Significant
Diverting: Amusing others, usually through the medium of stage, screen, television, or radio.
The DOT classifies five DOT codes (all door-to-door sales workers) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 5 - Significant
Persuading: Influencing others in favor of a product, service, or point of view.
The DOT classifies 29 DOT codes (in 19 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 6 - Significant
Speaking Signaling: Talking with and signaling people to convey or exchange information Includes giving assignments and directions to helpers or assistants.
The DOT classifies 39 DOT codes (in 17 different occupational groups) as light or medium, unskilled, reasoning level 2, and have significant worker functions with people:
People: 7 - Significant
Serving: Attending to the needs or requests of people or animals or the expressed or implicit wishes of people. Immediate response is involved.
None of those worker functions appear to be simple. Diverting, persuading, communicating, or serving people is to address the multi-factored character of human beings. This observation gives life to the second half of the reasoning level 2 definition:
Deal with problems involving a few concrete variables in or from standardized situations.
Skilled work may require dealing with people at a high level of complexity. 20 CFR § 404.1568(c). Significant worker functions with people, even in unskilled work, reflect a low level of complexity that exceeds the boundaries of simple. In this regard, we uncover the problem with Renfrow, it isn't the frequency of dealing with people, it is the that the work requires dealing with people.
 
The DOT defines 76 occupations as reasoning level 2 that deal with people as a significant worker function. Addressing that observation at the hearing with the vocational expert provides fodder for productive cross-examination.

Next we address worker functions of data as a basis for differentiating reasoning levels 1 and 2 work as not simple and routine.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Simple Work -- Moving Beyond the R1 - R2 - R3 Distinction -- Dealing with People as a Significant Worker Function, California Social Security Attorney (June 22, 2020) edited (June 29,2020)

Friday, June 5, 2020

BLS Releases the 2019 ORS Data Set

The Bureau of Labor Statistics released the 2019 Occupational Requirements Survey on May 28, 2020. It is always good to have new data describing the national economy that meets OMB standards.  The problem is that Labor changed the Standard Occupational Classification system in 2018.  The ORS is the first Labor publication to use the structure on data.  That leads to some awkward incompatibility problems.  Awkward, not impossible.  We have the crosswalks as part of O*NET OnLine. 

Because Labor has divided, combined, and otherwise rearranged about 100 SOC codes, the 2018 data set is not usable in the 2018 SOC system.  The 2019 data started over.  The 2019 data set is back to 2016 as a first round of data collection, BLS started over.  The 2019 data set covers fewer occupational groups compared to the 2018 data set.  The 2019 data set did reinsert the cognitive category so it now addresses that contact with others category.  

Going forward, representatives should use the 2019 data set when it speaks to an occupational group.  Any use should carry the caveat that presentation uses the 2019 ORS data set based on the 2018 SOC system for occupational requirements and 2018 job numbers incidence found in the 2018 Occupational Outlook Handbook and/or the 2019 Occupational Employment Statistics based on the 2010 SOC system.   This process will take about a year or two to level out as the rest of BLS catches up to the ORS in using the 2018 SOC system.  

The Employment and Training Administration should follow suit in the next year in updating the O*NET to follow the 2018 SOC system.  The O*NET has announced that version 25.1 slated for release in November will report data using the 2018 SOC system. (For those with long memories or research skills, the Employment and Training Administration is the same arm of Labor that published the DOT).  

One quick highlight:  Stock Clerks and Order Fillers (SOC 43-5081) has changed its designation to 53-7065.  The O*NET detailed groups for Stock Clerks, Sales Floor (O*NET 43-5081.01), Marking Clerks (O*NET 43-5081.02), Stock Clerks - Stockroom, Warehouse, or Storage Yard (O*NET 43-5081.03), and Order Fillers, Wholesale and Retail Sales (O*NET 43-5081.04) will retire.  The expected 2020 O*NET release in November will report occupational characteristics for Stock Clerks and Order Fillers but not for the four detailed groups.  This is the occupational group that contains marker.  The new ORS data does not support the existence of 200,000 markers in the category of marking clerks.  Those jobs require medium and heavy exertion.  Look for that dissection coming here, soon.  

One quick low point: major group of Production Occupations contains 110 detailed occupations in nine minor groups.  The 2019 ORS reports the summary category of Production Occupations and three detailed occupations.  OccuCollect recommends using the 2018 data set for the analysis of characteristics of work in those detailed occupations.  Lumping supervisors in the data set with helpers makes the data to divergent for tiered or layered analysis.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, BLS Releases the 2019 ORS Data Set, California Social Security Attorney (June 5, 2020) 

Thursday, June 4, 2020

A Step Five Finding of Transferable Skills -- Flawed for Three Reasons

The claimant resides within the boundaries of the Ninth Circuit.  The claimant is advanced age on the alleged onset date and closely approaching retirement age before the date of decision.  The claimant has past relevant work as a production materials coordinator (DOT 221.387-046) and operations manager (DOT 186.137-014).  The ALJ found that the claimant could not perform past relevant work.  The ALJ relied on a vocational expert that an individual of the claimant's age, education, work experience, and residual functional capacity could perform the work of sales records clerk (DOT 216.382-062) and sales associate (DOT 299.357-014).  The vocational expert testified that in terms of adjustment, it would take the claimant a minimal amount of time to learn the other work.  This fact pattern raises three issues. 

1.  The amount of time does not dictate the amount of adjustment.  20 CFR 404.1568(d).  The regulation requires that any transferability of skills meet the requirements of the other work.  There is never a significant amount of time to learn the other work.  If it did take a significant amount of time, then the person does not have the pre-existing skill set to meet the requirements of the other work.  This person wins at age 60.  

2. Two occupations is not a range of occupations for transferability of a person of advanced age and limited to light semi-skilled or skilled work.  Appendix 2, 202.00(c); Lounsburry v. Barnhart.  Two district court cases disagree on whether two occupations represent a range.  Daniel v. Colvin and Susan M. v. Berryhill, 2018 WL 4692468 (D. Or. Aug. 24, 2018). A set of two is not a range.  It is a set of two.  A range covers a span with two end points.  A range requires a third point.  

3.  The work skills do not transfer to at least one of the occupations.  Transferability is based on Work Fields (WF) and Materials, Products, Subject Matter, and Services (MPSMS) codes as the ambiguous regulation is explained in POMS.  POMS also lists GOE codes, first three digits of the DOT code, and industry.  Those categories apply to adjustment, not plain transferability according to OIDAP.  

 DOT  WF MPSMS
 production materials coordinator221387046 231 898
 operations manager 186137014 232 894
 sales records clerk 216382062 232 891
 sales associate 299357014 292     888

Sales associate (telephone solicitation clerk) does not have a similar WF or MPSMS code.  Sales records clerk has the same WF as operations manager and same first two digits (similar) MPSMS code as both prior occupations.  This person wins at age 55 based on Lounsburry.  

A brief on this issue would need to break out the Revised Handbook for Analyzing Jobs available as a free download from your google play store.  


_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, A Step Five Finding of Transferable Skills -- Flawed for Three Reasons, California Social Security Attorney (June 4, 2020) revised (June 8, 2020) 



Saturday, May 30, 2020

Vague Hypothetical Questions - Defining Temperature and Hazards

ALJs ask questions that contain vague terms and do not always define them.  There are circumstances where the vagueness does not present a material question.  In other circumstances, resolving vagueness will mean the difference between a favorable and an unfavorable decision.  

No exposure to temperature extremes is one of the limitations that arises.  The Selected Characteristics of Occupations defines exposure to extreme cold and extreme heat in Appendix D:
2. EXTREME COLD
Exposure to nonweather-related cold temperatures. In Part A, the rating for the Extreme Cold component appears second in the Environmental Conditions column under the vertical heading Co.

3. EXTREME HEAT
Exposure to non weather-related hot temperatures. In Part A, the rating for the Extreme Heat component appears third in the Environmental Conditions column under the vertical heading Ho.  
What are the measurements for extreme?  These are vocational factors that should not be left to silent definition by the vocational witness.  The Occupational Requirements Survey Collection Manual (found in the downloads section of www.occucollect.com) defines extreme cold (non-weather only) as:
40 degrees or below when exposed 2/3 or more of the time, or
32 degrees or below when exposed up to 2/3 of the time
Collection Manual, page 134.  Examples that meet one of those criteria are a meat cutter working in a 40 degree cooler more that 3/4 of the day or a freeze tunnel operator that wears protective clothing and enters that tunnel for short periods in -34 degree temperature.   Page 137.  Not included is the worker that shovels snow in the winter because it is weather related, a forklift operator that works in a non-temperature controlled warehouse as weather related, or the restaurant waiter that retrieves supplies from the freezer for the cook or food preparation staff when those workers are busy as incidental  

We defined our terms but now have other ambiguities.  The question asked about exposure to temperature extremes and the vocational witness relied on the SCO to identify jobs.  But the question did not permit exposure to weather related cold/heat.  Nor did the question permit incidental exposure to temperature extremes for the food server.  If the ALJ used the phrase temperature extremes, or the longer equivalent expression, the representative should question the witness when it matters.  

We find the same ambiguity in exposure to hazards, such as moving mechanical parts and unprotected heights.  We resort back to the SCO, App. D for the starting point definition:
8. PROXIMITY TO MOVING MECHANICAL PARTS
Exposure to possible bodily injury from moving mechanical parts of equipment, tools, or machinery. In Part A, the rating for the Proximity to Moving Mechanical Parts component appears eighth in the Environmental Conditions column under the vertical heading MP
The phrase such as typically precedes the examples.  The Collection Manual defines what Labor means by proximity to moving mechanical parts and high, exposed places:  the exposure must present a risk of bodily injury.  Collection Manual, page 134.  The presence of an environment where momentary loss of attention could result in bodily injury from the machine or falling, for example, represents a broader range of workplace prohibitions.  The Collection Manual provides examples of moving mechanical parts that could result in bodily injury:
  • A deli worker operates a slicer to cut meats and cheeses. Even with required safety guards in place, injury is possible.
  • A landscaper uses a chipper/shredder to mulch branches and tree debris.
  • A worker who removes products from a machine or conveyor belt works close and could be injured while off-loading when machine is in motion.
  • Mechanics working on running engines and moving vehicle parts while performing repairs.
An accountant using a crosscut shredder, use of a knife, the conveyor belt at the grocery store, using hand tools, or operating a taxi cab do not meet the threshold of a dangerous work environment.  Clearly the lethal weapon of a motor vehicle that could result in injury or death from a loss of concentration or focus but the ORS is more concerned with moving mechanical parts inside the vehicle.  

When addressing environmental limitations, the important part of cross-examination may turn to defining the terms.  One way to uncover the ambiguity of a hypothetical question is to object on vagueness.  The more subtle approach is the ask the vocational expert to state his/her understanding of the key terms.  

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Vague Hypothetical Questions - Defining Temperature and Hazards, California Social Security Attorney (May 30, 2020) 
https://californiasocialsecurityattorney.blogspot.com/2020/05/vague-hypothetical-questions-defining.html

Monday, May 18, 2020

Laundry Worker and Literacy

In Sutherland v. Saul, the Ninth Circuit affirmed on the basis that the vocational testimony about laundry worker did not have an apparent conflict with the DOT in an unpublished opinion.  The court did not address the finding of the ALJ that Sutherland could perform past work or other occupations beside laundry worker.  Nor does the court tell us the boundaries of the medical-vocational profile.  The vocational testimony asserted that some laundry worker jobs required literacy, but not all.  The court reasoned:
The Dictionary thus describes "maximum requirements" of jobs as "generally performed," and not what every job within that occupational field requires. [Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016)] (quoting SSR 00-4P, 2000 WL 1898704, at *2-3). Here, the vocational expert testified that some, but not all, jobs that fall within the relevant occupational category of "laundry worker" require literacy. That is not an "obvious or apparent" conflict with the Dictionary's requirements for the relevant laundry worker occupation, which says almost nothing about literacy. Id. at 808; see also DICOT 361.685-018, 1991 WL 672987
It bears repeating, the DOT does not describe the maximum requirements of occupations as they are generally found.  The DOT describes the typical requirements of occupations as they are generally found.  DICOT Appendix D.  Gutierrez implicitly defers to a ruling that is not entitled to deference.

But that is not the question here.  The question is whether laundry workers require literacy.  The Occupational Outlook Handbook (available on for free www.occucollect.com) states that laundry and dry-cleaning workers (SOC 51-6011) represents 218,600 jobs.  Laundry and dry-cleaning workers contains 23 DOT codes and 168 alternate occupational titles.  Laundry and dry-cleaning workers require a high school or equivalent education in 20.6% of jobs.  Laundry and dry-cleaning workers do not have a minimum educational requirement in 79.4% of jobs.  Laundry and dry-cleaning workers do not require literacy in 18.5% of jobs.  Occupational Requirements Survey (2018).

The number of jobs that do not require literacy is approximately 40,400 jobs.  The data supports the testimony of the vocational witness as to the existence of a significant number of jobs that do not require literacy.  Whether other limitations (whether eroding exertion or other cognitive requirements of work) would erode that number is not discernible based on the face of the court's unpublished opinion.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Laundry Worker and Literacy, California Social Security Attorney (May 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/laundry-worker-and-literacy.html

Thursday, May 14, 2020

Preschool Teacher -- An Illustration of the Outdated DOT

Preschool teacher (DOT 092.227-018) is a fairly common occupation representing 523,600 jobs in the national economy.  OOH (2018) 25-2011 -- Preschool teachers, except special education.  Preschool teacher is the only DOT code in the group.  The DOT classifies preschool teacher as a light skilled occupation, SVP 7.

The O*NET Resource Center states that preschool teachers require one month of training or less in 30.43% of jobs.  Preschool teachers require related work experience of 30 days or less in 19% of jobs.   Preschool teachers require a high school diploma or equivalent in 28.75% of jobs.  From these three data points, 19% of preschool teachers could represent unskilled work.  A small minority of jobs require either on-the-job training or related work experience in excess of two years.  Less than 38% require more than an associate's degree.  O*NET OnLine Resource Center (2019) 25-2011.00 -- Preschool teachers, except special education.  The SVP of Preschool teachers appears overstated.

The Occupational Requirements Survey estimates that preschool teachers represent SVP 7 work in 37.5% of jobs and SVP 6 work in 26.3% of jobs.  The ORS does not describe the remaining 36% of jobs in terms of skill level.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require SVP 2-5 or 8-10, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The Occupational Requirements Survey estimates that preschool teachers require light exertion in 24.3% of jobs and medium exertion in 54.3% of jobs.  The ORS does not describe the remaining 25% of jobs in terms of exertion.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require sedentary or heavy exertion, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The SCO describes preschool teacher as requiring frequent reaching and handling with occasional fingering.  DOT 092.227-018.  The aptitudes, as part of the DOT dataset not in the SCO or DOT, describes preschool teacher as requiring below average motor coordination and finger dexterity but requiring average manual dexterity.

The O*NET OnLine states that preschool teachers use their hands to handle, control, or feel objects continually or almost continually in 17% of jobs, more than half the time in 37% of jobs, about half the time in 5 percent of jobs, less than half the time in 8% of jobs ,and never in 33% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers require fine manipulation in all jobs.  Preschool teachers engage in fine manipulation occasionally in 75.8% of jobs and frequently in 19.2% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  In addition to fine manipulation, preschool teacher must keyboard in 67.7% of jobs occasionally in 33.1% of jobs.  Id.

The Occupational Requirements Survey states that preschool teachers require gross manipulation in all jobs.  Preschool teachers engage in gross manipulation occasionally in 52.8% of jobs and frequently in 36.3% of jobs. Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers reach at or below shoulder level in 88.8% of jobs.  Preschool teachers reach at or below shoulder level occasionally in 45.7% of jobs. Preschool teachers reach overhead in 40.6% of jobs, using both hands in 36% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey describes preschool teachers as standing/walking 75% of day at the mean, half the day at the 25% percentile, and 90% of the day at the 90th percentile.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The O*NET OnLine reports that preschool teachers work less than 40 hours per week in 52.1% of jobs.  Preschool teachers work full-time or more in 47.8% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

For a step four analysis of ability to perform past relevant work, it is important to first classify the nature of the work as actually performed.  Did the work require SVP 7 skill level while engage in light work?  Did the claimant work full-time or part-time?  What were the standing/walking requirements of the job as actually performed.

Once the claimant establishes an inability to perform preschool teacher as actually performed, the attention must turn to the occupation as generally performed.  If the claimant worked part-time as past relevant work, then the existence of part-time work counts as generally performed.  Careful attention must be given to the question of as generally performed in terms of staying at or below the claimant's skill level, excluding jobs that require too much exertion, or have requirements that the claimant does not or no longer possesses.

The as generally performed analysis begs the question:  what does generally mean?  If generally means typical, then preschool teacher typically requires medium exertion.  If generally performed means something other than typically performed, then the claimant has a much more difficult burden to establish the inability to perform past relevant work as generally performed.  Because the DOT presents occupations as typically found in the national economy (DICOT App. D), typicality represents the best approximation of as generally performed.  Whether that range falls around the median, a plurality, or an average will turn to a case-dependent fact.

What is clear is that DOT as to preschool teacher no longer describes work that exists in the national economy.  The DOT does not describe typical skill, exertion, or manipulative requirements.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Preschool Teacher -- An Illustration of the Outdated DOT, California Social Security Attorney (May 14, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/preschool-teacher-illustration-of.html

Monday, May 11, 2020

Conflating the Stand/Walk Limitation to Eight Hours

A vocational witness responds to a hypothetical question that assumes a capacity for light work and a limitation to standing/walking for six hours in an eight hour day.  The claimant is advanced age, high school education, and past relevant work as a pharmacy technician (DOT 074.382-010, SVP 3, light).

The question did not contain any mental limitations but did have a limitation to occasional postural activities. The absence of a mental limitation, even slight or mild, made the case difficult. The limitation to occasional postural activities is unimportant. The vocational witness states that the person could perform past work as a pharmacy technician.
ATTY: What SOC code does pharmacy tech sort into?
VW: 29-2052 pharmacy technicians.
ATTY: What is your understanding of generally performed?
VW: [silence].
ATTY: Well, does it mean the majority of jobs, the median, the mean, what does generally performed mean to you?
VW: Generally performed as described by the DOT.
ATTY: What if we consider generally performed in the national economy. (that is the standard 20 C.F.R. § 416.960(b)(2)) If someone can only stand/walk six hours in an eight hour day, so that person must sit for two hours, can this individual perform work as a pharmacy tech as generally performed in the national economy?
VW: [mumbles, then silence.]
ATTY: If I presented you with data from the Department of Labor that reports jobs in this occupational group do not sit at the 25th percentile, do not sit at the median, and only sit for 1.1 hours at the mean, would that change your answer as to whether an individual could perform work as a pharmacy tech, as generally performed in the national economy, when that individual cannot stand/walk more than six hours in an eight hour day?
The vocational witness agreed that past work as a pharmacy tech requires more than six hours of standing/walking as actually and generally performed in the national economy.  Skills did not transfer to work that permitted six hours or less of standing/walking in an eight-hour day.  A colloquy ensued between the ALJ and counsel that "about six hours" of standing and/or walking found in the initial and reconsideration medical opinions/findings does not permit eight hours of combined standing/walking.  

In this case, counsel had submitted the Occupational Requirements Survey for Pharmacy Technicians (29-2052.00) from www.OccuCollect.com.  The ORS data and the vocational witness concession put the claimant into grid rule 202.06 once the claimant carried his burden of proof that he could not perform his past work as actually or as generally performed.  

Data wins.  Disabusing the witness of the notion that six hour of standing and/or walking does not mean six hours of each wins. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Conflating the Stand/Walk Limitation to Eight Hours, California Social Security Attorney (May 11, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/conflating-standwalk-limitation-to.html

Saturday, April 18, 2020

Use of the OOH and O*NET Accepted by the Court

The district court reverse and remanded Cymande S. v. Berryhill, 2019 WL 4148351, at *3 (C.D. Cal. May 16, 2019).  The decision is not available on Google Scholar.  No freebies.

This a straight Occupational Outlook Handbook and O*NET OnLine assault on vocational expert testimony mounted at the Appeals Council.  The district court summarized the issue:
Plaintiff also argues that the ALJ could not have reasonably relied on the testimony of the VE given that the VE's figures for a single job exactly matched the OOH reported figures for a category of jobs containing 18 distinct DOT job codes in one instance and 782 distinct DOT job codes in another instance.
Inspectors, testers, sorters, samplers and weighers (SOC 51-9061) is the occupational group that contains 782 DOT codes.  The OccuCollect.com everything report summary for any of the 782 DOT codes (including nut sorter) states:

There are 782 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

67 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary
14 are SVP 2
585 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light
3 are SVP 1 132 are SVP 2
117 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Medium
17 are SVP 2
13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Heavy
1 are SVP 1 6 are SVP 2

The unskilled occupations make up 173 DOT codes out of the 782 total codes.  The OOH currently describes the occupational group as typically requiring a high school diploma or equivalent, moderate-term on-the-job training, and representing 574,000 jobs.  The OOH glossary defines moderate-term as more than 30 days and up to one year.  The work is typically semi-skilled or skilled.  Inspectors, testers, sorters, samplers and weighers are not typically unskilled.  A nut sorter (DOT 521.687-086) cannot represent 574,000 jobs.  

This is one of occupations identified in Biestek v. Berryhill.  The proposition that 120,000 jobs as a nut sorter existing in the national economy ever is laughable.  Justice Gorsuch identified that concept in dissent.  

Cashiers (SOC 41-2011) is the occupational group that contains 18 DOT codes.  The OccuCollect.com everything report summary for any of the 18 DOT codes (including toll collector) states:

There are 18 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

5 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary
13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light
6 are SVP 2

The unskilled occupations make up 6 of the 18 total codes.  The OOH currently describes the occupational group as typically requiring no formal educational credential, short-term on-the-job training, and representing 3,648,500 jobs.  Toll collector cannot represent 3.4 million jobs.  

Cymande S. v. Berryhill represents progress is using the OOH combined with the O*NET crosswalk report to demonstrate the fallacy of job numbers.  Other data not mentioned by the court concerned the standing/walking of inspectors and cashiers, the predominant part-time nature of cashier work, as well as unskilled vs. semi-skilled or skilled work as reported by the O*NET (full-time) and ORS (other job characteristics).  Cymande S. v. Berryhill can be your next win if you present the vocational rebuttal to the ALJ or the Appeals Council (where AC evidence matters). 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Use of the OOH and O*NET Accepted by the Court, California Social Security Attorney (April 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/use-of-ooh-and-onet-accepted-by-court.html

Thursday, April 16, 2020

Come on Down! Let's Make a Deal!

Let's Make a Deal is the iconic TV game show that debuted in 1963 and continues to this day.  Whether you remember Monty Hall or the new version with Wayne Brady, Let's Make a Deal is the risk of the bird in the hand or pursue the two in the bush only to find that the two in the bush was a box of rocks.  Administrative Law Judges play that game too.

I will use the experience of yesterday.  I could use similar experiences from 30 years ago.  The conversation goes something like this:
ALJ:  I am willing to find your client disabled as of February 1, 2020, the week before the psychiatrist signed the medical source statement.
ATTY:  The PA that authored that MSS completed two more with congruent findings, the first in 2008.
ALJ:  I know that.  If you don't want to take the February 1, 2020, date, then I will send the claimant out for a consultative psych eval -- who knows how long that will take.  Your choice counsel.
ATTY:  Compromising the claim is never my choice.  I will speak to my client.
ALJ:  I will put the call on hold and the monitor will text me when I can pick up.  
The vocational expert hangs up on my insistence.  I explain the game of Let's Make a Deal.  Not only do I not know who the consultative examiner will be, I have no idea what that person will write.  It isn't even a testifying medical expert where I can choose what exhibits to point out.  The consultative examiner is the worst option.  The client, desperate for security and tired of general relief subsistence, takes the ALJ offer rather than wait until December to get a decision whether the same, better, or worse.

We address this issue based on the Code of Conduct for Unites States Judges.  Canon 3A(4), second paragraph, states:
A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.
Is the threat of a consultative examination coercive?  Is the statement that getting the claimant out to a consultative examination when the unending COVID-19 crisis ends coercive?   I submit that the choice of pay now or wait an indeterminate amount of time with an unknown variable is coercive.  We further the analysis with the last clause of the oath of office of every office other than the President and elected or appointed offices:
I will well and faithfully discharge the duties of the office on which I am about to enter.
 The oath of justices and judges is similar:
I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ...
The authority of an ALJ includes taking appropriate measures necessary to enable him or her to discharge the duties of office.

The clear import of the duty of the ALJ is to pay the claims of people that meet the disability standard on the date that the ALJ believes is proven by the record and to deny benefits to people that have not met the burden of proof.  Pay every dime due and deny every dime not due.

In our case from yesterday, the ALJ was either not persuaded of disability as of February 1, 2020, or was using that date as a coercive lever to preclude resolution of the controversy as to the earlier date.  The February 1, 2020, date is an endorsement date, not a medically based onset date.  It is a coerced result.

That is the bottom line.  The ALJ either put someone on the disability rolls that did not belong there by stripping that person of to right to have the earlier period adjudicated, or the ALJ simply coerced the person into giving up rights to protect the government fisc or some other improper purpose.

When an ALJ suggests an amendment to the onset date or the termination of disability, that suggestion or offer should stand without precondition.
I am prepared to find your client disabled as of February 1, 2020.  You may amend your onset date or I will prepare a partially favorable decision, leaving the exceptions and review rights intact.  What would your client like to do?  
That is the type of statement that complies with the oath of office and the judicial canons, used here by analogy.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Come on Down!  Let's Make a Deal!, California Social Security Attorney (April 16, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/come-on-down-lets-make-deal.html

Thursday, April 2, 2020

O*NET OnLine Will Migrate to the SOC 2018 in November 2020

New O*NET-SOC Taxonomy Transition Tools within O*NET Web Services

With the release of the O*NET 25.1 Database in November 2020, O*NET Web Services will transition to the O*NET-SOC 2019 taxonomy. This taxonomy, based on the 2018 SOC, introduces several changes to the occupations returned by our services. It includes 1,016 occupational titles, 923 of which represent O*NET data-level occupations. For more information on these changes, see the O*NET-SOC Taxonomy page at the O*NET Resource Center.
To help O*NET Web Services users with the upcoming taxonomy transition, Taxonomy Services are now available to enable developers to connect occupational data between existing systems based on the O*NET-SOC 2010 taxonomy, and the future O*NET-SOC 2019 taxonomy-based O*NET Web Services.
That's the announcement from the Department of Labor, Employment Training Administration (ETA). One big change comes in production workers, all other (51-9199).  This probably the most statistically abused group in terms of the number of DOT codes (1,590), the number of unskilled sedentary and light DOT codes (457), and the insidious use of equal distribution.  Part of that will go away in November.  Here is what is happening to SOC 51-9199 and its detailed occupation 51-9199.01 Recycling and Reclamation Workers:
51-9161.00 Computer Numerically Controlled Tool Operators
51-9162.00 Computer Numerically Controlled Tool Programmers
51-9199.00 Production Workers, All Other
53-7062.04 Recycling and Reclamation Workers
Some DOT codes, maybe, and a significant number of jobs will move to other O*NET/SOC codes.  Part of the gross data aggregation will go away.  Production workers, all other will get numerically smaller.  None of the unskilled sedentary and light DOT codes currently resident in production workers, all other fit the three new classifications.

Another statistical mess will get cleaned up.  Stock clerks and order fillers will consolidate four detailed occupations back into the single SOC code:
43-5081.01 Stock Clerks, Sales Floor
43-5081.02 Marking Clerks
43-5081.03 Stock Clerks- Stockroom, Warehouse, or Storage Yard
43-5081.04 Order Fillers, Wholesale and Retail Sales

Those four detailed occupations and the constituent 2 million jobs will all end up in Stockers and Order Fillers with a new numerical designation, but same name:
53-7065.00 Stockers and Order Fillers
We can expect the ORS will track the new changes.  Counting unskilled light stockers and order fillers will get easier because the data will designate light and unskilled jobs.  We will still have to put the numbers together.  My suspicion is that the number of light markers will go down significantly because the range of medium exertion includes constant lifting/carrying of 2 pounds or frequent lifting/carrying of 11 pounds in addition to the recognized occasional lifting/carrying of 21 pounds all to that maximum of seldom lifting/carrying of 50 pounds.

When the data arrives, you can expect to see it incorporated into OccuCollect and its heralded everything report.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, O*NET OnLine Will Migrate to the SOC 2018 in November 2020, California Social Security Attorney (April 2, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/onet-online-will-migrate-to-soc-2018-in.html

Thursday, March 19, 2020

Documented Occupational Erosion Using BLS Data Accepted by the ALJ

I had a telephone hearing with an ALJ. Judge states that he found the pre-hearing brief persuasive and intends to award benefits for a younger individual, high school education in a foreign country, illiterate in English, past work semi-skilled and light. The residual functional capacity is for a limited range of light work: standing two hours; walking two hours. Clearly a mixed bag on the medical-vocational criteria. I attach an everything report from OccuCollect.com for the two occupations cited. The everything report includes the DOT, SCO, OOH, O*NET, and ORS data along with calculations for the common factors encountered. With those reports attached, here is the argument presented, the client's name replaced with CLAIMANT, to protect privacy:

The prior vocational expert testified to assembler of plastic hospital products (DOT 712.687-010) representing 115,000 jobs; assembler, electrical accessories (DOT 729.687-010) representing 20,000 jobs. The testimony is easily contradicted and rendered feeble. It is not substantial evidence. You should find CLAIMANT disabled under the Medical-Vocational Guidelines, Rule 201.17 by analogy.

1. Assembler of Plastic Hospital Products

Assembler of plastic hospital products is a light unskilled occupation. DICOT 712.687-010. Assembler of plastic hospital products belongs to the occupational group of production workers, all other (SOC 51-9199). Production workers, all other represents a large occupational group containing 1,590 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-9199. The Occupational Outlook Handbook describes production workers, all other, as representing 244,700 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-9199.

Production workers, all other, have no minimum educational requirement in 49.1% of jobs. They require literacy in 31% of the jobs. That leaves 18.1% of the jobs is not requiring literacy. Production workers, all other, engage in unskilled work in 53% of jobs. Production workers, all other, engage in medium work in 63.9% of jobs. Production workers, all other, stand/walk 6.75 hours per day at the 25th percentile; 7.92 hours per day at the 50th percentile; and 8.0 hours per day at the 75th and 90th percentiles. There is no significant range of work in the occupational group of production workers, all other, that permit standing/walking equal to or less than four hours in an eight-hour day. Occupational Requirements Survey (2018), 51-9199.00.

2. Assembler of Electrical Accessories I

Assembler of electrical accessories I is a light unskilled occupation. DICOT 729.687-010. Assembler of electrical accessories I belongs to the occupational group of electrical and electronic equipment assemblers (SOC 51-2022.00). Electrical and electronic equipment assemblers is a large occupational group containing 61 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-2022. The Occupational Outlook Handbook describes electrical and electronic equipment assemblers as representing 218,900 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-2022.

Electrical and electronic equipment assemblers have no minimum educational requirement in 26.7% of jobs. Literacy is required in all, 26.7% of jobs. Electrical and electronic equipment assemblers engage in unskilled work in 29.2% of jobs. Electrical and electronic equipment assemblers engage in light work and 28.3% of jobs. Electrical and electronic equipment assemblers do not sit at the 10th percentile; sit for hours per day at the 50th percentile; sit 6.4 hours per day at the 75th percentile; and sit 7.2 hours per day at the 90th percentile. Electrical and electronic equipment assemblers stand/walk 1.6 hours per day at the 25th percentile; 4.8 hours per day at the 50th percentile; 7.2 hours per day at the 75th percentile; and 8.0 hours per day at the 90th percentile. Very few electrical and electronic equipment assemblers meet the residual functional capacity assessed, but none of them meet the educational deficiency of illiteracy in English. Occupational Requirements Survey (2018), 51-2022.00.

3. Conclusion

A limitation to four hours of standing/walking in an eight-hour day erases the ability to perform light work. First and foremost, the ability to stand is far more important than the ability to walk for light work. Social Security Ruling 83-10. The primary difference between light and sedentary work is standing/walking. Id. You should apply Grid rule 201.17 and find CLAIMANT disabled.

The ALJ directed the vocational expert to the brief in the E section.  The vocational expert confirmed that the person could not perform any identifiable work.  Hearing concluded. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Documented Occupational Erosion Using BLS Data Accepted by the ALJ, California Social Security Attorney (March 19, 2020)
http://californiasocialsecurityattorney.blogspot.com/2020/03/documented-occupational-erosion-using.html

Friday, March 13, 2020

Ford v. Saul and the Five-Day Rule for VE Rebuttal

Ford v. Saul holds that a request to subpoena records from the vocational expert is too late under 20 C.F.R. § 404.935(a) (the five-day rule).  We analyze why that holding is wrong and why it does not constitute law of the circuit.  


We start with our premise:  the five-day rule does not apply to rebuttal evidence at step five of the sequential evaluation process.  That position rests on plain error of law.  We start with the regulation:
When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. §§ 404.935(a), 416.1435(a).   The required (404.1512 and 416.912) sections describe the claimant’s responsibility:
you must inform us about:
(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.
 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).  Paragraph (2) describes the completeness issue:
The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—
(i) The nature and severity of your impairment(s) for any period in question;
(ii) Whether the duration requirement described in § 404.1509 [§ 416.909] is met; and
(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) [§ 416.920(e) or (f)(1)] apply.
20 C.F.R. §§ 404.1512(a)(2), 416.912(a)(2).  The regulations do not impose a duty on the claimants to present evidence about the step five question before the hearing.  That duty rests on the Commissioner.  20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3):
In order to determine under § 404.1520(g) [§ 416.920(g)] that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a [§§ 416.960 through 416.969a]), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e) [§ 416.920(e)]), age, education, and work experience.
 The five-day rule does not apply to evidence in rebuttal to (b)(3).  The five-day rule does not embrace evidence after the step three interim finding of residual functional capacity for completeness.  While a claimant must inform the Commissioner about work experience, the evidentiary hearings typically spend time on that subject — the five-day rule does not apply to developing and completing the record for past relevant work purposes. The Commissioner recognizes the problem of surprise at a hearing generally.  81 Fed. Reg. 90987, 90991 (Dec. 16, 2016):
 if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As  previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.
Ford v. Saul, ___ F.3d ___, part D (9th Cir. Feb. 20, 2020) cites the five-day rule for the purposes of requesting a subpoena.  Ford does not analyze the scope of §404.1512.  Ford does not control the analysis of §404.1512 to the five-day rule by failing to discuss it.  See Miranda B. v. Kitzhaber,328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’” (quoting United States v. Johnson,256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J. concurring)).  Ford does not confront the scope of §404.1512 and fails the law of the circuit test. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul and the Five-Day Rule for VE Rebuttal, California Social Security Attorney (March 13, 2020) edited (March 13, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-and-five-day-rule-for-ve.html

Wednesday, March 4, 2020

Douglas Prutting, Vocational Expert and Probable Prevaricator

Vocational experts are not used to being challenged.  We need to make the challenge ordinary.  The time investment up front is extraordinary but the dividends in the long run will more than compensate for the initial investment.  Douglas Prutting, Colorado Springs, Colorado, is the example of the day.

We get to a light residual functional capacity, simple repetitive tasks, minimal educational requirements, and limited to standing/walking four hours in a workday.  Prutting identifies small products assembler I (DOT 706.684-022).  Prutting uses Job Browser Pro.
Which version?
 The latest version that came out in July 2019.  
Houston, we have a problem.  The latest version of JBP did not come out in July 2019.  Version 1.7 came out in October 2019.
How many jobs does JBP state there are for small product assembler?
218,000.
Is that for the entire SOC group (51-9199) and not the for the DOT code?
Yes.  
How many jobs does JBP estimate exists for small product assembler?
I don't know how to get that number.  
JBP uses the OES job numbers.  JBP is plain about that.  The current OES job number for production workers, all other is 230,760.  I do not have to check JBP, I know that Prutting is not looking at a 2019 release of JBP, either the last installment of ver. 1.6 or ver. 1.7.  He is not truthful.

The May 2014 OES data, released by BLS in May 2015, estimates the number of production workers, all other (SOC 51-9199) at 217,500.  No other year comes close.  Data for years after 2014 are too high.  Data for 2013 reports 206,600 jobs.  Prutting is using the JBP release from 2015 and has either never bothered to check current data or never updated JBP, another misstatement.

Douglas Prutting is a prevaricator.  It is just that plain.  He got caught using old data and resorted to the natural human instinct of self-defense by speaking falsely.  Prutting probably is not used to anyone challenging him or caring that he lies.  But I do.  I care.  And so should the agency.  The ALJ has access to JBP at their desk on the fly and can check witness testimony that relies on JBP.  But they don't care.  Neither does the agency.  Public confidence in the system demands that we expose false testimony and demand that Prutting and his ilk speak truthfully and accurately.  The quality of life of disabled people depends on it.  In an age of budget retraction, we have to prove disability when the person cannot work.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Douglas Prutting, Vocational Expert and Probable Prevaricator, California Social Security Attorney (March 4, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/douglas-prutting-vocational-expert-and.html

Sunday, March 1, 2020

Ford v. Saul -- What Jobs and How Many?


The Ninth Circuit decided Ford v. Saul on February 20, 2020.  Ford is capable of a limited range of sedentary work.  We consult the District Court decision to fill in some of the gaps.  Ford can perform sedentary work with no climbing of ladders, ropes, or scaffolds; no climbing of stairs, crouching, crawling, or kneeling; occasional stooping; frequent handling and fingering; avoiding concentrated exposure to extreme cold; understand, remember, and carry out simple and routine tasks; no fast-paced production work; superficial contact with the public; can work in small groups; can interact with co-workers and supervisors to complete tasks.

The Ninth Circuit reports that the vocational expert identified 130,000 jobs as an addresser and 9,800 jobs as ink-printing.  Addresser belongs to the occupatinal group of word processors and typists (SOC 43-9022)..  Ink printer belongs to the occupational group of printing press operators (SOC 51-5112).

Addresser is obsolete.  Addresser is a word processor and typist (SOC 43-9022) occupation.  Word processors and typists contains eight DOT codes.  BLS reported in May 2015 (data that would have been published in 2016 and have been the most current data in the November 2016 hearing) that there were 68,660 word processors and typists in the nation.  The OOH relied on the 2014-24 employment projections as of November 2016, estimating the number of word processors and typists at 90,700.  That would represent the number for the O*NET OnLine as of November 2016.  The two BLS sources (EP and OES) do no support the 130,000 jobs as an addresser in 2016 or even 130,000 jobs in the group of word processors and typists.  The vocational expert lied and the failure to submit available evidence from the BLS allowed the witness to get away with it. 

An “everything report” from OccuCollect gives the data that we need to destroy the testimony.  The O*NET reports that addresser is the only unskilled DOT code.  The O*NET Resource Center reports that 51.54% of word processors and typists have 30 days or less of on-the-job training; 4.05% do not require related work experience of more than 30 days; and 51.57% of jobs require a high school education or less.  SVP is a function of training, work experience, and education.  The SVP can never be lower than the smallest component.  The exception is the exchange of experience or education where those criteria are treated interchangeably as qualifications.  Then the lowest of the two defines the SVP.  For word processors and typists, the requirement for six months to two years of related work experience means that most of the jobs are skilled.  Relatively few (8.12%) of word processors and typists are semi-skilled. 

The O*NET Resource Center does not support the presence of more than 4,500 addresser jobs in the nation in 2016. Current OOH job numbers permit the inference of 3,000 addressers.  Current OES job numbers permit the inference of 2,600 addressers.  The testimony of the vocational expert in Ford, that there were 130,000 addresser jobs, is patently false. 

Ink printer is a printing press operator (SOC 51-5112) occupation.  The ORS component of the  “everything report” from OccuCollect tells us that the OOH describes printing press operators stand/walk five hours per day at the 10th percentile.  Printing press operators engage in unskilled work in 23.8% of jobs.  Printing press operators engage in medium work in 62.7% of jobs and lift up to 25 pounds at the 25th percentile.  That data point tells us that at least 13% of the jobs require heavy or greater exertion (62% above the 25th percentile is 87%).  If there are sedentary printing press operators, they represent less than 10% of the jobs.  The testimony that ink printer represent 9,800 jobs is possible. 

Ford waived the important issues at the hearing level.  The vocational expert gave unreliable testimony.  The court embarrassed itself by allowing junk to decide the entitlement to benefits.  SSA embarrassed itself by defending that kind of testimony.  The public confidence in the system of administrative justice should go down. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul -- What Jobs and How Many?, California Social Security Attorney (March 1, 2020) edited (March 2, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-what-jobs-and-how-many.html