Thursday, August 27, 2020

Larson v. Saul and Skidmore Deference

 When you cannot possibly sleep at night and need a brain game as a complete distraction from the world, the deference doctrine is a good choice.  This is the Chevron watershed that stands at the heart of administrative law in the last 35 years. Deference is the doctrine that fills in the gaps where the law is ambiguous by a publication from the agency that is not law.  Deference to a statutory construct is the core of Chevron deference.  

If a statute is genuinely ambiguous, the path opens for the executive agency to interpret the statute.  Chevron, U.S.A., Inc v. Nat. Res. Def. Council, Inc..  The courts will defer to the agency's construction of the statute unless plainly erroneous or inconsistent with the statute.  

If a regulation is ambiguous, the agency can interpret is own lack of clarity.  Kisor v. Wilkie.  The courts will defer to the agency's construction of the regulation unless plainly erroneous or inconsistent with the statute or regulation.  

But when the statute is ambiguous and either the regulations do not interpret the statute or Congress did not delegate to the agency, full-blown deference under Chevron or Kisor does not attach.  Then the agency gets the power to persuade deference.   Skidmore v. Swift & Co.

Enter Larson v. Saul and the Windfall Elimination Provision of the Social Security Act.  42 U.S.C. § 415(a)(7).  The Eighth Circuit decided Petersen v. Astrue, finding that the WEP did not apply to dual status technicians (civilian workers that are members of the uniformed services).  The COSS responded to Petersen with Acquiescence Ruling 12-1(8)POMS 00605.380 regurgitates the ruling.  

After the publication of Peterson, the ruling, and POMS, three other circuits weighed in on the dual service technician issue.  In the Eleventh Circuit, Martin v. Social Security Administration Commissioner  relied at least in part on Skidmore deference to agree with the COSS.  The Sixth and Tenth Circuits did not get past the step one question (is the statute ambiguous) to require resort to a deference doctrine.  Babcock v. Soc. Sec. Comm'r; Kientz v. Comm'r, SSA

Larson rejected the non-ambiguity findings of Babcock and Kientz.  Larson found the WEP provisions truly ambiguous and that both the claimant and the COSS made reasonable arguments for the construction of the statute.  Based on that equipoise, Larson granted Skidmore deference to the ruling and POMS.  Larson's benefits were subject to the windfall elimination provision of the Act.  

There are two problems with the grant of deference by the Ninth and Eleventh Circuits.  The administrative state makes a decision about whether dual service technicians without input from the stakeholders and weighing of policy considerations in public.  Without notice and comment, the legislation by administrative fiat should not form part of the social contract.  Second, Congress punted.  Congress either did not consider in the statute whether dual service technicians would get unreduced Social Security benefits or did not want to make that decision public for fear of retribution by voters impacted by the WEP.  Members of Congress have plausible deniability in the effectuation of a statute on constituents.  

The four circuits and the COSS create another problem.  Dual service technicians should move to geographic boundaries of the Eighth Circuit before applying for Social Security retirement or disability benefits.  A national program lacks uniform application across the country.  But that is the nature of every Acquiescence Ruling that cabins a decision to a circuit -- a lack of uniform application of a national standard to residents of different states.  Nor is this the kind of problem that will ever get before the Supreme Court to resolve the split in the circuits.  It is not likely that any of the remaining circuits will ever disagree with the duo of decisions disagreeing with Petersen or the duo of decisions yielding under the deference doctrine to cabin Petersen to the Eighth Circuit.  

The practice pointer is simple.  A claimant for benefits in the dual service technician role should move to the Eighth Circuit before applying for benefits.  A concern for uniform application of a statute should prompt the agency to rescind the Acquiescence Ruling  and POMS with a regulation that addresses the problem and move forward with a request for Brand X deference.    


Suggested Citation:

Lawrence Rohlfing, Larson v. Saul and Skidmore Deference, California Social Security Attorney (August 27, 2020)

Tuesday, August 25, 2020

Dissecting the VE Testimony in Brace v. (Berryhill) Saul

 Earlier, we discussed applying and differentiating the Seventh Circuit decision in Brace v. Saul from the Supreme Court decision in Biestek v. Berryhill and the Ninth Circuit decision in Ford v. Saul.  To get a better handle on the depravity of the vocational expert testimony, we examine the District Court decision in Brace v. Berryhill.  The court summarized the residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), as follows: lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently; sit, stand, and walk, each, for six hours in an eight-hour workday; can remain in one position for at least 30 minutes, but would need to change positions occasionally throughout the day; no reaching overhead; no foot pedals; occasional fingering, handling, and feeling with the nondominant hand, but no restrictions with the dominant hand; no ramps or stairs; no slippery or uneven surfaces; no dangerous machinery or unprotected heights; and no operating a motor vehicle as a condition of employment.
The critical limitations are light work, stand/walk six hours; changing positions every 30 minutes; occasional manipulation with the nondominant hand.  The other limitations will rarely impact light and sedentary work.  

The VE identified call out operator (DOT 237.367-014), semi-conductor bonder (DOT 726.685-066), and counter clerk (DOT 249.366-010).  The Court of Appeals adds registration clerk and the District Court refers to the four examples as representing 140,000 jobs.  

Call-Out Operator

Call-out operator is a sedentary, unskilled occupation requiring reasoning level 3.  It does require occasional handling and fingering.  Call-out operator belongs to Credit Authorizers, Checkers, and Clerks (SOC 43-4041).  Credit authorizers represent 30,300 jobs and are typically semi-skilled or skilled per the 2018 OOH.  The O*NET suggests that 25% of those jobs qualify as unskilled within the sub-group of Credit Checkers (O*NET 43-4041.02).  Job Browser Pro estimates fewer than 3,000 jobs.  

Semi-Conductor Bonder

Semi-conductor bonder is a sedentary, unskilled occupation requiring reasoning level 2.  It requires frequent handling and fingering.  Semi-conductor bonder has an apparent conflict with the SCO.  

Semi-conductor bonder belongs to Metal Workers and Plastic Workers, All Other (SOC  51-4199).  Metal and plastic workers represent 25,900 jobs in the nation and are typically semi-skilled or skilled per the 2018 OOH.  Neither the O*NET nor the ORS address this very small occupational group.  Job Browser Pro estimates less than 20 jobs.  

Counter Clerk

Counter clerk is a light, unskilled occupation requiring reasoning level 2.  It requires occasional handling and fingering.  Counter clerk belongs to the occupational group of Counter and Rental Clerks (SOC 41-2021).  Counter and rental clerks represent 436,100 jobs and are typically unskilled per the 2018 OOH.  

The O*NET says that 40% of the jobs are part-time.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET says that almost 14% of these jobs are unskilled.  

The ORS disagrees with the O*NET about skills level:  almost 69% are unskilled.  Counter and rental clerks use both hands for gross manipulation in 76.5% (frequently in 57.2%) of jobs and fine manipulation in 65.6% of jobs.  As a separate description involving fingering, counter and rental clerks keyboard in almost all jobs and occasionally in 67.3% of jobs.  Counter and rental clerks stand 100% of the day at the 75th and 90th percentiles.  Counter clerks sit 95% of the day at the 90th percentile.  

Job Browser Pro estimates fewer than 1,800 jobs.  

Registration Clerk

The DOT lists two registration clerks.  One is SVP 5 and skilled.  The second is SVP 3 and semi-skilled.  The ALJ did not find transferable skills.  This occupation has an apparent conflict with the DOT and the absence of transferable skills.  

Registration clerk (DOT 205.367-042) is a sedentary, semi-skilled occupation requiring reasoning level 3.  It requires frequent handling. Registration clerk has an apparent conflict with the handling limitations in the RFC.  

Registration clerk belongs to Interviewers, Except Eligibility and Loan (SOC 43-4111).  Interviewers represent 204,600 jobs and are typically unskilled per the 2018 OOH.  

The O*NET states that interviewers work part-time in 55% of jobs.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET states that almost 76% of jobs are unskilled.  

The ORS states that 42.1% of interviewer jobs are unskilled.  Interviewers engage in sedentary work in 86.3% of jobs.  Interviewers sit 87.5% of the day at the median.  Interviewers can arrange their workday to sit or stand/walk at will in about half the jobs.  Interviewers engage in fine manipulation occasionally in 88.4% of jobs and keyboard in 97.9% of jobs.  

Job Browser Pro estimates the number of registration clerk jobs at less than 1,500.  


A full-court press is mixed.  The DOT/SCO knocks out two of the four occupations.  Submitting the JBP data shows the absence of a significant number of jobs, except in the Sixth Circuit.  The ORS requires careful analysis and familiarity with the data by the vocational expert for unskilled counter clerks and interviewers.  Every occupation represents a different problem amplified by the peculiarities of the specific residual functional capacity finding.  The Employment Projections, Occupational Employment Statistics, O*NET OnLine, Occupational Requirements Survey and private resources such as Job Browser Pro and provide greater insight into the mostly opaque testimony of a vocational expert.  


Suggested Citation:

Lawrence Rohlfing, Dissecting the VE Testimony in Brace v. (Berryhill) Saul, California Social Security Attorney (August 25, 2020)

Saturday, August 22, 2020

Brace Yourself for an Emerging Paradigm

 The Seventh Circuit decided Brace v. Saul on August 14, 2020.  The opening paragraph says it all:  the vocational expert's testimony was inscrutable and that does not satisfy the lenient substantial evidence standard.  The problem of the black box approach to vocational expert testimony is recurrent.  

In Biestek v. Berryhill, the vocational expert relied on in-house and confidential labor market surveys, which the ALJ refused to order that the VE turn over.

Biestek's attorney asked O'Callaghan "where [she was] getting those [numbers] from." [...].  O'Callaghan replied that they came from the Bureau of Labor Statistics and her "own individual labor market surveys." Ibid. The lawyer then requested that O'Callaghan turn over the private surveys so he could review them. Ibid. O'Callaghan responded that she wished to keep the surveys confidential because they were "part of [her] client files."

Without the BLS data or some description of methodology, Biestek affirmed.  

In Ford v. Saul, the VE refused to provide information about the sources establishing the number of jobs testimony.  

The vocational expert testified that 130,000 addresser and 9,800 ink-printing jobs existed nationwide and that Ford's RFC allowed her to perform these jobs. In response to cross-examination about how he had derived those estimates, the vocational expert stated "[m]y numbers come from a variety of sources which include the Department of Labor and the U.S. Chamber of Commerce and actually Social Security, itself, the Census Bureau, through the [International Trade Administration], supply really good numbers and, believe it or not, the state of Alaska has good national numbers." Probing the expert's conclusion regarding the number of addresser jobs, Ford's counsel asked "[w]hich publication indicated that there were that number of jobs?" The expert responded, "I don't have that information in my notes. I typically average all my sources." The counsel then asked, "What were the numbers that you averaged together to get 130,000?" Again, the expert responded, "I don't have that information in my notes, either." The expert explained that he averages the numbers from his various sources once a year, and then puts those numbers in his notes. Ford's counsel then stated he had no further questions.

Without sources form the DOL, Social Security, and Census Bureau, Ford affirmed.  

The biggest difference between Brace and the decisions in Biestek and Ford is the question of methodology.  Biestek and Ford asked for sources, not methods.  Brace asked the "how" question.  How do the sources inform your opinion about the call-out operator, semiconductor bonder, registration clerk, and counter clerk aggregated to total 140,000 jobs in the national economy.  "Brace's attorney asked the vocational expert ("VE") to explain his methodology for estimating that 140,000 jobs are available in the national economy."  

The ALJ reasoned that Brace did not object to the admissibility of the VE testimony.  Imagine how long the hearings would last if the claimant had to object to every piece of evidence's admissibility in order to later argue that the evidence was not worthy of weight.  Brace quickly rejected that vaporous statement.  

The ALJ reasoned that even if the VE has off by an unknown factor, the number of jobs would still be available.  Brace affirmed that substantial evidence does not find satisfaction in substantial speculation.  

The lesson from Brace is simple.  Representatives must ask the VE not only for the sources but also for the methodology.  Then the claimant can argue that the VE testimony is not substantial on its face.  Of course, submitting rebuttal evidence remains an equally mandatory approach to undermining VE testimony.  


Suggested Citation:

Lawrence Rohlfing, Brace Yourself for an Emerging Paradigm, California Social Security Attorney (August 22, 2020)

Thursday, August 13, 2020

Larkin v. Saul -- POMS Supports the Majority and the Dissent

  An unpublished decision containing a dissent provides some level of concern.  Larkin v. Saul provides the example of the day.  Judges Collins and VanDyke affirmed the final decision of the Commissioner to deny Larkin's claim for benefits.  Judge Berzon would have reversed and remanded.  The case centers around the state agency psych workup, juxtaposing the section I worksheet with the section III residual functional capacity assessment.  

The case centers around application of Stubbs-Danielson v. Astrue.  The majority Stubbs-Danielson as the "most applicable precedent."  Larkin's description of the case informs the application of precedent:

Not unlike this case, the ALJ in Stubbs-Danielson was faced with physicians' statements like: "claimant has several mental limitations" and "borderline intellectual functioning" and "slow pace in thought and action" and is "moderately limited in her ability to perform at a consistent pace without an unreasonable number and length of rest periods," but also that she "showed good persistence" and "retained the ability to carry out simple tasks" and "could perform simple work without public contact." Id. at 1171, 1173 (internal quotation marks omitted). The ALJ ultimately "determined that Stubbs-Danielson `retained the residual functional capacity to perform simple, routine, repetitive sedentary work, requiring no interaction with the public.'" Id. at 1171 (alteration marks omitted).

Hoopai v. Astrue stands for the same basic proposition.  The doctor said two things about persistence that reside in conflict.  Moderate limitations in performing at a consistent pace conflicts with the statement that the claimant had good persistence and still had the ability to perform simple tasks without public contact.  

POMS DI 24510.060 describes the process of the mental residual functional capacity assessment.  The purpose of section I is to document the presence and degree of specific functional limitations and hte adequacy of the documentation.  Section B.2.a states that section I is a mere worksheet and an aid that does not constitute the RFC assessment.  Section B.2.c describes moderately limited as greater than not significantly limited and less than markedly limited.  A moderate limitation in any of the 20 categories represents a significant impairment but it is not a RFC assessment.  That structure supports the treatment of the tension between moderate limitations in moderate limitation in performing at a consistent pace and having good persistence for simple non-public work.  The section III findings are the RFC and the section I categories are a worksheet.  That supports the majority opinion.  

Judge Berzon makes the observation:

The ability to complete a regular workweek is a separate employment qualification from performing simple, routine tasks. A person may be able to perform simple, routine tasks on one day and still be limited in her ability to appear for work the following day because she is suffering from an episode of depression or anxiety. Dr. Comrie's summary sentence on which the majority focuses—"[Larkin] will have some limitation with keeping a regular workweek due to her mood and anxiety [symptoms] but she retains the ability to follow through with routine tasks with reasonable [concentration, persistence, and pace]"—firmly distinguishes between the ability to show up to work regularly and the ability, when at work, to complete tasks. If the ALJ had questions about what the sentence meant, then he should have inquired further.

 POMS DI 24510.060, first bullet, describes an endorsement of a moderate limitation in performing at a consistent pace as present and a specific functional limitation.  POMS DI 25020.010 sec. B.3 lists 14 functional requirements that are critical to performing unskilled work.  Section B.3.i lists as one of the critical functions:

complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)

It is not persistence but a consistent pace that is both critical to performing unskilled work and represents a usually strict requirement.  Persistence is an attribute of semi-skilled and skilled work per sec. B.4.b.  Judge Berzon poses the question of whether having the persistence to complete simple work represents a different functional problem compared to getting to work regularly and completing tasks on a timely basis.  POMS answers that question, yes.  More importantly, the need to complete tasks in a timely fashion is strictly enforced.  

My question is whether that question was posed by the representative at the hearing.  The lack of statement to the contrary tells me, "no."  The order adopting the report and recommendation is available on google scholar but the R&R is not.  

Nor was POMS centered in the available materials.  The Ninth Circuit is scattered on this issue.  POMS is entitled to at least respect.  As a construction of the RFC regulation that is facially incomplete (404.1545(c)), POMS warrants deference.  That is a subject for another day.  


Suggested Citation:

Lawrence Rohlfing, Larkin v. Saul -- POMS Supports the Majority and the Dissent, California Social Security Attorney (August 13, 2020)