Friday, December 25, 2020

Updated Data Sets from Labor

The Department of Labor released two new data sets.  On November 17, 2020, the O*NET Center released the O*NET 25.1 database.  On December 22, 2020, BLS released the latest iteration of the Occupational Requirements Survey.  

What's New with the O*NET

The Occupational Information Network (O*NET) went through eight updates in 2020.  O*NET released updated data and website in August (version 25.0).  The most recent update incorporated the 2019 taxonomy  to bring the O*NET in line with the 2018 Standard Occupational Classification (SOC) system.  

The SOC has 867 detailed occupations coming out of 459 broad occupations, 98 minor groups, and 23 major groups.  The SOC uses a six-digit designation, xx-xxxx.  The O*NET uses an eight-digit designation, xx-xxxx.xx.  The O*NET lists 722 SOC detailed occupations without a detailed O*NET classification.  The O*NET lists 52 SOC detailed occupations with detailed O*NET classification resulting in 149 detailed O*NET-SOC designations.  

The O*NET does not provide data, other than job numbers, for 19 military SOC, 24 "all other" SOC that do have data for a detailed O*NET-SOC, 50 "all other" SOC have detailed O*NET-SOC.  The 867 SOC results in 1,016 O*NET-SOC occupations with detailed data in 947 O*NET-SOC.  

The 2010 SOC had 840 occupations.  The 2010 O*NET SOC had 1,110 occupations.  The number of occupations described shrank in the 2018 SOC and the 2019 O*NET-SOC.

What's New with the ORS

The Occupational Requirements Survey (ORS) is now on its fourth publication with the 2019 and 2020 datasets released this year.  The 2020 ORS provides data for all occupations, 22 major SOC groups, and 304 detailed SOC codes.  

The 2019 ORS provides data for all occupations, the 21 major SOC groups, and 204 detailed SOC.  

The 2020 dataset expanded the coverage to an array that exceeds the 2019 coverage.  That data presentation is not as broad as the 2018 dataset which had data for all occupations, 22 major SOC groups, and 397 detailed SOC.  The good news is that the data now conforms more closely to SSA's needs for the Occupational Information System, the eventual replacement for the DOT.  


Suggested Citation:

Lawrence Rohlfing, Updated Data Sets, California Social Security Attorney (December 25, 2020)

Tuesday, December 15, 2020

Fees for Representing Claimants -- Administrative -- How Much?

 Thirty years ago, Congress amended the representation section of the Social Security Act to establish a presumptive reasonable fee not to exceed 25% of the past due benefits or $4,000, whichever is less.  The US Inflation Calculator states that $4,000 in 1990 is worth $7,964.16 in 2020 dollars.  The current fee cap of $6,000 is behind by 30%.  Social Security informs the representative community that the average fee is less than $4,000 so there is no need for a fee cap increase.  The average will always be lower than $6,000 because that is the maximum and there are cases where very small fees are paid -- initial application paid with one or two months of past due benefits accrued, for example.  

Fees have fallen behind the cost of living by 30%.  And that is the good news.  The bad new starts with the recognition that the CPI includes consideration of Other Services.  Other Services in turn includes Legal Services.  The cost of legal services since 1990 have either lagged inflation, tracked inflation, or outpaced inflation.  Those are the three possible answers.  The correct answer is the third one:  the cost of legal services have outpaced inflation just as education and medical care have outpaced inflation.  I see a hand in the back, "by how much?"  Good question but you won't like the answer.  

Legal services has a base calculation of 100 for December 1986.  As of November 2020, the CPI-U for legal services had risen to 369.112.  We can compare that to the CPI-U for all goods with a base of 1982-84 at 100 to a current value in November 2020 of 260.817.  Using an earlier point in time, the all goods CPI represents 161% inflation.  The legal services inflation is 269% since 1986.  "Goodness gracious, are you kidding me?"  Sorry, I don't make it up, I just report the numbers.  The CPI data tool is here.  

The next question is simple, what does $4,000 worth of legal services in 1991 cost today?  The answer is disturbing:  $11,379.90.  See Historical Pricing for Legal Services.

Before the 1990 amendments, the presumptive fee was $3,000 maximum.  That was the extent of ALJ discretion.  Anything more than that required RCALJ approval.  A fee of $3,000 in 1989 would require $9,691.33 in todays dollars to buy the same quantity and quality of legal services.  That $3,000 fee ceiling was in effect in December 1985 when I got my license.  A 1986 fee requires $11,059 in November 2020 to buy the same quantity and quality of legal services.  

Are some representative overpaid for their potted plant posture during hearings?  Yes.  Should the fee caps get raised to attract the same caliber of legal talent as other areas of law?  Yes.  

The Commissioner should raise ALJ discretion to $15,000 on fee petitions.  The Commissioner should raise the fee agreement process ceiling to $9,000.  Claimants deserve that caliber of representation.  

"You get what you pay for."  


Suggested Citation:

Lawrence Rohlfing, Fees for Representing Claimants -- Administrative -- How Much?, California Social Security Attorney (December 15, 2020)

Thursday, December 3, 2020

The Ability to Stop and Stretch for One to Two Minutes

 Oh no, that would not impact the ability to perform the work identified.  You have heard the hypothetical question, seen the residual functional capacity assessment, and read the results in the ALJ decision.  The vocational expert is grossly uninformed, negligent, or making it up.  Pick 'em.  

According to the Handbook of Methods, the Occupational Requirements Survey collects data on the cognitive and mental requirements of work.  Included in that category of workplace functions, the ORS measures work pace and the ability to pause work.  See page 33.  The Collection Manual defines pause control:

Collect the presence (yes/no) of a worker’s ability, for a personal reason, to easily step away from work for short periods of time outside of scheduled breaks such as lunch or morning/afternoon break periods.

Page 83.  The Collection Manual explains how Labor accomplishes those data calculations and what those data points mean.  Employers or analysts code "yes" for the ability to pause work if either of two conditions are met:

  • Workers typically have the flexibility to choose when to take breaks throughout the day.
  • There is an overall time limit for breaks, but such breaks are allowed.
Id.  Employers or analysts code "no" for the ability to pause work any of three conditions are present:
  • If the worker would need to find someone to cover his or her responsibilities.
  • When breaks are usually allowed, but not during certain busy periods in the performance of a critical job task (for example, when work is exceedingly heavy, when a line of customers is building, etc.).
  • Workers are required to be present at a workstation for a defined period of time.
Id.  The Collection Manual gives three examples of when pause control exists:
  • Office workers can pause and take a quick walk down the hall when they need a mental break. Even when they have group meetings with coworkers or clients, they have the ability to step away quickly, if needed. A high school teacher teaches classes. In the middle of a lesson, the teacher can ask students to work quietly while she steps out into the hall for a few minutes when feeling overwhelmed. 
  • Landscapers mow lawns, prune trees and plants, and weed flower beds. Landscapers may briefly step away from their duties to take medication or attend to other medical needs without notifying a supervisor. 
  • An outside sales representative solicits business from clients via telephone, email, and in-person. Reps have the ability to schedule client appointments at their convenience. Even in the middle of a call or appointment, the rep has the ability to politely request to step away briefly
Page 84.  The Collection Manual gives examples of when pause control does not exist
  • A building security guard at a secure facility screens employees and visitors entering the facility; and walks standard patrols on a rotating basis with other guards. They are not able to leave their station without asking someone else to cover for them. 
  • A kindergarten teacher must call to the principal’s office to have another adult keep an eye on the students when he leaves the classroom. 
  • Cashiers are able to take a break when there are no customers but cannot leave their station when there is a line. 
  • A surgeon would not be able to step away easily while performing surgery. 

The academic questions are nice to know, but how the data plays out is where the rubber meets the road.  Selecting out from the ORS data set (2019) 13 of my favorites:

Without the Ability to Pause Work


all workers


office clerks, general


janitors and cleaners, except maids and housekeeping cleaners


workers in office and administrative support occupations


inspectors, testers, sorters, samplers, and weighers


maids and housekeeping cleaners


receptionists and information clerks


laborers and freight, stock, and material movers, hand


stockers and order fillers




workers in production occupations




Nearly half of all workers do not have the ability to pause work.  That is a surprising statistic in light of typical VE testimony.  Less than a quarter of general office clerks cannot self-regulate.  General office clerks is a huge unskilled body of work, generally sedentary, that becomes unavailable with either an education deficit (limited or less), a limitation to simple work, or a limitation in interacting with others.  

Cashiers is another large unskilled occupational group, this time light.  Less than 10% of cashiers have the ability to pause work activity.  Cashiers get eliminated in toto with a limitation on contact with the public or a limitation to simple work.  Check out the physical demands of cashiers in the ORS; hint: light is not the maximum exertion and standing is not limited to four or even six hours for full-time work.  

Workers in production occupations, including all supervisors and a large swath of skilled workers, have the ability to pause work in just over 60% of jobs.  Whether unskilled production workers in tandem with other workers could ever pause is highly doubtful.  

The ORS has and is developing data that answers many of the routine questions that we hear in ALJ examination of vocational experts.  The anecdotal experience of the VE without an accepted methodology for extrapolating that experience to the national economy, when nationally collected data disagrees, is not substantial evidence.  The representative, us, must submit rebuttal data to the agency. 


Suggested Citation:

Lawrence Rohlfing, The Ability to Stop and Stretch for One to Two Minutes, California Social Security Attorney (December 3, 2020)