Wednesday, February 17, 2021

Escort-Vehicle Driver -- Does Not Exist in Significant Numbers

We all have our own anecdotal experience.  "Wide Load" is the sign that we see on the back of some small car following a very large truck hauling heavy equipment or some wide load.  Those workers move that wide load during daylight hours. We have all seen it.  Certainly that trailing driver is the escort-vehicle driver described in the DOT.  But is that the only job that drivers do, every day, on a full-time basis?   We start with the DOT:

919.663-022 ESCORT-VEHICLE DRIVER (motor trans.) Drives vehicle equipped with warning lights and signs to escort trucks hauling mobile homes on public thoroughfares: Precedes escort and maintains specified distance between pilot vehicle and escort to provide warning to other motorists and to clear traffic at locations. Communicates by two-way radio with truck and other pilot vehicle drivers to coordinate changes in speed and route, emergencies, or traffic congestion. 

GOE: 05.08.03 STRENGTH: S GED: R2 M1 L2 SVP: 2 DLU: 77

Sedentary, unskilled, reasoning level 2.  Sounds simple enough.  Despite the described use of using a radio to communicate, the SCO states that this occupation requires no talking or hearing.  Just a tad inconsistent unless talking and hearing do not include giving and receiving instructions.  

Escort-vehicle driver is a light truck driver occupation (SOC 53-3033).  The OOH describes the group as having typical education requirement of a high school or equivalent education and short-term on-the-job training. Light truck drivers represent over 1 million jobs.  The Employment Projections tell us that 15.7% of incumbents have less than a high school education. 

The O*NET states that light truck drivers have contact with others half the time or more in all jobs.  Light truck drivers work with a group or team in 98% of jobs.  Light truck drivers work full-time in 51% of jobs.  Light truck drivers sit continually or almost continually in 8% of jobs.  

The O*NET Resource Center lists the requirements of light truck driver.  Light truck drivers have on-the-job training one month or less in 69% of jobs.  Light truck drivers do not require related work experience of more than one  month in almost 40% of jobs.  Light truck drivers require a high school diploma or less in 97% of jobs.  

The Occupational Requirements Survey describes light truck drivers as engaged in SVP 6 work in just under 12% of jobs.  We find no description for the other 88% of jobs.  Light truck drivers lift up to 50 pounds at the 10th percentile and up to 70 pounds at the median and above.  Light truck drivers sit 75% of the day at the 90th percentile.  

Escort-vehicle driver exists in the motor transportation industry.  Census and the OES classify Truck Transportation at NAICS 484000.  The OES states that this industry group employs 51,410 light truck drivers.  County Business Patterns describes truck transportation subsector in two groups:  general freight trucking; and specialized freight trucking.  Two-thirds of the jobs exist in general freight trucking.  The NAICS Manual points to specialized freight trucking, local as the correct industry (NAICS 484220).  Specialized freight (except used goods) trucking, local employs 222,047 workers.  The Employment Projections state that 3.4% of truck transportation workers have employment as a light truck driver.  Most workers have employment as heavy and tractor-trailer truck drivers (59% of jobs).  

We apply the math: 222,047 x 3.4% = 7,772.  That is not the number of escort-vehicle drivers but the maximum number of escort vehicle drivers.  Local specialized freight trucking hauls agricultural products, dump trucks, boats, livestock, and bulk liquids.  Long distance specialized freight trucking hauls automobiles, refrigerated products, liquids, waste, and hazardous materials.  Adding in long distance trucking will increase the number of jobs by 6,150 but requires more significant reductions for other products hauled.  

The data does not support a significant number of sedentary jobs.  The data does not support significant numbers of jobs within the industries appropriate to the DOT industry designation.  There does not exist a significant number of jobs that exist for escort-vehicle driver.  

Anecdotal experience and $4 buys coffee.  It is not reliable evidence upon which to adjudicate a claim worth $250K to $500K in benefits under the Social Security Act.  That is not how reasonable people handle serious affairs.  

I provided links to the original source material.  It would take hours to find all this data even if the searcher knew that the data existed.  For that reason, I recommend www.OccuCollect.com.  

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Suggested Citation:

Lawrence Rohlfing, Escort-Vehicle Driver -- Does Not Exist in Significant Numbers, California Social Security Attorney (February 17, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/02/escort-vehicle-driver-does-not-exist-in.html

Do the 2017 Regulations Relieve the ALJ of Explaining the Rejection of Opinion Evidence?

The question of whether the new regulations relieve the ALJ of the burden of articulating specific and legitimate reasons to rejected a contradicted opinion or clear and convincing reasons for rejecting an uncontradicted opinion rests on the question of whether the Ninth Circuit would abandon its precedent and yield to the regulations.  See Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983).  Murray imposed the “treating physician rule” in the absence of a regulation.  The Commissioner cannot relieve himself of the burden of articulating why he has rejected probative evidence.  Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).  That standard applies to all forms of probative evidence.  Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (ALJ acted without substantial justification in rejecting a report of vocational testing showing education level).   

The courts review the reasons that ALJs articulate for rejecting probative evidence.  Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts.”)  The need for reasons exists at the individual case decision level and on the macro level of articulating policy.  Dept. of Homeland Security v. Regents of the Univ. of Cal., 140 S.Ct. 1891, 1908 (2020) (the Court does not rely on post hoc rationalizations for the defense of the administrative decision).  Every administrative agency must explain the connection between the evidence and the conclusion.  Dept. of Commerce v. New York, 139 S.Ct. 2551, 2569 (2019).  The Commissioner cannot by regulatory fiat discharge the broad administrative law obligations for an ALJ to explain the decision made.  Arbitrators are not required to give reasons by law.  Juries are not required to explain their decision absent special verdicts.  But judges at all levels must explain their decisions to permit review of not only the decision made but the reasons for that decision.  The need for reasons persists despite the regulatory changes that the Commissioner characterizes as lifting that burden off the ALJ.  

Administrative law jurisprudence requires that the agency explain itself.  That duty exists in the absence of a regulation requiring articulation.  The question of whether a regulation could erase the burden of articulation turns back to the point of deference.  The courts decide what constitutes substantial evidence on review.  That an ALJ does not have a burden of articulation for agency purposes does not mean that the courts cannot or should not require a full-throated explanation of why the evidence was given less weight or rejected.  From this perspective, SSA attempts to diminish the articulation standards for rejecting evidence should fail.  

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Suggested Citation:

Lawrence Rohlfing, Do the 2017 Regulations Relieve the ALJ of Explaining the Rejection of Opinion Evidence?, California Social Security Attorney (February 17, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/02/do-2017-regulations-relieve-alj-of.html


Friday, February 12, 2021

Writing Conventions -- Mr. and Ms.

One of the practices that irks me is the reference to the plaintiff in a case as Plaintiff, not the person's name -- by the court.  This happens more often in the district court decisions and memoranda.  The Commissioner never uses the person's name.  As the attorney for the human being, we should always use our client's name.  I am categorical about that.  My client is not defined for the legal record by a temporary status in a single case but by the name by which the person chooses to proceed through life.  If you don't call your client by name in briefs to the Administrative Law Judge, Appeals Council, District Court, or Court of Appeals, start today.

Once we decide to give the client the dignity of the name, the next step is whether we attach the gender specific designator to that name -- Mr., Mrs., Miss, and Ms.  Garner forcefully points out that society does not change the designation for a man based on marital status and neither should we make that differentiation for women.  Taking Garner at his word, we can jettison Mrs. and Miss unless we know for certain that the person prefers to have that descriptor attached to the surname.  We have narrowed our writing conventions to Ms. and Ms. in the majority of writings on behalf of our client.  

I like to take my cues from the Supreme Court.  Those nine Justices decide the legal issues and set the tone for much of how attorneys and courts write.  For example, Chief Justice Roberts uses contractions.  But we focus on the use of Mr. and Ms. today.  Looking at Biestek v. Berryhill, the syllabus refers to Michael Biestek as Biestek.  The syllabus is written by the reporter so does not warrant much persuasive power.  The opinion addresses Biestek by name 66 times.  Justice Kagan introduces Michael in section I and thereafter refers to the petitioner as Biestek.  Justice Sotomayor introduces Michael in the first paragraph of her dissent and then refers to him as Biestek seven more times.  Justice Gorsuch introduces Michael in the first paragraph and then addresses him as Mr. Biestek 13 times.  The lesson that we extract from these three opinions is that there is no hard and fast rule.  

The Seventh Circuit decided Brace v. Saul in August 2020.  Judge Sykes refers to Aaron Brace as Brace 24 times.   

The Eighth Circuit decided Lucus v. Saul in June 2020.  Judge Kobes refers to Eric Lucus by the full name once and simply Lucus 22 times.  

The Ninth Circuit decided Ashe v. Saul in December 2020.  Judge Nguyen refers to Julie Ashe by first and last name once and 33 times by simply Ashe.  Interesting to point point out that court staff prepared the summary and refers to Ashe as Plaintiff which is not the proper status title.  When the case got to the Court of Appeals, Ashe became the plaintiff-appellant and the primary status is the latter, not the former.  Judge Nguyen refers to Ashe or other people seeking benefits as plaintiff when quoting other sources.

The Tenth Circuit decided Carr v. Comm'r, SSA in June 2020, a case pending oral argument next month before the Supreme Court.  Judge Matheson refers to Willie Carr as Mr. Carr eight time, never simply by Carr.  

The Eleventh Circuit decided Walker v. Soc. Sec. Admin., Comm'r yesterday.  Judge Pryor refers to John Walker as that three times and as simply Walker 53 times.  

Of the decisions that I sampled, the Tenth Circuit has a culture of using the gender-specific title and at least four others do not.  Justice Gorsuch hails from the Tenth Circuit and uses that convention.  I submit that using any gender indicator represents a problem for the writer.  

First, I don't know my client's title preference.  Second, the gender identity or title that my client uses or wants is truly irrelevant to my representation in the case.  Third, I have a word count in briefs and especially appellate briefs.  Why waste a word?  As Magistrate Judge Jean Rosenbluth said at a bench bar meeting several years ago on the subject of wasted words, "I will never get that nanosecond back."  Considerations of knowledge, relevance, and efficiency suggest that legal writing abandon Mr. and Ms. in referring to the party absent some reason germane to the case for using them (family law cases for example need a differentiation).  But please, stop referring to your client by that temporary status title.  That is disrespectful to your client's humanity.  

That's my opinion.  Your mileage may vary.  

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Suggested Citation:

Lawrence Rohlfing, Writing Conventions -- Mr. and Ms., California Social Security Attorney (February 12, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/02/writing-conventions-mr-and-ms.html



Thursday, February 11, 2021

County Business Patterns Added to OccuCollect -- Industry Sector to Industry Group

 I am pretty excited about this even if it does impact a small number of cases.  County Business Patterns is useful when the vocational expert designates obscure work that exists in obscure industries.  Furniture-rental consultant is a prime example.  Vocational experts use it for sit-stand option jobs and Job Browser Pro reports large numbers.

JBP reports the number of jobs by citing two industry codes: 532000 and 5320A1.  The OES report lists NAICS codes 532000, 5320A1, and 532100.  For counter and rental clerks (SOC 41-2021), OccuCollect.com reports:

Occupational Employment Statistics 2019

41-2021 - Counter and Rental Clerks

532000

Rental and Leasing Services

102,240

5320A1

Rental and Leasing Services (5322, 5323, and 5324 only)

42,500

532100

Automotive Equipment Rental and Leasing

59,740


Adding the last two lines totals to the first line.  The industry subsector (532000) includes the industry groups (5320A1 and 532100).  This OES report (which is free and requires no subscription to OccuCollect.com) proves that JBP double counts the jobs in 5320A1 and fails to account for the DOT codes cited in that industry by assigning all the jobs listed to furniture-rental consultant. 

The County Business Patterns report for the industry sector 530000 - Real Estate and Rental and Leasing further illustrates the point:

County Business Patterns 2018

53 - Real Estate and Rental and Leasing

532Rental and Leasing Services516,661
5321Automotive Equipment Rental and Leasing172,713
5322Consumer Goods Rental132,305
5323General Rental Centers20,103
5324Commercial and Industrial Machinery and Equipment Rental and Leasing191,540

Rental and Leasing services includes Automotive, Consumer, General, and Commercial rentals and leasing.  The double counting gains clarity and further illustrates that JBP and VEs that rely on JBP are counting jobs in automotive equipment rental and leasing that have zero to do with furniture.  That is the report from the 2-4 digit report.  Remember, two non-zero digits represents and industry sector, three non-zero digits represents an industry sub-sector, and four non-zero digits represents an industry group.  Five and six non-zero digits represent discrete industries.  

A vocational expert testified that being reliable is confusing.  That is because math is hard.  Don't claim to be an expert if you can't handle the math.  

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Suggested Citation:

Lawrence Rohlfing, County Business Patterns Added to OccuCollect -- Industry Sector to Industry Group, California Social Security Attorney (February 11, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/02/county-business-patterns-added-to.html


Thursday, February 4, 2021

Update on Production Workers, All Other

 Production workers, all other (SOC 51-9199) remains a common set of occupations for vocational experts.  Production workers contains 1,590 DOT codes.  Sedentary unskilled work represents 52 of the occupations.  Light unskilled work represents 405 of the occupations.  When we consider that the DOT identifies 137 sedentary unskilled occupations total and 1,586 light unskilled occupations, we know that production workers represents a huge piece of the unskilled occupations.  

We start, as we always should, with the number of jobs.  The Occupational Outlook Handbook (2019) reports 238,600 jobs.  The Employment Projections (2019) reports 92,900 jobs in the manufacturing sector.  The Occupational Employment Statistics (2019) reports 222,230 total jobs and 91,940 manufacturing jobs.  Slightly different job numbers that are not statistically significant.  

The OOH has reported that the typical production worker engages in moderate-term on-the-job training -- more than 30 days and up to one year.  The OOH describes skilled and semi-skilled work.  The 2020 Occupational Requirements Survey reports 28.7% of production workers engage in work with SVP more than a short duration (four hours) and up to and including one month -- SVP 2.  The ORS states that 68.9% of production workers engage in medium work.  

At this point we have two assumptions to make.  First, the distribution of skill level and exertional level is even, that 68.7% of workers at all skill levels engage in medium work.  Second, that skilled and semi-skilled work are more likely to represent work at lower levels of exertion.  We take the least advantageous assumption to our clients, that 28.7% of sedentary and light jobs are unskilled.  

The number of unskilled production workers is 68,478 using the higher OOH job number.  Of those jobs, 47,181 require medium exertion.  That leaves fewer than 12,000 jobs that require sedentary, light, heavy, or very heavy jobs.  

"I have seen these jobs with a sit-stand option, a stool, and the worker can assume either posture at will."  So the testimony goes.  The vocational witness's anecdotal experience does not substitute for the prowess of the Department of Labor.  There does not exist a reliable articulated methodology for extrapolating what a VW saw one time or 10 times to the national economy.  What does Labor say?

Good question.  At the 10th percentile, production workers stand 90% of the workday.  If sedentary work exists, it represents less than 10% of the workforce and less than 30% of them perform unskilled work.  The number of jobs that stand less than 2.7 hours for sedentary work or equal to or less than 6.0 hours in a light occupation combined represent less than 7,000 jobs in the occupation and less than 2,800 in production work engaged in manufacturing, including food production.  

We have all seen the mantra -- math is hard.  So too, being an expert is hard.  Statistical data requires math, period.  The next time a VW claims that there are 20,000 lens inserters, 100,000 small products assemblers, or some other number of jobs, don't get mad.  Just get even.  

CAVEAT:  Labor redrew the SOC lines in the 2018 iteration. All 1,590 production worker DOT codes are also listed in Computer Numerically Controlled Tool Operators (SOC 51-9061) and Computer Numerically Controlled Tool Programmers (SOC 51-9062).   I have not run into a vocational expert that has updated the data and knows this.  Job Browser Pro lists several production worker occupations in Team Assemblers (SOC 51-2092).  JBP does not explain the assignment and without an explanation, it is indefensible.  See Goode v. Comm'r.  

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Suggested Citation:

Lawrence Rohlfing, Update on Production Workers, All Other, California Social Security Attorney (February 4, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/02/update-on-production-workers-all-other.html