Orozco v. Kijakazi -- the List for Conflict Expands

The District Court issued a decision in Jesus V.O. v. Kijakazi, 2021 WL 5500528 (C.D. Cal. Oct. 18, 2021) vacated and remanded Orozco v. Kijakazi, 2022 WL 17844618 (9th Cir. Dec. 22, 2022). V.O. declared that conflict between the vocational witness and sources other than the DOT did not impose a duty of reasonable explanation on the ALJ. Orozco clarifies the point -- the ALJ must state reasons for rejecting the evidence in conflict.

Orozco holds that when the VW admits that her source for job numbers (here, Job Browser Pro) conflicts with the testimony, the ALJ must reconcile the conflict. The VW testified that production assembler (actually solderer) represented 71,000 jobs but JBP described less than 6,000 jobs. To allow the VW to inflate the number of jobs would permit the witness to pull the number out of a hat.

The VW testified that Orozco could perform work as an electrical assembler and wafer line worker. The Occupational Requirements Survey described 26.7% of jobs in the category that includes both unskilled jobs as not having an educational requirement but all 26.7% of jobs required literacy. The balance of jobs required a high school equivalency or more education, 73.3% of the jobs in the category.

The Ninth Circuit elevated Job Browser Pro to a source that requires conflict resolution in White and in the unpublished opinion in Perkins. The Ninth Circuit relied to County Business Patterns and/or the Occupational Employment Statistics by reference in Erickson. The Ninth Circuit relied on the O*NET as a basis for finding that work was not full-time in Jaquez. Orozco adds to the list -- the ORS.

In Jaquez and Orozco, the O*NET and ORS data presented consisted of printouts from OccuCollect.com. The Commissioner will likely complain bitterly in the future that this author has an interest in OccuCollect. That is true and irrelevant. The COSS has never come forward with even a scintilla of evidence that the data presented in OccuCollect is anything other than up-to-date and accurate reflections of the DOT, SCO, O*NET, OEWS, CBP, and ORS.

Drop the mic. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Orozco v. Kijakazi -- the List for Conflict Expands, California Social Security Attorney (December 28, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008. 

 

Smartt v. Kijakazi -- Not Worthy of Publication

 The Ninth Circuit decided Smartt v. Kijakazi on November 17. 2022. Smartt is a straight physician opinion and excess pain Social Security disability case. On a first quick read, I thought that there was really no reason for the publication of the decision. The legal principles stated are pedestrian, well-settled, and establishes no nuance in the understanding of evaluating physician opinion or first party subjective pain testimony.  

I let that read marinate for a week and came back to the decision. I was troubled by one phrase in the characterization of the consultative examining physician opinion: "Smartt was capable of light-exertion work involving sitting, standing, and walking for limited periods." Limited periods of sitting do not permit sedentary work. Limited periods of standing and walking do not permit the broad range of light work. Social Security Ruling 83-10. Smart clarifies what limited means:

By contrast, the consultative examiner Dr. Gordon found Smartt capable of performing a range of light-exertion work consistent with sitting, standing, and walking up to four hours in an eight-hour workday.

Sedentary work permits not more than occasional standing and walking, 2.7 hours per day. Sedentary work requires at least 5.3 hours per day in an eight-hour day. This person cannot perform sedentary work.

Light work generally requires at least six hours of standing and walking in a day. Social Security Ruling 83-10. Standing is more critical than walking. Id.

If the ALJ is going to credit Dr. Gordon, then Dr. Gordon's limitations should be in the residual functional capacity OR the ALJ must explain why the agency has rejected Dr. Gordon's opinions.

Dr. Karandish permitted part-time work with two hours of sitting and two hours of standing in a workday. The first question to ask is whether Dr. Karandish's assessment is extreme. Dr. Gordon permits four hours of sitting and standing. Dr. Karandish thinks two hours of sitting and standing is more appropriate. Those differences are not inconsistent. They represent shades of grey. Both physicians agree that Smartt cannot perform the full range of sedentary or light work as generally understood.

Both limitations are objectively reasonable. Smartt has limitations that impact sitting, standing, and walking. It is the degree of limitation that is the question before the agency and the legitimacy of that choice before the court -- did the ALJ explain the choice is a logical and reasonable manner that does not suggest an arbitrary and capricious decision-making process.

And that takes this post to the unaddressed question. The ALJ found that Smartt could perform light work without erosion. Whether that assessment means six hours of weightbearing or eight hours of weightbearing in a workday is not addressed. If we assume six hours, no medical opinion addressed in the opinion of the Court of Appeals or the District Court suggest that any doctor opined that Smartt could tolerate that much sitting or standing. The ALJ went out on a limb and gave a finding unsupported by any evidence. The Court did not address that problem. Tackett v. Apfel does not permit the ALJ to go where no doctor has gone before. It is unclear whether this issue was briefed and I suspect that it was not because neither the Court of Appeals or the District Court addressed that problem in a meaningful discussion.

Smartt goes off on the status of Dr. Karandish as not a treating physician. First, that question is irrelevant. The specific and legitimate standard applies regardless of whether Dr. Karandish is a treating physician or a consulting physician hired to assess limitations. Lester v. Chater. Second, the nurse practitioners prescribing opioids to treat pain cannot and do not work alone in any state. The NP must work under the supervision of the medical doctor (or osteopathic doctor) in every state. When the physician supervises the functions and treatment decisions of the NP, the physician is the treating doctor. Taylor v. Comm'r of Soc. Sec. Admin. Third, two visits to a physician is enough to invoke treating physician status. Ghokassian v. Shalala. 

This issue is the only reason to publish. The issue addressed is irrelevant. The issue addressed is legally wrong under two separate lines of authority. On this point, Smartt is not the law of circuit. Taylor and Ghokassian claim that status. The Court should delete the first paragraph of part III.A. That process requires a request for rehearing to address the intra-circuit conflict.

Some might read Dr. Gordon as permitting eight hours of weightbearing in a workday, four standing and four walking. I doubt that Dr. Gordon meant four of each but instead meant four hours in any combination, total. This requires an interrogatory or cross-examination of the doctor to clarify that ambiguity. That is a fact problem that must be addressed at the hearing level.

Smartt addresses the application of the treating physician rule that evaporates before our eyes. The number of cases requiring analysis under 20 CFR 404.1527 dwindles precipitously every day. Smartt probably violates the law of the circuit in the applications stated. Smartt should not have been published. Circuit Rule 36-2 describes the criteria for publication:

A written, reasoned disposition shall be designated as an OPINION if it:

(a) Establishes, alters, modifies or clarifies a rule of federal law, or
(b) Calls attention to a rule of law that appears to have been generally overlooked, or
(c) Criticizes existing law, or
(d) Involves a legal or factual issue of unique interest or substantial public importance, or
(e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or
(f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or
(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression.

Absent facial criticism of Tackett, Taylor, and Ghokassian, Smart does not qualify under 36-2(c). It does not meet any other criterion. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Smartt v. Kijakazi -- Not Worthy of Publication, California Social Security Attorney (November 26, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings

 The Ninth Circuit decided and published Farlow v. Kijakazi on November 16, 2022. Farlow decides that the clear and convincing standard does not apply to uncontroverted opinions/findings of the non-examining physicians.  Farlow relies on Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).  Sousa stands for the proposition that the Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record. Sousa does not address uncontroverted/uncontradicted opinion evidence.  Farlow and Sousa are time-limited to cases arising before March 27, 2017. 

The problem for Farlow rests on the opinion/finding of Dr. Staley. Farlow describes the problem of the state agency physician reviewing the post-hospitalization study of decreased cardiac function. The state agency physician did not review the study two years later describing normal cardiac function.  Slip op. at 3-4. 

As a matter of expert testimony, the testimony is only valuable to the extent that the physician or other expert relies on a proper foundation. In medical malpractice cases, this is labeled the incomplete medical hypothetical. In Social Security cases, we are familiar with the standard that vocational testimony that does not assume an accurate and complete medical-vocational profile is not substantial evidence.  Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988).

This is not new and the application moves straight across. The concept of expert testimony requires that admissibility focus on a reliable foundation. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 597 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999) (citing Daubert). If the Federal Rules of Evidence applied, which they do not, an expert opinion that failed to meet the reliable foundation threshold by assuming a complete foundation, the state agency physician opinion is not admissible. Because the administrative law context relaxes the rules of evidence, the opinion of the state agency physician is admissible but easily rejected because it did not assume the later normal ejection fraction shown on cardiac study. 

Farlow reaches an issue that it need not have reached -- the standard for rejecting state agency physician opinions in the old medical evidence hierarchy. Farlow should have stopped at the failure of the state agency physician to assume a complete medical hypothetical and determined that that failure satisfied any standard for rejecting uncontradicted medical opinion evidence from any source.

That observation turns to the litigation strategy. What could Farlow have done differently? The answer is medical opinion from a source, any source, that the history of cardiac disease caused limitations to the ability to function. Medium work is hard. Standing for up to eight hours per day, frequently lifting 25 pounds, occasionally lifting 50 pounds, and the frequent posturing required of medium work proves difficult for any person much less a person with a history of severe cardiac disease. The problem is Farlow is not a legal problem, it is a fact problem. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Farlow v. Kijakazi -- The Clear and Convincing Standard Does Not Apply to DDS Findings, California Social Security Attorney (November 22, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

Judge VanDyke is Just Wrong

 A memorandum disposition from the Ninth Circuit with a dissent should be published.  Jones v. Kijakazi is one such case.  Judge VanDyke issued a dissent in Jones to express his opinion that the court should affirm.  Judges Fletcher and Bybee reversed and remanded for further proceedings, which is the order of the court. 

Before getting too deep into the weeds, we must recognize that dissent is not a mere disagreement. A dissent has the objective of persuading the other members of the panel or to persuade future judges to rule in the manner urged. A dissent is not moaning and complaining that the majority got it wrong. Circuit Rule 36-2(g) describes an opinion "accompanied by a separate concurring or dissenting expression, and such author of such separate expression requests publication." If Judge VanDyke is serious about the content of his dissent -- that the majority got it legally wrong -- and wants to discourage other cases from committing similar error, then Judge  VanDyke should have asked for publication. 

We turn to the facts of the case in Jones. The majority describes the rejection of subjective limitation testimony because the extent of limitation was not fully supported by the record and Jones had activities of daily living. Judge VanDyke echoes the ALJ decision in the first paragraph of his dissent. Judge VanDyke urges a rule of law that the "long list of daily activities and chores" is always sufficient to permit rejection of symptom and limitation testimony. But that is not where Judge VanDyke starts. He starts with the proposition that the inconsistency with the medical evidence is alone sufficient.

Judge VanDyke relies on Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Carmickle affirmed where the claimant testified to lifting 10 pounds occasionally, but a doctor testified to 10 pounds frequently. Carmickle relies on Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995). And the wheels fall off, exposing Carmickle as violating circuit law. Johnson cites the foundation of the excess pain doctrine: "once an impairment is medically established, the ALJ cannot require medical support to prove the severity of the pain. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir.1991)."

Judge VanDyke cites Chaudhry v.Astrue, 688 F.3d 661, 672–73 (9th Cir. 2012) for the proposition that the ALJ can prefer objective evidence over subjective evidence. That is not what Chaudhry holds. The treating physician found a somatization disorder but the examining physician found malingering. Chaudhry did not follow medical advice. Chaudhry does not stand for the proposition that the ALJ can prefer objective evidence over subjective evidence. 

Judge VanDyke cites Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Burch recites the same two-part test found in Johnson and nested in the en banc decision in Bunnell. "An ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain." (Cleaned up). 

Judge VanDyke cites Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). While Thomas mentions activities of daily living in reciting the facts and in the discussion of the excess pain finding, Thomas holds that the claimant's lack of candor about substance abuse "carries over to her description of physical pain." Thomas is not an ADL case.  Thomas is a truthfulness case. 

Judge VanDyke cites Osenbrock v. Apfel, 240 F.3d 1157, 1165–66 (9th Cir. 2001) for the proposition that an ALJ could reject pain testimony based on normal physical findings. Osenbrock did not get over the first criterion -- the existence of an impairment that could cause pain. We go back to Johnson for this principle, the claimant must establish the existence of an impairment. A normal physical impairment precludes the existence of an impairment that could cause pain. 

In a single paragraph, Judge VanDyke disposes of the context of Jones's activities of daily living. But context is everything. All homicides are not murder; some homicides are not crimes. Context matters. Activities of short duration terminated by symptoms do not translate to the work setting and do not suggest that the person can persist for sufficient time to perform work or work-like activities. Context matters because claimants "need not vegetate in a dark room in order to be eligible for benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (cleaned up). 

We are not robbed of our commonsense and common experience. If anyone wants to see profoundly and obviously impaired individuals that meet or equal listings or that cannot sustain full-time work activity, go to the airport, the supermarket, the ball game, the movie theater, church, synagogue, temple, mosque, just go where people congregate and socialize. We have all seen people engaging in activities that ALJs point to as evidence of a capacity to engage in substantial gainful activity and seen people that obviously cannot. 

Let me be brazen and add to the list. Claimants for disability need not infantilize themselves and prostrate on the floor demanding that others around them take care of every basic human need.  Of course, people that lack a capacity for full-time work manage to attend to basic human needs of nourishment, self-care, and whatever pleasure they can eek out of their existence. SSA should not, and the courts should not permit, require that claimants for benefits act like infants unable to attend to any needs. Making a sandwich, pouring a bowl of cereal, frying an egg -- none of those things require the persistence of full-time work; none require the proximity and cooperation required of a work setting. SSA and the courts should not rob people of the dignity of life to enforce the social contract framed in the Act -- if you become unable to engage in substantial gainful activity, the federal government will provide a safety net whether earned (DIB) or as welfare (SSI). That's the bargain that frames the boundaries of public policy. We don't allow the disabled to fall from grace into want and then descend into destitution.  

And now, I must admit, I have changed my mind. Judge VanDyke should not ask that Jones become a published opinion. The dissent is not a powerful charge to course back to the law. It is a divergence from settled law framed in Bunnell that no judge or panel can modify. Judge VanDyke's dissent is just wrong. 

"Change my mind."

___________________________

Suggested Citation:

Lawrence Rohlfing, Judge VanDyke is Just Wrong, California Social Security Attorney (September 24, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Court Scrutiny of EAJA Settlements -- Citing Superceded Decisions

We discussed the Court Scrutiny of EAJA Settlements with a Federal Agency in 2016. The resort to second-guessing the settlement choices of the parties has slowed but continues. The court scrutiny continues not only as to hours but also rates. Today, we examine a different aspect of the of same problem. 

The Commissioner denies a claim for Social Security disability benefits.  The claimant proceeds to federal court and prevails.  The Equal Access to Justice Act provides limited relief for having to litigate against the federal government when it has acted without substantial justification. The Supreme Court holds that a request for attorney's fees "should not result in a second major litigation."  Hensley v. Eckerhart. The Court continues to observe that: "Ideally, of course, litigants will settle the amount of a fee."  Id.  

If we assume that the Supreme Court is right, mostly because it is final, how should the courts treat stipulations and unopposed motions that "settle the amount of the fee?" Douzat v. Saul, 2020 WL 3408706 (D. Nev. Jun. 11, 2020) found that the district court had the right if not the obligation to review the hours and rates despite the presentation of a stipulation for fees settling the matter. Dissatisfied with the fee award and then potential offset against fees that he might owe later, Douzat appealed. Pursuant to joint motion, the Ninth Circuit awarded the fees in the stipulated amount. Douzat v. Saul, 2020 WL 8182913 (9th Cir. Oct. 16, 2020). The Ninth Circuit stated that the order served as the mandate. The District Court then "spread" the mandate of the Ninth Circuit on the docket of the District Court. 

Technically, the order of the District Court was not vacated.  It was superseded.  The order is not the order of the federal courts on the issue of fees awarded Douzat.  The District Court should stop citing Douzat because it is not the final order of the court.  The Court should also take note that whatever angst it has with a party getting a fee award under the EAJA, in in forma pauperis plaintiff will fill an appeal to the Ninth Circuit, the parties will file a joint motion awarding the fees sought, and the order of the District Court will become a nullity.  

Bascom v. Kijakazi, 2021 WL 5826311 (D. Nev. Dec. 8, 2021) is more shocking. The parties settled quickly without briefing. The parties stipulated to fees of $1,100. The District Court spent more time analyzing the fees than any party did in providing legal services on the merits, reducing the settled fee to $637.50. Bascom filed an appeal. On joint motion dismissing the appeal, the Ninth Circuit awarded the fees and expenses to which the parties had agreed, $1,100. Bascom v. Kijakazi, 2022 WL 945331 (9th Cir. Feb. 15, 2022). 

Brown v. Kijakazi, 2021 WL 56181753 (D. Nev. Nov. 8, 2021) is a tragedy. The District Court had before it an unopposed motion for fees in the amount of $7,500. Undaunted by the lack of opposition, the District Court reduced the hourly rate to $125 per hour and awarding $4,950 in fees. The docket does not show that Brown appealed despite initiating the action in forma pauperis. Counsel in the case did get costs of $250 which appears to represent the pro hac vice fee -- which is not a cost but might be a recoverable expense. 

When the courts reduce EAJA fees, the losers are several. First, counsel for the parties should take the extra time on the chin to file an appeal, enter mediation, and file a joint motion for fees and dismissing the appeal.  Time is money.  The attorneys for the plaintiff and the agency lose. The Ninth Circuit loses, having to docket an appeal, absorb the time of a mediator, granting a motion, and issuing a mandate.  The Court lose. The biggest loser is the claimant for benefits. The courts deprive the party of a reimbursement, offset, or credit against fees that the claimant deserves. 

Let's go back to Douzat. After the dust settled and the agency heard the case on remand, counsel went back to the District Court and sought fees. The Court awarded $32,000 in fees under section 406(b) and ordered a reimbursement of $4,500 for EAJA fees awarded by the Ninth Circuit. Douzat v. Kijakazi, 2021 WL 9316346 (D. Nev. Aug. 24, 2021). Had counsel been unwilling to "waste" the time on an appeal to the Ninth Circuit, Douzat would not have received a $4,500 reimbursement but instead the paltry $2,975 awarded by the District Court in the first instance.  

Douzat is dead and the courts should stop citing it. It is not good law, it is punitive, it wastes the scarce resources of time of not only the parties and their attorneys but also the District Court and the Ninth Circuit, and most importantly it violates the intent of the Equal Access to Justice Act. Please, Your Honor, take your foot off the neck of the plaintiff and the attorneys and please, stop treating government lawyers like they need your help.

___________________________

Suggested Citation:

Lawrence Rohlfing, Court Scrutiny of EAJA Settlements -- Citing Vacated Decisions, California Social Security Attorney (September 17, 2022) https://californiasocialsecurityattorney.blogspot.com. Updated December 28, 2022. 

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Power-Screwdriver Operator -- We Need to Go Back in Time

 Power-screwdriver operator (DOT 699.685-026) will fast become a popular light unskilled occupation for the vocational witness in Social Security hearings.  Why?  I am glad that you asked. Job Browser Pro estimates that this occupation represents 237,527 jobs in the national economy.  That is a lot of jobs and the VW has JBP to back it up.  JBP does not link to O*NET or ORS data.  

Power-screwdriver operator belongs to the occupational group of miscellaneous assemblers and fabricators (SOC 51-2090).  The federal government statistical presentations use "0" as a place holder.  In occupational groups, the "0" designates a summary group.  Occupational groups that end in a non-zero digit designate a line item. So, what is up with miscellaneous assemblers and fabricators?  I am glad that you asked. 

We start tracking this group down in the Occupational Employment and Wage Statistics.  BLS explains that miscellaneous assemblers and fabricators (SOC 51-2090) includes the 2018 SOC occupations 51-2092 Team Assemblers and 51-2099 Assemblers and Fabricators, All Other.

We don't bother looking in the O*NET for 51-2099 Assemblers and Fabricators, All Other.  The O*NET does not provide data for occupational group ending in "9" -- the all other designation -- except for sub-groups with the O*NET trailer ".0X" where x is a non-zero digit. 

We do look for 51-2092 in the O*NET and both 51-2092 and 51-2099 in the ORS.  There we find a statistical basis for eroding the ability of the VW to claim a reliable methodology for extrapolating local experience to the national economy.

Team assemblers have occasional or less contact with other in 18% of jobs.  Team assemblers do not engage in teamwork in 3% of jobs.  JBP reports that miscellaneous assemblers and fabricators represent 1.3 million jobs.  A mere 3% still approaches 40,000 jobs.  The O*NET resource center reports that team assemblers engage in work with 30 days or less of on-the-job training in 14.5% of jobs.  Assuming that there is no correlation between working alone and skill level, the number of unskilled jobs that do not require teamwork drops to less than 6,000; but the number of jobs with occasional or less contact with others still hovers at 34,000 jobs.  Since working in proximity to or in coordination with others is critical to performing unskilled work, it is more likely that those without significant contact with others or without teamwork are skilled or at least semi-skilled workers.  The numbers drop fast.  

 The ORS reports that team assemblers stand almost 7.0 hours on average and 6.8 hours per day at the 25th percentile.  The ORS does not report the 10th percentile for standing.  The percent of the day reports state 84.2% of the day on average and 87.5% of the day at the 25th percentile.  Where the number of hours divided by 8 does not equal the percent of the day report, that observation suggests that the data does not report full-time work or reports an alternate work schedule.  Either the number of hours or the percentage of the day preclude workers with a limitation to 6 hours of standing/walking during the day.  

The incumbent reports in the O*NET and the employer reports in the ORS disagree on SVP.  The ORS reports that team assemblers engage in unksilled work in 53.7% of jobs.  Factoring in this data does change the results for contact with others and teamwork but does not change the required standing reported.  

The ORS reports that assemblers and fabricators, all other stand 6.52 hours on average and 8 hours per day at the median.  The ORS does not report either the 10th or 25th percentiles for standing.  The ORS reports the percentage of the day, 79.8% on average and 100% of the day at the median.  The ORS reports that assemblers and fabricators, all other engage in unskilled work in 49.5% of jobs.  

The OES, the processor of the OEWS, last separated team assemblers and assemblers and fabricators, all other in 2016.  Team assemblers represented 1.1 million jobs.  Assemblers and fabricators, all other represented 230,000 jobs.  Power-screwdriver operator was then designated an all other occupation, not a team assembler occupation, and it was never the only DOT code in the group.

Whether the claimant has an impairment in contact with others, teamwork, or standing, the data does not support 230,000 p0wer-screwdriver operator jobs.  With that conclusion, we return to the JBP estimate.  JBP reports that 53,700 jobs work in temporary help services.  We covered the problem with temporary help services earlier this year.  Those jobs do not represent sustained employment for Social Security purposes at step five of the sequential evaluation process.  

A VW regurgitating the number of jobs reported by JBP does not end the analysis.  We must use the O*NET, ORS, and understand the limitations inherent in JBP to squeeze the numbers to something that is reliable.  The estimate of 237,527 jobs as a power-screwdriver operator is not reliable for Social Security adjudicatory purposes.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Power-Screwdriver Operator -- We Need to Go Back in Time, California Social Security Attorney (September 16, 2022) (updated October 5, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Medium Work and Standing/Walking -- SSR 83-10 is Wrong as Interpreted

 Does medium unskilled work require a maximum of six hours of standing/walking in an eight-hour day?  That is what Social Security Ruling 83-10 implies.  At least two court decisions have found that the mere invocation of the term medium necessarily signals to the vocational witness that the ALJ intends to include that limitation to standing/walking six hours in an eight-hour day.  The understanding of SSR 83-10 as imposing a six-hour lid on standing/walking is linguistically wrong and more importantly is factually wrong.  

We have addressed the approximately six hours language in the past as modified by the description of sitting may occur intermittently during the remaining time.  As possessors of a legal education, we know that may is permissive but not necessarily.  We also know that intermittently does not mean all.  We also know that the remaining time does not mean that the person sits intermittently during the day.  The adverb intermittently describes the frequency of the adjective-noun sequence, the remaining time.  To cling to the notion that medium work requires six hours of standing/walking is to misread the ruling.  That is not what it says.  To be fair, the courts have not construed the language but instead agreed that ALJs and VWs think that.  On that proposition, the courts are probably right that that is what the typical ALJ things and about a third of VWs.  The more important question is whether any of them have a reliable basis in the data available from the Department of Labor.  The answer to that question is "no." 

First, the DOT does not define medium work with any discernible limit on the amount of standing/walking during a workday.  The only range of work that has a limit on standing/walking is sedentary work, not more than occasionally.  The regulations do not define medium work with any discernible limit on the amount of standing/walking during a workday. As to medium work, the concept of standing/walking is not mentioned -- at all -- in either the DOT or the regulations.

The factual question is whether all, most, some, or even a few medium occupations permit sitting.  The answer is clearly "yes," bus drivers and truck drivers sit.  Those are not unskilled occupations but illustrate that some medium work requires sitting.  

The unskilled DOT codes that require medium exertion narrow the focus.  The DOT lists 981 medium occupations with SVP 1 or 2.  

Production Workers, All Other

The largest aggregation of those medium unskilled DOT codes falls in the classification of Production Workers, All Other (SOC 51-9199).  The Occupational Requirements Survey reports that production workers stand 90% of the workday at the 10th percentile and reports that production workers stand six hours out of the workday at the 10th percentile.  The numbers don't correspond until we consider that some of the jobs are part-time.  Then and only then can 90% correlate to six hours.  Part-time work does not count at step five of the sequential evaluation process.  

It really does not matter that 85% of the production workers engage in medium exertion.  What matters is that no reported range of production workers stand not more than six hours of an eight-hour day whether medium, heavy, very heavy, light, or sedentary (none).  As an aside, the ORS further reports that 94% of production workers do not have a choice of sitting or standing in any circumstance.  

Helpers -- Production Workers

Helpers-Production Workers (SOC 51-9198) contains 172 medium unskilled DOT codes.  The ORS does not report standing at the 10th percentile nor its corresponding data point of sitting at the 90th percentile. Why?  The data are not reliable to report according to the federal government statistical standards.  

The ORS reports that helpers stand 7.2 hours or 90% of the workday at the 25th and 50th percentiles. The mean values are 7.23 hours and 88.3% of the workday.  These averages imply some part-time work and some data points less than 90% of the workday at lower unreported percentiles that do not meet statistical standards. The ORS reports that 76.5% of helpers engage in medium work; 14.8% engage in light work.  The data does not permit an inference that a significant number of helper jobs permit standing/walking not more than six hours for medium work (or light work and erase the existence of sedentary work).  

Machine Feeders and Offbearers

Machine Feeders and Offbearers (SOC 53-7063) contains 102 medium unskilled DOT codes. This entire occupational group represents between 60,000 and 63,000 jobs according to the OWES and OOH, respectively.  It is not a large occupational group in terms of numbers of jobs considering 291 DOT codes covering all skill and exertional levels. 

The 2021 dataset from the ORS does not report information about machine feeders and offbearers.  The final first wave 2018 dataset does report on this group.  Machine feeders and offbearers stand/walk eight hours or 100% of the day at the median.  Machine feeders and offbearers engage in medium work in 55% of jobs.  There is not basis on this data to assume that machine feeders and offbearers engage in medium work and sit at least two hours per day.  

Janitors and Cleaners, Except Maids and Housekeeping Cleaners

Janitors and Cleaners, Except Maids and Housekeeping Cleaners (SOC 37-2011) contains a mere eight DOT codes but contains occupations identified with regularity by the VW in search of DOT codes with simple tasks and low interpersonal contact.  Janitors and cleaners stand 3.2 hours per day at the 10th percentile and 5 hours per day at the 25th percentile.  Because of the existence of part-time work, we cannot take the number of hours as dispositive.  The ORS reports that janitors and cleaners stand 80% of the workday at the 10th percentile and 92.5$% at the 25th percentile.  When janitors and cleaners engage in medium work, or any other range of work, on a full-time basis, they do not sit at least two hours in a workday.

CONCLUSION

After examining the occupational groups that contain the plurality of jobs identified, the inference that medium unskilled work requires more than about or approximately six hours of standing/walking in a full=time work setting.  The reading Social Security Ruling 83-10 as implying a ceiling of six hours of standing/walking is wrong.  Some medium work may require sitting intermittently during the remaining two hours.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Medium Work and Standing/Walking -- SSR 83-10 is Wrong as Interpreted, California Social Security Attorney (September 5, 2022) (updated October 5, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

Perkins v. Kijakazi - Another Win for Truth

 I watched the oral argument on this case back in June. The Court decided Perkins v. Kijakazi on August 22, 2022.  Another win for truth.

The lie in this case goes back to a hearing in 2011.  The vocational witness testified to sedentary unskilled work:

1. table worker (351,000 jobs in the national economy), 
2. small products inspector (81,000 jobs in the national economy), and 
3. polisher (147,000 jobs in the national economy).

Not in 2011 and not at the second hearing where no vocational witness testified.  The ALJ just bought the lie eight years ago. But Kilpatrick v. Kijakazi told us that stale evidence was not good evidence.  I am going to assume that Judge Fletcher was aware of Kilpatrick since he wrote it.  Perkins is a memorandum disposition, so no author is attributed and as a memorandum disposition, it hits only the high points not the nuanced details. 

Perkins does not turn on the ALJ reliance on stale evidence. Perkins submitted Job Browser Pro to the Appeals Council.  Court says, "good enough to rebut the presumption of reliability."  The ALJ must resolve the conflict.  Since the evidence was sent to the Appeals Council, the agency should have sent it back.  The Appeals Council action is not reviewable, but the evidence considered by the Appeals Council counts for substantial evidence purposes.  

More to the point, when is SSA going to get around to calling out its witnesses for making it up on the fly.  One, just one, investigation into perjury allegations and this garbage would come to a screaming stop.  But that would interfere with the business of denying legitimate cases.  Bogus vocational testimony like that given in 2011 and adopted in 2019 does actual harm to real people and violates the social contract with have framed within the disability provisions of the Social Security Act.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Perkins v. Kijakazi - Another Win for Truth, California Social Security Attorney (August 24, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

White v. Kijakazi -- We Are Winning the War

 Yesterday, the Ninth Circuit published an opinion in White v. Kijakazi. To understand White, we use our Rocky and Bullwinkle Way Back Machine and examine White v. Saul, the District Court decision.  The Way Back Machine is Google Scholar in this instance.  Here is what Judge Claire held:

Plaintiff asks the court to make its own assessment of job availability based on her counsel's personal research, when the relevant question is whether the ALJ properly relied on the VE's testimony. The undersigned finds that the ALJ did properly rely on the VE's testimony, and indeed the ALJ made specific findings of reliability. AR 29. Ninth Circuit precedent clearly supports the ALJ's authority to make a credibility finding regarding the VE's testimony, and to rely on that testimony with respect to job availably. Plaintiff has not demonstrated error, and her motion for summary judgment must be denied.

The Judges and Magistrate Judges should stop labelling our client as Plaintiff.  This is a defect in decision-writing that has infected most district courts.  The Court of Appeals uses the human being's name.  If we truly respect people for who they are, then we should use that person's name (first or last) or initials.  But I digress.  

The District Court focused on the evidence before the ALJ.  Was the ALJ reasonable in relying on the Jeanine Metildi's testimony that there were 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy that White could perform.  We know that counsel for White submitted the relevant screen shots from Job Browser Pro to the Appeals Council.  The question at the ALJ level is whether the ALJ should have relied on Metildi's testimony.  The answer is "no."  

The Social Security Administration makes available as part of its library to adjudicators the most up-to-date version of Job Browser Pro.  From a dead stop, JBP not running, it took me 1:35 to open the program, type in the job name (not number), find the occupation on the list (sort by exertion, these are sedentary), select that occupation, select employment numbers, and click on DOT estimate.  That minute and a half is for all three occupations.  But the person must care enough about truth to make the minimal effort to look.  I know that the ALJ has no sua sponte duty to look, but no one seriously believes that there are 72,000 “Table worker,” 65,000 “Assembler,” and 32,000 “Film touch up inspector” jobs in the national economy.  No one, not even Jeanine Metildi.  

Table worker functions in the fabrication, nec industry according to the DOT.  The crosswalks tell us that table worker is an inspector, tester, sorter, sampler, and weigher occupations (SOC 51-9061).  Film touch-up inspector functions in the electronic component industry and is in the same occupational group.  There are 782 DOT codes representing circa 558,000 jobs.  Someone will have to justify how any rational person could testify that a fifth of the inspector jobs are contained in these two sedentary unskilled occupations.  Assembler works in the button and notion industry.  The entire miscellaneous manufacturing industry represents 254,659 jobs and a quarter of them are not this sedentary unskilled occupation.  No one seriously believes Jeanine Metildi's testimony that has an inkling of familiarity with the labor data and cares about the reliability of a system that adjudicates a lifeline to people that received the promise of help in the event of disability.  

___________________________

Suggested Citation:

Lawrence Rohlfing, White v. Kijakazi -- We Are Winning the War -- An Illustration, California Social Security Attorney (August 9, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009. 

Touch-Up Screener, Printed Circuit Board Assembly -- An Illustration

Touch-up screener, printed circuit board assembly is a fairly common sedentary unskilled occupation identified by vocational witnesses.  Touch-up screener requires frequent reaching, handling, and fingering; constant near acuity; and average clerical perception, finger dexterity, and manual dexterity.  Within those parameters, the DOT supports the existence of that occupation.  The question is how many.  Here are the last 10 cases in Google Scholar identifying touch-up screener and the numbers of job, if stated:

Amador v. Kijakazi	48,000
Black v. Kijakazi	8,000 to 10,000
Cindy LS v. COSS	9,000
Williams v. Kijakazi	3,000
Mitchell v. COSS	unstated
Davis v. COSS	32,700
Christopher H. v. Kijakazi	unstated
Sherri S. v. Kijakazi	unstated
Kyle S. v. COSS	unstated
Fields v. COSS	17,000

The first thing we notice is that the range runs from 3,000 to 48,000 jobs.  There is no consistency.  One, some, most, or all the VW are pulling the answers out of a hat.  

For job numbers, we start with Job Browser Pro.  JBP estimates 1,074 touch-up screener jobs in the nation.  The best estimate from a VW is almost three times the JBP estimate.  Returning to the DOT, we examine the industry designation, electronic components.  The DOT defines that industry:

ELECTRONIC COMPONENTS AND ACCESSORIES INDUSTRY: This designation includes occupations concerned with manufacturing, assembling, and repairing electronic components. Electronic components are parts of electronic equipment that affect the current characteristics within its circuit. Included as electronic components are resistors, capacitors, coils, chokes, inductors, printed circuit boards, semiconductors, tubes, transistors, diodes, television antennas, headphones, piezoelectric crystals and crystal devices, computer logic modules filters, flipflops, gates, inverters, voltage dividers, delay lines, and wave guides. Occupations concerned with the manufacture of electrical machinery, equipment, and appliances or wire telephone or telegraph equipment are included in the ELECTRICAL EQUIPMENT INDUSTRY (elec. equip.) and occupations concerned with the manufacture of radio and tv receiving and broadcasting equipment and accessories are included in the RADIO, TELEVISION, AND COMMUNICATION EQUIPMENT INDUSTRY (comm. equip.). Occupations concerned with manufacturing blank and prerecorded magnetic tapes and phonograph records are included in the RECORDING INDUSTRY (recording).

Having established the integral part of the DOT presentation, we look to the industries used by JBP:

333300	Commercial and Service Industry Machinery Manufacturing
334100	Computer and Peripheral Equipment Manufacturing
334300	Audio and Video Equipment Manufacturing
334400	Semiconductor and Other Electronic Component Manufacturing
334500	Navigational, Measuring, Electromedical, and Control Instruments Manufacturing
335200	Household Appliance Manufacturing
335300	Electrical Equipment Manufacturing
336400	Aerospace Product and Parts Manufacturing

Without diving too deep into the weeds, those industry selections sound in a plausible range.  Within those industries, JBP estimates a total of 53,402 jobs spread out between 20 and 79 DOT codes at each occupation-industry intersection.  JBP arrives at 1,074 jobs for touch-up screener.  

Comparing JBP's occupation (inspectors, testers, sorters, samplers, and weighers (SOC 51-9061)) to those same industry groups, the OEWS estimates 62,930 jobs and the EP estimates 62,400 jobs.  That is a 15% unexplained departure from JPB to BLS data.  It is not in our favor so we let it go.  

This is where we cross-examine the VW:

    1. Do you agree that touch-up screeners belong to the occupational group of inspectors, testers, sorters, samplers, and weighers (SOC 51-9061)?

    2. Do you agree that inspectors, testers, sorters, samplers, and weighers contains 782 different DOT codes at various exertion and skill levels?

    3. Do you agree that inspectors, testers, sorters, samplers, and weighers represents between 551,000 (OEWS) and 558,000 (OOH/EP) jobs considering all 782 DOT codes?

    4. Did you consider the DOT designation of electronic components and accessories in estimating job numbers?

    5. What industries reported in County Business Patterns did you classify as employing touch-up screeners?

    6. State the NAICS codes for those industries?

    7. How many other testers, sorters, samplers, and weighers DOT codes co-exist the touch-up screeners in those industries that you just listed?

    8. What percentage of jobs at those occupation-industry intersections are unskilled?

    9. What percentage of jobs at those occupation-industry intersections are sedentary?

    10.  What percentage of jobs at those occupation-industry intersections are both sedentary and unskilled?

These 10 questions illustrate the granular nature of the question:

    What is your reliable well-accepted methodology for estimating job numbers?

Inside baseball statistics:  

    

    1. The ORS reports that 10.4% of testers, sorters, samplers, and weighers engage in sedentary exertion.  

    2. The ORS reports that 15.0% of testers, sorters, samplers, and weighers engage in unskilled work.

A VW would have to assume that all 10.4% of sedentary jobs are unskilled and that all of them work as touch-up screeners with no other occupations at the occupation-industry intersections to estimate anything close to 50,000 jobs for touch-up screeners.  More likely that 10% of the jobs at those occupation-industry intersections are sedentary and 15% of those are unskilled.  That is true if exertion and skill have no correlation.  To answer the question posed, most or all the VW are pulling the answers out of a hat.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Touch-Up Screener, Printed Circuit Board Assembly -- An Illustration, California Social Security Attorney (August 8, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2009. 

  

What We Know About Kilpatrick v. Kijakazi -- Reading the Tea Leaves

 Kilpatrick v. Kijakazi is precedent in the Ninth Circuit.  It is important for what it says and what it does not say.  This is not a dissection of the case but instead a dissection of the vocational witness.  

We start with Sarahrose K. v. Saul.  The hearing took place in July 2018.  From the District Court decision, we learn:

The VE noted he did not do a "typical labor market survey" but instead

I use a software program that will allow me to manipulate the data such that I can exclude certain industries and . . . isolate to the best degree that I can the DOT numbers, and then it also allows me to isolate just the full-time jobs based on another set of data. And then I am able to estimate, sort out, just the DOT numbers for that one job out of the OES numbers that I have.

There is one software program that estimated job numbers, allowed manipulation of industries, and allowed inclusion or exclusion of part-time jobs -- Job Browser Pro.  And that is the problem.  SkillTRAN released Job Browser Pro version 1.6 in 2015.  That version allowed manipulation of industries and inclusion or exclusion of part-time jobs.   The last version of 1.6 was active in July 2018.  

The VW identified usher and children's attendant totaling 114,000 jobs.  The 2017 dataset for the Occupational Employment Statistics was the version available to May -- July 2018.  At that time, OES estimated 124,710 jobs in the Ushers, Lobby Attendants, and Ticket Takers occupational group (SOC/OES 39-3031).  The OES released in May 2018 estimated 133,970 jobs.  

JBP currently reports 16% of Ushers, Lobby Attendants, and Ticket Takers working full-time.  And there's the rub.  How many Ushers, Lobby Attendants, and Ticket Takers including usher and children's attendant did the VW think worked full-time.  Even if it was half, the VW overshot the number of ushers and children's attendants by double the possible amount.  The only way to make the numbers work is to count sector 71; subsectors 711, 712, and 713; in industry groups 7111, 7112, 7113, 7114, 7115, 7121, 7131, 7132, and 7139.  Only then could someone force JBP 1.6.x to report 64,000 full-time ushers and 50,000 children's attendants.  The VW cheated the program and used it dishonestly.  

The same is true of sandwich-board carrier.  The 2018 OES reports 81,250 jobs in the group.  JB P reports 24% work full-time.  The VW double counted industries or added industries that don't belong.  The VW used JBP dishonestly.  Kilpatrick did not know it, flailing with even worse data and failing to ask the right questions. 

    1. What version of JBP are you using?

    2. What is the aggregate size of the OES group according to JBP?

    3. What percentage of workers in that occupational group work full-time according to JBP?

    4. What (NAICS codes) industries does JBP assign to this DOT code?

    5. What (NAICS codes) industries did you add?

    6. Have you avoided double counting NAICS industries, groups, subsectors, and sectors?

    7. Do you know what that means?

    8. And finally, submit the JBP reports for the then-current addition to show the number of jobs actually reported.

The system let the VW get away with it.  The economy did not change significantly from 2012 to 2018.  The data was stale as reported by the Ninth Circuit but stale as in day-old bread, still edible and still nourishing.  The stale evidence should have informed the record but Kilpatrick did not explain why  it was still probative or identify the source of the non-DOT estimate data from the 2012 JBP.  Lesson, keep the up-to-date version of JBP and use it.  Otherwise, we let the VW prevaricate and the courts will look the other way.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Stacy S. v. Kijakazi and the Occupational Requirements Survey, California Social Security Attorney (August 4, 2022) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009.