Questions and Answers from Austin NOSSCR Conference 5/13/22

 Here are most of the unanswered questions from the conference:

1.  When VE's testify they use their own methodology that they will never proffer it because they claim it is work product and the judges never demand they proffer it.  How do you handle this?

Did I understand you correctly that the manner in which you calculate the number of jobs is unique to you and your organization?  

Has your methodology been subjected to peer review?

Does any other vocational witness use the same methodology?

Is your methodology a "well-accepted methodology" in the community of vocational witnesses?

If the vocational witness is not using a "well-accepted methodology" for extrapolating their local experience to the national economy, it is not substantial evidence.  Biestek v. Berryhill at 1155.  

2.  Does the addresser job actually exist?

Not in significant numbers.  See the OIDAP slide show at slide 7.  The OIDAP presentation on the SSA website lists addresser, tube operator, cutter-and-paster of press clippings, head host/hostess, and magnetic-tape winder as "doubtful that these jobs, as described in the DOT, currently exist in significant numbers in our economy."  

Look at the DOT description and make an apparent conflict argument supported by the OIDAP list.  

3. What the heck is non-confrontational supervision?  I get that in a lot of ALJ hypos.  

It is an opportunity to cross-examine.  The concept of non-confrontational supervision is an oxymoron.  A supervisor does not need to discuss something with a worker that is not confrontational -- something that is not obvious or apparent.  Non-confrontational is synonymous with superficial contact.  

What is it about accepting criticism from supervisors envisions the absence of confrontation?

4. Knocking the job numbers down until they are not significant. What is the lowest number that is still significant?

In the Ninth Circuit, the close call is 25,000 jobs.  Gutierrez v. Commissioner.  A number of unpublished cases dealing with SSR 00-4p conflict have addressed the residual number of jobs.  The ALJ must explain why the sub-25,000 number is still significant at least in the Ninth Circuit.  

5. In your experience are they any ALJs approving cases based on VE job numbers cross ex or is this purely a way to create an appealable issue for federal court?  

Some of the ALJs are listening and approving cases.  Many of the ALJs see this as an assault on the citadel.  Think Prosser and privity for torts.  Many cases will end up on court.  Whether we take it up personally or we hand it off to another attorney, it is the fiduciary duty of the attorney/representative in the hearing to create the record that the ALJ might accept or might need an appeal.  

6. Whenever I ask the VE their methodology, they say "I just told you."  How do you define methodology?  

Merriam Webster defines methodology:

Definition of methodology

1: a body of methods, rules, and postulates employed by a discipline : a particular procedure or set of procedures

demonstrating library research methodology

the issue is massive revision of teaching methodology

— Bob Samples

2: the analysis of the principles or procedures of inquiry in a particular field

My definition of a methodology is that it is understood and replicable.  If another trained person did exactly what you said, that person would get the same or similar result.  A methodology is not a bibliography and a black box.  

7.  Is "Document Preparer" actually a stand alone job? If it is...in what universe are many of our clients, for non-medical "personal barriers to employment in a corporate setting" reasons actually eligible for these jobs?

Amy Shelton said at the conference that document preparer is now a scanner.  The OOH describes general office clerks, in part:

Some clerks file documents or answer phones; others enter data into computers or perform other tasks using software applications. They also frequently use photocopiers, scanners, fax machines, and other office equipment.

(Emphasis added).  Whether it is standalone, that is a challenge that needs to be raised.  My office is paper-less and I have one person that scan incoming mail and records as her sole duty.  The job requires use of the case management software and routing-tagging-tasking procedures.  It is standalone but might be semi-skilled.  

I am not clear on what personal barriers to work in a corporate setting means.  

8.  Can an usher do the job one handed? Can a school bus monitor do that job one handed?

Usher is probably part-time (about 90% of the jobs) and it requires standing/walking all day.  See the O*NET and ORS respectively.  The ORS says that a slim majority of the jobs permit one-handed gross and fine manipulation.  See the ORS.  Whether those factors overlap is a statistical/expert question.  

9. Some of the VE’s at our hearings will testify that in entry-level unskilled jobs an individual can be off-task up to and through 15% of the work-day. Others will say no more than 10%. What’s your opinion?

A good question for Amy Shelton.  

The reason that off-task behavior is tolerated in employment is simple - everyone is off-task some of the time.  What is not tolerated is additional off-task behavior.  The follow up question:  assume that the person is off-task as much as any other employee in the tolerable range and in addition to that amount of off-task behavior, the person is off-task an additional 5, 10, or 15% due to pain/mental illness/etc.  

People with impairments are not super employees aside from their impairments.  They are like everyone else.  

10.  Light unskilled with use of cane for ambulation.

A good question for Amy Shelton.  

Light work that does not require use of both hands for manipulation, it is conceivable that those jobs might be available.  If the person needs a cane or other assistive device to walk, the person probably has a limited duration of standing/walking during a workday.  Use the Occupational Requirements Survey to explore bilateral gross or fine manipulation and for the second issue of total time standing/walking during the workday.  

11. Light work, simple repetitive tasks with few, if any changes in work environment, occasional contact with supervisors, co-workers and public.

Few, if any, changes in a work environment requires that we look at the reasoning level of the occupations.  Reasoning level 1 requires "occasional or no variables in or from [standardized] situations encountered on the job."

Reasoning level 2 requires the ability to "deal with problems involving a few concrete variables in or from standardized situations."  

We start with the assumption the R2 requires more than R1 -- this is a hierarchy.  R2 requires more than occasional variables.  R1 can require up to occasional variables.  The full range of R1 does not fit the question.  The VW must identify R1 work and explain why that occupation does not have occasional variables.  

12. After submitting post hearing brief pointing out the VE's testimony being in conflict w the DOT, the ALJ schedules a supplemental hearing with another VE... how best to respond to that?

Wash, rinse, dry, and repeat the process.  Mark that down as a win for discrediting bad testimony and do it again.  

13.  If an individual has periods of severe open sores over a substantial part of their person, how would you phrase a vocational limitation that would include this issue?

I would first compare that person to the psoriasis or other dermatological listings.  

At steps 4 and 5:  Assume that the person cannot tolerate a work environment with any airborne pollutants, cannot tolerate an environment where the [body part] could be experience any physical pressure, and other limitations supported by the testimony or medical record.  

14.  Escort Driver - The V W. at a prior hearing described this job as sedentary. I argued it was light due to the use of foot pedals. Would the Ms. Shelton opine whether, as it is performed today, would it be classified as light (not sedentary).

Jeff Truthan, Amy Shelton, and I discussed escort vehicle driver before the session.  Jeff Truthan stated his opinion that the DOT misclassified escort vehicle driver because of the frequent or constant use of foot pedals.  Light work includes:

when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls

DICOT Appendix C.  

15.  Claimant limited to occasional interactions with supervisors and coworkers. ALJ tries to shut down questioning about claimant who may be able to interact that percentage of the time but not predictably, and not on the supervisor’s schedule. Similarly, issue that neither training nor corrections by supervisors constitute superficial interaction.

What is the data source for occasional interactions with supervisors and coworkers?  The O*NET is very helpful on this.  

A person that can interact occasionally cannot interact with others two-thirds of the day, can that person work?

SSA says that it is critical for unskilled employment to "work in coordination with or proximity to others without being (unduly) distracted by them."  Do you agree with that statement?  Why is this occupation different?

SSA says that it is critical for unskilled employment to "accept instructions and respond appropriately to criticism from supervisors."  Do you agree with that statement?  Why is this occupation different?

Use POMS DI 25020.010 Mental Limitations.  

16.  Did you ever ask the ve to repeat the judge hypothetical?

The witness cannot repeat what the witness did not say.  I ask the witness to tell me what that person heard.  

War story:  A judge asked a hypothetical question.  The VW responded.  I asked the ALJ to repeat the question to me thinking that I did not get it all.  The ALJ refused.  I asked the VW to tell me the hypo that the VW heard.  The ALJ allowed that question because it is proper cross-examination.  

17.  re parking lot attendant: can you explain how you got the occasional figures from ONET so quickly? What steps did you take to find that info for your questioning just now?

I use www.occucollect.com.  I run an everything report for the DOT code cited.  I search in the report for "contact with others" or "group or team" and go to that data point.  I search for "40 hours" to look for full-time work statistics.  Those are in the O*NET.  I search for other job requirements in the same everything report.  

18.  How can someone be a nut sorter if they can only handle/feel/finger 2/3 of the workday? What do they do the other 1/3?

The DOT classifies nut sorter as frequent reaching, handling, and fingering - each.  It does not say that they handle and finger frequently in the aggregate.  

The ORS does not classify frequency of manipulation for inspectors, testers (SOC 51-9061).  The O*NET reports that inspectors, testers make repetitive motions less than continuously (< 67% of the day) in 83% of jobs.  

Finally, the DOT describes the occupation:

Removes defective nuts and foreign matter from bulk nut meats: Observes nut meats on conveyor belt, and picks out broken, shriveled, or wormy nuts and foreign matter, such as leaves and rocks. Places defective nuts and foreign matter into containers.

The occupation objective is to remove defective nuts and foreign matter.  The first listed task is observation.  Observation is more critical than places defective nuts and foreign matter into containers.  

19.  Does JBP provide numbers to a particular DOT code that are already reduced by the ORS data?

No.  That would represent a massive undertaking for 13,000 occupations and would create a superclass or subclass of occupations where some get treated differently than others.  That distinction would constitute a contradiction in process and provide us with a basis for jettisoning all the data.  

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Suggested Citation:

Lawrence Rohlfing, Questions and Answers from Austin NOSSCR 5/13/22, California Social Security Attorney (May 16, 2022)  https://californiasocialsecurityattorney.blogspot.com