The Burden of Proof - Past Work as Generally Performed

The burden of proof places the obligation on the offeror of the proposition to prove the case. Villa v. Heckler, 797 F.2d 794, 798 (1986) holds that the "claimant has the burden of proving an inability to return to his former type of work and not just to his former job." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) softens the burden to hold that the "ALJ still has a duty to make the requisite findings to support his conclusion" citing SSR 82-62. In the context of Villa and Pinto, we examine the memorandum disposition in Wright v. Kijakazi, 2023 WL 3641718 (May 25, 2023) that carries a dissent by Judge Bress.

Judge Bress repeats the well-settled proposition that Wright bore the burden of proof that she could not perform her past relevant work as generally performed citing Stacy v. Colvin, 825 F.3d 563, 566-67 (9th Cir. 2016). Stacy testified on remand that acting as a supervisor represented up to 75% of his work duties. Although Stacy could not perform his past work as actually performed (heavy), he could perform just his supervisory duties. Stacy litigated the issue under the "least demanding aspects" of his job. Stacy argued that the ALJ misclassified his work as a supervisor and erred in concluding that Stacy could perform the work as generally performed.

The agency may not classify a job by its least demanding component function. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985); Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). Stacy treats the case as presented, a Valencia-Carmickle case. Stacy is not a "as generally performed" case but instead a composite job case. Agency policy is clear, a composite job has no "as generally performed" component. POMS DI 25005.020.B.

That conclusion invokes Carmickle. There, the ALJ erred in finding that Carmickle could perform past work as a supervisor with transferable skills at step four. Carmickle holds that the finding constitutes error, the TSA belongs at step five. The difference between Carmickle and Stacy is the percentage of time devoted to supervising and hands-on work. Carmickle supervised 20% of the time; Stacy supervised 70-75% of the time. The question is not the percentage of time but whether the job had composite duties from two or more DOT codes.

SSR 82-61 describes the DOT as listing jobs as they are "usually" but that some jobs within that classification may require more or less exertion than the DOT describes. The ruling then describes functional demands and job duties in excess of those generally required. What SSR 82-61 does not address and what POMS DI 25005.020.B does address is the presence of additional job duties that cross the line to job functions described in a different DOT code. A supervisor that has to engage in heavy exertion on occasion still has past work as generally performed requiring light exertion. A supervisor that must perform heavy work responsibilities and functions performed by other non-supervisory workers has a composite job.

A concrete example helps. Photocopying-machine operator (DOT 207.685-014) requires light exertion. A box of paper weighs 26 pounds according to Amazon. Once a week, the operator must move a box of paper. That represents heavy exertion but the job as generally performed requires light exertion. That person is not disabled when limited to light work under SSR 82-61. Moving the box of paper is not a separate job duty.

A company needs 3.25 full-time equivalent engineers or 3.8 full-time carpenters. That fractional need is filled by having a part-time supervisor from 20 to 75 percent of the day and a part-time engineer from 80 to 25 percent of the day. That does not represent additional demands or duties but instead a composite job.

Judge Bress cites Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir.2002). Lewis is an "as actually performed" case. Lewis's coworkers did most of the lifting. The ALJ found that the past work as actually performed required light work. That conclusion lacked the support of substantial evidence but was not completely unreasonable.

Completing the circle, we return to Wright. The ALJ found that Wright needed a sit-stand option. As actually performed, Wright did not have a sit-stand option. The vocational expert testified that at times, dealers have a chair or stool and that she had seen dealers sitting or standing. What the vocational expert did not say is that the jobs "usually" under SSR 82-61, "typically" under DICOT Appendix D, or "generally" under the regulations had the option of sitting or standing every 30 minutes.

https://www.youtube.com/watch?v=ymQ-0S4C11Y.

The government argued vigorously for Judge Bress's position and that Wright had failed to carry her burden of proof. Judges Sidney Thomas and Morgan Christen that the thin evidence provided by the vocational expert was insufficient to justify the finding "as generally performed." This result highlights the need for vigorous representation at the hearing at past relevant work questions and the importance that having a wide range of experience o the court is essential.

Convince me otherwise.

___________________________

Suggested Citation:

Lawrence Rohlfing, Lambert v. Saul - The Continuing Presumption Died or Continues?, California Social Security Attorney (April 29, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi

The Ninth Circuit published the decision in Wischmann v. Kijakazi, ___ F.4th ___, 2023 WL 3488107 (9th Cir. 2023) yesterday. Yet another blow to the integrity of the adjudicative system and the courts. Why? It appears to this outsider looking in that the prints from Job Browser Pro got mangled on the way from the program to the court record. What we can discern is that either the vocational expert does not know how to use Job Browser Pro or used it improperly and on purpose. The data results cited -- simply wrong.

We can use the district court decision to gather the facts missing from the court of appeals decision. James W. v. Comm'r of Soc. Sec., recites that the ALJ found that the claimant had a light residual functional capacity with occasional reaching with the right arm. The vocational expert testified that such a person could work in 59,000 bakery helper jobs; 25,000 counter clerk jobs; and 10,600 agricultural sorter jobs. The district court recited the argument:

Plaintiff contends that the new evidence shows that the VE claimed more jobs in each of the three identified occupations than could exist based on the proffered Job Browser Pro data. Specifically, Plaintiff asserts that the new evidence shows 45 jobs existing for bakery worker, 1,527 jobs existing for counter clerk, and 1,533 positions existing for agricultural sorter, which numbers, Plaintiff argues, are substantially lower than the numbers provided in the VE's hearing testimony and do not qualify as significant in the national economy

The district court went on to reject the argument because the claimant that had applied for SSI (meaning that he met the indigency requirements for a welfare benefit at the time of application) did not hire a vocational expert to read Job Browser Pro and that the ALJ could rely on bile regurgitated by the vocational expert. 

The Ninth Circuit did not focus on the substance of the presentation to the Appeals Council but to formatting. Wischmann describes the formatting of a JBP report and a mangled fourth column with "Selt:gulgy-ed" as the last column. Here is what it should look like:

The formatting for job numbers has spaces where they should not be. Wischmann recites that the JBP report for agricultural produce supporter has an additional error in the labeling of the DOT group column. What is discernible and without a doubt is that the job numbers recited in the three reports covering six pages is that job numbers contradict those of the vocational expert. 

How does the clear formatting from JBP get mangled in the record? The problem is on SSA's end converting PDF documents to TIFF and then back to PDF in the court record. Each data conversion carries distortion and mutation. What Judge Ikuta raises as a problem for Wischmann is properly laid at the feet of the Commissioner.

In the resolution of the legal issues, Wischmann relies on Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193–94 (9th Cir. 2022). There, the attorney submitted a JBP OES report rather than the DOT job number estimate report and engaged in his own analysis using an equal distribution methodology from stale data to derive job numbers. Kilpatrick lacked sufficient foundation. 

Wischmann acknowledges Buck v. Berryhill, 869 F.3d 1040, 1047, 1052 (9th Cir. 2017). Buck found that the COSS could not rely on vocational expert testimony that ostensibly relied on JBP when JBP contradicted the job numbers. Wischmann acknowledges White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022). White found that JBP reports submitted to the Appeals Council deprived the agency decision of substantial evidence for job numbers. 

Wischmann holds that the ALJ (and thus the entire agency) need not accept "uninterpreted raw data." That holding conflicts with the regulations. 20 CFR 404.1566(d), 416.966(d) states without ambiguity that the COSS will take administrative notice of reliable published governmental and private sources about the requirements and numbers of unskilled work in the national economy. Wischmann did exactly what the regulations invited -- requested the agency to take administrative notice of "uninterpreted raw data." 

The presentation of "uninterpreted raw data" is critical to the function of the agency. That type and quality of published data strips the foundation from rudderless vocational testimony. "Uninterpreted raw data" is the subject of administrative notice that the Commissioner invites in her regulations. 20 CFR 404.1566(d), 416.966(d). 

Wischmann stands in conflict with White. The Court should rehear Wischmann en banc to resolve the conflict and to adhere to the regulatory principle of administrative notice. 

Let's assume that Job Browser Pro is a permissible tool for a vocational witness to use. If the witness can base testimony on Job Browser Pro, can a claimant for benefits use Job Browser Pro to show conflict with vocational testimony not based on Job Browser Pro? What is good for the goose is good for the gander. White holds that an unexplained deviation from Job Browser Pro is not substantial evidence. 

What about the unexplained deviation from Job Browser Pro when the vocational witness uses the Occupational Employment Quarterly? The Seventh Circuit is clear that the selection of the OEQ-based testimony over the JBP-based job numbers is not substantial evidence. Chavez v. Berryhill, 895 F.3d 962, 969-70 (7th Cir. 2018). Chavez's refusal to permit reliance on the OEQ in the face of conflict with JBP data is accepted as law of the circuit in Kilpatrick. 

And Job Browser Pro does not produce "raw data." There are two inputs to get to the page where JBP gives national job numbers and only one of them is relevant -- the DOT code or job title. That's it. Users can select the region but that does not change the national job number. 

What users of JBP cannot select, add, delete, or modify are industry codes (NAICS). Prior to version 1.7, JBP uses could and manipulated the program to get different results. Users could stack sectors, subsectors, groups, and industries with common digits to double count NAICS codes. Users could delete other DOT codes from the industry to enhance the number in the target DOT code. That kind of manipulation of the data (cheating the program out of ignorance or malice) ended by version 1.7. 

More importantly, the industry designation(s) are critical to the estimate of job numbers. Counter clerk (photofinishing) does not exist ubiquitously in industries outside of the photofinishing industry. It exists in industries that engage in photofinishing. The 24-hour photobooths are gone. Costco does not have a photo booth anymore. The counter clerk (photofinishing) occupation is rare. To use other industries or claim counter clerks generally is a frank unexplained deviation from the DOT. The ALJ must develop the record for apparent conflict and use of other industries is an apparent conflict once cross-examination pulls back the veil. 

There are two ways to account for industry in the published data. JBP uses the occupation (SOC/OEWS codes) and industry (NAICS codes) published in the OEWS from the Bureau of Labor Statistics. JBP takes those intersections and divides the job numbers by the number of DOT codes that share that intersection. The methodology is replicable; tedious but replicable. Users do have to take JBP's DOT code assignments or explain why the user has changed those DOT code assignments. 

The other data source for occupation-industry intersections comes from BLS in the Employment Projections. The all-industry job numbers are published in the Occupational Outlook Handbook. 20 CFR 404.1566(d)(5), 416.966(d)(5). Using the employment projections to estimate job numbers is equally as valid as using the OEWS data as long as the methodology adheres to the SOC-NAICS intersections. 

This is not a full-throated acceptance of the JBP methodology. I submit that the methodology breaks down after the SOC-NAICS intersections are selected. At that point, the job numbers should be reduced based on skill level, exertional, and non-exertional differences within the SOC group as measured by the O*NET OnLine and the Occupational Requirements Survey. Generating that kind of reliable data for 13,000 DOT codes in 800+ SOC groups await the long overdue OIS. In the meantime, the claimants' bar, the agency, and the courts should stop embarrassing themselves by accepting testimony from witnesses that no serious person believes are even remotely accurate. 

Convince me otherwise. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi, California Social Security Attorney (May 21, 2023, updated May 22, 2023) https://californiasocialsecurityattorney.blogspot.com

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

 

The Medical Baseline and Excess Pain -- Murray v. Kijakazi

Keeping up with the cases as they come out is critical to the practice of law. That is true not only for the attorneys engaged in court practice, but also the attorneys and representatives that handle the hearings. Claimants do not win every case, nor do they win every case that they should win. Keeping up with precedent is critical. Keeping up with unpublished memoranda dispositions keep a finger on the pulse of the court and the presence of warring panels. 

Murray v. KIjakazi -- Murray litigated four errors. First, the ALJ was wrong in assessing whether Murray met or equaled the listing for spine impairment by finding no evidence of nerve root compression. The record showed that Murray did have cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. But the error was harmless because Murray did not have evidence of motor loss.

Second, the ALJ articulated clear and convincing reasons for rejecting Murray's testimony. The memorandum does not tell us what the ALJ said -- it is a memorandum, after all. The memorandum cites two cases for the proposition that drug-seeking behavior and part-time work are permissive factors.

Third, the ALJ did not err in considering treating physician opinion evidenced where Murray could not cite to an opinion. 

Fourth, the ALJ need not calculate absenteeism based on frequency of medical appointments in formulating residual functional capacity. 

Comment - the first issue should not have been raised alone but in the context of Murray's testimony (based on the very thin memorandum). Excess pain is the doctrine that the levels of pain or limitation exceed the medical expectation. The assessment of pain and limitation testimony evaluates the consistency of that testimony with the medical baseline. Here, we see that Murray has a degree of pain and limitation that exceeds what the ALJ drew as the medical baseline. But the ALJ drew the incorrect medical baseline. The ALJ did not include in the medical baseline the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. 

SSR 16-3p is the key. 

        This ruling clarifies how we consider:

• The intensity, persistence, and functionally limiting effects of symptoms,
• Objective medical evidence when evaluating symptoms,
• Other evidence when evaluating symptoms,
• The factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3),
• The extent to which an individual's symptoms affect his or her ability to perform work-related activities or function independently, appropriately, and effectively in an age-appropriate manner for a child with a title XVI disability claim, and
• Adjudication standards for evaluating symptoms in the sequential evaluation process.

Paragraph 1 addresses consideration of objective medical evidence. The court agreed that the ALJ did not consider the presence of cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing. It is the most important factor -- it is the medical baseline. Either the briefing or the memorandum or both failed to include cervical radiculopathy, cervical radiculitis, and moderate to severe neural foraminal narrowing.as the key factor in assessing Murray's testimony.

The memorandum cites Ford v. Saul for the proposition that the ALJ could consider part-time work in assessing pain and limitation testimony. That just is not what Ford says. Ford holds that the ALJ could consider occasional eight-hour shifts in assessing the treating physician's opinion that Ford could not maintain regular work attendance, deal with stress, and lacked pace -- all rated at poor. The ability to perform occasional eight-hour shifts is inconsistent with a poor ranking of ability. Ford relies on Drouin v. Sullivan for its holding. Drouin had worked part-time. Drouin found that the ALJ had stated clear and convincing reasons for rejecting allegations of severe, disabling pain because she did not lose jobs because of pain, did not have pain treatment, her impairments did not necessarily cause pain, the activities of daily living translated to work tasks, and Drouin did not exhibit pain during the hearing. Ford did not cite ongoing part-time work as a basis rejecting pain and limitation testimony. Drouin did not cite ongoing part-time work as a basis for rejecting pain and limitation testimony. 

The Act and the regulations, as well as well-founded public expectations, expect people with impairments to work as much as they can. The inability to engage in substantial gainful activity does not mean that the person cannot engage in lesser gainful activity. Impaired human beings are not relegated to vegetating in a dark room while the agency decides the disability claim. 

This dissection of the Murray memorandum is now longer than the memorandum. 

Rant mode

____________________

Suggested Citation:

Lawrence Rohlfing, The Medical Baseline and Excess Pain -- Murray v. Kijakazi, California Social Security Attorney (May 11, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Lanham v. Kijakazi -- OMG

 At a hearing, the vocational witness testifies to the existence of 90,000 small product assembler II jobs and 199,915 electronics worker jobs. Complete and utter nonsense. There are not 90,000 small product assembler jobs and/or 199,915 electronics worker jobs in the nation. To accept that testimony is an embarrassment to the agency; to affirm reliance on that testimony is an embarrassment to the courts; to have that series of events undermines the public confidence in the largest adjudicative body in the world, SSA.  

We start witxh Tamara L. v. Comm'r, Soc. Sec. Admin. We get the job numbers cited by the vocational witness there. The district court relied on the VW use of the Occupational Employment Quarterly and Lanham's use of Job Browser Pro. We know from the record that the ALJ did not exhibit or address Lanham's evidence. This is not a circumstance where the ALJ decided one source was more reliable than the other. The need to articulate reasons for selecting evidence is key to the administrative process.  

We net turn to oral argument in Lanham. Counsel for Lanham disavows knowledge of how Job Browser Pro works its magic. It is simple. Job Browser Pro takes the OEWS job numbers (or the OES numbers for the 2018 data set) and selects the industries (NAICS code) appropriate for that occupation within that occupational group (SOC or OEWS code). Job Browser Pro then counts the number of DOT codes in that occupation-industry intersection and divides by the number of DOT codes. Job Browser Pro repeats that process for each occupation-industry intersection and totals them up. That is the number of jobs estimated for that DOT code.  

Counsel for the Commissioner argued that we don't know what parameters Lanham inputted into the Job Browser Pro system to extract the data. There are two problems with this argument. First, any version of Job Browser Pro 1.7.x locks users out of changing the industries because SkillTRAN wanted to stop the misuse of Job Browser Pro. When counsel for the Commissioner made this argument, he knew or should have known that he was asking the court to assume a false assumption. Second, the only parameter that could be changed in versions 1.6.x and before was the industry selection. Any change to the industry selection would appear in teh "NAICS Industries where this DOT Code is likely to be employed." In versions before 1.7, a user could manipulate other DOT codes to pro rata reduce the number reported. That "problem" is a clear accusation by OGC of fabricating evidence before the agency and furthering false evidence to the court. No disability claim is worth your integrity or your bar card.  If OGC thinks that we cheated, OGC should bring disciplinary charges. They won't because they know when the submission is accurate.  

Judge Bea wanted to know why Lanham did not question the VW at the hearing about the job number conflict. Counsel properly responded that Lanham did not get to voir dire the witness relying on Shaibi v. Berryhill. Right response and right citation. There is no F.R.Civ.P. Rule 26(2) duty to disclose expert testimony in administrative proceedings. Please, we want the paragraph (B) disclosures:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

We want that before the hearing, not at the hearing. 

Judge Rawlinson is even more hostile to the claimants' bar. But she has been for an exceedingly long time. Why can't the representative do more? Because the ALJ won't give use the rest of the day to finish the 9 a.m. hearing. We have to assume Judge Rawlinson on every case and inquire vigorously. 

Finally, the VW used the Occupational Employment Quarterly. That is, in my not-so-humble opinion, a piece of statistical trash. We have to use the decision in Kilpatrick v. Kijakazi to attack the equal distribution method of calculating job numbers and cite the host of cases from the Seventh Circuit labelling the methodology of the OEQ as preposterous.  A methodology is not a bibliography but a mathematical exercise -- it is a calculation. As of now, the courts are willing to let VW and ALJs get away with a WAG as the methodology of choice. The job numbers do indeed come out of a hat. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Lanham v. Kijakazi -- OMG , California Social Security Attorney (May 4, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Pulling a Dismissal out of the Ashes -- Ashe v. Saul

 Getting close the end of our list of published Social Security cases decided by the Ninth Circuit. Our case today is Ashe v. Saul. 

Ashe v. Saul, 983 F.3d 1104 (2022) -- the Appeals Council denies review but neither the claimant nor the representative receive the action in the mail. Eighteen months later, a phone call confirms that the AC did deny review. Ashe files a complaint the next day. On a motion to dismiss, the USDC finds the claim untimely filed and dismisses the case. Held, the declarations of the claimant and the representative make a reasonable showing to rebut the presumption that notice was received within five days. Distinguishing cases from the Fifth and Second Circuits, Ashe holds that the reasonable showing shifts the burden to the government to show that actual receipt was more than sixty days before the filing of the complaint, citing McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987); Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). The facts saved the day. 

Ashe clarifies the reasonable showing standard as fact-intensive. The record at the USDC contained a declaration of the claimant, the legal secretary, and the attorney not only of the non-receipt but the practice of opening and paying attention to the mail. The last fact highlighted by the Court was the filing the next day. There is nothing like promptness to lend credibility to the allegation that "if we had known, we would have filed sooner."  The Court did not address other questions other than to hold that these unique facts were sufficient.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Pulling a Dismissal out of the Ashes -- Ashe v. Saul, California Social Security Attorney (May 3, 2023) https://californiasocialsecurityattorney.blogspot.com

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