Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi

 The Ninth Circuit published Glanden v. Kijakazi on November 16, 2023. Judge Paez wrote the decision joined by Judge Gould. Judge Graber dissented. Glanden sought disability insurance benefits based on an alleged onset date of December 1, 2017, and date last insured of June 30, 2018. 

In the course of practice, representatives are often tasked with the job of proving disability in a small window. This is one of those cases, a small window. As for this claim, the ALJ terminated the five-step inquiry at step two, the absence of a severe impairment. 

Glanden had a two-and-a-half-year gap in this receipt of medical treatment. In the middle of that two-and-a-half-year gap falls the narrow window, the seven months during which Glanden had the burden of proving that he met the disability requirements of the Social Security Act. 

The Court decision describes the medical expert as testifying that the record as a whole leads to an expectation that Glanden had symptoms serious enough to require treatment in those seven months. That description must entail an equal inference that Glanden's symptoms requiring treatment would continue after the date last insured and up to not more than 12 months prior to the date of application. 

The Court relies on Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005), as the basis for reversing and remanding. The Court distinguishes Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), the precedential case supporting the ALJ's finding of no severe impairments.

Judge Graber focuses on drug-seeking behavior. The presence of drug-seeking behavior does not prove or disprove the presence of severe physical or mental impairments. Judge Graber distinguishes Webb as not supporting the complete absence of medical evidence. Judge Grager describes the resort to wrist surgery prior to December 2017 and the absence of wrist complaints in 2019. Judge Graber also points to the resort to treatment for Glanden's back condition in 2019 after two separate traumas. One of those traumas consisted of an injury while engaged in yard work. 

The treatment notes for the 2019 yard-work injury described Glanden as stable before that incident. The medical expert set up a syllogism: "if that's correct then during the relevant period he wasn't all that symptomatic." 

The medical expert punted according to the majority and the dissent. "Wasn't all that symptomatic" does not mean asymptomatic. Serious symptoms are inconsistent with not "all that symptomatic."

And that is the problem. The ALJ adduces an ambiguity and instead of resolving it and demanding the expert give an opinion, the ALJ determines to resolve the ambiguity against the claimant. The representative at the hearing does not jump in and explore that ambiguity either hoping that the ALJ will go with the serious symptoms instead of the not all that symptomatic syllogism. Neither is the right approach. In the context of administrative hearings where no one knows what the experts will say before the hearing, the inquisitor ALJ and the retained representative must ask questions that they do not know the answer to. This is unless the ALJ announces the direction of the decision. The ALJ must develop the record for the claimant even if the claimant has professional representation. The representative must never trust the ALJ to develop the record for the client or to adopt a pro-claimant mindset in administering a safety-net social program. The Court rightly put the onus on the ALJ to do more. Some judges in the Ninth Circuit would have blamed the representative and voted with Judge Graber. 

Glanden is now precedent -- or will be 45 days after the publication of the decision. As for the gap in treatment scenario, consider Glanden fact specific. Glanden put up the bookends of treatment before and after the long period of no treatment and the medical expert testified to an expectation of serious symptoms. On those facts, Glanden is replicable. I expect those facts to represent the furthest reach of the inference with no treatment on the nonfrivolous legal conclusion at step two. The problem is establishing a listing or residual functional capacity, both burdens on the claimant. 

Glanden will prove useful in other treatment gap cases. Counsel should cite Glanden in response to a gap in treatment as requiring the ALJ to interpolate consistency between two data points absent evidence to suggest a parabola instead of a straight line. 

The first sentence of the last paragraph illustrates Glanden's problems on remand:

We express no view as to whether Glanden will succeed in proving that he is entitled to benefits; we hold only that denial at step two was premature. 

Whether Glanden can prevail on remand with a burden of proving up a residual functional capacity remains to be seen. 

Anticipation ...

___________________________

Suggested Citation:

Lawrence Rohlfing, Not Severe Is a Finding of an Unambiguous Showing of Minimal Limitations -- Glanden v. Kijakazi, California Social Security Attorney (November 17, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs

SkillTRAN publishes a list of 127 sedentary unskilled occupations that qualify as simple, repetitive. or routine work (reasoning levels 1 and 2). We have discussed this issue in the past. SkillTRAN estimates these job numbers as of May 3, 2021. That is not the publication date for the article, is the release date of the OES (now OEWS) data on May 3, 2021, for data as of May 2020. 

SkillTRAN estimates that there are 58,000 full-time jobs that are sedentary, unskilled, and SRT using the SkillTRAN methodology for estimating job numbers. Sounds significant, but do all those jobs count according to SkillTRAN?

The most numerous occupation accounting for almost 34,000 jobs is escort-vehicle driver (DOT 919.663-022). SkillTRAN does not describe the DOT as accurate or reliable for escort-vehicle driver as sedentary. 

1. Escort-vehicle driver requires eye-hand coordination level 3 (the average range, inconsistent with unskilled work). 
2. Escort-vehicle driver requires constant exertion of negligible force (inconsistent with frequent exertion of negligible force for sedentary work but consistent with light work). 
3. Escort-vehicle driver could require the rapid application of greater than 20 pounds of force on the brake pedal (inconsistent with sedentary and light work but consistent with medium work). 

If Job Browser Pro or any other SkillTRAN product describes the existence of work, this article addressing escort-vehicle driver in an inconsistent statement. If the vocational witness identifies escort-vehicle driver without using a SkillTRAN product, then careful examination needs to focus on the eye-hand coordination, the constant exertion of negligible force, and the occasional (from seldom to one-third of the day) application of greater than 20 pounds of force. Some vocational witnesses will voluntarily withdraw escort-vehicle driver, and they should. 

The second and third most numerous occupations on the list are addresser (DOT 209.587-010) and tube operator (DOT 239.687-014). These represent less than 2,400 and 2,300 jobs respectively. In a 2015 presentation at an ALJ Training, SkillTRAN laid out the problem with addresser -- it is hard to find. OIDAP calls that obsolete. On the OIDAP list of obsolete occupations, we find tube operator. The second and third most numerous occupations that fit the unskilled sedentary SRT hypothetical are obsolete. The ALJ training also labeled escort-vehicle driver as "not really sedentary." 

**SkillTRAN lists document preparer, election clerk, call-out operator, and surveillance-system monitor on its list of examples of sedentary unskilled occupations. These four occupations require reasoning level 3. SkillTRAN criticizes all six targets of vocational identification as the result of "rehabbers/occupational health." **

The first three occupations should not count. The count stands at fewer than 20,000 jobs. 

The next most numerous occupation is nut sorter (DOT 521.687-086). The 2021 estimate of job numbers comes in at a paltry 1,900 jobs. You may remember that the vocational expert in Biestek v. Berryhill, 139 S.Ct. 1148 (2019) testified under oath that her undisclosed personal labor market survey found 120,000 sorter jobs in the nation. The vocational witness in Biestek was at best unreasonably wrong. No one believes that nut sorter represents 120,000 jobs. This juxtaposition illustrates the depth of the vocational witness problem in Social Security disability cases. 

Ten DOT codes report no jobs. Ten DOT codes report 10 or fewer jobs. Thirty-four DOT codes report between 12 and 20 jobs. Twelve DOT codes report between 21 and 30 jobs.  Twenty-five DOT codes report between 31 and 100 jobs. Twenty-eight DOT codes report between 101 and 1,000 jobs. Six DOT codes, including nut sorter, report more than 1,000 but fewer than 2,000 jobs. 

Every claimant limited to sedentary SRT work at step 5 of the sequential evaluation process should win. There are not a significant number of jobs in the national economy that reliably exist. Adding in the most insignificant additional limitation (occasional contact with others, limiting sitting to six hours) solidifies the conclusion. Don't let vocational witnesses spread the Biestek lie. 

But you had me at sedentary SRT. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Comprehensive List of Sedentary Unskilled Simple Occupations -- And the Number of Jobs, California Social Security Attorney (November 14, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

SkillTRAN's Analysis of Sedentary and Light Occupations

Our friends at SkillTRAN publish an Analysis of the Unskilled DOT Occupations (SVP < 3). Representatives should commit it to memory or keep a copy on their desk/in their briefcase. 

The page provides cumulative totals for a residual functional capacity for not present, occasional, frequent, and constant action. Constant represents no limitation and always represents 100% of jobs. The cumulative totals work across the exertion spectrum with the medium column including light and sedentary jobs. 

The categories are clear except DE:

1. 1. RE = reaching
2. 2. HA = handling
3. 3. FI = fingering
4. 4. DE = not clear
5. 5. ST = stooping

I will request that Jeff Truthan clarify the DE designation. It is not a Selected Characteristic of Occupations designation. 

This compilation of SCO data exposes problems with the Social Security Rulings. SSR 96-9p states that the inability to engage in stooping significantly impacts the sedentary occupational base. The SOC states that 95.6% of sedentary occupations require no stooping. SSR 85-15 states that the inability to engage in frequent stooping significantly impacts the medium range of work. The SCO classifies 329 occupations as requiring frequent stooping and 5 occupations as requiring constant stooping. 

SSR 96-9p states that sedentary work requires good use of the hands. The SCO identifies 92 occupations that require frequent reaching and handling as well as 75 that require frequent fingering. The SCO identifies 3 sedentary occupations that require occasional or no handling and 38 occupations that require occasional or no fingering. 

As to agency policy, the rulings are not true in all circumstances. SkillTRAN identifies occupations where the rulings suggest few jobs. Notice the difference in nomenclature. Occupations do not necessarily imply the existence of a "significant number of jobs." 

This information is foundational information. Without the foundation, representatives will get lost chasing non-issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Analysis of Sedentary and Light Occupations, California Social Security Attorney (November 13, 2023)

https://californiasocialsecurityattorney.blogspot.com

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