Social Security Ruling 24-3p -- The Demise of 00-4p

The Social Security Administration published SSR 24-3p on December 6, 2024. By administrative proclamation (without notice and comment), SSA announces new rules for steps four and five of the sequential evaluation process. SSR 24-3p:

1. Rescinds SSR 00-4p (referred to twice as SSR 00-04p). 

2. Explains a new standard for evaluating whether vocational evidence is sufficient to support a decision. 

SSR 00-4p resulted from the Tenth Circuit decision in Haddock v. Apfel. SSA initially responded to Haddock with AR 00-3(10) to cabin the the duty to inquire into the consistency with the Dictionary of Occupational Titles (DOT) to the Tenth Circuit. SSA explained:

According to our procedures, an ALJ must resolve conflicts in the evidence. This includes conflicts in opinion evidence from a VE and job information contained in the DOT. When such conflicts are evident, the expert should be asked to explain the basis for his or her opinion and the reason it differs with the DOT. The ALJ is responsible for resolving the conflict and must explain in the determination or decision how the conflict was resolved. Unlike the court's holding, our procedures do not place an affirmative responsibility on the ALJ to ask the expert about the possibility of a conflict between the evidence that he or she provides and the information in the DOT.

...

We intend to clarify the regulations at issue in this case, 20 CFR 404.1566 and 416.966, through publication of an SSR and we may rescind this Ruling when the clarification is made. 

 SSA made the affirmative responsibility on the ALJ about consistency with the DOT national policy when it published SSR 00-4p. SSR B24-3p restates the explanation of agency policy in AR  00-3(10):

Adjudicator Responsibilities 

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.16

16Our determinations and decisions are based on the preponderance of the evidence standard. See 20 CFR 404.902, 404.920, 404.953, 416.1402, 416.1420, and 416.1453.

The phrase "expected information and explanation" does not appear elsewhere in the ruling nor does the word "expected."  SSA confirms in the purpose statement that the agency would obtain a reasonable explanation and resolve conflicts between testimony and the DOT/SCO and explain that resolution. SSA affirms the validity and reliability of the DOT as a source for occupational information. SSA observes that federal statistical data is not reported in the Standard Occupational Classification (SOC) system. 

 NEWS FLASH - The DOT has never reported job numbers -- see footnote 12. 

 In the last last clause of the last sentence in the penultimate paragraph of the statement of policy, SSA nails why we need this ruling:

and the requirements of SSR 00–4p might discourage VSs and VEs from using occupational data in sources other than the DOT.

The new policy interpretation confirms that SSA continues to take administrative notice of the DOT. SSA clings to the notion that the DOT described the maximum requirements of work as generally performed. This awkward language is in SSR 00-4p. It is wrong and continues to be wrong. First, maximum and generally set up an oxymoron. As the work is generally performed, this is the maximum. That does not make sense. Furthermore, the DOT Appendix D states that it sets forth the requirements of work as typically performed in the national economy. 

 SSA now allows vocational witnesses to rely on the Occupational Employment and Wage Statistics (OEWS) and the Occupational Requirements Survey (ORS). It is not clear why SSA has not pointed to the Occupational Outlook Handbook and its source Employment Projections as a source for job numbers. The regulations do identify the OOH as an example of administrative notice. The OOH explicitly relies on the EP. For the numbers of jobs within a SOC-industry classification (NAICS), the EP is much easier to use than the OEWS. OccuCollect.com makes them equally accessible to ascertain occupation- industry job numbers. 

And there we have it. The door is wide open to use the Bureau of Labor Statistics data to prove the requirements for work and the number of jobs in occupations courtesy of SSR 24-3p. Now use them. The valuable resources to establish job numbers in a DOT code:

1. Employment Projections (SOC job numbers and industry specific job numbers)
2. Occupational Employment and Wage Statistics (SOC job numbers and industry specific job numbers)
3. Occupational Requirements Survey (for the requirement of work)
4. Occupational Information Network (O*NET) (for the requirements of work)

5. County Business Patterns (for job numbers in specific five and six digit industry codes not captured by the EP and OEWS)

SkillTRAN products are useful for identifying industries applicable to an occupation and to identify co-existing DOT codes at that SOC-NAICS intersections. SkillTRAN does not parse data using the ORS or O*NET but instead uses equal distribution at the SOC-NAICS intersections. Some of SkillTRAN's industry selections are also subject to attack.  

And now the bad news -- raise it or forfeit it. Footnote 10 cites to 20 CFR 404.1740, 416.1540 and states:

Raising relevant questions about or challenges to the VE’s testimony at the time of the hearing, when the VE is ready and available to answer them, furthers the efficient, fair, and orderly conduct of the administrative decision-making process.

SSA provides an example estimating 1.3 million fast food workers in the national economy, representing a plurality of the jobs in SOC 35–3023 Fast Food and Counter Workers. The O*NET states that 79% of fast food workers do not work 40 hours per week. A mere 21% work full-time. Before starting with the exertional and non-exertional limitations for a claimant, we reduce the 3.3 million jobs to 268,950 under SSR 96-8p (full-time at step five). The ORS reports that 60.2% of jobs require light exertion. Now we are down to 420,353. The ORS states that 94% of jobs are unskilled, causing an additional 6% reduction. We are looking for the coups de grace and jump to standing/walking. The ORS reports that fast food workers stand 95% of the day at the 10th percentile. If the claimant has a limitation to standing/walking about six hours in a workday, this occupation does not meet that limitation. 

We are not robbed of our commonsense when we appear in a hearing. We know that fast food workers are part-time, that some of them require skills, and we know that the cooks and cashiers do not get to sit down on the job. Cross examination? Yes, please. 

Q. What percentage of fast food workers in SOC 35-3023 engage in full as opposed to part-time work?

Q. What percentage of fast food workers in SOC 35-3023 engage in unskilled work?

Q. What percentage of fast food workers in SOC 35-3023 engage light work?

Q. What percentage of fast food workers in SOC 35-3023 have a requirement to stand/walk more than six hours in a full-time workday?

Q. Is your testimony consistent with the Occupational Requirements Survey?

Q. Is your testimony consistent with the O*NET OnLine?

 Whatever limitations the ALJ frames, that is the starting point for examination. Study and become familiar with the ORS, O*NET, OEWS, EP, CBP, and all SkillTRAN products. 

And then eviscerate the witness.

___________________________

Suggested Citation:

Lawrence Rohlfing, Social Security Ruling 24-3p -- The Demise of 00-4p, California Social Security Attorney (December 6, 2024) https://californiasocialsecurityattorney.blogspot.com

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

 

Writing Conventions Redux -- Say Her Name

 I wrote about the use of Mr. and Ms. in Writing Conventions -- Mr. and Ms. in February 2021. After watching of Your Honor on NetFlix, I thought it worthwhile to revisit the issue. Spoiler alert, if you intend to watch the series and don't want to read the first three pages of the last chapter of the book first, just go back to the 2021 post. 

Breonna Taylor was shot and killed by police officers in Louisville, Kentucky, during the service of a no knock warrant. The protests that followed carried the cry, "Say her name." ABC produced a multi-part documentary about Taylor. YouTube lists six videos, #SayHerName, an open letter to the mother of Breonna Taylor. Stripping Taylor of her name removes the human from the equation. Our culture demands that we recognize the person by saying their name. 

Back to Your Honor. The plot line related to the point of this piece, to say the name of our clients, is simple. Eugene Jones is on trial for trying to kill the son of a mobster that killed his brother (Kofi) but ends up killing the son (Adam) of a dishonored judge (Desiato) that tried to cover up the son's hit and run that killed the younger son (Rocco) of the mobster. That's all we need to know. To the pivotal scene, Eugene tells the jury that his mother had been busted for possession of drugs. Desiato dismisses the charges because the cops lied. The cops arrested Kofi for stealing Desiato's car, the one that Adam drove in the hit and run. 

Eugene describes the next day, he left the house to go get food because the family had not eaten all day. On his way back, the house explodes with his mother and three younger siblings inside. After further examination by defense counsel, the prosecutor objects on the grounds that the question mischaracterized "the deaths of a mother and her children." Eugene responds, "they have names." The judge in the trial asks Eugene to repeat what he said:

Everyone keeps saying ... mother and her children.

My mom was Female Jones, and her kids were Goodluck, Sophie, and Rose. And they have names.

Powerful scene beautifully rendered, and a poignant reminder that people have names. We don't speak to the consultative examiner by that title, we use the doctor's name. But it isn't the doctor's case yet we give more respect to the doctor than our own clients. Say her name. 

Whether it is the real life story of Breonna Taylor or the fictional account of Eugene Jones saying the names of Female, Goodluck, Sophie, and Rose the result is the same. People want their names to be said. The speaking of their names makes their intrinsic humanity real. 

I have long advocated for the use of our clients' last names in our briefing. The Federal Rules of Civil Procedure gives a hollow veil of privacy using the first name, and often the middle name or initial, and partially redacting the last name to the initial. The docket is a public record available on a multitude of websites. If I want to know the name of a client in a particular case, give me five minutes but I only need two. Rule 5.2 is lattice that provides a hint of privacy. So let's drop the charade and listen to our culture, say her name. She is a person with dignity and rights. She has the right to not be called by a demonstrative pronoun or a non-specific temporal status identifier. Say her name. If you want to use the first name and last initial, go for it. But please, your client is not "plaintiff" or even "Plaintiff." 

Say her name. 

Postscript -- I find it difficult to watch legal shows. I struggle to suspend reality. So I confess, Maggie watched the entire two seasons, I watched the first episode, parts of several others, and the last episode. Maggie filled me in on the plot lines and character development. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Writing Conventions Redux -- Say Her Name, California Social Security Attorney (October 14, 2024) https://californiasocialsecurityattorney.blogspot.com

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

 

The Top Five Job Numbers for Light Unskilled Work

 The growing ubiquity of SkillTRAN and its flagship Job Browser Pro ("JBP") makes it imperative to use and understand the strengths and weaknesses of JBP standing alone and incorporated into OASYS. Searching for light unskilled work using OASY S provides the list of DOT codes sorted by job numbers. 

We start with the observation that JBP list sets out 1,572 DOT codes ranging from 458,000 jobs to 1 job with 124 DOT codes representing no jobs. JBP lists 52 DOT codes as representing 10,000 or more jobs. The 1,572 DOT codes represent about 3.5 million jobs. The top five occupations represent over 1.2 million jobs, more than a third of the total. The top five answers on the board are:

We know where most of these jobs exist. Cashiers work predominantly in retail trade. Power-screwdriver operator is a manufacturing occupation. Housekeeping cleaner work in accommodation in almost have the jobs. Marker works in retail trade, hence the DOT industry designation. And counter attendants work in hotels and restaurants. What we intuitively know is backed up the Occupational and Wage Employment Statistics ("OEWS") and the Employment Projections ("EP"). 

In estimating job numbers for a Social Security disability case, the first question is whether the work represents full-time work. The second question asks for the other physical demands of that full-time work. 

1. Cashiers

The O*NET reports that 43% of cashiers represent full-time work. JBP estimates 32% of jobs represent full-time work. 

The 2023 Occupational Requirements Survey ("ORS") states that cashiers have a maximum lift/carry of 25 pounds at the median. Labor currently defines light work as up to 25 pounds occasionally. SSA has not re-defined light work but to make the program fit with Labor's data, expect that change before the abandonment of the DOT. The 2018 ORS estimated that 35.5% of cashiers engaged in light work. The 2023 ORS does not give a strength estimate by neat classification. 

The estimate of strength requires consideration of maximum weight lifted, frequent weight lifted, occasional weight lifted, and constant weight lifted. 

The constant (68% or more of the day) lifting a negligible weight (one pound or less) is light work even if that is the only lifting requirement. Constant lifting of up to 10 pounds is medium work. Constant lifting of up to 25 pounds is heavy work.  

Frequent lifting of a negligible weight is sedentary work. Frequent lifting up to 10 pounds is light work. Frequent lifting up to 25 pounds is medium work. Frequent lifting up to 50 pounds is heavy work. 

Occasional lifting includes the category of seldom in the ORS and probably the separate measure of maximum lifted. 

What percentage of cashiers engage in light exertion? I use the 2018 first wave final estimate, 35.5%. It is a final first wave estimate. The data does not permit a clean demarcation of 25 versus 20 pounds lifted. 

If a witness wants to use JBP, use the 32% full-time estimate. If a witness does not use JBP, use the 43% full-time estimate. 

Based on the data, there are probably between 1.1 and  1.5 million cashiers working full-time. There are probably between 391,000 and 525,000 light cashier jobs. 

The SSA doctors (CE and DDS) reflexively endorse about six hours of standing/walking in a workday. How many cashiers do not have an expected work requirement of standing/walking six hours? None. The 2018 data set reports standing (including walking) 87.5% of the workday; the 2023 data set reports standing 80% of the workday. The choice of sitting or standing does not limit the amount of standing. The choice applies where the employer endorses sitting but the person can stand or where the job has some functions that sit and some that require standing and the employee can choose when to perform those two different functions. It is not a measure of a sit-stand option. A choice exists in 4.4% of jobs on the 2023 ORS and 5.4% of jobs on the 2018 ORS. 

The number of light unskilled cashier jobs that stand/walk six hours or less in a full-time workday is not statistically represented but is clearly less than 10% of jobs. Stated differently, there is no basis for taking administrative notice of full-time cashier work with standing/walking six hours or less. 

2. Power-Screwdriver Operator

SkillTRAN puts power-screwdriver operator in SOC OEWS group 51-2090, assemblers and fabricators. OEWS use of code 51-2090 includes 51-2092 and 51-2099. It is a composite. The Occupational Outlook Handbook (OOH) also reports 51-2090. I expect that Labor will break out miscellaneous assemblers and fabricators in the next OOH/OEWS releases. 

The OEWS and EP/OOH report between 1,489.280 and 1,498,300 wage and salary employment jobs for assemblers and fabricators.  

The ORS reports that 41.8% of assemblers and fabricators engage in light work -- lifting/carrying up to 25 pounds. 

The ORS reports that less than 63% of assemblers and fabricators engage in unskilled work. 

Using the BLS methodology:

                        1.5 million x 41.8% = 627,000 light jobs

                        627,000 x 63% = 395,010 light unskilled jobs

At the mean, assemblers and fabricators stand/walk 84.2% of the day. At the 25th percentile, assemblers and fabricators stand/walk 85% of the day. The ORS reports < 5% of jobs require sedentary exertion. This not statistical basis for the inference that there are assembler and fabricator jobs that do not require more than 75% of the day standing/walking and do not represent sedentary work. (8 x 75% = 6). 

3. Housekeeping Cleaner

SkillTRAN puts housekeeping cleaner in SOC/OEWS code 37-2012, maids and housekeeping cleaners. SkillTRAN estimates that 54% of maids and housekeeping cleaners represent full-time work. The O*NET reports 86% of maids and housekeeping cleaners represent full-time work. 

The OEWS and EP/OOH report between 826,230 and 1,215,400 wage and salary employment jobs.  

The ORS reports that 70.5% of  maids and housekeeping cleaners engage in light work -- lifting/carrying up to 25 pounds. 

The ORS reports that less than 91.4% of  maids and housekeeping cleaners engage in unskilled work. 

Using the BLS methodology:

                        1.2 million x 70.5% = 846,000 light jobs

                        846,000 x 91.4% = 773,244 light unskilled jobs

At the mean,  maids and housekeeping cleaners stand/walk 95.7% of the day. At the 10th percentile,  maids and housekeeping cleaners stand/walk 87.5% of the day. There is no statistical basis for the inference that there are  maids and housekeeping cleaners jobs that do not require more than 75% of the day standing/walking. 

4. Marker

SkillTRAN puts marker in SOC/OEWS code 53-7065, stockers and order fillers. SkillTRAN estimates that 58% of stockers and order fillers represent full-time work. The O*NET reports 68% of stockers and order fillers represent full-time work. 

The OEWS and EP/OOH report between 2,872,680 and 2,861,200 wage and salary employment jobs for stockers and order fillers.  

The ORS reports that stockers and order fillers have a maximum lift/carry of 25 pounds at the 10th percentile -- BLS defined light work. 

The ORS reports that less than 85.5% of  stockers and order fillers engage in unskilled work. 

Using the BLS methodology:

                        2.8 million x 10% = 280,000 light jobs

                        280,000 x 85.5% = 239,400 light unskilled jobs

At the mean,  stockers and order fillers stand/walk 91.8% of the day. At the 10th percentile, stockers and order fillers stand/walk 80.0% of the day. There is no statistical basis for the inference that there are  stockers and order fillers jobs that do not require more than 75% of the day standing/walking. 

5. Counter Attendant

SkillTRAN puts marker in SOC/OEWS code 53-7065, stockers and order fillers. SkillTRAN estimates that 58% of stockers and order fillers represent full-time work. The O*NET reports 68% of stockers and order fillers represent full-time work. 

The OEWS and EP/OOH report between 2,872,680 and 2,861,200 wage and salary employment jobs for stockers and order fillers.  

The ORS reports that stockers and order fillers have a maximum lift/carry of 25 pounds at the 10th percentile -- BLS defined light work. 

The ORS reports that less than 85.5% of  stockers and order fillers engage in unskilled work. 

Using the BLS methodology:

                        2.8 million x 10% = 280,000 light jobs

                        280,000 x 85.5% = 239,400 light unskilled jobs

At the mean,  stockers and order fillers stand/walk 91.8% of the day. At the 10th percentile, stockers and order fillers stand/walk 80.0% of the day. There is no statistical basis for the inference that there are  stockers and order fillers jobs that do not require more than 75% of the day standing/walking. 

We have examined a third of the light unskilled jobs according to SkillTRAN and its various products. We know from commonsense confirmed by the ORS that light work often requires more than six hours of standing/walking during a full-time workday. This raises the problem of agency policy, SSR 83-10. 

6. Resources

Every person that represents people at hearings needs access to and learn how to use SkillTRAN products Job Browser Pro and/or OASYS. Every representative must understand and know how to use the O*NET, ORS, County Business Patterns, the Occupational Outlook Handbook, the Occupational Employment and Wage Statistics, and the Employment Projections. SkillTRAN links to or reproduces many of these government publications. So too does OccuCollect. 

7. Agency Policy Is Misunderstood and Applied

SSR 83-10 uses the mantra that light and medium work require approximately six hours of walking or standing in a workday. The agency no longer specifies the amount of standing and walking. The state agency does, "about 6 hours." Most vocational experts assume that the absence of a statement implies that the person can stand/walk the whole day. More importantly, SSR 83-10 refines the approximately six hours of standing/walking with the statement, "Sitting may occur intermittently during the remaining time." The remaining time is two hours. Intermittently does not mean the entire time. SSR 83-10 is misunderstood by the agency because it won't read the next sentence for light or medium work. Intermittently means something different than the entirety of the rest of the time. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Top Five Job Numbers for Light Unskilled Work, California Social Security Attorney (October 1, 2024) https://californiasocialsecurityattorney.blogspot.com

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

 

Unskilled Work -- Not Defined in the DOT

Unskilled work is a phrase that the Dictionary of Occupational Titles does not use and does not define. The DOT does define specific vocational preparation (SVP) with SVP 1 requiring short time and SVP 2 requiring up to 30 days. SSA has long defined unskilled work as requiring SVP 1 or 2. Or has it?

The regulations define unskilled, semi-skilled, and skilled work. 20 CFR § 404.1568. Subsection (a) defines unskilled work:

Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

 The first sentence contains the word that. Merriam-Webster defines that in paragraph 1.c as "the kind or thing specified as follows." The structure of the definition implies three elements to the definition of unskilled work: (1) little or no judgment; (2) doing simple duties; and (3) learned in a short period of time. If the occupation requires more than little or no judgment, requires doing more than simple duties, or requires a learning in more than a short period of time, it is not unskilled on the Commissioner's regulation. 

The regulation continues to define simple duties that require little or no judgment. Those kinds of duties require: (1) handling; (2) feeding and off bearing; and (3) machine tending. Those duties can be learned in 30 days and require little specific vocational preparation and judgment. We see not only three types of duties but also 30 days or less of training (SVP) and little judgment. The critical word is and, a conjunction. 

What kinds of jobs require handling, feeding and off bearing, or machine tending? Thanks for asking. We turn to the DOT Appendix B. The DOT defines the data, people, and things codes -- the middle three digits of the DOT number. The things code, the sixth digit, the last digit before the hyphen, is the one we are looking at. 

                5 Tending

                6 Feeding-Off Bearing

                7 Handling

If the things code is 0-4, the job does not require as its primary worker functions tending, feeding and off bearing, or handling. Those codes mean:

                0 Setting up

                1 Precision Working

                2 Operating-Controlling

                3 Driving-Operating

                4 Manipulating

Those thing codes do not match the examples of unskilled work define in § 404.1568(a). Those jobs do not require little or no judgment and are not simple even if they require 30 days or less of training (SVP 1 or 2). I did not write the regulation so don't blame me if this upsets your applecart. 

 Chapter 3 of the Revised Handbook for Analyzing Jobs (RHAJ) makes this point clear. Tending and feeding-off bearing are machine-related levels of worker function that require little or no latitude for judgment. Handling is a nonmachine-related level of worker function that requires little or no latitude for judgment. 

The RHAJ defines operating-controlling, driving-operating, and manipulating as having some latitude for judgment. Operating-controlling, driving-operating, and manipulating are not examples of work that require little or no judgment as unskilled work is described in § 404.1568(a). 

The DOT lists 334 codes with the things worker function as 2, 3, or 4. A fair question raised by the SSA regulation asks whether operating-controlling things, driving-operating things, or manipulating things requires simple duties involving little or no judgment despite meeting the and requirement of 30 days or less to learn the occupation's functions. Neither operating-controlling things, driving-operating things, nor manipulating things are examples of unskilled work in § 404.1568(a). SSA could have left the definition of unskilled work as SVP 1 or 2 but did not. SSA defined unskilled work by specifying judgment, learning period, and giving examples of worker functions that fit neatly within the structure of the DOT and RHAJ, the definition of all terms used in the DOT dataset. 

A venerable stalwart in Social Security litigation historically warned that new ideas are frequently wrong. Convincing the courts that the definition of unskilled does not include all occupations with an SVP 1 or 2 is a dangerous undertaking. This piece illustrates that the regulations do not define simple work requiring little or no judgment as the universe of unskilled work. Occupations that do not fit the tending, feeding-off bearing, handling can be considered unskilled but should not be considered simple, repetitive tasks involving little or no judgment. Reasoning level is not the only marker of conflict with an SRT limitation. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Unskilled Work -- Not Defined in the DOT, California Social Security Attorney (October 1, 2024) https://californiasocialsecurityattorney.blogspot.com

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

 

Stiffler v. O'Malley -- Not a Good Decision

The Ninth Circuit published Stiffler v. O'Malley, 102 F.4th 1102 (9th Cir. 2024) on May 28, 2024. The Court disposed on the second issue first, the persuasive value assigned to the treating physician. The Court found that there is no conflict between "few workplace changes" and the "few variables" described in DOT reasoning level 2. 

1. Dr. Khosh-Chashm

Dr. Khosh-Chashm opined that Stiffler had marked differences from peers in social and communication behaviors, struggled to interpret social cues, and had limited decision-making abilities. Dr. Khosh-Chashm opined that Stiffler lacked the skills necessary to maintain gainful employment. Dr. Khosh-Chashm completed medical source statement opining that Stiffler had extreme difficulty with respect to her ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself.

The Court found that Dr. Khosh-Chashm did not explain his findings. The Court also found that those opinions were inconsistent with those of the Dr. Goldberg and Dr. Bilik. 

That begs the question posed by section 416.920c(c) -- compared to what? The regulation and the federal register address equally supported and consistent opinions. Every physician opinion argument must contain a comparison. If the ALJ finds that the favorable opinion is not supported (explained), the question is whether the explanation compares to the opinions expressed by less favorable opinions/findings. If the ALJ finds that the favorable opinion is inconsistent with other findings, then the ALJ must conclude that the accepted findings are inconsistent with the rejected findings. If that were not true, then there could never exist a circumstance where two opinions could be equally supported and consistent requiring the resort to the "relationship factors." 

2. Few Workplace Changes

The Court engages in the judicially discovered concept that "workplace" refers to the physical place of work and not procedural changes "in" the workplace. The Court does not tell the world that the ALJ defined workplace changes as the physical environment. A reasonable person would conclude that the Court made it up. 

The Court compares "few workplace changes" to the definition of reasoning level 2 in the DOT. Reasoning level 2 requires the ability to deal with few variables. Reasoning level 1 requires the ability to deal with occasional or no variables. One level of reasoning deals with the set and one level of reasoning deals with the frequency. The Court evaded the real question comparing the RFC to both definitions.

This matter is now pending a petition for rehearing or rehearing en banc on issue number 2. 

Distressing and disappointed. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Stiffler v. O'Malley -- Not a Good Decision, California Social Security Attorney (June 29, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

 

A Vocational Expert Responds -- and I Reply

 I wrote about the Reliability of the Occupational Requirements Survey in May 2022. This week, a vocational witness left this reply:

GilkisonMay 15, 2024 at 7:28 PM

Here is where I am, as a Vocational Expert. Since the ORS groups things by SOC code and not a specific DOT code, it is impossible to break down all the variables to a point that it is reliable. You can have a SOC with, let's say, 20 DOT codes. We can not assume that each job would match the ORS information. And, as an expert, I have to use all the ORS data, even down to "ramps and stairs" and "ladders ropes and scaffolds". Pretty much made up my mind to walk away until they fix this mess which we all know might never happen.

This is a really good response. How does anyone break down the SOC groups to apply to individual DOT codes? Fair comment. If a VW cannot break down the data in the ORS to the individual DOT codes, how does a VW break down the one variable from the Employment Projections (the foundation of the OOH) or the Occupational Employment and Wage Statistics (OEWS, used by SkillTRAN) -- job numbers -- to any individual DOT code? 

Whatever methodology a statistician uses to break down job numbers, that statistician would use the same techniques for breaking down the physical, cognitive, environmental, or experiential requirements of work described in the ORS. SkillTRAN uses an occupational density model (an opaque phrase). That method uses the industry designation or the job duty descriptions to pick industries appropriate for that DOT code. SkillTRAN engages that process for all DOT codes. Using OEWS and County Business Patterns data, SkillTRAN accumulates the job numbers for that SOC/OEWS code at those industry (NAICS) intersections, and then divides by the number of DOT codes. Adding up the job numbers in each SOC-NAICS intersection results in a job number estimate. SkillTRAN uses the suspect equal distribution method for calculating job numbers at the SOC-NAICS intersection. 

The ORS is a blunt knife. With the data that is now available, the question asks whether it is possible for the job number suggested by SkillTRAN or the VW to be reliable. Vague discussions don't help. Examples crystalize the problem. 

There are 1,590 DOT codes aggregated in production workers, all other including 52 of the 137 sedentary unskilled DOT codes. The 2022 EP estimates that 275,300 jobs exist for this broad occupational group. The OEWS estimates 243,500 jobs. The ORS reports a null estimate for sedentary jobs regardless of skill level. SkillTRAN reports less than 0.5%. Any estimate over 1,376 jobs for all sedentary occupations (skilled, semi-skilled, and unskilled) does not conform to the ORS. 

Production workers, all other contains 405 light unskilled DOT codes. The ORS reports 11.1% of the jobs represent light work. Let's round off and call it 30,000 light jobs. Any testimony that there are 30,000 light unskilled jobs in a single light unskilled DOT code conflicts with the ORS. Accounting for the 26.4% of unskilled work and engaging the assumption that skill levels distribute across the exertional levels permits less than 3,000 light unskilled production workers in 405 DOT codes. 

This application of the ORS does not try to tease out the job numbers for a DOT code. This application of the ORS extracts the job numbers for the set of jobs that have the overarching characteristic. It is more difficult when the question layers the claimant with multiple limitations -- e.g., social, manipulative, pace. But if we know that light production workers, all other represent 30,000 jobs and unskilled workers at all exertional levels in that group represent fewer than 75,000 jobs, we know that no single light unskilled DOT code could ever represent more jobs. We know that the 52 sedentary DOT codes represent less than 1,400 jobs. 

The ORS, like the EP and the OEWS, does not lend itself to DOT job numbers. That troika of sources does establish the number of jobs within an occupation-industry intersection and the aggregate number of jobs with the critical characteristics at issue. Inside of those boxes, the VW can exercise experience. But they can never reliably estimate job numbers outside of the boxes erected by the data sources. 

Using the ORS is not easy. I agree with Gilkison. The difficulty is why the agency calls the VW an expert. You are called upon to engage in statistical analysis that is not part of the general requirements to be a VW. So when the ALJ asks for a sedentary unskilled reasoning level 1 occupation, tell the ALJ that lens inserter does not exist in any significant number. You can back up that testimony with the EP, the OEWS, the ORS, and County Business Patterns. 

Use the data.

___________________________

Suggested Citation:

Lawrence Rohlfing, A Vocational Expert Responds -- and I Reply, California Social Security Attorney (May 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

 

February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley

 Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at a second of those dispositions. 

2. Cuestas v. O'Malley - Cuestas argued that the ALJ did not explain how the agency considered supportability and consistency. The Court disagreed, but did not give examples.

Cuestas argued that the ALJ relied on objective basis for symptoms and limitations. The Court found that the ALJ did and could rely on the failure to comply with medical advice and failed to attend pain management. 

Cuestas argued that the ALJ did not pose all the limitations to the vocational witness. This is a rehash of the opinion and subjective testimony issue -- not a separate issue. 

Cuestas argued that the ALJ disregarded evidence of interaction with other people as stated by the Bureau of Labor Statistics. The Court found that the ALJ could rely on the DOT and the vocational testimony to reach the conclusion that Cuestas could perform other work.

COMMENT: The courts have this issue wrong. Heckler v. Campbell, 461 U.S. 458, 469, n.13 (1983):

Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.^[13] See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

13 The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980)." Id., at 298.

(Emphasis added). The COSS takes administrative notice of the DOT by regulation and expands that notice to include the SCO. Most of the DOT codes have a Date Last Updated code of 1977. Vocational witnesses have local experience, not national experience. An ALJ can rely on unrebutted nonsense. Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). But if the vocational testimony is "feeble" or "contradicted," the testimony is no longer unrebutted. Id. at 1156. The claimant can show that the testimony was "untrustworthy" or "contradicted." Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). 

Cuestas rebutted the vocational testimony with BLS data. The testimony is now contradicted under Biestek and Ford. Why did the ALJ reject the BLS data? The Court does not say why. The Court says that the ALJ may rely on vocational testimony and the DOT regardless of what BLS publishes. 

As a society, we continue with the national consternation over whether private parties or the government can count. The vocational witnesses called by the COSS should travel under two names: Rudy and Sidney. We should label the data published by the Department of Labor -- when the O*NET, ORS, EP, or OEWS -- as the national election bureau. Believing that housekeeping cleaner, photocopy machine operator, or marker don't have extensive contact with others is nonsense. From the District Court decision:

The VE stated that she had no data to refuse the BLS statistic indicating that for the job of Photocopy Machine Operator, up to 82 percent of the people who do that job have contact with others constantly or most of the time. AR 65-66. For the job of Marketer, the BLS data indicated that 90 percent of people performing that job had contact with others most of the time or constantly. The VE stated that she had no data to refute that statistic. AR 66-67.

The record has statistical data from the Department of Labor that the vast majority of photocopy machine operators and markers have frequent or constant contact with others. The witness does not have a statistical basis for refuting what DOL reports according to OMB standards. That is not substantial evidence. That is garbage. 

1. The DOT does not address work contact with coworkers. 

2. The witness does not have a basis for overcoming DOL data (the source that describes contact with others is the O*NET, published by the ETA, not BLS). 

3. Would a reasonable mind accept Rudy and Sidney's word as election experts over the Georgia Secretary of State? No. Nor should the courts accept every bile that vomits from the vocational witnesses mouth. 

The unaddressed issue of housekeeping cleaners is the problem. About 18% of those jobs have occasional (8%) or no (10%) contact with others. That probably makes the contact with others harmless. But the ORS (a BLS product) confirms that housekeeping cleaners do not sit two hours a day. 

Cuestas is wrong at step five. I vigorously dissent, but I'm not a judge. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at one of those seven dispositions, all losses for the claimant-appellant. 

1. Slayton v. O'Malley - the Court affirmed.

    a. Dr. Haggerty opined that Slayton could sit or stand for just 15 minutes and lift no more than 10 pounds, limited to working one hour in a workday with high levels of absenteeism. The record contains contradicting evidence. The ALJ rejected Dr. Haggerty's opinions citing contradiction, minimal treatment, and easily performed activities of daily living. The ALJ found that the opinion was "largely conclusory" and had little to objectively support the extreme limitations. 

    b. Dr. Rado described Slayton as needing a 10 minute break every hour. The ALJ found the opinion contradicted and at odds with the objective record including normal neurological examinations. 

    COMMENT: The presence of contradiction with other opinions is never a reason to reject the evidence. The presence of contradiction triggers the need to state why the ALJ rejected the opinion evidence. When an ALJ uses adverbs that exclude always, the ALJ is fudging the record. Largely, mostly, normally, frequently -- all of those words mean that some of the objective findings were abnormal. For some opinion sources, the glass is half full, when the findings are normal, the person can function. For other opinion sources, the glass is half empty, when the findings are abnormal, the person has limited function. When the half empty view casts the limited function as persistent or always, the source has exaggerated. That allows the ALJ to reject the evidence. It is equally true that the half full opinion is flawed. Counsel should focus on why the ALJ erred in accepting that opinion for the reasons stated to reject the other evidence. 

    c. The ALJ rejected Slayton's symptom and limitation testimony. The ALJ relied on conservative treatment and activities of daily living. 

    COMMENT: The Ninth Circuit has dueling panels. The Court cites "Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding that a claimant’s daily activities suggested that his “claims about the severity of his limitations were exaggerated”); Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (explaining that evidence of conservative treatment 'is sufficient to discount a claimant’s testimony regarding severity of an impairment')." The Court does not consider the other line of case finding that activities of daily living do not translate easily to the rigors of work. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). There is a synthesis that turns first on the denial or minimizing of ADL. The nature of a memorandum disposition does not lend itself to the hard consideration of nuanced questions. We must remain diligent to and address those nuanced questions. 

    d. Slayton raised a step four question. Courts and parties sometimes conflate the RFC assessment as a step four finding. It is not. It is the second half of step three, or what I call an interim step. The consideration of vocational questions is never an opportunity to argue about the RFC -- again. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley

 In Terry v. Saul, 998 F.3d 1010 (9th Cir. 2021), the court ruled that if an ALJ told the vocational expert to assume an ability to perform medium work, that direction implied and everyone knows that the ability to perform medium work includes a limit to standing/walking in combination for six hours in a workday. A different panel extended Terry to light work in Guillermina R. v. Kijakazi. The Tenth Circuit agreed with the reasoning without citing Terry in Sewell v. Comm'r, SSA. Those three cases have two things in common: (1) they are all wrong; and (2) I handled them. 

On March 26, 2024, the Ninth Circuit rolled back on Terry. In Conway v. O'Malley, ___ F.4th ___ (9th Cir. 2024), The court started with the Terry presumption, medium work includes a limit to standing/walking six hours in a workday. Undaunted by the identification of work requiring medium exertion, From the court decision:

"if someone's only able to be on their feet for six out of eight hours, maximum, would they be able to do any medium work or the jobs you listed?" The expert responded, "The three sample occupations would not comport with that additional work restriction and [sic] would be difficult for me to provide substitute unskilled, medium occupations where a worker would be capped at being on their feet no more than six hours in a workday."

The Commissioner argued that the original hypothetical question included the limitation to six hours by inference. Conway argued that cross-examination rebutted the presumption. The court noted that Terry's counsel at the hearing did not attempt to rebut the presumption or meaningfully cross-examine the vocational expert. (That's true but Terry did submit Occupational Requirements Survey data that showed that the work identified required more than six hours of standing/walking in a workday; I didn't handle the hearing). The court then noted that presumptions are generally rebuttable. 

The court held that the cross-examination revealed that the vocational expert "did not understand" that the limitation to medium work included a six-hour limitation. The Commissioner argued that the limitation described in cross-examination did not accurately reflect the state agency findings -- about six hours. The court rejected the "about" discrepancy as meaningful. 

Let's examine this "about" problem from a different angle. The state agency doctors are charged with finding a residual functional capacity (RFC). 20 CFR sec. 404.1546(a). An RFC is always the most that the person can do. 20 CFR sec. 404.1545(a). When the state agency finds "about six hours" as the most that the person could do, the state agency put a ceiling of six hours and recognizes that there may be times with the capacity is less but not more. Using "about six hours" as allowing 6.4 hours per day every day would mean that the RFC finding was not accurate and complete. "About six hours" is not an average of six hours, it is at most six hours. 

Undaunted, Judge Rawlinson dissented. The facts are clear, if Conway is limited to six hours of standing/walking in a workday, he cannot perform medium jobs identified. Judge Rawlinson took the vocational expert statement that capping standing and walking at six hours is an additional work restriction. That's right. The witnesses do not assume a six-hour limitation, they have to be told explicitly that there is a six-hour limitation in standing/walking. More importantly, the six hours is implied, not as an about limitation, but as a clear limitation. That's what Terry says. Everyone knows that medium work as defined in SSR 83-10 has a limit of six hours. Conway shows that the vocational witnesses do not know that, assume that, or care about that. 

Conway demonstrates that the Terry presumption is wrong. In my anecdotal experience, vocational witnesses assume that "stand and/or walk for six hours" means that the person could stand/walk for a total of eight hours. A few hours standing here, a little walking there, some more standing, and some more walking. Most unskilled medium jobs do not allow sitting on the job. 

Some vocational experts will state that the person gets to sit for 15 minutes during the morning and afternoon break and 30 minutes at the meal break. That makes an hour so sneaking in another 60 minutes is not hard to do. This is the kind of sophistry to which VW resort. By sophistry, I mean that they lie. 

Assume a person engaged in medium cleaner work. The bell rings and the person gets 10 to 15 minutes for a break. The person gets not more than 15 minutes (California is it 10). To sit the entire 15 minutes, the person must drop down and sit exactly where they stand when the bell rings. If the person needs to engage in body functions and the restroom is 2 minutes away, the person cannot sit for 15 minutes because getting to the restroom takes 2 minutes there and 2 minutes back. 

The meal break is worse. The 10-15 minute rest breaks are generally paid breaks. The meal break is not paid unless the person has a working lunch under federal law. The meal break is not part of the eight-hour day, it does not count. Even if it did, getting to sit the entire 30 minutes implies that the worker has lunch in the back pocket and can stop, sit, and eat right where they stand at the whistle. Dumb, just dumb. The person must walk to retrieve the meal, walk to the break room/area, consume the meal, dispose of rubbish, use the restroom, and get back to the work station in 30 minutes. 

The VW in Conway did not indulge in that nonsense. Some VW do. Representatives with claimants over 55 must come prepared to win a medium RFC case by proving up the six hours of standing/walking as preclusive of unskilled medium work that exists in significant numbers. The ORS is that backup available in Job Browser Pro and at Occucollect.com. 

Paul Warren argued and Kevin Kerr wrote the briefs in Conway. Kerr Robichaux & Carroll continue to do outstanding work for the disabled community and continue to provide great cases for the Social Security bar. 

Genuflecting.

___________________________

Suggested Citation:

Lawrence Rohlfing, No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley, California Social Security Attorney (April 3, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection

The Ninth Circuit published Ferguson v. O'Malley on March 14, 2024. The divided panel used the clear and convincing standard to reverse the decision denying Ferguson's benefits. The dissent would affirm. 

The decision affirms the proposition that an administrative decision lacks the support of substantial evidence if the ALJ improperly rejected the symptom testimony. The decision relies on Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) and Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 

Judge Rawlinson in dissent asserts that the substantial evidence standard is not high and some evidence supports the ALJ decision. Judge Rawlinson relies on Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) and Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 

The characterization of a decision that does not properly address the testimony as stripping the ALJ decision of a foundation in substantial evidence is the source of the problem. Substantial evidence is a low bar. It gets the case past a directed verdict and is grounds for denying a motion for judgment not withstanding the verdict. According to Judge Rawlinson, there is evidence that Ferguson had less severe symptoms, i.e., the medical evidence. Could a factfinder rely on the medical evidence and reject Ferguson's testimony? In a civil trial, clearly that is the case. 

But this is administrative law. The ALJ must not only reach a permissible result but also reach that result for permissible reasons. The permissible result is the foundation of substantial evidence. The permissible reasons turns on the articulation standards. In essence, the decision holds that the ALJ did not have sufficient reasons for rejecting Ferguson's testimony. That sounds more an error of law rather than a failure of evidence. Therein lies the nuance. The reasons articulated were insufficient to persuade the reasonable mind under Biestek and therefore the decision lacks the support of substantial evidence. It would be easier and avoid Judge Rawlinson's dissent if the decision -- and the decades of precedent -- called a failure to state clear and convincing reasons for rejecting the symptom testimony an error of law and a failure of substantial evidence. The clear and convincing standard does invoke a mixed question of law and fact. 

Judge Rawlinson rails against the decision because the ALJ did not reject Ferguson's testimony but actually incorporated the testimony into the residual functional capacity assessment. The decision summarizes the record that the ALJ discounted the testimony about the severity and frequency of headaches caused by a history of epilepsy, Arnold-Chiari malformation, and headaches as a separate impairment. Ferguson has headaches that occur two to three times per week and last for up to two days. Judge Rawlinson says that the ALJ accepted the symptom testimony. The ALJ did find headaches but rejected the intensity and persistence of those headaches. This part of the dissent is semantically wrong. 

Judge Rawlinson doubles down on the ALJ reliance of activities of daily living. Ferguson watched television and played video games daily (Judge Rawlinson's emphasis). We should play along. Ferguson turns on the TV and plays games every day. He plays for hours and hours. Two or three days a week, he has a headache that lasts for two hours and he cannot watch TV or play games for those two hours. Is the fact that Ferguson watches TV or plays games for eight hours a day evidence that Ferguson could perform the sustained requirements of work on a regular work schedule? Of course not. One or two interruptions per week for up to two hours is an unacceptable interruption of the work pace and productivity required of competitive work. Taking car of wild cats, making meals, building models, attending to self-care, possessing the knowledge and ability to drive do not detract from an episodic impairment. 

If Ferguson had testified that he had headaches 16 hours a day and slept the other 8 hours, having any activity that required concentration to task would contradict the testimony. That was not his testimony according to the decision and the dissent. The substantial evidence standard is not high but it is not a trough either. Substantial evidence satisfies the reasonable mind. Having a host of activities of daily living does not negate the interruption of those activities two or three times per week for up to two hours per day. Garrison, 759 F.3d at 1016 addresses the difficulty in applying activities of daily living performed when the person can or wants to perform them to the rigors of performing work functions when the employer wants them done. 

Judge Sung joined by Judge Bea reached the right result. The ALJ does not have discretion to reject the testimony about the severity, persistence, and impact of symptoms on the ability to function simply by pointing to the medical evidence or that the claimant does not vegetate in a dark room. That is not the standard. The question is and has always been whether the person could get to work every day, remain productive throughout the day, and continue that pattern week after week, month after month. 

You are an employer. You have a simple job for Ferguson to do. He leaves early, arrives late, or is unproductive for up to two hours at a time twice a week. How long does that pattern last before Ferguson gets fired -- by you. Severe headaches that render the person unable to function in a work setting on a repeating basis cannot sustain work. 

The dissent is wrong. 

Hat tip to Alyson Young and Kevin Kerr. Lawyers do not make enough money on SSI cases in federal court. Lawyers do not make enough money in Social Security cases to warrant a trip to the Court of Appeals in any case. We take the cases because someone has to hold the agency's feet to the fire and someone has to correct persistent errors in the district courts. It is a loss leader. It is the right thing to do. We who journey into the federal courts have more lucrative things to do. But we seek justice because the system needs it.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Ferguson v. O'Malley -- When Not Accepting Limitations Described In Testimony Is a Rejection, California Social Security Attorney (March 15, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, two in January. We take a look at those two dispositions to get a sense of what works and what does not work. 

1. Cross v. O'Malley - We discussed using the APA as a basis for reviewing SSA decisions and actions in the discussion of published part of the disposition of this case. The court affirmed the Commissioner. 

    a. In the memorandum, the court repeats the conclusion that the refusal to reopen or revise a prior decision/determination is not subject to judicial review. 

    b. Dr. Loreli suggested caution in relying on test results and observed that Cross gave up quickly. The ALJ relied on inconsistencies (not specified in the memorandum) between Dr. Loreli's opinion and the medical records.

    c. Cross raised error in failing to include PCOS (polycystic ovary syndrome) is the list of severe impairments. The ALJ proceeded past step two. The ALJ would include limitations from severe and non-severe impairments in the residual functional capacity assessment. Counsel conceded at oral argument that the record did not include evidence of limitations from PCOS during the relevant period. 

    d. Cross contended that the ALJ did not properly consider the symptoms and limitations. The memorandum cites the ALJ reliance on inconsistencies about the presence of seizures, the need for daytime sleeping, the ability to drive, and activities of daily living. 

    e. Cross contended that the ALJ failed to include all limitations in the examination of the vocational witness. This is not a separate issue but a rehash of the opinion evidence and testimonial evidence issue. The step five hypothetical question issue compares the question to the RFC. This issue is otherwise relegated to a materiality component of the second, third, and fourth issues. 

2. Kennedy v. O'Malley - The court affirmed the Commissioner. 

    a. Kennedy provided evidence that Dr. Pickett provided false evidence in another case, not this case but another case. Kennedy did not provide that evidence to the ALJ. Nor did Kennedy present the evidence to the district court. The issue was waived. Nor could Kennedy point to any part of the report in this case that was false. 

    b. Kennedy raised the issue rejected in Cross. A panel cannot override a precedential decision of another panel. 

    c. Kennedy contended that the ALJ improperly rejected parts of one consultative examiner's opinions and all of the other CE. The ALJ relied on normal EMG studies to reject lifting limitations below the 10/20 required by the definition of light work. The ALJ (referred to as IJ in the memorandum) could reject an unexplained conclusion as neither inherently valuable or persuasive. 

    d. Kennedy raised the excess pain argument. The ALJ pointed to evidence of malingering and the lack of objective findings. Kennedy participated in pain management but stopped taking the medication. 

    e. The ALJ did not address the observations of the SSA employee citing 20 CFR § 404.1520c(d). The panel got it wrong. The regulations bind the ALJ to "consider all of the evidence presented, including [...] observations by our employees." 20 CFR § 404.1529(c)(3). "Consider" means what it means in grade school, "show your work." 

    f. Kennedy contended that the ALJ failed to include all limitations in the examination of the vocational witness. See the discussion of Cross, supra, at paragraph e. 

The common thread is Cross and Kennedy is mistaking an incomplete hypothetical that matches the RFC assessed as an independent issue. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (requiring remand and reconsideration because the ALJ's hypothetical did not reflect all of the claimant's limitations). It is not. The incomplete hypothetical show materiality of an RFC that lacks the support of substantial evidence. Bruton v. Massanari, 268 F.3d 824, 828 n.1 (9th Cir. 2001) (ALJ could not rely on the grids where the RFC has a non-exertional limitation not considered, that the ALJ did not find to be true).

___________________________

Suggested Citation:

Lawrence Rohlfing, January 2024 Unpublished Ninth Circuit Memoranda -- What Is Not Working, California Social Security Attorney (March 8, 2024)

https://californiasocialsecurityattorney.blogspot.com

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