It Bears Repeating -- Cross-Examine on the Hours of Standing and/or Walking

 We are at the point where anyone over 55 and more than 5 years from the last day worked should get approved by the Social Security Admininistration with any severe physical impairment. 20 CFR 404.1562(b) states:

If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) ( see §§ 404.1520(c), 404.1521, and 404.1523), are of advanced age (age 55 or older, see § 404.1563), have a limited education or less ( see § 404.1564), and have no past relevant work experience ( see § 404.1565), we will find you disabled.

Appendix 2, Rule 203.10 describes a person of advanced age, limited or less education, and no relevant work history as presumptively disabled. Rule 203.10 is a a simple restatement of the more general holding in 404.1562(b). Rule 203.10 is redundant.

Let's examine a person over 55 and limited to medium work. As a person over 55 blessed with good health for my age, I can testify that standing/walking for six hours a day while remaining productive is not going to happen. I looked for places to sit going to Disneyland when my children were "at that age." The doctors know this intuitively. When was the last time we saw a medium work restriction with unlimited standing/ walking from a consultative examiner or state agency physician? I have seen unlimited sitting, not often but those opinions do exist. FitBit tells me that sitting continuously is unhealthy. 

Let's assume that we have the ordinary array of opinion evidence with a severe physical impairment but not that bad, just limited to medium work with six hours of standing/walking and the ability to frequently engage in postural activities. Sometimes the ALJ will say all of that and sometimes the ALJ will omit the standing/walking limitation -- it is implied. Everyone knows that SSR 83-10 defines medium and light work as six hours of standing/walking. The witness identifies 300,000 jobs. Toast! 

No, not toast. Ask the question:

Assume the person can stand/walk for a total of six hours in a day maximum, combined. Can that person perform those jobs?

Alternatively, 

Can a person performing those jobs sit down for at least two hours in a workday while performing their duties?

Most of the time with a minimal level of honesty, the witness will say "No, these jobs require over six hours and sometimes all day long." Or something like that. We have the ORS to back  that statement up. Eliminate the medium jobs and we are down to light work and the 55-year old claimant grids out. Appendix 2, Rule 202.04. 

Under 55? Ask the same questions about light work. There are some light jobs that do not require standing/walking for more than six hours. There are not a lot. Coupled with a non-exertional limitation to simple repetitive tasks and those jobs disappeare. That is unless the witness is John Yent or one of his prodigy. 

Failure to ask the six hours question or some version of that question is below the standard of care. Conway v. O'Malley, 96 F.4th 1275, 1278-79 (9th Cir. 2024) states that the presumption that the witness properly assumed six hours of standing/walking in a workday is rebuttable. The presumption arises from the longevity of SSR 83-10. Terry v. Saul, 998 F.3d 1010, 1014 (9th Cir. 2024). Terry rejected ORS evidence presented to the Appeals Council. That might be different today in light of SSR 24-3p. Don't roll those dice. Ask the witness and sumbit the ORS data.

Don't fall below the standard of care. 

___________________________

Suggested Citation:

Lawrence Rohlfing, It Bears Repeating -- Cross-Examine on the Hours of Standing and/or Walking, California Social Security Attorney (May 22, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

 

 

Understanding Standard Occupational Classification Codes

The Department of Labor stopped updating the Dictionary of Occupational Titles (DOT) after the 1991 update revision of the 1977 edition. The Fourth Edition will be 50 years old in 2027. The federal goverment started the Standard Occupational Classification (SOC) in 1977. Major revisions to the SOC developed over the next 40+ years. The latest SOC is the 2018 revision. See, Standard Occupational Classificaiton Manual (U.S. 2018) (SOC Manual).  Keep that link open. We will refer to it throughout this discussion. 

Pages 38 to 220 set forth the definitions of each of the 23 major groups (xx-0000), 98 minor groups (xx-x000), 459 broad occupations (xx-xxx0). and 867 detailed occupations (xx-xxxx). Four zeroes describe major groups, three zeroes signify minor groups, a terminal zero describes a broad occupation, and the absence of a zero in the last digit points to a detailed occupation. All six-digit detailed occupations (the last digit is not a zero) have a:

(1) SOC code, 
(2) title, and 

(3) definition. 

All workers classified in an occupation are required to perform the duties described in 

(4) the first sentence(s) of each definition that do not start with “May.” 

Some definitions also have a 

(5) “May” statement, a .
(6) “Includes” statement, and/or a 
(7) “Excludes” statement. 

Almost all occupations have one or more 

(8) “Illustrative Examples.”

SOC Manual, page 13. Paragraph (4) is critical. All workers in a SOC are required to perform the non-may statements in the first sentence of the SOC definition. 

Application of that definition makes it concrete. Examine 53-7065 Stockers and Order Fillers. SOC Manual, page 211. The manual says:

53-7065 Stockers and Order Fillers 

Receive, store, and issue merchandise, materials, equipment, and other items from stockroom, warehouse, or storage yard to fill shelves, racks, tables, or customers’ orders. May operate power equipment to fill orders. May mark prices on merchandise and set up sales displays. Excludes “Shipping, Receiving, and Inventory Clerks” (43- 5071), “Laborers and Freight, Stock, and Material Movers, Hand” (53-7062), and “Packers and Packagers, Hand” (53-7064).

Illustrative examples: Night Stocker, Store Stocker, Warehouse Stocker

(Italics added to the first sentence). All stockers and order fillers receive, store, and issue merchandise, materials, equipment, and other itmes of stockroom, warehouse, or storage yard to fill shelves, racks, tables, or customers' orders. All. 

Marker, DOT 209.587-034, is a stocker and order filler occupation. The DOT defines marker:

209.587-034 MARKER (retail trade; wholesale tr.) alternate titles: marking clerk; merchandise marker; price marker; ticket maker 

Marks and attaches price tickets to articles of merchandise to record price and identifying information: Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket to article. May record number and types of articles marked and pack them in boxes. May compare printed price tickets with entries on purchase order to verify accuracy and notify supervisor of discrepancies. May print information on tickets, using ticket-printing machine [TICKETER (any industry); TICKET PRINTER AND TAGGER (garment)]. 

GOE: 05.09.03 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 77

The primary function of a marker  is the second "may" statement for stockers and order fillers. But all stockers and order fillers receive, store, and issue merchandise, materials, equipment, and other itmes of stockroom, warehouse, or storage yard to fill shelves, racks, tables, or customers' orders. All includes marker. 

Two observations flow from this revelation. Markers do have job duties to mark and attach price tickes to articles of merchandixe to record price and identifying information. That is the purpose statement of the DOT definition. Markers also receive, store, and issue merchandise, materials, equipment, and other itmes of stockroom, warehouse, or storage yard to fill shelves, racks, tables, or customers' orders. We know this because all stockers and order fillers receive, store, and issue merchandise, materials, equipment, and other itmes of stockroom, warehouse, or storage yard to fill shelves, racks, tables, or customers' orders. Stockers and order fillers includes markers. Marker, DOT 209.587-034. 

This epiphany explains the 2025 ORS statement that almost 75% of stockers and order fillers engage in medium exertion with another 14% engaged in light exertion (up to 25 pounds). At the 10th percentile, right in the middle of that light range, the maximum lift and carry is 25 pounds on both the 2025 and the 2023 ORS datasets. 

This type of analysis constitutes a weapon on the belt of the representative cross-examining on the identification of 20,000 to 120,000 marker jobs as meeting a light residual functional capacity. By definition, marking is not all that is required and the ORS functional data backs that up. 

Be informed.

___________________________

Suggested Citation:

Lawrence Rohlfing, Understanding Standard Occupational Classification Codes, California Social Security Attorney (May 21, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

 

Cashiers Require Judgment and Do Not Qualify as Simple with Little or No Judgment

Cashiers represent over 3 million jobs according to the Occupational Employment and Wage Statistics (OEWS) and the Employment Projections (EP) (the foundation of the Occupational Outlook Handbook OOH)). The OOH confirms that cashiers generally require short-term on-the-job training. The O*NET data describes on-the-job training as 30 days or less in over 70% of mobs with 44% requiring little or not related work experience and 81% requiring a high school diploma or less. The ORS assigns  SVP 1 or 2 classification to 90%  to 97% of the cashier jobs. The DOT and SOC crosswalk tell us that 18 DOT codes make up 41-2011 Cashiers, six light and unskilled, seven light and semi-skilled or skilled, and five sedentary and semi-skilled or skilled.  When a vocaitonal witness testifies to hundreds of thousands or even millions of jobs, that testimony is verifiable. 

But that does not mean that cashiers engage in simple work with little or no judgment. We know that cashier II carries reasoning level 3. A split in the circuits exists. The language of the regulation drives the conclusion that unskilled does not depend on SVP alone. The distinctions between unskilled, semi-skilled, and skilled make the point clear. We explored the case study of counter and rental clerks as illustrative. 

Today, we put another tool on the belt. What does the Department of Labor, Bureau of Labor Statistics through the Occupational Requirements Survey say about the job duties for cashiers? The 2025 factsheet includes cashiers. BLS says:

Cashiers 

Receive and disburse money in establishments other than financial institutions. May use electronic scanners, cash registers, or related equipment. May process credit or debit card transactions and validate checks. 

For terms and definitions in this profile, see definitions of major terms. 

Cognitive and mental requirements 

The qualifications that workers need to use judgement, make decisions, interact with others, and adapt to changes in jobs. In 2025, more than basic people skills were required for 8.7 percent of cashiers. Basic people skills were required for 91.3 percent.

Read those cognitive and mental requirements again. "Workers need to use judgement (sic), make decisions, interact with others, and adapt to changes in jobs." Ignore the King's English spelling of judgment, it is irrelevant. Focus on the required fuctions (1) use judgment; (2) make decisions, (3) interact with others, and (4) adapt to changes in jobs. 

The use of judgment defies the basic definition of unskilled, little or no judgment. 20 C.F.R. § 404.1568(a): 

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.

Using judgment, making decisons, interacting with you, and adapting to changes run afoul of the plain meaning of the regulation. 

The factsheet points out other facts about cashiers not apparent from an initmate understanding of the DOT. Sedentary cashiers do not represent nearly 30% of the jobs, they make up less than 2% of the jobs. Cashiers engage in medium exertion in almost 37% of jobs, confirming the commonsense observation made a grocery stores every day. Very few cashiers have the ability to sit or stand, just 3.2%. The only counter-intuitive point from the factsheet -- cashiers do not work around crowds. They work with one customer at a time. Obvious on serious reflection. 

Do cashiers typically have SVP 1 or 2? Yes. 

Do cashiers need to exercise judgment and deal with people? Of course they do, those are critical functions of cashiers. 

Use the factsheets. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Cashiers Require Judgment and Do Not Qualify as Simple with Little or No Judgment, California Social Security Attorney (May 19, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

 

Simple SVP 1 and 2 Occupations Have a Conflict with Reasoning Level 3 -- The Cases

Part three of this series. We start with Simple Work Requiring Little or No Judgment Is Not Synonymous with SVP 1 and 2 and Basic Tools of Statutory Construction Demand that SVP 1 and 2 Is Part of Unskilled But Not Synonymous. The next step in the analysis is the literature review. 

• Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) ("simple and routine work tasks" is "inconsistent with the demands of level-three reasoning" because the plaintiff's residual functional capacity was more consistent with Level 2 than Level 3 Reasoning) (quote taken from Zavalin).

• Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) ("there is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning").  

• Thomas v. Berryhill, 881 F.3d 672, 676-77 (8th Cir. 2018) (An apparent conflict thus existed between the vocational expert's testimony that someone limited to "1 to 2 step tasks" could work as a new accounts clerk and the DOT description that being such a clerk involves a higher level of reasoning.).

• Thomas v. Berryhill, 916 F.3d 307, 313 (4th Cir. 2019) ("short, simple instructions" (as found in Thomas's RFC) and a need to carry out "detailed but uninvolved ... instructions" (as found in jobs requiring Level 2 reasoning). We hold that there is.).

• Vivrette v. Comm'r of Soc. Sec., 13 F.4th 1309, 1316-17 (11th Cir. 2021) (reviewing cases as adopting the Fourth, Ninth, and Tenth Circuits). 

But see:

• Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007) ("Information Clerk," No. 237.367-018, and "Customer Service Clerk," No. 299.367-010 are both classified as unskilled and so do not appear to be "complex."). 

• Terry v. Astrue, 580 F.3d 471, 471 (7th Cir. 2009) (Terry does not argue that she cannot perform these skills, perhaps because the record suggests she can: she finished high school, completed training to become a certified nurse's assistant, and has the cognitive capacity to follow simple instructions).

• Zernsak v. Colvin, 777 F.3d 607, 618 (3d Cir. 2014) (no bright-line rule stating whether there is a per se conflict between a job that requires level 3 reasoning and a finding that a claimant should be limited to simple and routine work; Zirnsak does not seriously argue that she is incapable of performing the jobs; Zirnsak's counsel did not identify any inconsistencies between the VE's testimony and the DOT at her hearing).

Renfrow assumes that all SVP 1 and 2 jobs are unskilled and simple. Terry and Zernsak rest on a failure to address the materiality of the question, that the mental impairments, even if viewed alone are non-severe, can erode or impact the ability to perform the essential or bona fide occupational qualifications of other work at step five of the sequential evaluation process. These cases emphasize that development of the step five attack starts at the hearing level and continues to rest on the proposition that the claimant cannot perform reasoning level three work because of the mental impairment limiting them to simple work. 

This is a clear split in the circuits. Resolving that split must focus on the weaknesses of Renfrow, Terry, and Zernsak on the facts. Those facts permit the lawyers to do what they are trained to do, distinguish a case on the facts. 

Continue the battle. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Simple SVP 1 and 2 Occupations Have a Conflict with Reasoning Level 3 -- The Cases, California Social Security Attorney (May 19, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Basic Tools of Statutory Construction Demand that SVP 1 and 2 Is Part of Unskilled But Not Synonymous

SSA has broad discretion to set out the the rules for benefits. 42 USC § 405(a) grants that discretion:

The Commissioner of Social Security shall have full power and authority to make rules and regulations and to establish procedures, not inconsistent with the provisions of this title, which are necessary or appropriate to carry out such provisions, and shall adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same in order to establish the right to benefits hereunder.

In furtherance that obligation to make rules,  regulations, and procedures, the Commissioner promulgated 20 CFR  § 404.1568 to define skill requirements. The Commissioner defines unskilled work in subsection (a):

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.

(Emphasis added). A semantic and textual analysis of a statute or regulation may consider six basic considerations including these four:

Ordinary-Meaning Canon: Words are understood in their everyday sense unless they are technical.

Rule Against Surplusage: Different words in a statute should not have the same meaning; every word is given effect.

Expressio Unius Est Exclusio Alterius: The expression of one thing implies the exclusion of others.

Consistent Usage: A word or phrase is presumed to bear the same meaning throughout a statute.

University of Houston Law Center, Cannons of Construction (adapted from Scalia and Garner). 

The regulation uses the phrase "little or no judgment" and "little ... judgment." The Expressio Unius Est Exclusio Alterius doctrine implies that little or no judgment excludes a category of work that requires more. The same doctrine applies to the "simple duties" provision. Most importantly, the Rule Against Surplusage requires that the court give meaning to both "little or no judgment" and to "simple duties." The word "and" creates elements to the term of art "unskilled work." The first sentence lists judgment, simple, and short period of time--three elements. The penultimate sentence lists examples of simple duties, defines short period as within 30 days, and restates the need for little judgment--three elements. 

Is SVP the sole criterion for unskilled work? The regulation's twice stating three elements does not permit that conclusion. Can the Commissioner redefine a regulation that using ordinary tools of statutory construction is unambiguous? Probably not. 

The definitions of semi-skilled and skilled work do not have a training or SVP component defined. See subsections (b) and (c). Work can require judgment, can require more than simple duties, can require duties listed for semi-skilled work, and can require functions required of skilled work. SVP is part of the equation--it is an element of unskilled work. But SVP is not the sole determining element of unskilled work. If current policy (that is not readily discernible in POMS or EM and clearly not in the regulation) were the proper statement of skill requirements, subsections (a) through (c) would read very plainly:

(a) Unskilled work. Unskilled work requires up to 30 days to learn to do the job. We consider an occupation unskilled if the Department of Labor classifies it as specific vocational prepraration levels 1 and 2.

(b) Semi-skilled work. Semi-skilled work requires more than 30 days and up to 6 months to learn to do the job. We consider an occupation semi-skilled if the Department of Labor classifies it as specific vocational preparation levels 3 and 4.

(c) Skiled work. Skilled work requires more than 6 months to learn to do the job. We consider an occupation skilled if the Department of Labor classifies it as specific vocational preparation level 5 or higher.

The regulations are not that plain. The implication is that this restatement of unclear agency policy is that classification of work as unskilled, semi-skilled, or skilled is not SVP determinative but instead SVP influenced. POMS  DI 25001.001 Medical and Vocational Quick Reference Guide is consistent with the construction of 404.1568:

87. Unskilled work

Work that requires [1] little or no judgment to do [2] simple duties that a claimant can learn on the job in a [3] short period of time (i.e., 30 days or less). Such work usually has an [3] SVP level of one or two as rated in the SCO.

71. Semiskilled work

Semiskilled work requires some skills but does not require complex duties. Usually, semiskilled work has a specific vocational preparation (SVP) level of three or four as rated in the SCO.

77. Skilled work

Skilled work requires good cognitive functioning, involves skilled job functions, and has an SVP level of five to nine in the SCO.

(Emphasis added). Usually means not always. Most SVP 1 and 2 occupations are unskilled, but not all. Most semi-skilled occupations have SVP 3 or 4, but not all. SVP 3 or higher rules out unskilled classification. SVP 1 or 2 does not rule out semi-skilled classification.

Unskilled is a term of art. Discerning unskilled requires judgment and is not simple. We have a skilled job to do--parsing the regulation.

Parse away.

___________________________

Suggested Citation:

Lawrence Rohlfing, Basic Tools of Statutory Construction Demand that SVP 1 and 2 Is Part of Unskilled But Not Synonymous, California Social Security Attorney (May 10, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Counter and Rental Clerks Have SVP 2 But Are Not Simple with Little or No Judgment

Storage-facility Rental Clerk (DOT 295.367-025) is often cited as an unskilled occupation. It requires Reasoning Level 3 and in most circuits rejected as conflicting with a limitation to simple work.

 Working as a counter and rental clerk in the self-storage industry is often entry-level and repetitive, but it requires significant, independent judgment regarding customer service, security, and sales, rather than being a job with "little or no judgment". While formal education is typically not required and training is often on-the-job, the role acts as the primary point of contact and requires active problem-solving. See O*NET OnLine, My Next Move; Self-Storage Property Manager; Secure Space, Self-Storage Property Manager Job Description; Inside Self-Storage, The Bare Minimum: The Core Critical Skills Every Self-Storage Manage Must Have to Succeed.

Why the Job Requires Judgment (Contrary to "Simple" Label)

• Customer Conflict Resolution: Clerks must handle unhappy customers, explain complex rental policies, and manage rent collection, often requiring diplomacy and on-the-spot decision-making.
• Security & Safety Protocols: Clerks must monitor the facility, investigate potential security issues, verify customer identification, and conduct site walkthroughs to ensure units are secured.
• Sales and Marketing: Beyond taking orders, successful clerks must act as leasing consultants, recommending unit sizes based on customer needs and promoting ancillary products like locks and boxes.
• Independent Decision Making: Clerks often work alone, making them responsible for handling all onsite operations, including urgent repairs, maintenance issues, or site emergencies.

Components of the Role (Repetitive yet Skilled)

While some tasks are repetitive, they still require accuracy and attention to detail. [1]

• Administrative/Technical: Using property management software to manage leases, process payments, and update unit availability.
• Physical Maintenance: Cleaning vacant units, sweeping hallways, and performing light maintenance, such as replacing light bulbs or fixing minor door issues.
• Sales and Leasing: Processing new rentals, explaining contract terms, and taking payments.

Summary of Required Skills

• Customer Service & Communication: The ability to communicate effectively with a diverse clientele.
• Attention to Detail: Accuracy in maintaining records and processing financial transactions.
• Problem-Solving: Ability to handle unexpected issues such as lock failures or gate access problems.
• Basic Tech Skills: Familiarity with computers and security surveillance systems.

Storage-facility Rental Clerk has an SVP 2. Reasoning level 3 requires the ability to:

              Deal with problems involving several concrete variables.

The ORS suggests problem solving less often than monthly, including never. The O*NET states that counter and rental clerks deal with external customers as extremely important (80% of jobs) or fairly important (18% of jobs). Counter and rental clerks work with a group or team as important to extremely important in all jobs. More than half of counter and rental clerks have at least fairly serious consequences for errors. Over 80% of counter and rental clerks make decisions at least monthly if not every day. Yet the ORS describes counter and rental clerks as SVP 1 or 2 in at least 65% of jobs. They are not simple and require more than little or no judgment as bona fide occupational qualifications.

Storage-facility Rental Clerk is not unskilled as that term in defined in 20 C.F.R. § 404.1568(a).

SVP 2 is not synonymous with simple work requiring little or no judgment. 

Part 1 of this series addresses the regulatory and occupational framework.

Part 3 of this series deals with the cases. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Counter and Rental Clerks Have SVP 2 But Are Not Simple with Little or No Judgment, California Social Security Attorney (May 8, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Simple Work Requiring Little or No Judgment Is Not Synonymous with SVP 1 and 2

Under 20 C.F.R. § 404.1568(a), unskilled work is defined as work that can be learned on the job in 30 days or less, involving simple duties with little or no judgment. While the 30-day rule is a primary, objective threshold for identifying unskilled work, the core definition requires the work to be simple and require minimal judgment, corresponding to a Specific Vocational Preparation (SVP) of 1 or 2. 

Key Details on Unskilled Work & 30-Day Rule:

• Definition: Unskilled jobs require little to no judgment to perform simple duties.
• 30-Day Rule: If a job requires 30 days or less to learn, it is typically classified as unskilled.
• Skill Level vs. Training Time: Although 30 days or less is the threshold, the type of duties matters. Semiskilled or skilled work requires more than 30 days (often 1–6 months or more) to learn.
• Examples: Unskilled jobs include, but are not limited to, cleaners, laundry laborers, and certain packers.
• Past Relevant Work: Work that lasted fewer than 30 days generally does not count as "past relevant work" for disability analysis, as it is not considered long enough to have learned the job, even if it is simple.

Skills typically require more than 30 days to learn. The definition of semi-skilled work does not make that assertion:

Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

The key takeaways from subsection (b) include:

• Alertness and close attention to watching machine processes
• Inspecting, testing or otherwise looking for irregularities
• Tending or guarding equipment, property, materials, or persons against loss, damage or injury
• Coordination and dexterity are necessary

The description of semi-skilled is broader than SVP 3 or 4. The may clause in the regulation permits the use of the four examples of work that is semi-skilled regardless of the training time.

Subsection (c) defines skilled work with the same kind of examples without a specification of training time or SVP:

• Judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to be produced
• Laying out work, estimating quality, determining the suitability and needed quantities of materials
• Making precise measurements
• Reading blueprints or other specifications
• Making necessary computations or mechanical adjustments to control or regulate the work
• Dealing with people, facts, or figures
• Abstract ideas at a high level of complexity.

SVP 1 or 2 are clearly elements of unskilled work. But SVP 1 or 2 are not definitive or co-terminus with the concepts of unskilled as that term is defined in 20 C.F.R. § 404.1568(a).

Don’t let anyone tell you that SVP 1 and 2 equals unskilled equals simple. 

It is not true. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Simple Work Requiring Little or No Judgment Is Not Synonymous with SVP 1 and 2, California Social Security Attorney (May 8, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Myths About Meals and Breaks

We hear it on occasion. The vocational witness equates a 35-hour workweek to full-time because the person gets two 15-minute breaks and a 30-minute break everyday so the person is really on the job 7 hours per day. That is nonsense. For a breakdown of myths about rest breaks and meal periods, see ADP HR Tip of the Week for April 6, 2026 Busted: 10 Myths about Rest Breaks and Meal Periods.

I.           The FLSA Does Not Require Rest Or Meal Breaks

The Fair Labor Standards Act (FLSA) does not require employers to provide meal or break periods. However, if breaks are provided, federal regulations (29 CFR 785.18-19) stipulate that short breaks (5–20 minutes) must be paid, while bona fide meal periods (typically 30+ minutes) where the employee is fully relieved of duty are unpaid. 

·       Breaks (5-20 minutes): If employers offer short breaks, they must be counted as compensable work time.

·       Meal Periods (30 minutes or more): Unpaid meal breaks are allowed, but the employee must be completely relieved from duty. If the employee must perform any tasks while eating, the time must be paid.

·       No Mandatory Breaks: The FLSA does not mandate breaks, lunch periods, or rest periods. 

State Exceptions: State laws often exceed these federal standards, requiring specific meal and rest periods, particularly for non-exempt employees. States with mandatory meal breaks include:

• California: 30-minute unpaid break required if shift exceeds 5 hours (second break if over 10 hours).

• Colorado: 30-minute unpaid break required if shift exceeds 5 consecutive hours.

• Connecticut: 30-minute meal break required for shifts longer than 7.5 hours.

• Delaware: 30-minute break for employees working 7.5+ consecutive hours.

• Illinois: 20-minute break for 7.5+ hours of work, to be taken within 5 hours of starting.

• Kentucky: A reasonable, typically 30-minute, lunch break allowed between the 3rd and 5th hour.

• Maine: 30-minute break required after 6 consecutive hours.

• Maryland: 15-30 minute breaks for certain retail employees depending on hours worked.

• Massachusetts: 30-minute break required after 6 consecutive hours.

• Minnesota: Unpaid time off for meals if working 8+ hours.

• Nebraska: 30-minute lunch break for 8-hour shifts in assembly plants, workshops, or mechanical establishments.

• Nevada: 30-minute break for 8-hour shifts.

• New Hampshire: 30-minute break after 5+ consecutive hours.

• New York: 30-60 minutes for meal, depending on industry and hours worked.

• North Dakota: 30-minute break for shifts over 5 hours.

• Oregon: 30-minute, unpaid, uninterrupted break required for shifts 6+ hours.

• Rhode Island: 20-30 minute break for 6-8 hour shifts.

• Tennessee: 30-minute break for 6+ consecutive hours (with exceptions).

• Washington: 30-minute break if working 5+ hours, beginning between 2 and 5 hours into the shift.

• West Virginia: 20-minute break for 6+ consecutive hours.

Nursing Mothers: Under the PUMP for Nursing Mothers Act (FLSA), employers must provide reasonable break time and a private space for nursing mothers to pump breast milk for one year after the child’s birth. 

States that require additional breaks in addition to meal breaks:

• California: Requires a 10-minute paid rest break for every four hours worked (or major fraction thereof), in addition to a 30-minute unpaid meal break for shifts over five hours.
• Colorado: Mandates a 10-minute paid rest break for every four hours worked, alongside a 30-minute meal break for shifts exceeding five hours.
• Illinois: Requires a 20-minute meal break for 7.5+ hours, plus specific rest provisions for hotel room attendants.
• Kentucky: Mandates a rest period of at least 10 minutes for each four hours worked.
• Nevada: Requires a 30-minute meal break for 8-hour shifts, often with additional short rest periods.
• Oregon: Mandates a 30-minute unpaid meal break for 6+ hour shifts and paid 10-minute rest breaks for every 4 hours worked.
• Washington: Requires a 10-minute paid rest break for every 4 hours worked and a 30-minute meal break for 5+ hour shifts.

The 5-20 minute breaks are paid. An employer may not insist on the worker clocking out to go to the restroom. The 30 minute meal break is typically unpaid if the employee is relieved of all duties during the break. Industry exceptions do apply.

II.         The FSLA Requires Paid Mealtimes Under Some Circumstances

Meal breaks may be unpaid under the FSLA if two criteria are met:

1.   The break is at least 30 minutes and is without interruption.

2.   The employee is fully relieved of all duties for the purpose of consuming that regular meal.

A worker sitting at a desk to answer the phone is not relieved of all duties. Interrupting an employee’s meal break to ask questions is not without interruption. Requiring the employee to remain on site may result in a determination that the employee has not been relieved of all duties.

The break time provides workers with a chance to get a beverage or use the restroom. Workers standing at a work station do not get to plop down and sit especially if they need to use the restroom or get a drink. The existence of any break of regular occurrence (every two hours) is not universal in either existence or duration.

The largest employer in the country is the federal government, up to 3 million people. OPM describes meal periods as “nonpay and nonwork status.” And the meal break is typically unpaid for workers performing simple duties involving little or no judgment and have 30 days or less of training time. The meal break is not part of the paid time for work. Don’t take my word for it. My evidence is OPM policy and ADP.

Don’t let falsity evade agency policy.

 ___________________________

Suggested Citation:

Lawrence Rohlfing, Myths About Meals and Breaks, California Social Security Attorney (April 29, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

 

Vocational "Experts"

A vocational "expert" testifies at a hearing. The witness has the education and experience as a rehabilitation counselor. The ALJ asks about past work from the E exhibits and the claimant's testimony. The ALJ then poses a hypothetical question followed by two more questions that the ALJ typically does not intend to adopt, just to let the client know that "I heard you." The witness states an opinion about past work as actually and generally performed relying on the work history report and/or testimony. The witness offers up other work based on either a DOT code or a SOC code, or both. Either as part of direct or later as redirect, the ALJ asks for a statement of the general methodology explored. 

Some ALJs will allow cross-examination to dig deep. Others will not. The results frequently depend on the quality of the cross-examination. Most ALJs will rely on the witness testimony and reject the concessions made on cross-examination, the disconnect with objective data, and the vacuous nature of the generally described methodology. 

A vocational witness has a masters, placed people with limitations in jobs, conducted job analyses on site, and made phone calls to represent a labor market survey. A minority know the difference between a standard deviation and a standard error. Most know nothing about reading, interpreting, and understanding statistical data. Yet, the cases have case a cloak of reliability on the people donning the name "vocational 'expert.'" 

A vocational witness uses Job Browser Pro but does not know how it functions. That is OK. Purdy v. Berryhill. A vocational witness uses the Occupational Employment Quarterly, confesses that it uses equal distribution, claims that it is the only thing available, and without more in the record, that is substantial evidence. Leisgang v. Kijakazi. The failure to rebut the vocational expert at the hearing is the root cause of claimants losing their cases. 

Representatives cannot rely on sheer unbelievability. 

They must do their job AT THE HEARING. SSR 24-3p. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational "Experts", California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

From the Supremes to the District Court

 Last week, we discussed the two sedentary occupations identified in Biestek. Today, we peer into a 2025 district court decision, Ashley DK v. Dudek. The vocational witness is anonymous in the court decision. In response to a residual functional capacity for sedentary work, sitting six hours, and limited to routine tasks (a non-vocational term, not used in the DOT, SCO, O*NET, or ORS), the witness identified:

• Nut Sorter (DOT 521.687-086, 1991 WL 674226),

• Table Worker (DOT 739.687-182, 1991 WL 680217), and
• Staffer (DOT 731.685-014, 1991 WL 679811). 

The reference to staffer is a typo. Elsewhere in the decision, the court discusses stuffer. 

Nut sorter does not exist in significant numbers. We covered this in Biestek. SkillTRAN says 2,370 jobs. The OEWS says maybe 20,000 jobs but more likely 10,000 jobs in 14 sedentary unskilled DOT codes resident in inspectors, testers, sorters, samplers, and weighers (SOC 51-9061). Let me add one more erosive factor to our analysis from Biestek, sitting. A limitation to sitting six hours in a day does not mean the full range of sedentary work. Sedentary work requires standing/walking occasionally, from very little up to one-third of the day. Some sedentary work requires very little standing/walking, some sedentary work requires standing/walking a third of the day, and the rest fall somewhere in between. OccuCollect reports the ORS datasets:

51-9061 - Inspectors, Testers, Sorters, Samplers, and Weighers

Occupational Requirements – sitting, standing (including walking)	2018	2023	2025
choice of sitting or standing is allowed	31.8	30.1	34
choice of sitting or standing is not allowed	68.2	69.9	66
Percent of Day sitting is required (50th percentile - median)	-	20	20
Percent of Day sitting is required (75th percentile)	62.5	50	50
Percent of Day sitting is required (90th percentile)	90	85	75

 The two final datasets report sitting more than  75% of the day (six hours in a full-time day). Inspectors have some choice in a minority of jobs to choose when to  do the standing/walking required. The assumption that 10,000 jobs as a nut sorter do not require more than six hours of standing/walking is not tenable on the data. The 2025 data set uses that magic 75%. That data set does report standing at the 10th percentile at 25%. We must also remember that nut sorter is on the extra explanation required list. EM-24027 REV. 

Sedentary unskilled nut sorters that sit not more than six hours in a day in an age of automation do not represent a significant number of jobs. 

Table worker is in the same SOC group of inspectors, testers, sorters, samplers, and weigher (SOC 51-9061). Whatever sedentary unskilled jobs we discern from a OEWS-SOC analysis, that conclusion covers table worker as well. The 2025 data set reports 10.9% of inspector jobs require sedentary exertion.

SkillTRAN estimates 1,201 table worker jobs in the nation. SkillTRAN assumes that table worker exists in the plastic product (NAICS 326100) and the rubber product (NAICS 326200) manufacturing industries. Those industries employ 26 and 33 DOT codes, respectively, including table worker. The SOC-NAICS crosswalk form the Employment Projections and OEWS confirm the SkillTRAN mid-point:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
31-33 - Manufacturing

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	598,000	591,180
TE1000	Self-employed workers	8,100	No Data
TE1000	Total wage and salary employment	589,800	No Data
326000	Plastics and rubber products manufacturing	35,000	34,930
326100	Plastics product manufacturing	29,400	29,300
326200	Rubber product manufacturing	5,600	5,630

The industry selection by SkillTRAN is too broad. Table worker inspects linoleum tiles, flooring. That specific part of the economy is a small part of all other plastics product manufacturing (NAICS 326199) according to the NAICS Manual entry for the NAICS code and the alphabetical index. Using the plastic product industry group is too broad and the rubber product industry group does not apply when comparing the DOT industry and narrative statements to the NAICS Manual. County Business Patterns 2023 reports jobs in all occupations:

3261 - Plastics product manufacturing

NAICS	Industry Title	Jobs
3261	Plastics product manufacturing	677,305
32619	Other plastics product manufacturing	410,729
326199	All other plastics product manufacturing	392,611

Less than 60% of inspectors work in the industry studied in compiling the DOT. The number of table workers just got smaller. 

And finally, the infamous stuffer. The DOT is clear, this occupation exists in the toy-sports equipment industry. Toy stuffer belongs in the  packaging and filling machine operators and tenders (SOC 51-9111). SkillTRAN assumes this occupation works in the other miscellaneous manufacturing industry group (NAICS 339900). SkillTRAN estimates 265 jobs for stuffer. 

The straight OEWS-ORS calculator from OccuCollect estimates less than 924 jobs. The calculator gets there by assume less than 0.5% of jobs require sedentary exertion. The 2023 ORS accounts for 99% of jobs in light, medium, and heavy work. The ORS leaves open the possibility of less than 5% requiring heavy exertion and 0.5% requiring sedentary exertion. Both are less than statements. Less than means less than the number stated. 

51-9111 - Packaging and Filling Machine Operators and Tenders

Job Number Calculations
# of Jobs (OEWS 2024)	% Full-Time (O*NET 30.0)	# Full-Time
383,860	88%	337,797
# of Jobs	% Unskilled (ORS 2023)	# Unskilled
337,797	54.7%	184,775
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
184,775	<0.5%	<924

SkillTRAN counts eight DOT codes at the SOC-NAICS intersection. Stuffer gets one-eighth of the jobs at that intersection. Applying the ORS to that intersection, stuffer should get less than 0.3% (54.7% unskilled x <0.5% sedentary). That application would reduce the SkillTRAN number of jobs from 265 to 6. 

I would be remiss if we avoided the SOEUQ. 

• Nut Sorter (DOT 521.687-086) -- 5,539 jobs, 92.2% full-time. 

• Table Worker (DOT 739.687-182) -- 4,430 jobs, 92.2% full time 

• Stuffer (DOT 731.685-014) -- 21 jobs, 93.5% full-time. 

Because the SOEUQ has an opaque methodology, I give the low numbers reported little weight. There are not a significant number of jobs in sedentary, simple, little or no judgment jobs in the national economy. Not in these occupations or any of the other 137 svp 1 and 2 sedentary occupations. 

End the farse through thoughtful rebuttal evidence to the ALJ. 

___________________________

Suggested Citation:

Lawrence Rohlfing, From the Supremes to the District Court, California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Interacting with Others -- Another Look

How important is interacting with others in the scope of performing work activity? According to many vocational witnesses, a limitation to occasional interactions with others does not cause a lot of erosion. According to the ORS (2023 and 2024) less than 40% of jobs require basic people skills, the rest require more than basic people skills. If we accept the ORS as authoritative, workers must have at least basic people skills in every job. SSA policy, the basic mental demands of competitive, remunerative, unskilled work includes responding appropriately to supervision, coworkers, and work situations. POMS DI 20520.010 A.3.a. The critical requirements of unskilled work include:

f. sustain an ordinary routine without special supervision.

g. work in coordination with or proximity to others without being (unduly) distracted by them.

j. ask simple questions or request assistance.

k. accept instructions and respond appropriately to criticism from supervisors. 

l. get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

POMS DI 20520.010 B.3. 

This is standard stuff on the tool belt of many representatives. 

What is missing from the POMS fleshing out the "such as" list from 20 CFR § 404.1545(c) is a temporal restriction. The regulations and the DOT define exertion by constant, frequent, and occasional lifting, sitting, or standing. But the vocational literature does not permit the person to occasionally play well with others. POMS lays out the criteria, the worker either does not does not work with others, ask of others, accept direction, or get along with others or the worker does not. The worker is either pleasant or neutral or the worker is sometimes irritable. How often does a coworker or supervisor have to interact negatively with others in order to invoke progressive discipline? 

 Harassment, discrimination, insubordination, violence, or threats fall into the serious misbehavior category and can result in immediate termination. It is not occasional, it is one and done

Minor issues can invoke progressive discipline. Those steps can include:

Coaching/counseling

Verbal warning

Written warning

Suspension/demotion

Termination

A person that can occasionally tolerate interaction with others, as an unskilled worker, does not get to pick and choose when they will interact with coworkers or supervisors. Work happens when work needs to happen whether the impaired person is ready or not. The wide range of misconduct that does not warrant immediate termination may include:

Attendance Issues

Occasional or chronic tardiness

Taking extended or unauthorized breaks

Unexcused absences or failure to notify a supervisor when absent

Performance Issues 

Producing subpar or incomplete work

Failing to meet established productivity standards or deadlines

Conduct Issues

Minor dress code violations.

Minor incidents of unprofessional language or an inappropriate tone during discussions.

Gossiping or badmouthing colleagues.

Conducting personal business during work hours.

Unauthorized or excessive use of company equipment, such as telephones or computers, for personal use.

A generally negative attitude or unwillingness to work collaboratively.

Minor insubordination or a one-time refusal to follow a non-critical instruction

We need an example. Vocational witnesses have identified marker (DOT 209.587-034) as an occupation with a large number of jobs. The O*NET addresses the concerns of interacting with others.

Communicating with supervisors, peers, or subordinates is very important.

Getting information is very important.

Face-to-face discussions with individuals within teams is daily.

Occasional or less contact with others exists in 4% of jobs.

Working with a group or team in not important in 4% of jobs.

Dealing with external customers or the public is not important in 3% of jobs.

Working without close physical proximity exists in 11% of jobs.

The proposition that unskilled work exists for people with limitations in dealing with coworkers and supervisors is spurious at best.

One comment is in order as a concession. If a person needs more than seldom or occasional contact with supervisors after the initial training period, that person needs special supervision and is unemployable in competitive work.

Press the envelope.

 ___________________________

Suggested Citation:

Lawrence Rohlfing, Interacting with Others -- Another Look, California Social Security Attorney (April 25, 2026)  https://californiasocialsecurityattorney.blogspot.com

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