Padilla v. Saul -- Office Helper and Occasional Changes in Essential Job Functions

 I tell lawyers to refrain from telling me what they think about the world of work and stick to the data.  Commonsense can understand the data, but do not impose your myopic view of the world on something that you really know little about.  Enter the court in Padilla v. Saul.  The decision projects an understanding of work that is ... wrong.  

Padilla is limited to “only occasional changes to the essential job functions.” It is unlikely, however, that two of the identified occupations, office helper (DOT 239.567-010) and counter clerk (DOT 249.366- 010)—which each require a reasoning level of 2—involve more than occasional changes to essential job functions. Level 2 reasoning requires the ability to “[d]eal with problems involving a few concrete variables in or from standardized situations.” U.S. Dep’t of Labor, Dictionary of Occupational Titles app. C (4th ed. 1991). But it does not speak to whether an “essential, integral, or expected” part of being an office helper or counter clerk entails changing essential job functions more than occasionally such that there is an apparent conflict here. See Gutierrez, 844 F.3d at 808. Nor do the DOT’s descriptions of office helper or counter clerk indicate that it is likely that either occupation requires more than occasional changes in essential job functions. Indeed, the DOT’s description of office helper has a discrete list of several specific duties, suggesting that the essential duties of an office helper remain rather invariable.

The decision focuses on reasoning level 2, involving a few concrete variables in or form standardized situations.  The question is not how many variables, but how often the person changes work functions between the variables present.  Reasoning level 2 is a useful guide for assessing complexity but the DOT has multiple layers of data that don't lend themselves to a singular focus on a complex question.  For instance, work that requires sitting all day long and frequent lifting of two pounds -- that requires light exertion because two pounds is more than a negligible weight (one pound).  

Back to the office helper.   We start with and dissect the lead statement and the task statement:

Performs any combination of following duties in business office of commercial or industrial establishment: 

1. Furnishes workers with clerical supplies. 

2. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. 

3. Delivers oral or written messages. 

4. Collects and distributes paperwork, such as records or timecards, from one department to another.

5. Marks, tabulates, and files articles and records.

DICOT 239.567-010.  The lead statement describes a combination of duties.  The purpose of the lead statement is to set forth:

• worker actions
• objective or purpose of the worker actions
• machines, tools, equipment, or work aids used by the worker
• materials used, products made, subject matter dealt with, or services rendered
• instructions followed or judgments made

DICOT, Parts of the Occupational Definition, para. 5.a.  

Reasoning level 2 may describe a generic classification of a few variables but the narrative lead statement demands a different conclusion.  The task statement cements that conclusion:  office helper has five "indicate the specific tasks the worker performs to accomplish the overall job purpose described in the lead statement."  DICOT, Parts of the Occupational Definition, para. 5.b.  These are not "may" items that only a subset of workers perform but are instead task statements of functions typically found in the occupation.  DICOT, Appendix D.  

 Office helper requires the temperament V, performing a variety of tasks.  The Revised Handbook for Analyzing Jobs defines V:

Perform a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.

There it is, frequent changes of tasks.  That is how Labor defines office helper.  That is not a lay understanding of the lead statement or the multi-part reading of the task statement.  Office helper requires performing a variety of tasks involving frequent changes not only in tasks but also in process and exertion.  

The definition of V states that this kind of work may have two or more work fields.  Office helper has three.  

231 - Verbal Recording-Record Keeping - Preparing. keeping, sorting, and distributing records and communications, primarily verbal in character but including symbol devices, to communicate and systematize information and data by methods not specifically defined elsewhere. as in Developing-Printing (202), Imprinting (192), Photographing (201), Printing (191), and Stock Checking (221). Distinguish from Numerical Recording-Record Keeping (232), where records are also involved but the primary activity is computation.

011 - Material Moving - Conveying materials manually and by use of machines and equipment, such as cranes, hoists, conveyors, industrial trucks, elevators, winches, and handtrucks. Distinguish from Transporting (013), which involves conveyance of passengers and materials by common carrier.

221  - Stock Checking - Receiving, storing. issuing. requisitioning, and accounting for stores of materials and materials in use; involves the physical handling of the materials. Representative job activities covered by this work field include processing records and keeping materials on hand in balance with operational needs; assigning locations and space to items according to size, quantity, and type; verifying quantity, identification, condition, and value of items and the physical handling of items, such as binning, picking, stacking, and counting; receiving. checking. and delivering items; verifying completeness of incoming and outgoing shipments; preparing and otherwise committing stocks for shipment; keeping and conducting inventory of merchandise, materials, stocks, and supplies; filling orders and requisitions; and issuing tools, equipment, and materials.

RHAJ, chapter 4.  

That is the DOT dataset and what Labor had to say about office helper.  

Counter clerk presents as a different kettle of fish.  First, the Foto-Mart booth in the shopping center is gone and has been gone for so long that many will not know what I mean.  For the current generation, Costco has eliminated their photo-processing service.  Why?  Because your camera is in your pocket and your photo album is on your thumb drive.  Counter clerk in the photofinishing industry does not exist.  Yes, I reported my commonsense understanding of the world.  But allow me to back it up:  the OEWS (successor to the OES) reports that counter and rental clerks have 870 jobs in the other personal services industry group (812900) that includes all photofinishing (812920).  Counter clerk does not exist in significant numbers.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Padilla v. Saul -- Office Helper and Occasional Changes in Essential Job Functions, California Social Security Attorney (April 29, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/04/padilla-v-saul-office-helper-and.html

Office Helper -- Simple and Repetitive -- No on Both Counts

We spent this week, with a brief detour to look at the deference doctrine, addressing the issue of simple, repetitive tasks where the occupation has a reasoning level of 2.  The circuits are split on the question of whether reasoning level 3 has an apparent conflict with a limitation to simple, repetitive tasks.  This series of posts have the intent to establish the point that reasoning level 2 does not end the inquiry but instead establishes a data point requiring further analysis.  Some skilled occupations have a reasoning level of 2 with and without the temperament for repetitive work.  Some unskilled occupations have a reasoning level of 2 and require dealing with people as an important worker function and as a temperament for dealing with people beyond receiving instructions.  We are now ready to tackle the occupation of office helper and its identification as simple, repetitive work.  We start with the DOT:

DOT Narrative: 239.567-010 OFFICE HELPER (clerical) Performs any combination of following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine. May deliver items to other business establishments [DELIVERER, OUTSIDE (clerical) 230.663-010]. May specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical). May deliver stock certificates and bonds within and between stock brokerage offices and be designated Runner (financial). GOE: 07.07.03 STRENGTH: L GED: R2 M2 L2 SVP: 2 DLU: 81

The first part of the description that belies the simple, repetitive tasks (SRT) mantra is combination.  Office helpers do not perform one task all day long; office helpers perform a combination of job duties all day long.  They furnish; handle incoming mail; they handle the outgoing mail; they act as the conduit for intra-office communication, both oral and written; and they have file clerk responsibilities.  The task elements represent the typical way in which work gets performed in the national economy per the DOT.   The parts of the narrative description following by the word may are not typical work duties.  The DOT describes may functions:

Many definitions contain one or more sentences beginning with the word "May". They describe duties required of workers in this occupation in some establishments but not in others. The word "May" does not indicate that a worker will sometimes perform this task but rather that some workers in different establishments generally perform one of the varied tasks listed. In the example, the three sentences beginning "May notify. . .", "May mount. . .", "May position. . .", are "May" items. Do not confuse "May" items with the "May be designated. . ." sentence which introduces undefined related titles.

 Contrast the may statements with the task statements that precede the may statements:

Task element statements indicate the specific tasks the worker performs to accomplish the overall job purpose described in the lead statement. The sentences in the example beginning with "Turns handwheel . . . ", "Turns screws . . . ", "Sharpens doctor . . . ", "Aligns doctor . . . ", "Dips color . . . ", etc. are all task element statements. They indicate how the worker actually carries out the job duties.

 The SCO provides a better understanding of the occupation:

PHYSICAL DEMANDS:

CL

BA

ST

KN

CO

CW

RE

HA

FI

FE

TA

HE

TS

NA

FA

DP

AC

CV

FV

N

N

O

N

N

N

F

F

F

N

O

O

N

F

N

N

N

N

N

ENVIRONMENTAL CONDITIONS:

WE

CO

HO

WT

NO

VI

AT

MV

EL

HI

RA

EX

TX

OT

N

N

N

N

3

N

N

N

N

N

N

N

N

N

Frequent use of the hands; occasional speaking; occasional hearing; frequent near acuity; office noise.   Nothing surprising, just data.  The electronic files, the data described in the Revised Handbook for Analyzing Jobs (Dept. of Labor 1991) provides more data points and moves the analysis toward that non-SRT conclusion.

APTITUDES:

G	V	N	S	P	Q	K	F	M	E	C
3	4	4	4	4	3	4	3	3	5	5

TEMPERAMENTS: V

The aptitudes for average general learning ability, clerical perception, finger dexterity, and manual dexterity suggest that a third of population never had the innate ability to perform work and a person with impaired cognitive, perception, or dexterity cannot.  The presence of significant dexterity requirements also suggests that this occupation rests at the high end of that unskilled rating.  The temperament rating of V does require further exploration.  The RHAJ defines V as:

Preform a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.

Office helpers shift seamlessly from task to task without loss of efficiency or composure.  A limitation to occasional changes in a work setting would eliminate this occupation from consideration. 

The last sentence of the V-definition brings out the issue that I tend to ignore in examining unskilled work -- work field and MPSMS codes.  The OccuCollect DOT-SCO summary report lists the codes for the data:

MPSMS: 890 899 0
WF: 231 011 221

We have to go back to the RHAJ to define the three work fields.

231 VERBAL RECORDING-RECORD KEEPINGPreparing. keeping, sorting, and distributing records and communications, primarily verbal in character but including symbol devices, to communicate and systematize information and data by methods not specifically defined elsewhere. as in Developing-Printing (202), Imprinting (192), Photographing (201), Printing (191), and Stock Checking (22 I). Distinguish from Numerical Recording-Record Keeping (232), where records are also involved but the primary activity is computation.

011 MATERIAL MOVING
Conveying materials manually and by use of machines and equipment, such as cranes, hoists, conveyors, industrial trucks, elevators, winches, and handtrucks. Distinguish from Transporting (013), which involves conveyance of passengers and materials by common carrier.

221 STOCK CHECKINGReceiving, storing. issuing. requisitioning, and accounting for stores of materials and materials in use; involves the physical handling of the materials. Representative job activities covered by this work field include processing records and keeping materials on hand in balance with operational needs; assigning locations and space to items according to size, quantity, and type; verifying quantity, identification, condition, and value of items and the physical handling of items, such as binning, picking, stacking, and counting; receiving. checking. and delivering items; verifying completeness of incoming and outgoing shipments; preparing and otherwise committing stocks for shipment; keeping and conducting inventory of merchandise, materials, stocks, and supplies; filling orders and requisitions; and issuing tools, equipment, and materials.

Following the rabbit down the trail, we need to understand the definition of work fields

Work Fields. a component of Work Performed. are categories of technologies that reflect how work gets done and what gets done as a result of the work activities of a job: the purpose of the job. There are 96 Work Fields identified for use by the USES for classification of all jobs in the economy in terms of what gets done on the job.

Work Fields range from the specific to the general and are organized into homogeneous groups. based on related technologies or objectives. such as the movement of materials. the fabrication of products, the use of data. and the provision of services. Each Work Field is identified by a three-digit code, a brief descriptive title, and a definition. In many cases. a comment is included which enlarges upon the definition and limits or extends the application of the Work Field. Also, cross-references are frequently included which distinguish one Work Field from other related Work Fields

Why aren't Office Helpers simple, repetitive tasks:  (1) they perform a combination of duties; (2) they occasionally interact verbally with other people; (3) they perform a variety of duties; (4) they must have the ability to change duties without loss of efficiency or productivity; (5) they work in three different work fields; and (6) they work with three different categories of unrelated technologies or objectives.  Office Helper is not simple and it is not repetitive (substitute routine here for your case).