Vocational Experts at Every Hearing -- Almost

If we are in competition and you know my weaknesses, you will exploit my weaknesses.  It doesn't matter if the competition is athletic, game, or litigation.  The game theory applies.  A Stanford article describes game theory:

Game theory is the study of the ways in which interacting choices of economic agents produce outcomes with respect to the preferences (or utilities) of those agents, where the outcomes in question might have been intended by none of the agents.

 What does this have to do with Social Security hearings?  The answer to that question rests in a different question:  is the agency ambivalent to the outcome of disability claims or is the agency subtly intent on maintaining allowance rates at certain levels to placate the public and policy makers?  Whether this perception applies in the macro or the micro (case-by-case), it is palpable.

Our fellow travelers tell me that their Achilles Heel is the cross-examination of vocational experts.  With that self-deprecating confession in the context of game theory, we can now examine the rate at which ALJs call vocational experts at disability hearings;

Expert                                   Year       Rate

Vocational Expert            1990       36%

Vocational Expert            1991       38%

Vocational Expert            1992       44%

Vocational Expert            1993       44%

Vocational Expert            1994       42%

Vocational Expert            1995       43%

Vocational Expert            1996       42%

Vocational Expert            1997       45%

Vocational Expert            1998       45%

Vocational Expert            1999       47%

Vocational Expert            2000       50%

Vocational Expert            2001       51%

Vocational Expert            2002       55%

Vocational Expert            2003       57%

Vocational Expert            2004       59%

Vocational Expert            2005       59%

Vocational Expert            2006       68%

Vocational Expert            2007       70%

Vocational Expert            2008       72%

Vocational Expert            2009       73%

Vocational Expert            2010       76%

Vocational Expert            2011       83%

Vocational Expert            2012       87%

Vocational Expert            2013       89%

Vocational Expert            2014       92%

The chart is easier to read.  

Cross-examination of vocational experts has grown in importance.  We had the VE in half the cases in 2000 and now we have a VE in almost every case.  This observation heightens the importance of the VE at the hearing, transferring more of the decision outcome to the expert and the need to present conflicting evidence to the ALJ.  

That conflicting evidence must focus on the inability of the vocational expert to extrapolate the local experience to the national economy through a reliable method.  But when the nation data conflicts with the stated extrapolation, the published national data should always win.  The DOT/SCO is out-of-date.  The charts observes:

The use of vocational experts by ALJs has increased greatly since 1980, and they are now used in over three-fourths of all ALJ hearings, even though they rely on an outdated Dictionary of Occupational Titles to support their testimony.

We must submit rebuttal evidence in disability hearings to the ALJ.  Must must establish the lack of reliable method for extrapolating local experience to the national economy.  Or we will lose benefits for people that do not have the ability to engage in substantial gainful activity ... the social contract framed by the Social Security Act falls into breach. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Vocational Experts at Every Hearing -- Almost, California Social Security Attorney (November 23, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/vocational-experts-at-every-hearing.html

Defining Terms - Critical to Proving Disablity

Moderate, simple, routine ... these are just some of the terms that we read and hear in medical records and testimony.  I know what I mean when I use those words, but I am not sure what anyone else means when they use what are essentially terms of art.  The rescinded SSR 96-5p cautioned agency adjudicators against assuming that they know what witnesses meant when using banal terms like light.  The Commissioner promises to provide guidance later on that issue:

However, we are not revising our rules to add text about considering context or to provide examples because we intend to further clarify and provide examples, as appropriate, in our subregulatory instructions.

82 Fed.Reg. 5844 (Jan. 18 1991).  

This draws into focus the need for the representative to demand that medical and non-medical sources define their terms.  Objective phrases need no definition -- 20 pounds.  Periodicity terms have context.  In California workers' compensation, occasional means up to 25% of the day; intermittent means up to 50% of the day; and frequent means up to 75% of the day.  Under that same regulation, a slight pain causes some handicap and a moderate pain causes a marked handicap in the activities percipitating the pain.  The terms have different meanings even though they sound the same that requires a great deal of care in assessing and ascertaining what the doctors meant.  I wrestled with this 20 years ago in Desrosiers v. Secretary of HHS.  The enduring concept of context and that context matters a great deal endures.  

The context bringing the matter to a boil today occurs in a hearing with an awful ALJ from San Francisco.  The ALJ calls a psychiatric medical expert.  ALJs call medical experts to either lock down a denial or to provide a basis to pay and the inherent bias of that ALJ dictates the reason.  The ALJ is looking for a way to deny.  The medical expert testifies to the conclusion that the person could perform simple, repetitive tasks.  If he had left it there, the claimant would have lost on SRT sedentary work.  That work doesn't exist anymore but it takes a Shaibi analysis to prove it.  

But this ALJ really wanted to lock it down, not knowing that he tied his own rope.  

By simple, repetitive tasks, do you mean one and two steps for unskilled work or do you mean three and four steps for semiskilled work?

The medical expert does not respond with unskilled.  The medical expert defines simple, repetitive tasks as one and two steps.  This took the case from eliminating reasoning level 3 work under Zavalin to eliminating reasoning level 2 work under Rounds.  Maybe not eliminating, but at least requiring a reasonable explanation.  Vocational experts rarely confess their deviation and cling to the idea that the DOT is soft and that anything other than a sit-stand option requires no explanation.  After all, "I have 30 years of experience."  

Here the ALJ in one question disclosed his patent bias and latent misunderstanding of the world of work.  I already knew he was a low paying, ready to deny, not a nice guy of an ALJ.  But now I know that he thinks that unskilled work is one- and two-step instructions and that anything beyond that is semi-skilled.  He hasn't read the DOT, is unaware of the world of work, and wants to deny anyone limited to one- and two-step work with identification of cashiers, furniture clerks, and others.  

This colloquy between an ALJ and medical expert racing down the track to hurry up and deny the claim reinforced the need to define the terms and just how important our job is to disabuse those ALJs of their misunderstanding of work and disability.  

Using Objective Findings as a Basis for Cross-Examination

"Counsel, you must frame your questions in vocationally relevant terms."

If a representative has cross-examined vocational experts, the representative has heard that admonition from the ALJ.  Sometimes it is just a bully tactic; sometimes it is because the representative is not asking questions that lead to useful information or are hopelessly vague.  Use of objective findings can provide a useful basis for extending the cross-examination into areas that lead to opinion testimony of no jobs. 

The client testifies to limited ability to bend and stoop.  The consultative examiner finds 45 degrees of forward flexion and opines that the claimant can occasionally bend and stoop.  The state agency doctor parrots the CE -- the claimant can occasionally bend and stoop.  The treating physician does not address the question.  Occasional stooping does not significantly impact the ability to perform light or sedentary work.  Social Security Ruling 85-15; Social Security Ruling 83-10.  Is the claimant toast or can the representative do more? 

Tiengo pregunta ... I have a question:

If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend or stoop beyond 45 degrees.  That means the person cannot bend or stoop enough to even put their hands below their knees.  Can that person perform any of the work that you described here today?  

The same mantra applies to limited flexion of the neck.  In my experience 25 degrees -- half the range of motion in the neck -- will wipe out the ability to perform unskilled production and clerical work. 

If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend the neck beyond 25 degrees.  That means the person cannot look straight down; he/she has lost half of the ability to look down and can only flex the head and neck down to 25 degrees occasionally during the day.  Can that person perform any of the work that you described here today?  

When a representative doesn't know how to frame a question, the representative should resort to reciting the objective findings contained in the medical evidence.  If the ALJ starts the "vocationally relevant terms," the representative must back up and ask the vocational expert:

As part of your education, training, and experience, did you study ergonomics?

Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as essential job functions? 

Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as bona fide occupational qualifications - how the job is typically performed?

If I ask you to assume not only a frequency but also a specific amount of motion in a particular joint(s) of the body, is that relevant to your education, training, and experience?

If the answer to those questions is "no," the VE isn't qualified and move to strike all testimony.  If the answer to those questions is "yes," ask the limited motion question again whether that question involves the back, neck, wrist, elbow, or other joint of the body.  I have not had an ALJ challenge this line of questioning ... yet. 

County Business Patterns and a National Program of Adjudication

On more than one occasion, I have had the opportunity to ask the vocational expert if the testimony rendered was consistent with County Business Patterns.  On some of those occasions, the ALJ has objected to my question, "this is a national program and I asked about national job numbers."  The objection is spurious and reflects a deep misunderstanding of the regulatory paradigm.

The Commissioner takes administrative notice of County Business Patterns.  It is the second example on the list that the Commissioner describes as the items that the agency "will" take notice.  20 CFR §§ 404.1566(d)(2); 416.966(d)(2).  County Business Patterns also appears on page 7 of the Vocational Expert Handbook of items that the agency insists that a vocational expert be familiar with, know how to use, and know how to apply.

But I am always willing to play along with the mind game that an ALJ wants to throw down.  So I assume that County Business Patterns sets forth job numbers county by county across the nation.  Having passed the sixth grade in knowing how to use a calculator, I can add up all of the job numbers, county by county, state-by-state, until I get a national number.  Even if the spurious objection had some semblance of validity, that we ignore County Business Patterns because this is a national program that has an interest in the national job numbers, the ALJs protestation falls flat.  Even if the Census Bureau published County Business Patterns exclusively by county and never by state or by nation, we have the intelligence and methodology to add the numbers together and discern just how big and industry is in the national economy.

And any protest about County Business Patterns as stating county employment and never setting forth state or National employment is simply untrue.  The Census Bureau states:

CBP is an annual series that provides subnational economic data by industry. This series includes the number of establishments, employment during the week of March 12, first quarter payroll, and annual payroll.

 In describing the tables of data available, the Census Bureau lists:

U.S., States, and Counties tables start from 1998 to current year.

and

U.S., States, Counties, Puerto Rico and the Islands Areas - 2015

The data are shown at the U.S., State, County, Puerto Rico and Island Areas, and at the 2- through 6-digit NAICS code levels.

 The Census Bureau permits the user to select any state/territory or the entire United States.  We then get to pick industries and find out job numbers within those industries. 

The Vocational Expert is Not a Statistician

So sayeth the ALJ in a decision to deny benefits.  A claimant may not demonstrate that the vocational expert uttered bogus numbers of jobs by pointing to statistical evidence subject to administrative notice.  We have entered full-force into the world of ipse dixit.  The jobs exist in not just significant numbers but huge numbers because the vocational expert breathed them into existence.

The vocational expert testified -- you know, under oath -- that packers exist at all exertional levels and that 30,000 existed in the national economy at the sedentary range of exertion.  No DOT code, not a sedentary one anyway, just because the vocational expert said so.  That is ipse dixit.

There are 111 DOT codes with the title of "packer."  None of those require sedentary exertion.  Of that accumulation of occupations, 61 of them belong to packers and packagers, hand (SOC 53-7064).  Six belong to machine bearers and off-loaders (SOC 53-7063).  Three belong to the ubiquitous production workers, all other (SOC  51-9199).  The Bureau of Labor Statistics (BLS) scatters the rest in other occupational groups in clusters of eight, nine, eleven, and so forth.  Our intrepid vocational expert identified packager, hand (DOT 920.587-018).  For those so inclined to look it up -- yes, packager, hand requires medium exertion.  It belongs to packers and packagers, hand (SOC 53-7064).  And yes, the claimant has a limitation to sedentary exertion.

I know my way around the DOT, OOH, CBP, O*NET, and their related publications.  How does anyone cross-examine this kind of bile in the context of an administrative hearing that is supposed to last 45 minutes.  This occupation alone takes at least two hours to unpack, pun accidentally discovered and used with glee.

Start with the size of the occupational group of packers and packagers, hand (SOC code 53-7064). BLS put 59 DOT codes inside of the group.  BLS counts jobs, after all, it specializes in labor statistics.  BLS estimates that the occupational group consists of 705,660 jobs as of May 2016.  This is up from 695,000 in May 2014.  Engaging in gross, and statistical improper aggregation, the average DOT code represents circa 12,000 jobs.  Two of the DOT codes in this group require sedentary exertion.

Ampoule sealer (DOT 559.687-014) exists in the pharmaceutical industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

Hand bander (DOT 920.687-030) exists in the tobacco manufacturing industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

First, let's to the O*NET.  This comes from a joint effort of the Department of Labor and the Employment and Training Administration.  The O*NET says that packers and packagers, hand spend time standing on the job:

98

Spend Time Standing — How much does this job require standing?

92    Continually or almost continually 8    More than half the time 0    About half the time 0    Less than half the time 0    Never

The O*NET reports that packers and packagers, hand spend time sitting on the job:

8

Spend Time Sitting — How much does this job require sitting?

0    Continually or almost continually 0    More than half the time 0    About half the time 31    Less than half the time 69    Never

While we get slightly different pictures of the occupational group depending on whether we look at standing or sitting, one conclusion remains consistent.  None of the workers sit more than half the time or continually on the job.

By now, my confidence level in the vocational expert assertion that packing jobs exist at the sedentary range of exertion dwindles.  Let's move to the Occupational Outlook Handbook (OOH), linked at the bottom of the page of the detail report tab in the O*NET for this group.  The OOH puts packers and packagers, hand with other hand laborers and material movers.  The OOH reports employment by industry for each SOC in the group.

On line 45 of the report, we find a report of packers and packagers, hand in the pharmaceutical and medicine manufacturing industry for our ampoule sealer occupation:

                                                                                                                       Percent of
Code              Title                                                                  Employment   Industry

325400          Pharmaceutical and medicine manufacturing   2.8                   1.0
BLS reports employment in thousands, so 2,800 jobs or 1.0% of total industry employment.

But I do remember that the vocational expert told us that packers exist at all levels of exertion.  I suspect that Big Pharm employs a few hand packagers, that medium occupation.  So the number is less than 2,800, probably less than half.  Sealing ampoules is probably a fraction of the packing that goes on in the manufacture of pharmaceutical and medicine.  Most of my clients get most of their medicine in tablet form.

Moving right along to hand bander occupation in the tobacco industry.  The employment projection reports on line 26:

                                                                                                                     Percent of
Code              Title                                                                Employment   Industry

3122000        Tobacco manufacturing                                  0.3                   2.2

Read that again -- 300 packers and packagers, hand in the tobacco industry.  I suspect, having retained my commonsense, that the tobacco industry produces a lot more than cigars and pack a lot more than the banding of cigars with a wrapper.  I could be wrong, but I doubt it.

Let's go to the second item of administrative notice, just in case some ALJ might want to swill the kool-aid of vocational expert ipse dixit.  County Business Patterns reports:

                                                                                                             Paid
Geograph.    NAICS     Industry                                              Year    Employment

United States	3122	Tobacco manufacturing	2015		13,872
United States	31223	Tobacco manufacturing	2015		13,872
United States	312230	Tobacco manufacturing	2015		13,872
United States	3254	Pharmaceutical and medicine manufacturing	2015		242,329
United States	32541	Pharmaceutical and medicine manufacturing	2015		242,329
United States	325411	Medicinal and botanical manufacturing	2015		28,950
United States	325412	Pharmaceutical preparation manufacturing	2015		146,113
United States	325413	In-vitro diagnostic substance manufacturing	2015		25,818
United States	325414	Biological product (except diagnostic) manufacturing	2015		41,448

Applying 2.2% of industry employment for tobacco manufacturing yields 305 jobs.  Check.

Applying 1.0% of industry employment for pharmaceutical and medicine manufacturing yields 2,423 jobs.  Slightly lower, but check.  We could back out jobs in codes 325413 and 325414 and reduce the number of jobs by 760, but at this point, we don't have to.

I have one request from the ALJ corps.  Don't place productivity as the end all and be all of the process.  Insist on a level of honesty and integrity that passes the disgusting test.  This example of garbage testimony and equally garbage finding of fact -- just disgusting.

The Five-Day Rule

Taking a break from the  vocational issues that have dominated this blog lately.  On May 5, 2017, the five-day rule for the admission of evidence became effective.  We explore the boundaries and implications of the rule. 

20 CFR §§ 404.935(a) and 416.1436(a) provide in relevant part that:

Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in §404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

SSA states the obligation in the alternative.  Either submit the evidence five business days before the hearing or inform the ALJ of the existence of the evidence five business days before the hearing.  If the representative learns of new evidence and promptly informs the ALJ within five days of the hearing while contemporaneously making the request for records, the representative and the claimant has complied with the regulation. 

The regulations address the failure to comply with the five-day rule to inform or submit.  Subsection (b) states:

If you have evidence required under §404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: ...

This subsection confirms the reading of subsection (a).  The ALJ will accept the evidence after the passage of the deadline if the ALJ has not issued a decision and the claimant/representative did not inform the agency about the evidence before the deadline.  We don't get to the conditions for considering the late evidence if the predicate of the syllogism does not apply. 

The solution is self-evident.   Get a list of care providers from the claimant and submit that list to SSA a month or two before the hearing.  If the representative hits a snag in the collection of evidence, the informing the ALJ of the existence of the evidence 45 days ago protects the "late submission."  The regulation does not force an emergency record procurement with the attendant costs to the claimant.  Inform the ALJ of the care providers, all of them, well before the five days expires. 

There are No Sedentary Packing Jobs in the Economy

Claimant limited to unskilled sedentary work with some additional limitations.  The vocational expert identifies work as a packers and packager, hand.  Can you rebut the vocational expert testimony identifying work as:

1. Ampoule Sealer, DOT 559.687-014, Sedentary, SVP 2
2. Hand Bander, DOT 920.687-030, Sedentary, SVP 2

Both occupations belong to SOC code 53-7064.

O*NET for ampoule sealer; and hand bander. 

According to the O*NET, the occupational group of packers and packager, hand have the following requirements for standing in the workday:

Spend Time Standing — How much does this job require standing?

92    Continually or almost continually 8    More than half the time 0    About half the time 0    Less than half the time 0    Never

As to these two occupations, the O*NET suggests that they no longer exist as sedentary work. 

The pharmaceutical industry employs about 2,800 packers and packager, hand. 

The tobacco industry employs about 300 packers and packager, hand.  The DOT has nine different codes that are classified in packers and packager, hand that work in the tobacco industry. 

The DOT lists three occupations that work in any industry, which means more than one.  The most important of those is Packager, Hand, DOT 920.587-018, medium exertion, SVP 2. 

The next time the vocational expert testifies that there are sedentary jobs in this group, pull out the O*NET and cross-examine.  While you are at it, the next time the ALJ limits the claimant to six hours of standing and walking in a day, ask whether 92% of these jobs require continuous or almost continuous time spent standing. 

Serial Hypothetical Questions - Makes Cross Impossible

ALJ -- I will now ask you a series of hypothetical questions that will the same age, education, and work experience of the claimant. 

The ALJ goes on to ask anywhere from two to seven hypothetical questions.  Which one, if any, represents the eventual finding that will find its way into the ALJ decision denying the claim for benefits.  Does the ALJ know or have a pretty good idea which one of the hypothetical questions constitutes the most likely residual functional capacity?  Pretty sure that the ALJ has more going on mentally than to have a flaccid notion of which question will reflect the finding. 

How does the representative at the hearing cross-examine the vocational expert about the content of three hypothetical questions, each with the identification of jobs existing in the national economy?  The representative must pick apart the material components of the hypothetical questions, one at a time.  Each construct will take time. 

On occasion, the ALJ will announce that the finding will reflect a reduced range of standing and walking as opposed to the first question that assumed an unlimited standing and walking with normal breaks.  But if the ALJ does not favor the record and the claimant with a statement of which one will constitute the finding, the representative must cross on every question that did not result in a statement from the witness of "no jobs." 

In a civil or criminal trial under and adversarial process, no reasonable attorney would try to confuse the jury or judge with a blast of hypothetical questions to the expert.  The attorney would advocate the key factual finding urged and ask the expert to give an opinion about how that fact impacts the ultimate question of fact.  So why would an ALJ ask serial hypothetical questions? 

Part of that answer rests in the attempt to placate the claimant with the thought that the ALJ will pay the case.  After all, the vocational expert said that the claimant could not work in the third hypothetical question that assumed the limitations described by claimant's testimony.  It dampens any consternation of the claimant that the ALJ didn't listen to the testimony or understand what the claimant said.  The last hypothetical question is the placebo and rarely the ultimate finding of the ALJ. 

The rest of the answer rests in the preclusion of intelligent cross-examination.  The ALJ tries to anticipate the other hypothetical questions that the representative or claimant might ask.  But that wastes time.  The representative can ask the question and no representative needs the ALJ to recast the question into words and phrases that change the tenor of the question.  The ALJ asks one to five questions when none of them reflect the theory of the case; the representative would have asked one question; and now we are out of time. 

And that forms the core of the problem.  When an administrative hearing proceeds on the premise that the ALJ seeks to cross the t's and dot the i's to award the claim, that hearing takes about 15 minutes.  When the hearing proceeds on the premise that the ALJ will deny the claim, that case can and should take an hour and maybe two hours.  Most hearings get scheduled 30 to 45 minutes apart, depending on the ALJ.  When the ALJ dallies through hypothetical questions that have no bearing on the eventual disposition of the case, burning up precious time, the ALJ precludes intelligent examination on the bona fide occupational qualifications of the jobs identified, the statistical methods used for estimating the number of jobs, and what the sources of administrative notice say about jobs and numbers. 

The bottom line is simple.  Don't ask serial questions of the vocational expert.  The ALJ is wasting time, preventing cross-examination, and making the process unwieldy.  If the ALJ really does need or want to build a stick figure, one limitation at a time, then the ALJ should tell the representative or claimant which one should form the focus of the cross-examination.  Making representatives and claimants guess with five minutes left in the hearing does not constitute due process. 

A Dangerous Trend -- Re-Writing the ALJ Decision

Unpublished memoranda -- yawn, they are not precedential.  The only parties that care are the parties to that memorandum and onlookers waiting for trends to develop.  Roy v. Colvin is such a memorandum.

The court found that the ALJ erred in rejecting the opinions of Dr. Eisenhauer.  The question is always materiality -- would it have mattered.  Under Stout v. Commissioner, the thought experiment assumes that the improperly rejected evidence is true and then asks would that credited evidence change the outcome.  Roy finds that the ALJ could have rejected the findings of Dr. Eisenhauer because those findings were brief and conclusory.  But the ALJ never found Dr. Eisenhauer's opinions to be brief and conclusory.  The Ninth Circuit said that.  Neither the District Court before it nor the Ninth Circuit on de novo review gets to weigh the facts.  Did the ALJ commit legal error or did the ALJ make a fact finding lacking the support of substantial evidence?  That is the sole function of the court.

Where the ALJ thinks that the report of a doctor belongs to another person and it turns out the ALJ was wrong and where the ALJ gives no other reasons for rejecting that opinion evidence, the court should NOT re-write the ALJ decision to give a reason that the ALJ did not offer.  "We are constrained to review the reasons that ALJ asserts.  SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)."  Connett v. Barnhart.  The Ninth Circuit lacks the judicial power to add reasons that the ALJ did not articulate.  This stands at the corner of administrative law -- don't excuse a decision because you think this ALJ might have decided it the way that you would because you, the court, are not the fact finder.

Spiva v. Astrue said it best: the government seems "determined to dissolve the Chenery doctrine in an acid of harmless error."

The Ninth Circuit should adopt and follow Spiva lest we all ingest a corrosive acid that gives everyone a jurisprudential ulcer.

Minimal or Superficial Contact with Coworkers and Supervisors -- A Debilitating Limitation

The ALJ finds a limitation to simple, repetitive tasks with limited or no contact with the public, coworkers, or supervisors.  Can that person work?  The answer is "no."

According to the Social Security Administration's regulations, a basic work function includes responding appropriately to supervision, coworkers, and usual work situations.  20 CFR §404.1521(b)(5).   So far we have a severe impairment, this person cannot tolerate and cannot respond appropriately to supervisors or coworkers according to the residual functional capacity assessment described by the ALJ.   The Commissioner of Social Security specifically recognizes that limitations in the amount of supervision a person can tolerate constitutes an important part of the rating of the ability to perform the social requirements of work activity.  20 CFR §404.1520a(c)(2).   The ability to respond appropriately to supervision and coworkers is also at the core of a residual functional capacity assessment.  20 CFR §404.1545(c).

So in this hypothetical situation, the ALJ finds a person cannot tolerate coworkers or supervisors, or at most can tolerate limited contact with coworkers or supervisors.  People engaged an unskilled work, or anyone who acts as an employee, must have the ability to interact with coworkers and supervisors unless that person works alone.   The Social Security Administration has a published policy that describes the ability to respond appropriately to supervision, coworkers, and work situations as a basic mental demand of competitive, remunerative, unskilled work activity.   POMS DI 25020.010 ¶ A.3.   Later, the policy memorandum states that mental abilities for performing unskilled work includes the ability to work in coordination with our proximity to others without being unduly distracted by them; asking simple questions or requesting assistance; accepting instruction and responding appropriately to criticism from supervisors; getting along with coworkers were peers without unduly distracting them or exhibiting behavioral extremes; and responding appropriately to changes in a routine work setting.   POMS DI 25020.010 ¶ B.3.

A common theme of this log has stressed that vocational experts will testify to pretty much anything depending on the identity of the person asking them the question.  I call that professional prevarication.

The Social Security Administration deals with the problem of a vocational experts testifying contrary to agency policy.  Social Security Ruling 00-4p.   An ALJ can accept vocational expert testimony that contradicts the DOT or other sources of administrative notice for any reasonable articulated basis.  However, no Social Security Administration adjudicators may accept testimony that is based on underlying assumptions or definitions that are inconsistent with regulatory policies.  Evidence That Conflicts with SSA Policy.   The regulatory policies are explained in POMS.   Social Security Ruling 13-2p.

The forewarned, the ALJ or the attorneys representing the agency before a court will claim that the vocational expert has special expertise that permits them to point to jobs and occupations that do not require interacting with coworkers or supervisors on any significant level.  We do not leave commonsense at the door to the hearing office.  The Social Security Administration adjudicates nearly 3 million disability claims every year.  Based upon that vast experience, the agency publishes POMS and sets out agency policy that an individual who cannot tolerate direction and criticism from supervisors, ask questions of supervisors, or get a passing grade in the "plays well with others" requirement of work activity — that person cannot engage in a function that is critical to performing unskilled work.  A vocational expert may be entitled to her opinion, but she is not entitled to her own national economy.

Vocational Experts Will Say Anything

Woman is closely approaching retirement age, limited education, and past relevant work as a sample maker in the garment industry -- light as generally performed and medium as actually performed.

Q. Assume an individual this lady's age, education, and past work history, and let's say she could -- she is literate, not fluent in English and she could perform at a reduced range of light, in that she can only stand and walk up to four hours in an eight-hour day, she can only occasionally bend, stoop, squat, kneel. No crawling, or ladders, or scaffolds. Would that preclude the past work?

A.  No, it should not.

Q. At least. as it's typically performed, I gather?

A. As it's typically performed, yes.

Q. Okay, thank you.

A. Because there's going to be -- obviously, there's -- a sample makers doing multiple functions, but clearly, they are doing a lot of sewing. So, clearly, there would be standing four hours. Could be standing four hours, sitting four hours.

What's Wrong?

The vocational expert affirmatively testified that the claimant could perform work as the occupation is typically performed.  Check that box, the claimant loses at step four of the sequential evaluation process.  20 CFR 404.1520.  But did the witness hold that line?

Clearly there would be standing four hours.  Clearly at least or clearly at most?  Just to make sure that the witness did not walk it back, check the next sentence.  "Could be standing four hour, sitting four hours."  Really?  Could be?

As I say when I travel in Mexico and with Spanish speaking friends and relatives, yo tiengo una pregunta para ti.  I have a question for you.

All the time four and four?  Everyday four and four?  Some days exceed four hours of standing and walking?  One day a week/month/semi-monthly as typically performed more than four hours of standing and walking?  DOT 785.361-018 --

sewer; sample tailor Marks and cuts out material and sews parts of new style garments, following patterns, sketches, and design specifications, to prepare sample garments: Selects garment parts and threads, according to design specifications. Positions and aligns parts of sample garment together, following markings on parts, sketches, and patterns. Sews parts and attaches accessories and ornamentations, using needle and thread or sewing machine. Drapes garment on model form, examines fit and hang of garment, and marks garment to indicate position of fasteners and trimmings, such as sashes, belts, and emblems.

STRENGTH: L GED: R4 M3 L3 SVP: 6 DLU: 77.

And the claimant is not fluent in English. This occupation requires Language level 3. DOT Appendix C:

03 LANGUAGE DEVELOPMENT
Reading:
Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.
Writing:
Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech.
Speaking:
Speak before an audience with poise, voice control, and confidence, using correct English and well-modulated voice.

Perhaps the employer arranged work for a claimant that was not fluent in English and part of that trade-off is the greater exertion, medium instead of light.  But the question did not call for the ability to read, write, and speak in English according to the DOT protocol.  See Pinto v. Massanari. 

Vocational experts will say just about anything.  An opinion that does not withstand scrutiny.  Equivocated and failed to explain the language problem. 

1. Fee Petitions and Travel Time in Social Security Cases

As a practical matter, fee petitions submitted to the Social Security Administration do not bill for time, they bill for a specific result.  It constitutes a substitute for the expedited fee or fee agreement process.  The statute establishes the three criteria as (1) a written agreement filed with the Commissioner before a decision is made; (2) the fee is set at the lesser of $4,000 or 25% of the past due benefits;[i]and (3) the decision made is favorable to the claimant.  Failure of any one of the three conditions preclude the Social Security Administration from approving the fee agreement under the “expedited fee process.”  42 U.S.C. §§ 406(a)(2)(A); 1631(d)(2)(A). When that happens, the representative must file a fee petition including an itemization of time.   

When the fee agreement process does not apply, a representative can charge and receive a fee only upon authorization of the Commissioner.  Before 1991, the fee petition process was the norm.  Now the fee petition process is the exception to the rule.  42 U.S.C. § 406(a)(1) describes the exception to the rule.    The fee petition process applies whenever the fee agreement process does not with limited exceptions.  HALLEX I-1-2-51.  The fee petition process is set out in the regulations.  See, 20 C.F.R. §§ 404.1720 and 416.1520.  Subsections (b) and (c) of those two sections both provide for the petition, decision, and review process.  This raises the question of the parameters of agency discretion in setting fees.  

May a Representative Charge for Travel Time? 

A question arises whether a representative may legitimately bill for time associated with travel or waiting at the hearing office for the agency to call the matter.  The agency has no published policy or statement about billing for travel time.  “A lawyer’s time and advice are his stock in trade.”  Abraham Lincoln. 

The American Bar Association discussed billing practices for fees, disbursement, and other expenses.  ABA Formal Opinion 93-379 (December 6, 1993).  The Formal Opinion posits examples of a lawyer appearing on three matters on the same day in the same courthouse; flying cross-country for a deposition on a matter and simultaneously working on a brief for another client; and using research conducted for one client to the benefit of representation of another client.  The Formal Opinion quotes the comment to Model Rule 1.2 to the effect that the scope of services may be limited by agreement.  The Formal Opinion then answers the three questions:  a lawyer appearing on three cases may not bill for all the time associated with travel and attendance to all three clients; a lawyer may not bill for travel and preparation of a motion;[ii] and use of recycled pleadings does not permit billing again for the same time spent in the past. 

If Abraham Lincoln made a correct statement about a lawyer’s time and the client has retained a representative to handle a claim that requires travel, then travel time is compensable.  The ABA Formal Opinion assumes without discussion that travel time is compensable just cautions against double billing for the time.  Ethics and Time-Based Billing cites to the ABA Formal Opinion for the proposition that a lawyer may only bill for the time actually spent.  Michael Downey, Ethics of Time-Based Billing, Law Practice Today (ABA Law Practice Management Section 2006).[iii] 

Some have suggested that the regulatory availability of reimbursement for expenses precludes billing for time.  See 20 C.F.R. § 404.999c.  That regulation discusses the reimbursable travel expenses.  Billing for time and billing for expenses constitute two separate and discrete billable items.  It would constitute an unreasonable exercise of billing discretion to charge the client for expenses which the Social Security Administration has promised to pay by binding regulation.  But expenses for gasoline and depreciation of a private vehicle certainly constitute a subject for reimbursement, the vehicle and its consumables do not constitute the lawyer’s stock in trade; his time constitutes his stock in trade.  Lincoln. 

A representative can and should charge for reasonable travel time associated with representation of a claimant.  Claimants have an interest in retaining the representative of his/her choice without regard to the agency's ability to constrain that choice by depriving that person of the liberty to compensate the representative for all the time associated with that representation.  No ethical limitation exists to preclude the claimant form making that choice or from the representative to request compensation for the time expended. 

This takes on greater importance where the claimant and the representative never contemplate compensation for any particular allotment of time.  The claimant contracts with the representative to compensate out of a specific percentage of past due benefits.  While the amount of time expended constitutes a regulatory factor, that regulatory factor is never dispositive of the eight factors listed.[iv] 

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[i] Effective February 1, 2002, the Commissioner increased the fee cap to $5,300.  Effective June 22, 2009, the Commissioner increased the fee cap to $6,000.  See GN 03940.003.  ODAR sometimes suggests that it is not bound by POMS.  It is a factual resource regardless of the wisdom of advocating an agency publication has the net effect of deluding the public about what is and is not agency policy. 

[ii] The Formal Opinion appears to countenance watching a movie on the airplane, a purely personal endeavor.  This author submits that personal departure precludes billing for that time because the lawyer could review and re-review the file and other papers related to the client’s interests during a plane flight. 

[iii] Available at http://apps.americanbar.org/lpm/lpt/articles/mgt01064.html. 

[iv]  They are: (1) the purpose of the program; (2) services provided; (3) complexity of the case; (4) level of skill and competence required in providing the services;  (5) amount of time spent on the case; (6) results the representative achieved; (7) level(s) in the administrative process; and, (8) amount of the fee requested.  20 C.F.R. §§ 404.1725(b)(1) and 416.1525(b)(1).   HALLEX I-1-2-57.