The ALJ Says that the COSS Rejects the O*NET -- What do I do Now?

Our friends at SkillTran post a memorandum from SSA stating that the O*NET is not suitable for use in disability litigation.  The memorandum is in response to a request for information (RFI) dated June 4, 2004.  The question is whether this memorandum licenses the adjudicator to reject O*NET-based information without any other reason. 

As with any question, we start with the law - the statute and regulations.  The statute is silent as to the sources of vocational information.  The regulations provide for administrative notice of reliable job information from governmental and private resources.  Let's assume that in a memorandum that is not published in HALLEX or POMS that the COSS can describe a data set as not reliable.  Let's also assume that this unavailable memorandum survives the Kisor v. Wilkie test for deference or that a court would find it persuasive under Skidmore. 

The response to the RFI is clear:

SSA has determined through contracted research and through further investigation that O*NET, as it currently exists, cannot be used in SSA’s disability determination process (see Bibliography of research and investigations following).

The critical phrase from the 2004 response to the RFI is as it currently exists.  The question is whether the O*NET exists today as it did in 2004.  The O*NET has updated vocational data over every occupation for work context -- the data that Social Security representative are most interested.  Three occupations were last updated in 2004 and nine in 2005.  The other 1,004 have been updated between 2006 and 2019.  The O*NET does not exist today as it existed in 2004. 

The O*NET changed its taxonomy to version 10.0 in 2006.  The 2019 data set reflects version 24.0.  The O*NET does not exist today as it existed in 2004.  The O*NET now describes:

Occupational Requirements

A comprehensive set of variables or detailed elements that describe what various occupations require.

This domain includes information about typical activities required across occupations. Task information is often too specific to describe an occupation or occupational group. The O*NET approach is to identify generalized work activities (GWAs) and detailed work activities (DWAs) to summarize the broad and more specific types of job behaviors and tasks that may be performed within multiple occupations. Using this framework makes it possible to use a single set of descriptors to describe many occupations. Contextual variables such as the physical, social, or structural context of work that may impose specific demands on the worker or activities are also included in this section.

Generalized Work ActivitiesWork activities that are common across a very large number of occupations. They are performed in almost all job families and industries.
Intermediate Work ActivitiesWork activities that are common across many occupations. They are performed in many job families and industries.
Detailed Work ActivitiesSpecific work activities that are performed across a small to moderate number of occupations within a job family.
Organizational ContextCharacteristics of the organization that influence how people do their work
Work ContextPhysical and social factors that influence the nature of work

It is the work context description.  The physical and social factors that influence work are important to the disability analysis.  The data presentation describing the percentages of work within an occupation that require constant contact with others or very important work function of working with a group or team are exactly the kind of data that resolves holes in the DOT. 

And that brings the question back full circle to the Kisor question about deference and the Skidmore question about respect to the ability to persuade.  The Department of Labor is the agency that has the expertise to determine which of its publications constitutes the best source of information about the existence and requirements of work in the national economy.  Labor states about the DOT:

The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.

Whether the DOT, SCO, O*NET, or ORS answers every question about work represents a different question than whether any of those sources answer one or more questions about the number of jobs, the erosion of the occupational base, and the requirements of work.  Which takes us back to the first Kisor question, the regulation is not ambiguous.  The COSS takes administrative notice of reliable governmental data.  The only question is whether the O*NET is reliable and if so whether is answers the specific question that we have today. 
 

Remand for Further Proceedings in Esparza v. Colvin

The little trinkets of gold filter down in unpublished opinions.  Esparza v. Colvin provides insight into the court's thinking and assumptions that will prove dangerous.

Esparza remands for further proceedings because the ALJ did not give good reasons for rejecting the claimant's testimony or the opinions of the treating physician.  Pretty pedestrian stuff, the issues that permeate Social Security cases on a daily basis.  The federal courts decide those issues every day.

But a battle wages on in the Ninth Circuit over the remand versus pay issue.  The agency lawyers and the court have yet to address the elephant in the room -- the statute clearly permits the courts to find that the claimant deserves to be paid without a remand for further proceedings.  42 USC sec. 405(g) and (i).  More on that another day.

Esparza remands for further proceedings as a useful exercise to further develop the record.  Fair enough, the court has discretion under the statute and the cases tip the hat in that direction without giving fair account to the statute.  The next sentence has a bomb waiting to explode:

If she deems it appropriate, the ALJ should reopen the hearing to receive additional evidence.  

Whoa Nellie.  We just spent six pages analyzing how the ALJ abused her discretion in weighing evidence and now the court wants to inject another round of unfettered discretion into the process.  Bad politics.

 The closed remand also violates agency policy.  When the ALJ makes a decision on remand by the court,

The ALJ will generally decide the remanded issues through the date of the new hearing  decision, or in title II cases involving an expired date last insured, through the date of last insured status.

HALLEX I-2-8-18.  How will the ALJ adjudicate through the date of the new decision without taking new evidence of recent education, recent work attempts/activity, and medical treatment.

When the ALJ makes an unfavorable decision, the Appeals Council will get around to the request for review in about 18 months.  The district court will take at least another year to decide the case at that leve.  And the court of appeals, Betty hold the door because that level of review will take two years.  We know that because the Ninth Circuit case number is 13-16522.  The "13" -- that means the appellant filed a notice of appeal in 2013.  The District Court case number is 2:12-cv-00733-SPL.  The "12" -- that means that the claimant for benefits filed a complaint in that court in 2012.

The case is likely five years stale from the date of original ALJ decision.  Discretion to receive additional evidence is misguided if not simply wrong.  It is only palatable if the ALJ will just award benefits to a claimant that probably applied for disability in 2008 (my guess).  Thomas Alvarez Esparza has endured a probable seven-year wait and won't get a decision from SSA until mid- to late-2016.