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

Establishing the Vocational Expert's Methodology Requires Verification

The objective of cross-examination of the vocational expert must hone in one establishing that the vocational expert testimony is feeble or contradicted.  Biestek v. Berryhill instructs:

And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.

The Ninth Circuit decision in Buck v. Berryhill establishes the same proposition:

"An ALJ may take administrative notice of any reliable job information, including information provided by a VE." Bayliss, 427 F.3d at 1218. "A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id.

Buck erroneously reads the above language from Bayliss to require that the ALJ independently assess the reliability of VE testimony. However, as is clear from the language of Bayliss, at least in the absence of any contrary evidence, a VE's testimony is one type of job information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its reliability.

The representative must present contrary evidence and show that the vocational expert is not reliable.

In a hearing yesterday out of Evanston, Illinois, with the claimant appearing in Rockford by video conference and me on phone from sunny Santa Fe Springs, the vocational expert testified that the claimant's medical vocational profile permitted such a person to perform work as a mail clerk (DOT 209.687-026) as representing 10,400 jobs in the nation and office helper (DOT 239.567-010) representing 55,000 jobs in the nation.  After dancing around claiming to use the Occupational Employment Statistics and disavowing knowledge or use of the NAICS industry codes, the VE  distilled her methodology for estimating job numbers as relying on Job Browser Pro published by SkillTran.

Rebutting JBP is tough business.  Rebutting JBP requires reverse engineering and understanding the limits of the program as well as its use of equal distribution at the occupation-industry intersection.  But we don't have to go there.  We need to compare the VE testimony to the content of JBP.

JBP describes mail clerk as representing 2,130 jobs as of 2018.  That is a far cry from 10,400 jobs and marks substantial progress in showing conflict and feebleness of the VE testimony.

JBP describes office helper as representing 3,711 jobs as of 2018.  The drop from 55,000 jobs to 3,711 jobs is a change from clearly significant to insignificant.

Here is the probable explanation:  VEs do not go back and check their data.  Establishing conflict is as simple as owning a copy of JBP and running the numbers.  I take screen shots of the DOT estimate page to capture all of the statements of the aggregate number of jobs at the SOC-OES/NAICS intersection, the number of DOT codes, and the estimate applicable to the specific DOT code.  I then print the formal report that restates the DOT narrative (sans the industry designation), the number of DOT codes in the group, the incidence of full-time versus part-time, and then the SOC-OES/NAICS intersection without the statement of the number of DOT codes in that intersection.

In this case, the vocational expert has not offered testimony that is reliable.  In her own stated methodology, the number of jobs is wrong.  The testimony is feeble and contradicted.  The ALJ now has to deal with that conflict in the evidence.

A Case Study -- ALJ Finds the Vocational Expert Not Reliable and Schedules a Supplemental Hearing

The first hypothetical question to the vocational expert had no exertional limitations; no ladders, ropes, scaffolds, heights, proximity to moving machinery, hazards, or commercial driving; and limited to simple routine tasks.  Vocational expert identifies bagger (920.687-014) with 136,000 jobs in the nation. 

ALJ interrupts and adds light exertion to the residual functional capacity.  Vocational expert identifies cashier (211.462-010) with 682,000 jobs in the nation and garment sorter (222.687-014) with 72,000 jobs in the nation. 

ALJ adds no work with small objects, no printed circuit boards.  The vocational expert states the prior testimony still applies.  The ALJ asks about coins.  Vocational expert stands her ground.  ALJ asks for another occupation anyway.  The vocational expert identifies housekeeper (323.687-014) with 377,000 jobs in the nation.

The case is about a mental impairment.  The ALJ asks the vocational expert to assume occasional interaction with the public, coworkers, and supervisors.  The vocational expert eliminates cashier and bagger.  The vocational expert offers an alternate occupation -- office helper (239.567-010) with 62,000 jobs in the nation.  The vocational expert describes office helper as more or less filing, working more with office machinery than people and certainly not dangerous. 

ALJ: Any questions, counsel?
ATTY:  Yes.

We have office helper, housekeeper, and garment sorter to address.  I first focus on office helper.  I ask the vocational expert to read the DOT narrative into the record.  She doesn't have it in front of her, so I read it to her. Office helpers:

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.

That sounds different than what you described.  The vocational expert concedes. 

Q: What is the occupational group in which office helper is classified by Labor?
A: SOC 43-5021.
Q: What is the name for that group.
A: Couriers and messengers.
Q: Is it your testimony that couriers and messengers have occasional contact with other people?
A: I rely on my experience.
Q: If I represent to you that the Department of Labor classifies this occupation as having frequent or constant contact with other is 99% of jobs, do you have a statistical basis for rebutting that classification?
A: No.

The occupation might be out but only if the residual jobs do not add up to 62,000 jobs. 

Q: Do you agree with the estimate from Labor that this group represents 95,000 jobs?
A: That sounds right.  

At this point, the ALJ continued the hearing to that afternoon.  When we come back, the ALJ states that she reviewed her notes and the vocational expert in this case was just not reliable.  Knocked out the witness. 

The next item on the cross list was housekeeping cleaners.  That kind of work requires more than occasional contact with others in 95% of jobs.  Maids and housekeeping cleaners work with a group or team in 99% of jobs.  Maids and housekeeping cleaners work work part-time in 60% of jobs. 

The last occupation on the list is garment sorter.  This occupation belongs to the ubiquitous group of production workers, all other (SOC 51-9199).  Production workers are not addressed in the O*NET.  The 2018 data set of the ORS describes the occupational group as 53% unskilled and not more than 36.1% light exertion.  The 2018 data set does not have the cognitive data, so I would have flipped back to the 2017 data set.  Contact with regular contacts is continuous in 24% of jobs and more than once per hours in 43.8 % of jobs.  The 2016 data collection that lead to the 2017 data release had four categories for contact with regular contacts and contact with other contacts:

(A) Constantly, every few minutes.
(B) More than once per hour, but not constantly.
(C) More than once per day, but not more than once per hour.
(D) No more than once per day; includes never.

(A) = constant; (B) = frequent; (C) = occasional; and (D) = seldom or never.  

BLS did not collect cognitive data for the 2018 data set but tells me that it will in the 2019 data set.  The 2018 Occupational Requirements Survey (ORS) Collection Manual, Version 4.0 lists the same hierarchy.  

The data exists and the vocational experts cannot rebut the statistical data from Labor.  They can differentiate occupations based on variance within the economy but when the variance is addressed by the data, then the vocational expert is there as a guide and not much more.  

To have all of this data ready on the fly, I use www.occucollect.com.  When the vocational expert relies on Job Browser Pro, I use the program post hearing.  When the vocational expert relies on the Occupational Employment Quarterly, I address the equal distribution method as unreliable. 

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).