Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi

We are back in Shawver v. Kijakazi looking at the limitations to superficial and brief contact with coworkers. We return to the district court decision in Misti Jo. S. v. Comm'r of Soc. Sec. for the residual functional capacity and occupations. In relevant part:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks [...] The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

Resulting in: 

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

We discussed the limitation to standing/walking for four hours yesterday. That exercise eroded routing clerk and mail clerk while eliminating marker. Vocational cross is a no quarter expedition, we seek to eliminate all jobs. The more common version of this genre of limitation is occasional contact or interaction with others. Superficial and brief is a separate classification having more to do with the quality of interaction, teamwork. 

Superficial and brief contact with others is not a vocationally relevant phrase. A person can have constant superficial and brief contact, nothing is in depth. Because it is conceivable and not classified by the data, the vocational witness gets carte blanche to pontificate. 

Routing clerk (222.687-022) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Shipping clerks have no or occasional contact with others in 0% of jobs according to the O*NET. A mere 1% do not coordinate or lead others. Dealing with external customers is "not important at all" in 4% of jobs. Never resolving conflict occurs in 16% of jobs. Working with a group or team is not important in 1% of jobs. 

Mail clerk (209.687-026) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Mail clerks have no or occasional contact with others in 8% of jobs according to the O*NET. Coordinating or leading others is not important in 15% of jobs. Dealing with external customers is "not important at all" in 10% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 0% of jobs. 

Marker (209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Stockers have no or occasional contact with others in 4% of jobs according to the O*NET. Coordinating or leading others is not important in 6% of jobs. Dealing with external customers is "not important at all" in 6% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 4% of jobs. 

In order to make this type and quality of evidence probative, we have to ask. 

    1. Is "contact with others (face-to-face, by telephone, or otherwise) in order to perform it" superficial and brief?

    2. Is "coordinate or lead others in accomplishing work activities in this job" superficial and brief?

    3. Is fairly important ability to "work with external customers or the public" superficial and brief?

    4. Is the encounter of "conflict situations" on the job superficial and brief?

    5. Is the ability to "work with others in a group or team" as fairly important superficial and brief?

It becomes a matter of extracting concessions from the witness. The follow up question is whether an occupation that required those five workplace requirements or expectations (BFOQ), would you agree that the work required more than superficial and brief contact with coworkers and the public?

When we allow a vocational witness to wax on about the existence of work without exploring the range of available data, we allow the witness and ALJ to take from our clients the benefits that were promised in the Social Security Act. We become a party to a breach of the social contract. 

Forge onward. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi

In Shawver v. Kijakazi, the claimant litigated the tried-and-true physician opinion evidence, the claimant testimony, the meeting or equaling of the listings, and the non-issue of whether the ALJ propounded a complete hypothetical question based on errors at step three, the assessment of residual functional capacity. 

But step five is always in play when the claimant establishes the inability to perform past relevant work. Misti Jo. S. v. Comm'r of Soc. Sec. gives us the rest of the story. The RFC:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks; occasionally balance, stoop, kneel, crouch, or crawl; occasionally climb ladders, ropes, or scaffolds; avoid exposure to hazardous machinery or equipment; and work in an environment with no more than ordinary office level lighting or noise. The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

And the step five occupations:

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

Standing/walking four hours in an eight-hour day does not represent a wide range of light work. Social Security Ruling 83-10 describes light work as requiring standing/walking six hours in an eight-hour day and sitting intermittently during the remaining time. There exists an apparent conflict between the agency's understanding of light work and the identification of light work that requires not more than four hours of standing/walking. 

Routing clerk (DOT 209.687-026) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Labor places 65 alternate titles including 20 DOT codes in this group. The Occupational Requirements Survey describes shipping clerks. Shipping clerks stand (including walk) half the day at the 25th percentile and 80% of the day at the 50th percentile (median). Shipping clerks engage in sedentary exertion in 7.5% of jobs and light exertion in 21.5% of jobs. Shipping clerks engage in unskilled work (SVP 2) in 46.3% of jobs. 

Mail clerk (DOT 222.687-022) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Labor places 60 alternate titles including 14 DOT codes in this group. The Occupational Requirements Survey describes mail clerks. Mail clerks stand (including walk) half the day at the 50th percentile and 75% of the day at the 75th percentile. Mail clerks lift/carry 20 pounds maximum in at the 25th percentile and 25 pounds at the 50th percentile. Mail clerks engage in unskilled work (SVP 2) in 67.4% of jobs. 

Marker (DOT 209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Labor places 209 alternate titles including 38 DOT codes in this group. The Occupational Requirements Survey describes stockers. Stockers stand (including walk) 80% of the day at the 10th percentile. Stockers lift/carry 25 pounds maximum in at the 10th percentile. Stockers engage in unskilled work (SVP 1 or 2) in 84.3% of jobs. 

To arrive at a reliable estimate of the number of light and unskilled work with standing/walking limited to four hours per day, a witness would have to assume the incidence of work that meets those criteria. The ORS and O*NET OnLine provides governmental data published according to OMB standards. The vocational witness has local (anecdotal) experience without a well-accepted methodology for extrapolating that experience to the national economy. 

In the case of these three occupations, markers are clearly eliminated. The intersection of unskilled and standing/walking four hours or less without crossing into sedentary work requires several assumptions. The expert must either assume that the exertional demands cut across the skill requirements OR must either have data or make assumptions about the requirements of skill and exertion correlation. Labor does not publish that data. 

Contact/interaction with coworkers and supervisors is cued up next. Teasing, none of the jobs make the cut. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Missed Opportunities -- Standing and Walking in Shawver v. Kijakazi, California Social Security Attorney (October 17, 2023) https://californiasocialsecurityattorney.blogspot.com

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

Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?

The March 2023 version of the Social Security Vocational Expert Handbook is out. Vocational Expert Handbook (SSA Mar. 2023). A video, not found on the SSA channel on YouTube.com, explains the Handbook. The mock hearing in the middle of it all provides an example of good testimony that shocks the conscience.  

ALJ: Assume a hypothetical individual with the claimant's age, education, and past work experience is able to perform light work as defined in the regulations, except they can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and can never climb ladders, ropes, or scaffolds; must avoid unprotected heights, moving mechanical parts, and operating a motor vehicle; can perform simple routine tasks; can make simple work-related decisions; and can occasionally interact with supervisors and coworkers, and never interact with the public. Could the hypothetical individual perform any work, and, if so, could you provide me with a few examples?

VE: Yes, jobs such as cleaner, housekeeping (DOT code 323.687-014). That is light, SVP 2, with 200,000 jobs nationally. Routing clerk (DOT code 222.687-022). That is light, SVP 2, with 40,000 jobs nationally. And marker (DOT code 209.587-034). That is light, SVP 2, with 200,000 jobs nationally.

Under SSR 83-10, the agency and the vocational experts are directed to assume that a limitation to light work includes a limitation to standing/walking six hours in an eight-hour workday. The vocational witness has stated that a housekeeping cleaner has a maximum stand/walk requirement of six hours. That is palpably false based on the DOT narrative, O*NET OnLine, and Occupational Requirements Survey. The vocational witness has claimed that the inherently clerical functions of a routing clerk have occasional or less contact with others. The witness lays claim that warehouse work has occasional or less contact with others, 

Housekeeping cleaner has the Lead Statement (after the number, title, industry, and alternate titles): "Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories" The Task Element Statements (how the Lead Statement gets accomplished) states: "Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title." Find two hours of sitting in the expected or essential work duties, every day without fail. 

The O*NET describes housekeeping cleaner under the broad heading of maids and housekeeping cleaners as having occasional or no contact with others in 18% of jobs. Maids have no important contact with the public is 8% of jobs. Maids do not work with a group or team as at least a fairly important job function in 4% of jobs. Maids never sit in 72% of jobs, less than half the time in 25% of jobs, and about half the time in 3% of jobs. 

The ORS describes maids as interacting with the general public in 76.3% of jobs. Maids require basic people skills in 97.1% of jobs. Maids stand (including walk) 87.5% of the day at the 10th percentile, 95% of the day at the 25% percentile, and 100% of the day at the median, 75th, and 90th percentiles. Maids engage in light exertion in 69.3% of jobs. 

 Routing clerk has the Lead Statement "Sorts bundles, boxes, or lots of articles for delivery." The Task Element Statements states: "Reads delivery or route numbers marked on articles or delivery slips, or determines locations of addresses indicated on delivery slips, using charts. Places or stacks articles in bins designated according to route, driver, or type. ay be designated according to workstation as Conveyor Belt Package Sorter (retail trade)." Sounds an awful lot like mail clerk, an R3 occupation. The DOT classifies routing clerk as R2. Routing clerk does have significant data functions of comparing: judging the readily observable functional, structural, or compositional characteristics (whether similar to or divergent from obvious standards) of data, people, or things.

The O*NET describes routing clerk under the broad heading of shipping, receiving, and inventory clerk as having occasional or no contact with others in 0% of jobs. Shipping clerks have no important contact with the public is 4% of jobs. Shipping clerks do not work with a group or team as at least a fairly important job function in 1% of jobs. 

The ORS describes Shipping clerks as interacting with the general public in 63.6% of jobs. Shipping clerks require basic people skills in 69.2% of jobs and more than basic people skills in 30.8% of jobs. Shipping clerks stand (including walk) 25% of the day at the 10th percentile, 50% of the day at the 25% percentile, 80% of the day at the median, 95% of the day at the 75th percentile, and 100% of the day at the 90th percentiles. Shipping clerks engage in light exertion in 21.5% of jobs and unskilled work in 46.3% of jobs. 

Marker has the Lead Statement "Marks and attaches price tickets to articles of merchandise to record price and identifying information." The Task Element Statements states: "Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket to article. ay record number and types of articles marked and pack them in boxes." The DOT classifies marker as R2. Marker does have significant data functions of copying: Transcribing, entering, or posting data.

The O*NET describes markers under the broad heading of stockers and order fillers as having occasional or no contact with others in 4% of jobs. Stockers have no important contact with the public is 6% of jobs. Stockers do not work with a group or team as at least a fairly important job function in 4% of jobs. 

The ORS describes stockers as interacting with the public in 73.6% of jobs. Stockers require basic people skills in 95% of jobs and more than basic people skills in 5% of jobs. Stocker stand (including walk) 80% of the day at the 10th percentile, 90% of the day at the 25% percentile, 95% of the day at the median, and 100% of the day at the 75th and 90th percentiles. Stockers lift up to 25 pounds at the 10th percentile, 50 pounds at the 25th percentile and median, 60 pounds at hte 75th percentile, and 75 pounds at the 90th percentile. 

The witness goes on to describe the 30 years' experience, but no experience related to these three occupations. The sample of cross-examination does not ask about other sources of job information or where the vocational witness obtained the idea that these occupations do not require prolonged standing/walking, interaction with the public, or more than occasional interaction with others. 

The agency needs to stop giving examples to strive to become that are facially unsupported. The fact that many vocational experts would give this kind of testimony does not make it reliable. It makes it ubiquitously wrong. 

Talk me off the cliff.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?, California Social Security Attorney (August 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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