Sedentary, Simple Repetitive Tasks Equals No Significant Work

 The title of this piece sets forth the foundation and conclusion.  It does not matter whether the person is 21 years with a Ph.D. in astrophysics from MIT awarded at the age of 18.  Sedentary with simple repetitive tasks equals no significant number of jobs.

Here is the hypothetical from a real case:

Q And the first hypothetical I'd like you to consider is where the individual could perform a full range of sedentary work as it's defined in regulations. And can understand, remember and carry out simple routine tasks for up to two-hour periods of time; with only occasional interaction with the general public. There should be no fast-paced production or assembly line type work, and only minimal changes in workplace setting or routine. Given these limitations would this individual be able to perform any of the work that the claimant has performed in the past?

A No, Your Honor.

Q Would there be other work that such an individual could perform, and if so can you provide me with three examples?

A Yes. Surveillance system monitor, sedentary, SVP 2, the DOT is 379.367-010, approximately 150,000 full-time jobs in the national economy which I would erode by 50 percent down to 75,000 jobs based upon the DOT designating it, that precludes the government positions. Sedentary SVP 2, the job is assembler, the DOT is 734.687-018, approximately 125,000 full-time jobs in the national economy. And sedentary SVP 2, the job is table worker, the DOT is 739.687-182, approximately 40,000 full-time jobs in the national economy.

Q All right. Let me give you a second hypothetical, and this is adding on to the first. If the individual required at least one unscheduled break of 15 to 20 minutes in addition to regular breaks and lunch in an eight-hour workday, due to chronic pain, side effects with medication and/or possibly psychological symptoms, would that preclude those jobs that you identified in response to hypothetical number one?

A Yes.

Q Would there be any other work at that level?

A No. That would, that would call for an accommodation.

Q Is your testimony consistent with the Dictionary of Occupational Titles?

A It is.

There are so many things wrong with this vocational testimony that a representative might feel overwhelmed by the force of experience and administrative momentum.  Clearly the second hypothetical question is the opioid slipped to the claimant to make him/her think that he/she was finally heard and will win the case.  We know that the feel good will disappear when the hearing decision comes.  Advocate it all you want, but we know better.  The anecdotal experience that one time the ALJ went that way is just that, anecdotal lightning in a bottle.  

It is incumbent on the responsible representative to go after the vocational expert.  We discussed this before, "what is your methodology for determining the number of jobs as a surveillance systems monitor, assembler, and table worker?"  Lock that down.  If the vocational expert gives the opaque black box testimony, leave it there and move on.  This is not a time to argue, it is a time to allow the witness to hang him/herself.  

Regardless of the methodology the vocational expert regurgitates, present conflicting evidence. 

1. Job Browser Pro

a. Job Browser Pro assigns SSM to two occupational groups.  JBP currently states that that OEWS/SOC group of school bus monitors and protective service workers, all other (33-9098) represents in the aggregate 144,310 jobs.  Gaming surveillance officers and gambling investigations  (33-9031) represents 8,340 jobs.  Those two occupational groups together represent about 10,000 jobs attributed to SSM. 

b. JBP assigns assembler to production workers, all other (51-9199) representing 194,360 jobs in 1,528 occupations. Assembler identified by the vocational expert represents an estimated 17 jobs in the nation.  

c. JBP assigns table worker to inspectors, testers, sorters, samplers, and weighers (51-9061)representing 549,200 jobs in 782 occupations.  Table worker identified by the vocational expert represents an estimated 962 jobs.  

The ALJ must resolve the conflict in the evidence with a logical and rational basis.  Administrative notice is the preferred method of estimating job numbers.  20 CFR 404.1566(d).  Testimony answers questions that notice cannot answer.  20 CFR 404.1566(e).  Create the conflict and submit the JBP reports for the OEWS Group and the DOT Employment Estimate.  JBP considers industry and the vocational expert did not.  

2. Occupational Data

a. SSM is a reasoning level 3 occupation and therefore has an apparent conflict with simple repetitive work.  The OOH states that gambling officers and investigators are semi-skilled and skilled.  The O*NET OnLine states that gambling officers and investigators do not deal with the public as an important or fairly important job function in 34% of jobs.  The O*NET resource center states that gambling officers and investigators have on-the-job training not exceeding one month in 16.8% of jobs.  Gambling officers and investigators sit 90% of the day or more in all jobs according to the ORS.  Neither the ORS nor the O*NET provide data for school bus monitors and protective service workers, all other.  

b. Assembler is a reasoning level 1 occupation.  It is simple with little changes.  Assembler does require constant use of the hands for reaching, handling, and fingering.  That creates a conflict with no fast paced work.  The OOH states that production workers are semi-skilled and skilled representing 203,600 jobs.  The ORS states that production workers engage in unskilled work in 28.7% of jobs.  Production workers stand 90% of the day or more at every reported percentile.  Production workers engage in medium work in 68.9% of jobs.  

c. Table worker is a reasoning level 1 occupation.  It is simple with little changes. Table worker requires working on a conveyor belt.  That creates a conflict with no assembly line type of work.  The OOH states that inspectors are semi-skilled and skilled representing 557,900 jobs.  The O*NET OnLine states that inspectors do not deal with the public as an important or fairly important job function in 18% of jobs.  The ORS states that inspectors engage in unskilled work in 21.3% of jobs.  Inspectors engage in light work in 53.6% of jobs and medium work in 28.1% of jobs.  Inspectors sit 75% (six hours) at the 75th percentile and 90% of the day at the 90th percentile.  Assuming 20% of the jobs are sedentary  and 20% of those jobs are unskilled (a combined 4%) results in fewer than 40,000 jobs claimed by the vocational expert.  The industries that would employ table workers (plastic and rubber products manufacturing) employ 30,200 inspectors.  Applying the 4% for sedentary and unskilled to that job number results in 1,200 jobs.  That's more than what JBP estimated but reasonably close.  

Competent representation presents either JBP or occupational data to the ALJ post-hearing.  Good representation presents both.  Be good.

___________________________

Suggested Citation:

Lawrence Rohlfing, Sedentary, Simple Repetitive Tasks Equals No Work, California Social Security Attorney (October 16, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/10/sedentary-simple-repetitive-tasks.html

Surveillance Systems Monitor -- In Transition

Surveillance-system monitor remains a popular occupation among locational experts in response to a residual functional capacity for sedentary work involving occasional use of the hands for reaching, handling, and fingering.  In the 2010 SOC, labor placed surveillance-system monitor in the group of protective service workers, all other (33- 9099.00).  The O*NET still does.   The O*NET also places surveillance- system monitor in the occupational group of school bus monitors (33- 9094.00).   The O*NET reports 145,600 employees in both occupational groups.

The Occupational Outlook Handbook reports a combination of school bus monitors and protective service workers, all other as an OEWS hybrid with a 2019 employment estimate. 

School bus monitors and protective service workers, all other

This is an OEWS hybrid and the OEWS definition can be found by following the OEWS link below

· 2019 employment: 145,600

· May 2020 median annual wage: $31,960

·       Wages come from the Occupational Employment and Wage Statistics (OEWS) program, click here for more OEWS data on this occupation

· Projected employment change, 2019–29:

·       Number of new jobs: 6,200

·       Growth rate: 4 percent (As fast as average)

·       Click here for additional projections detail

· Education and training:

·       Typical entry-level education: High school diploma or equivalent

·       Work experience in a related occupation: None

·       Typical on-the-job training: Short-term on-the-job training

· O*NET links:

·       33-9094.00 - School Bus Monitors

·       33-9099.00 - Protective Service Workers, All Other

·       33-9099.02 - Retail Loss Prevention Specialists

 

The Occupational Employment and Wage Statistics (OEWS) (as the successor data base to the OES) defines the hybrid group:

This occupation includes the 2018 SOC occupations 33-9094 School Bus Monitors and 33-9099 Protective Service Workers, All Other and the 2010 SOC occupation 33-9099 Protective Service Workers, All Other.

The OEWS reports employment:

Employment (1)	Employment RSE (3)	Mean hourly wage	Mean annual wage (2)	Wage RSE (3)
144,310	2.1 %	$ 17.38	$ 36,140	0.6 %

 

The OOH and OEWS make clear that the O*NET reports of occupations for both school bus monitors and protective service workers, all other, represents a duplication of a group of occupations and jobs in transition due to a change in the definitions and assignments of the SOC codes.  The 2018 SOC defines school bus monitors as:

Maintain order among students on a school bus. Duties include helping students safely board and exit and communicating behavioral problems. May perform pre trip and post trip inspections and prepare for and assist in emergency situations.

Illustrative examples: Bus Monitor

The 2018 SOC defines protective service workers, all other as:

All protective service workers not listed separately.

Illustrative examples: Warrant Server

Labor will break out the job numbers for school bus monitors from protective service workers, all other.  Hopefully, we will see that breakdown in the next data set.  Surveillance-system monitor does not fit the definition of the occupational group of bus monitors. It does fit the all other classification. Expect to see the number of jobs as a surveillance-system monitor continued to erode in the ability of people without statistical expertise to conflate job numbers either by equal distribution within an occupational group , equal distribution at the occupation-industry intersection, or some other methodology that does not take into account the existence of unskilled sedentary work as opposed to semi- skilled, skilled, light, medium, or heavy work. Heavy work is Deputy United States Marshall, classified by the DOT as requiring medium exertion.

If a vocational expert identifies surveillance-system monitor as an occupation in response to a sedentary exertional capacity with manipulative limitations but no limitation to simple or repetitive types of work, the representative must inquire diligently into the methodology used by the vocational expert to tease out the number of jobs. Experience is not enough. The vocational expert did not go around the nation with a clicker counting jobs. There is a statistical basis for estimating job numbers and the representative must demand that information.

___________________________

Suggested Citation:

Lawrence Rohlfing, Surveillance Systems Monitor -- In Transition , California Social Security Attorney (April 19, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/surveillance-systems-monitor-in.html

Unskilled DOT Codes with Two SOC Groups

With about 3,000 unskilled DOT codes collapsing into 173 SOC groups that contain those unskilled DOT codes, the criticism of the O*NET and the SOC structure has centered around the issue of data aggregation: clumping the different DOT codes together.  I found eight DOT codes for which the opposite is true:  the DOT treats as a single occupation that Labor placed into two different SOC groups. 

These occupations require greater care when assessing the number of potential jobs on the occupational employment matrix.  That task would require use of two employment projection matrixes.  The occupations raising these concerns are:

DOT	DOT TITLE	SOC	SOC TITLE
317.684-010	COFFEE MAKER	35-2021	Food Preparation Workers
		35-3022	Counter Attendants, Cafeteria, Food Concession, and Coffee Shop
https://www.onetonline.org/crosswalk/DOT?s=317.684-010&g=Go
379.367-010	SURVEILLANCE-SYSTEM MONITOR	33-9031	Gaming Surveillance Officers and Gaming Investigators
		33-9099	Protective Service Workers, All Other
https://www.onetonline.org/crosswalk/DOT?s=379.367-010&g=Go
411.364-010	BLOOD TESTER, FOWL	19-4011	Agricultural and Food Science Technicians
		19-4021	Biological Technicians
https://www.onetonline.org/crosswalk/DOT?s=411.364-010&g=Go
421.687-010	FARMWORKER, GENERAL II	45-2092	Farmworkers and Laborers, Crop, Nursery, and Greenhouse
		45-2093	Farmworkers, Farm, Ranch, and Aquacultural Animals
https://www.onetonline.org/crosswalk/DOT?s=421.687-010&g=Go
530.665-010	BEATER-ENGINEER HELPER	51-9021	Crushing, Grinding, and Polishing Machine Setters, Operators, and Tenders
		51-9023	Mixing and Blending Machine Setters, Operators, and Tenders
https://www.onetonline.org/crosswalk/DOT?s=530.665-010&g=Go
530.685-014	PULPER	51-9021	Crushing, Grinding, and Polishing Machine Setters, Operators, and Tenders
		51-9023	Mixing and Blending Machine Setters, Operators, and Tenders
https://www.onetonline.org/crosswalk/DOT?s=530.685-014&g=Go
555.685-066	WHEEL-MILL OPERATOR	51-9021	Crushing, Grinding, and Polishing Machine Setters, Operators, and Tenders
		51-9023	Mixing and Blending Machine Setters, Operators, and Tenders
https://www.onetonline.org/crosswalk/DOT?s=555.685-066&g=Go
806.684-010	ASSEMBLER, MOTOR VEHICLE	51-2092	Team Assemblers
		51-9199	Production Workers, All Other
https://www.onetonline.org/crosswalk/DOT?s=806.684-010&g=Go

Surveillance=system monitor exemplifies the dilemma.  Job Browser Pro does not list the existence of this kind of work in the Gaming Surveillance Officers and Gaming Investigators (SOC 33-9031) occupational group.  That leads to a potential undercounting.  Occu Collect reports:

 33-9031 Gaming surveillance officers and gaming investigators

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	Less than 5 years
Typical On-The-Job Training Needed to Attain Competency	Moderate-term on-the-job training
2016 Employment	10,700

Occupations within this group require significant experience and are at least semi-skilled if not skilled (counting the experience and training time together).  The only other occupation in the group is Gambling Monitor (DOT 343.367-014).  The plurality of those jobs do exist in government service, the OOH states:

Gaming surveillance officers and gaming investigators held about 10,700 jobs in 2016. The largest employers of gaming surveillance officers and gaming investigators were as follows:

Local government, excluding education and hospitals	47%
Gambling industries (except casino hotels)	25
Casino hotels	19
State government, excluding education and hospitals	4
Spectator sports	2

When wandering outside of the DOT-designated industry, we must remain cognizant that while the industry designation is an integral and inseparable part of the occupational title, the DOT states:

In compiling information for the DOT, analysts were not able to study each occupation in all industries where it occurs. The industry designation, therefore, shows in what industries the occupation was studied but does not mean that it may not be found in others. Therefore, industry designations are to be regarded as indicative of industrial location, but not necessarily restrictive.

That last sentence is the out that vocational experts can use to evade restricting the occupations to the industry designated. 

The Nail in the Coffin - Surveillance Systems Monitor

A recurring question that comes up in Social Security disability hearings -- are there any sedentary unskilled jobs with occasional use of the hands?  I have heard the question and litigated the number of jobs -- several times.  The vocational experts have identified surveillance-systems monitor.  See Meanel v. Apfel and Beltran v. Astrue.  In Meanel, the vocational expert testified to 1,000 to 1,500 jobs in the Los Angeles region  as an SSM, which the court affirmed over statistical objection that the number was patently false.  In Beltran, the vocational expert testified to 1,680 jobs in the nation as an SSM, which the court found insignificant.  Not may case, but Golowach v. Colvin reports vocational expert testimony of 34,000 jobs -- a 2016 USDC decision out of New York.

Vocational experts give widely different numbers for what should be nothing more than a statistically knowable fact.  Opinions can vary an estimate but the numbers do not vary as the witnesses would have the agency and the courts believe.  The fact of the matter is that the occupation represents very few jobs, if any. 

The SSM is a low-level security job.  It is unskilled but carries a reasoning level of 3.  It isn't simple but it is unskilled.  The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles confirms the selected characteristics, including reaching, handling, and fingering.  But that doesn't give job numbers.  The DOT and SCO inform the world that the occupation existed in the wild at some point in time -- but how many?

The O*NET replaced the DOT.  The DOT was last updated in 1991.  The O*NET was last updated in 2010.  Pick your data source. 

The O*NET places the SSM occupation in two different SOC codes:

Surveillance-System Monitor. 379.367-010 33-9031.00 Gaming Surveillance Officers and Gaming Investigators 33-9099.00 Protective Service Workers, All Other

The O*NET describes protective service workers, all other as representing 114,000 jobs.  It consists of 5 different DOT codes.  Aggregating and pretending that all the occupations represent roughly the same number of jobs, we get 22,800.  Golowach looks reasonable, if aggregation is the game. 

Protective service workers, all other includes the sub-group:

33-9099.02    Retail Loss Prevention Specialists

That code represents a single DOT code -- 376.137-010    Manager, Internal Security.  The O*NET says that this occupational group represents 114,000 jobs.  Following the aggregation model, we now divide by six.  Golowach is losing ground. 

The gaming surveillance officers doesn't add to the unskilled SSM total.  The O*NET reports that this occupational group represents work with a specific vocational preparation of 4 to < 6 -- the work is semi-skilled to skilled.  That excludes the unskilled SSM. 

Back to the DOT description, the DOT industry designation is government service.  Four of the occupations in the 33-9099 list share that industry designation -- government service.  The national employment matrix states that all levels of government employ 30,800 protective service workers, all other.  The federal government employs about 4,800 workers in 33-9099. 

The feds employ over 3,750 deputy marshals and criminal investigators.  That leaves a possible 1,000 SSM jobs at the federal level and only if there are no polygraph examiners in federal employment.  Whether states would employ SSMs in public transportation terminals is a reasonable question.  But states employ 7,300 workers in 33-9099.  Local government employs 18,700 workers in 33-9099 but that includes school bus monitors, community service patrol officers, and polygraph examiners. 

While it makes sense that transportation centers have eyes watching in this age of terrorism, the prospect that these are unskilled workers not trained in detecting suspicious behavior falls outside the pale of reasonable.  I have encountered vocational experts that refuse to identify this occupation because it does not exist as an unskilled occupation in significant numbers.  Until that trend becomes a universal truth, representatives will have the obligation to cross the errant, misinformed, or deceitful vocational experts to show their work statistically, not viscerally. 

Beltran v. Astrue

On May 2, 2012, the Ninth Circuit decided Beltran v. Astrue.  Attorneys that handle Social Security disability cases consider the issue of signficant number of jobs (SNOJ) in the economy to constitute the Holy Grail.  Pursued and promised but never quite attained.  This case is a baby step closer to that Holy Grail. 

As the third attorney on the case, I had some reluctance to pursue the SNOJ issue.  This nuanced issue typically requires finesse and a perfect record.  The record had some traps but overall a tip in favor of pursuit.  The ALJ in the case denied Beltran disability insurance benefits as of her date last insured.  The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment.  The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits. 

SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage.  Medi-Cal grants access to emergency rooms and public clinics and hospitals.  The private medical providers do not treat Medi-Cal recipients. 

SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status.  Medicare grants access to doctors and hospitials.  The private medical providers do treat Medicare recipients.  For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care. 

The case did have a couple of problems.  Had I represented Beltran at the District Court level, I would have included a borderline age situation.  Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl.  Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits.  What I perceived as an error turned out to bring good fortune to the case. 

And the real reason to blog about this case ... the strident dissent from Judge Ikuta.  In April, the Ninth Circuit issued a decision in Molina v. Astrue.  That decision broadened the use of the harmless error doctrine.  The author of that opinion, Judge Ikuta.  The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration.  Harmless error means that the ALJ decision contains error.  Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality. 

Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence.  Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions.  The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole.  During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense.  In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court. 

In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran.  Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis.  First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later.  Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence.  The footnote represents a misstatement of law and fact. 

The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience.  While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age.  The Commissioner's regulations call this the ability to adjust to other work.  For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base.  For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base.  Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired.  The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number.  That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.

Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire.