The ALJ takes
testimony from the medical expert. The
doctor gives fairly reasonable testimony and this ALJ usually accepts this
expert’s testimony. The ALJ eventually
gets to the vocational expert and asked the hypothetical question including all
of the medical expert’s limitations. The vocational expert testifies in the
ordinary course that the claimant cannot perform his/her past relevant work.
Because of an unfavorable vocational profile in terms of age, you expect that
the person will in fact grid out. But the vocational expert has a surprise, the
identification of transferable skills to other work at step five of the
sequential evaluation process. The task
at hand requires cross-examination of the vocational expert.
1. The Concept of Transferability
The sequential
evaluation process requires that the ALJ compare that residual functional
capacity finding to the demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(f); 416.920(f). The ALJ generally uses the services of a
vocational expert to answer that question.
See 20 C.F.R. §§ 404.1566(e); 416.966(e).
The
Commissioner defines transferability. 20
C.F.R. §§ 404.1568; 416.968. Those regulations provide:
(d) Skills
that can be used in other work (transferability)—
(1) What we mean by transferable
skills. We consider you to have skills
that can be used in other jobs, when the skilled or semi-skilled work
activities you did in past work can be used to meet the requirements of skilled
or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of
occupationally significant work activities among different jobs.
(2) How we determine skills that can
be transferred to other jobs.
Transferability is most probable and meaningful among jobs in which—
(i) The same or a lesser degree of
skill is required;
(ii) The same or similar tools and
machines are used; and
(iii) The same or similar raw
materials, products, processes, or services are involved.
20
C.F.R. §§ 404.1568; 416.968.
2.
Social Security Ruling 82-41
Social
Security Ruling 82-41 provides a policy statement about transferable
skills. The ruling clarifies that the
issue of transferability of work and will provide a decisive measure when the
presence of transferable skills changes the Appendix 2 directed decision from
“disabled” to “not disabled.”
Transferability of skills will generally not arise for younger
individuals, individuals closely approaching advanced age with at least a light
level of exertion, or individuals of advanced age capable of medium
exertion. See generally 20 C.F.R. part
404, subpart P, Appendix 2.
The
Commissioner defines a skill as knowledge of a work activity requiring the
exercise of significant judgment that goes beyond carrying out simple job duties.
A claimant acquires job skills through performance of occupations which require
more than 30 days to learn. Job skills arise in the proper and approved
application of knowledge. Job skills always give an advantage over unskilled
workers in the labor market. Job skills
do not transfer to or from unskilled work activity.
Social
Security Ruling 82-41 repeats the critical word found in the regulation,
“meet.” In order to have transferable skills, the claimant must have the
ability to perform all of the skilled and semi-skilled aspects of the target
occupation without additional training. Additional training would imply that
the person does not “meet” the requirements of the other work. The ruling emphasizes that worker traits do
not provide transferable skills. Worker traits used in skilled or semi-skilled
activities do give rise to the presence of skills. Social Security Ruling 82-41 makes the
observation that skills would generally not transfer from semi-skilled work
such as chauffeur, some sewing-machine operators, room service waiters, or
nurse aide.
Social
Security Ruling 82-41 repeats the regulatory requirements for (1) the same or
lesser degree of skill; (2) same or similar tools and machines are used; and
(3) the same or similar raw materials, products, processes, or services are
involved. The ruling emphasizes that “a complete similarity of all these
factors is not necessary.” Social
Security Ruling 82-41 repeats the regulatory criteria for little, if any, vocational
adjustment in terms of tools, work processes, work settings, or industry for
individuals at or over the age of 55 limited to sedentary work and for
individuals at or over the age of 60 limited to light work.
3.
Materials Outside the Regulations and
Ruling
In studying
ways in which to revise the outdated Dictionary
of Occupational Titles, the Commissioner set out a blue ribbon panel to
explore the baseline established by the DOT.
See http://ssa.gov/oidap/.
The Committee issued significant reports by subcommittee. See http://ssa.gov/oidap/panel_documents.htm. One of the appendixes concerned the subject
of work experience. See http://ssa.gov/oidap/Documents/AppendixD.pdf. The subcommittee stated that the “experts
unanimously agree that the current SSA definition for TSA (transferability of
skills analysis) found in the CFR is comprehensive and remains useful.” Id.
at page D-43. In restating the three
criteria for assessing transferability, the subcommittee parenthetically noted
the DOT counterpart for the data point.
The same or less degree of skill refers to SVP (specific vocational
preparation). The same or similar tools
and machines refer to work fields. The same
or similar raw materials, products, processes, or services refer to MPSMS
(materials, products, subject matter, and services). Id.
The
recognition of the state of the art or generally accepted practices, especially
the unanimous consensus of the experts consulted is the historical reference
point. The learned texts agree, “work
filed and MPSMS codes in the DOT squarely fit the SSA transferability
definition the CFR as it applies to disability.” Career
Development, Employment, and Disability in Rehabilitation, Strauser, p. 245
(Springer Publishing Co. 2014). SkillTRAN publishes its view of
transferability in full agreement with Strauser and the OIDAP
subcommittee. See http://www.skilltran.com/online/TSAprocess.htm. So does the wiki. See http://en.wikipedia.org/wiki/Transferable_skills_analysis. Use of SVP, work fields, and MPSMS codes has
long stood as the only acceptable methodology.
See “Transferable Skills Analysis and Vocational Information During a
Time of Transition” Journal of Forensic
Vocational Analysis, Vol. 6(1), Truthan, J.A. & Karman, S.E. (2003).
Similar work
fields and MPSMS codes means the first two digits. See http://www.skilltran.com/online/TSAprocess.htm. According to Strauser, the presence of similar work
fields and similar MPSMS codes requires moderate training. Career
Development, p. 255. Strauser relies
on the SkillTRAN – OASYS methods. Id.
That method carries the caveat that generally transferable skill with
similar work fields and MPSMS codes that “Some learning of essential job duties
is likely to be necessary.” Id.
That means that the “meet” requirement of the regulation is not
met. 20 C.F.R. §§ 404.1568(d)(1).
The use of
work fields and MPSMS codes prevents the use of occasional and incidental parts
of an occupation as a fulcrum upon which to lever a finding of
transferability. See Social Security
Ruling 82-41. Transferability does not exist between a
nurse and an appointment clerk when using the universally recognized
methodology of work fields and MPSMS codes.
This analysis
relies upon the plain text of the regulation is understood by the vocational
rehabilitation community. The regulations belong to the Commissioner and should
in the ordinary course get construed by the Commissioner first. Prior to
October 2014, the Commissioner had not construed the transferability of skills
regulations and had actively sought to limit application of work fields and
MPSMS codes. See e.g. Garcia v.
Astrue, 2012 WL 4091847, at *7 n.6 (E.D. Cal. Sept. 17, 2012) (while the
Truthan and Karman article indicates that a researcher of Transferable Skills
Analysis had “asserted the use of Work Field and MPSMS as the only true method
for transferable skills analysis,” “this assertion does not support Plaintiff’s
contention that the MPSMS is the only method to address transferable skills”).
4.
POMS DI 25015.017
On October 6,
2014, the Commissioner published an interpretation of the skills regulation to
assess and find transferability of skills.
POMS DI 25015.017 (TN 5 (10-14)) (effective October 6, 2014). The Commissioner first repeats the definition
of transferability found in the regulations.
POMS DI 25015.017.A. The Commissioner
defines materiality of the transferability of skills analysis (TSA) when
application of a finding of “skills not transferable” would result in a
directed finding of “disabled.” POMS DI
25015.017.B. The Commissioner again
defines transferability with the regulatory criteria, noting that a complete
similarity of skills level, work tools and machines, and raw materials,
products, processes, or services is not necessary. POMS DI 25015.017.C.4.
The
Commissioner describes the discrete steps in performing a TSA. POMS DI 25015.017.D. The ALJ must identify the work past relevant
work (PRW). Step 1. The ALJ must review the job description and
note the “processes, tools, machines, and materials used and the
products or services.” Step 2 (emphasis
original). Step 3. The Commissioner directs the search for
occupations related to the claimant’s past relevant work using the same or
similar:
1.
guide
for occupational exploration (GOE) code;
2.
materials,
products, subject matter, and services (MPSMS) code;
3.
work
field (WF) code;
4.
occupation
group (first three digits of DOT code); or
5.
industry
designation.
Step
4.
The Commissioner
directs the making of a list of all possible occupations, ruling out unskilled
occupations, ruling out occupations with higher specific vocational preparation
time, and ruling out occupations that fall outside of the claimant’s residual
functional capacity. Step 5. The Commissioner directs comparison of the
DOT description of the job duties of the claimant’s past relevant work,
including composite jobs, to the target occupation. Step 6.
The Commissioner directs the making of a judgment about whether job
skills gained in past relevant work have use and other work within the physical
and mental residual functional capacity.
Step 7. The Commissioner directs
the Social Security Administration to support the decision with a brief
statement if skills are not transferable.
If the Social Security Administration finds skills are transferable, the
decision-maker must identify both of the transferable skills and the
occupations to which those acquired work skills transfer. Step 8.
The Commissioner includes the caveat to generally cite at least three
occupations when documenting the capacity for other work, leaving open the
possibility of citing less than three occupations if the agency can document a
significant number of jobs in the national economy.
The Commissioner
provides the additional tip that skills are likely to transfer from highly
skilled occupations, occupations consisting of many separate tasks, or
occupations with skills applicable across a number of industries. Skills are
unlikely to transfer from highly specialized or technical work, or from work in
isolated vocational settings. POMS DI
25015.017.E.
The Social
Security Administration will only consider skills demonstrated in past relevant
work. Transferable skills will not arise out of work that did not constitute
past relevant work (recency, duration, and substantial gainful activity), nor
will they arise from educational experiences, hobbies or interests, or
volunteer work. POMS DI 25015.017.E.1. The Commissioner construes the regulation to
include consideration of six factors:
1.
types
of tasks, materials, production, processes or services;
2.
types
of tools or machines used;
3.
composite
jobs;
4.
degree
of judgment required beyond carrying out simple duties;
5.
work-setting
and/or industry; and
6.
the
claimant’s description of PRW (as opposed to the DOT description).
Id.
The
Commissioner construes the regulation to preclude consideration of three
factors, emphasizing “Don’t”:
1.
rely
on generic occupational titles;
2.
assume
that an individual acquired all skills listed in the DOT occupation; or,
3.
discount
skills acquired that are not listed in the DOT.
Id.
The Commissioner lists 12 occupations
likely to have transferable skills to other light work:
1.
Auto
repair
2.
Cooking
3.
Electrician
4.
Heavy
equipment operator
5.
Inspecting
6.
Law
enforcement
7.
Machining
8.
Maintenance
mechanic
9.
Master
carpenter
10. Nursing
11. Plumbing
12. Sales
POMS
DI 25015.017.E.2.
The
Commissioner lists three occupations likely to have transferable skills to
sedentary or light work:
1.
Assembly
2.
Clerical
3.
Supervisor
POMS
DI 25015.017.E.3.
The
Commissioner emphasizes that nurse’s aides, specialized truck driving, and
unusual or isolated types of work do not generally give rise to the presence of
transferable skills. POMS DI
25015.017.E.4. This provision points
back to Social Security Ruling 82-41 for the proposition that occupational
titles or skeletal descriptions do not provide sufficient information upon
which to assess transferable skills. Id.
The Commissioner includes in her construction of the regulatory paradigm
that the heightened burden of having very little, if any, locational adjustment
in terms of tools, work processes, and industry occur for individuals age 55 or
older limited to sedentary work or individuals age 60 or older limited to light
work. POMS DI 25015.017.E.5.
5.
What Do these Codes Mean?
The literature
suggests that the vocational inquiry into the presence of transferability of
skills should focus on SVP, work fields, and MPSMS codes. The Commissioner
interpreted the regulations as expanding that list to include
1.
guide
for occupational exploration (GOE) code;
2.
materials,
products, subject matter, and services (MPSMS) code;
3.
work
field (WF) code;
4.
occupation
group (first three digits of DOT code); or
5.
industry
designation.
The question
of what these codes are, what they represent, and where they can be found forms
the nucleus of the next logical avenue of inquiry. All of this information is found in the Dictionary of Occupational Titles and
its various companion publications. The
DOT forms the subject of administrative notice as a source of job information.
20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1). The Handbook for Analyzing Jobs defines the terms and establishes the
benchmarks for everything in the DOT and its companion publications. Revised
Handbook for Analyzing Jobs, introduction (Dept. of Labor 1991).
The RHAJ
defines the Guide for Occupational
Exploration as providing information about interests, aptitudes,
adaptability’s, and other requirements for occupational groups. The GOE has the express purpose of helping
people understand themselves realistically in regard to their ability to meet
job requirements. The GOE lists 12
primary categories of interest. The GOE
breaks down each of the 12 categories into subcategories. RHAJ chapter 11.
The RHAJ
describes MPSMS codes as the final link in describing (1) what the worker does;
(2) what gets done; and (3) to what. The answer to “what” is the MPSMS codes.
The MPSMS code provides the classification of the object of the work. The RHAJ
contains 48 groups divided into 336 categories classified by three digit
codes. An occupation will have between
one and three separate MPSMS codes.
The RHAJ
describes work fields as answering that second question, what gets done. They
reflect the purpose of the job. The RHAJ
lists 97 work fields, six of which represent combination fields.
The first
three digits if the DOT code come from the DOT.
That part is that plain. The
first three digits break down the world of work into more precise types of
occupations. All occupations starting
with the number 2 represent clerical and sales occupations. The first two digits of 25 represent sales
occupations, services. The first three
digits 253 represent sales occupations, utilities.
The industry
designation follows the name of the occupation’s name. For some occupations, it represents a
differentiation of two different DOT codes with the same name. In others, it just represents the industry
designation for use in a transferability of skills analysis under the DOT
rubric. The RHAJ provides for use of the
Standard Industrial Classification Manual
(SIC) codes as well. The SIC gave way to
North American Industry Classification Systems (NAICS) after the North American
Free Trade Agreement between the United States, Canada, and Mexico. POMS DI 25015.017 does not state whether
industry designation follows the DOT, the SIC, or the NAICS
classification. The SIC is outdated and
unused. The DOT is outdated but subject
to administrative notice. The NAICS is
used by the County Business Patterns and the Occupational Outlook Handbook, but
the subject of administrative notice. 20
C.F.R. §§ 404.1566(d); 416.966(d).
6.
The Cross
The
regulation, ruling, and POMS all provide that the transferability of skills
analysis need not have “complete similarity of all of these factors” in order
to find transferability of skills. That leaves open whether the finding of
transferability of skills must have some similarity in the factors as described
by POMS. These data points provide
fertile ground for concrete cross-examination of a vocational expert based upon
differences in the GOE codes, MPSMS codes, work field codes, digits of the DOT
code, and industry designations.
The first
question to ask focuses on the vocational expert’s methodology for identifying
occupations subject to the transferability of skills analysis. If the
vocational expert provides amorphous testimony that does not identify a
methodology but instead describes the dimensions of the black box of expertise,
the representative must ask the vocational expert whether he/she used GOE
codes, MPSMS codes, work fields, occupational group codes from the DOT, or the
industry designation either from the DOT or the NAICS. If the vocational expert testifies that
he/she did not use the search methodology described by POMS, then the
representative should move to strike the testimony as violating agency policy.
Testimony that violates agency policy does not constitute substantial evidence.
Social Security Ruling 00-4p.
If the
vocational expert did use the methodology described in POMS, the next set of
questions should seek out a statement of each and every code from the past
relevant work and from the target occupation of the transferability of skills
analysis. The testimony may get tedious and long, but the existence or
non-existence of transferable skills means the difference between a favorable
and an unfavorable decision whenever the issue is material. If the ALJ states that the case is taken too
much time, the representative should ask for a continuance to continue to
explore the complex issues. The representative should remind the ALJ that the
regulations specifically describe whether work skills can be used in other work
as a “complex issue.” 20 C.F.R. §§
404.1566(e); 416.966(e). Fundamental
notions of due process require care in the examination of witnesses on complex
issues especially where the Commissioner has provided a detailed policy
interpretation of the regulations. 20
C.F.R. §§ 404.1568(d); 416.968(d); POMS DI 25015.017. If the vocational expert testifies to the
existence of transferable skills, the failure to cross-examine on that issue
will fall below the standard of care for a competent representative.
7.
Application of POS to Pending Cases
The Commissioner
contends that the ALJ need not comply with POMS not in effect when the ALJ made
its decision or that the ALJ need not comply with POMS ever. The Commissioner forbids the ALJ from relying
on the testimony of a vocational expert that deviates from agency policy. Social Security Ruling 00-4p, Evidence that
Conflicts with SSA Policy. The
Commissioner makes the point more stridently that all levels of the agency
adjudication must follow not only the regulations and rulings but also POMS and
HALLEX. Social Security Ruling 13-2p, ¶
15. The statements in the rulings bind
the ALJ. Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th
Cir. 2009). Because the two rulings
incorporate agency policy into binding status, the provisions of POMS DI 25015.017 bind the agency
adjudicators in Court.
Even if not
binding, the interpretation of the regulation by POMS provides a binding
interpretation of the regulation unless that interpretation is clearly
erroneous. Auer v. Robbins, 519 U.S. 452, 462-463 (1997). Because the Commissioner interprets his own
regulation, no lesser form of deference applies. Bassiri v. Xerox Corp.,
463 F.3d 927, 930-931 (9th Cir. 2006).
POMS constitutes the fair and considered judgment of the agency outside
the influence of the boundaries of this or any other dispute. The Circuit Court uses POMS as a basis for
giving POMS a persuasive interpretation of an ambiguous regulation even if not
judicially enforceable. Kennedy v. Colvin, 738 F.3d 1172,
1177-1178 (9th Cir. 2013) citing Skidmore
v. Swift & Co., 323 U.S. 134 (1944). Giving POMS persuasive force as a fair and
considered judgment of the Commissioner, the Court should find that POMS
explains the ambiguities in the regulation to impose an obligation to consider
facially GOE, MPSMS, work fields, the DOT number, and the industry.
A change in
the law affects all pending cases, not just pending before an ALJ. Combs v. Commissioner of Social Security,
459 F.3d 640, 656 (6th Cir. 2006) (en banc) (applying the deletion of the
obesity listing to cases pending in Court even though the ALJ made a decision
that did not conform to Appendix 1, Listing 9.09). When an interpretation of stable law changes,
that interpretation applies to all pending cases in the absence of clear intent
to the contrary. See generally Harper v. Virginia Dept. of Taxation, 509
U.S. 86, 97 (1993) (holding “when this Court applies a rule of federal law to
the parties before it, that rule is the controlling interpretation of federal
law, and must be given full retroactive effect in all cases still open on
direct review and as to all events, regardless of whether such events predate
or postdate our announcement of the rule”).
The Ninth
Circuit enforces the law in effect at the time of the Court’s decision. Ball
v. Massanari, 254 F.3d 817, 820-821 (9th Cir. 2001) citing Landgraf v.
USI Film Prods., 511 U.S. 244, 245, 269 (1984). When an agency issues an
interpretation of a statute or regulation, the Court must defer to that new
interpretation, even if it conflicts with prior decisions of the Court of
Appeals. Garfias-Rodriguez v. Holder, 702 F.3d 504, 512-514 (9th Cir.
2012) (en banc). The Court affirmed that it will defer to an agency
interpretation of an ambiguous statute even if that interpretation conflicts
with pre-existing circuit holding. Garfias-Rodriguez relies on National
Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S.
967, 982-983 (2005). Montgomery Ward
& Co. v.FTC, 691 F.2d 1322, 1333 (9th Cir. 1982) sets out a five-factor
test for retroactivity:
(1) whether
the particular case is one of first impression, (2) whether the new rule
represents an abrupt departure from well established practice or merely
attempts to fill a void in an unsettled area of law, (3) the extent to which
the party against whom the new rule is applied relied on the former rule, (4)
the degree of the burden which a retroactive order imposes on a party, and (5)
the statutory interest in applying a new rule despite the reliance of a party
on the old standard.
The interest
in the even-handed resolution of questions concerning eligibility for
disability benefits also cuts in favor of retroactive application. The new interpretation
applies retroactively under Montgomery Ward and is fairly raised by the
parties. Garfias-Rodriguez, 702 F.3d at 520. The Commissioner has no legitimate interest
in defending an ALJ decision that violates the Commissioner’s fair and considered judgment about how the
agency makes a transferability of skills analysis. More importantly, POMS does not represent a
change in the law. It reflects a reasoned and considered interpretation of the
regulations promulgated by the Commissioner. The courts should always defer to
the Commissioner’s interpretation of her own regulations.
Please note that
the scope and application of the concept of deference to the agency
interpretation of its own regulations would require a separate 90 minute
discussion. The scope of Auer deference varies from circuit to
circuit and requires specific research for application of that issue within
those states. Similar, the scope of Brand X deference varies from circuit to
circuit and requires a specific research for application of that issue within
those states.
8.
An Example
Assume an
individual with past relevant work as a nurse.
Assume the person is under 55. When
asked for other work, the vocational expert testified:
if we can be a
little broader with industry in that – […] – methods and all that, I do think
that appointment clerk, which is an SVP 3, would be available. There are not skills required for this
occupation. And oftentimes they are
found within the health care industry, setting appointments. They’re also found within retain but that’s
strictly a (sic) setting appointments.
The
vocational expert stated:
Again this is
SVP 3 so I’m going to be looking at very basic organizational skills, decision
making skills, basic recordkeeping skills, the ability to use typical office
equipment, phone, fax, that sort of thing.
The
vocational expert testified:
Number one is
Registered Nurse generally are less involved with direct patient care and do --
although she was more involved, and I understand that, they do make
reports. Oftentimes they'll schedule
workflow, that sort of thing.
And then in
addition to that, based on 1E and the testimony today, she had a period of time
where she was actually doing more of the secretary, medical secretarial work
for about almost three months, it looks like, from February 3rd of 2010 through
April 22nd.
The
vocational expert stayed with the presence of organizational skills, use of
office equipment, use of a pen or pencil to chart, and knowing how to use a
telephone. The vocational expert
clarified that organizational skills meant “keeping your desk organized as an
appointment clerk.” The vocational
expert testified that the skilled nature of nursing required the employee to be
“highly organized, very very good complex decision making” as compare to the
lower skill level of an appointment clerk with “very limited skills and so
basic.” When asked for the specific organizational skills
of an appointment clerk, the vocational expert testified:
Organizing,
keeping the records organized, keeping appointments organized, keeping your
daily work flow organized. I have to
make these X number of appointments, so I need to call X number of people. I'm
going to call them in this order. This
person works so I need to move this person down to the afternoon so
I can contact -- so that I can reach them when I contact them. Very basic
organizational skills, nothing highly
complex. But they are there.
The two
occupations do not have a same or similar GOE, MPSMS, WF, first three digits of
the DOT number, or the DOT industry designation. What those occupations have in common is the
ipse dixit of the vocational expert that the skills transfer across wholly
dissimilar GOE, MPSMS, WF, first three digits of the DOT number, or the DOT
industry designations. The work of a general
duty nurse carries the designations of:
1.
GOE
code 10.02.01 nursing;
2.
MPSMS
code 924 nursing, dietetic, and therapeutic services;
3.
WF
code 294 health caring – medical;
4.
First
three digits of the DOT code 075 registered nurses); and
5.
DOT
industry medical services.
The
occupation of an appointment clerk has the following characteristics:
1.
GOE
code 07.04.04 reception and information giving;
2.
MPSMS
code 890 general business, finance, insurance, and real estate;
3.
WF
code 231 verbal recording-recordkeeping;
4.
First
three digits of the DOT code 237 (information and reception clerks); and
5.
DOT
industry clerical and kindred services.
The
Commissioner takes administrative notice that nursing occupations have a
likelihood to transfer to other light work.
POMS DI 25015.017.E.2. The
Commissioner does not include nursing in the skills likely to transfer to other
sedentary or light work. POMS DI
25015.017.E.3.
As of the
writing of this article, the case described in this example is pending in
Court. The Court issued a decision
before publication of POMS DI 25015.017.
The motion to reconsider is based on publication of that interpretation
less than 28 days after the Court entered judgment.
Available in full at http://www.skilltran.com/TSATransition.htm.
