Achilles Heel, Vocational Expert Cross-Examination, NOSSCR June 2017

 

Copyright claimed 2017 Lawrence Rohlfing

Shameless Plug - Vocational Expert Cross-Examination - at NOSSCR June 2017

Lawrence Rohlfing and Monica Perales will present on Saturday, June 10, at the NOSSCR conference in Washington, DC:

8:00am-9:00am

A. Resolving Your Achilles Heel—Cross-Examining Vocational Experts 

Monica Perales, Esq.
Lawrence Rohlfing, Esq.

This session will examine the nuts, bolts, screws and many other methods of cross-examining vocational experts. The sessions will cover use of the Dictionary of Occupational Titles, Selected Characteristics, the other characteristics, the Occupational Outlook Handbook County Business Patterns, the O*NET, and third party resources. When does the work identified require a bona fide occupational qualification physically, cognitively, emotionally, what kinds of skills does the work require, how to examine on a transferable skills analysis; and how many jobs are there in the national economy for the occupation. This session has tremendous ground to cover. Bring a laptop or other mobile device so you can follow through the available electronic resources. The combined session will last 120 minutes so you may want to bring a snack and a beverage.

This session continues at 9:10 am.

9:10 am-10:10 am

A. Resolving Your Achilles Heel—Cross-Examining Vocational Experts 

Monica Perales, Esq.
Lawrence Rohlfing, Esq.

This session continued from 8:00 am


This session is worth the price of admission to the conference -- by itself.  Show up on Saturday!

No High School, Unskilled Work and the OOH

In our unending quest to put consistency into the adjudicative mode, here is the list of the 74 Occupational Groups, according to BLS, that do not require a high school diploma (or equivalent) and have either no training time or short-term on-the-job training:

SOC Description	Code
Hosts and hostesses, restaurant, lounge, and coffee shop	35-9031
Models	41-9012
Agricultural equipment operators	45-2091
Agricultural workers, all other	45-2099
Amusement and recreation attendants	39-3091
Automotive and watercraft service attendants	53-6031
Bartenders	35-3011
Building cleaning workers, all other	37-2019
Carpet installers	47-2041
Cashiers	41-2011
Cleaners of vehicles and equipment	53-7061
Combined food preparation and serving workers, including fast food	35-3021
Construction laborers	47-2061
Conveyor operators and tenders	53-7011
Cooks, fast food	35-2011
Cooks, institution and cafeteria	35-2012
Cooks, short order	35-2015
Counter and rental clerks	41-2021
Counter attendants, cafeteria, food concession, and coffee shop	35-3022
Crossing guards	33-9091
Cutters and trimmers, hand	51-9031
Derrick operators, oil and gas	47-5011
Dining room and cafeteria attendants and bartender helpers	35-9011
Dishwashers	35-9021
Door-to-door sales workers, news and street vendors, and related workers	41-9091
Entertainers and performers, sports and related workers, all other	27-2099
Farmworkers and laborers, crop, nursery, and greenhouse	45-2092
Farmworkers, farm, ranch, and aquacultural animals	45-2093
Food preparation and serving related workers, all other	35-9099
Food preparation workers	35-2021
Food servers, nonrestaurant	35-3041
Graders and sorters, agricultural products	45-2041
Grounds maintenance workers, all other	37-3019
Helpers, construction trades, all other	47-3019
Helpers--brickmasons, blockmasons, stonemasons, and tile and marble setters	47-3011
Helpers--carpenters	47-3012
Helpers--painters, paperhangers, plasterers, and stucco masons	47-3014
Helpers--production workers	51-9198
Helpers--roofers	47-3016
Hoist and winch operators	53-7041
Home health aides	31-1011
Hunters and trappers	45-3021
Industrial truck and tractor operators	53-7051
Insulation workers, floor, ceiling, and wall	47-2131
Janitors and cleaners, except maids and housekeeping cleaners	37-2011
Laborers and freight, stock, and material movers, hand	53-7062
Landscaping and groundskeeping workers	37-3011
Laundry and dry-cleaning workers	51-6011
Lifeguards, ski patrol, and other recreational protective service workers	33-9092
Loading machine operators, underground mining	53-7033
Machine feeders and offbearers	53-7063
Maids and housekeeping cleaners	37-2012
Material moving workers, all other	53-7199
Meat, poultry, and fish cutters and trimmers	51-3022
Mine shuttle car operators	53-7111
Motion picture projectionists	39-3021
Motor vehicle operators, all other	53-3099
Packers and packagers, hand	53-7064
Parking lot attendants	53-6021
Personal care aides	39-9021
Pipelayers	47-2151
Pressers, textile, garment, and related materials	51-6021
Refuse and recyclable material collectors	53-7081
Retail salespersons	41-2031
Rock splitters, quarry	47-5051
Sewing machine operators	51-6031
Shampooers	39-5093
Slaughterers and meat packers	51-3023
Stock clerks and order fillers	43-5081
Tank car, truck, and ship loaders	53-7121
Taxi drivers and chauffeurs	53-3041
Telemarketers	41-9041
Ushers, lobby attendants, and ticket takers	39-3031
Waiters and waitresses	35-3031

This information corresponds to the information in the Occupational Outlook Handbook. As we have discussed before, the Commissioner of Social Security takes administrative notice of the OOH.   

The Vocational Expert is Not a Statistician

So sayeth the ALJ in a decision to deny benefits.  A claimant may not demonstrate that the vocational expert uttered bogus numbers of jobs by pointing to statistical evidence subject to administrative notice.  We have entered full-force into the world of ipse dixit.  The jobs exist in not just significant numbers but huge numbers because the vocational expert breathed them into existence.

The vocational expert testified -- you know, under oath -- that packers exist at all exertional levels and that 30,000 existed in the national economy at the sedentary range of exertion.  No DOT code, not a sedentary one anyway, just because the vocational expert said so.  That is ipse dixit.

There are 111 DOT codes with the title of "packer."  None of those require sedentary exertion.  Of that accumulation of occupations, 61 of them belong to packers and packagers, hand (SOC 53-7064).  Six belong to machine bearers and off-loaders (SOC 53-7063).  Three belong to the ubiquitous production workers, all other (SOC  51-9199).  The Bureau of Labor Statistics (BLS) scatters the rest in other occupational groups in clusters of eight, nine, eleven, and so forth.  Our intrepid vocational expert identified packager, hand (DOT 920.587-018).  For those so inclined to look it up -- yes, packager, hand requires medium exertion.  It belongs to packers and packagers, hand (SOC 53-7064).  And yes, the claimant has a limitation to sedentary exertion.

I know my way around the DOT, OOH, CBP, O*NET, and their related publications.  How does anyone cross-examine this kind of bile in the context of an administrative hearing that is supposed to last 45 minutes.  This occupation alone takes at least two hours to unpack, pun accidentally discovered and used with glee.

Start with the size of the occupational group of packers and packagers, hand (SOC code 53-7064). BLS put 59 DOT codes inside of the group.  BLS counts jobs, after all, it specializes in labor statistics.  BLS estimates that the occupational group consists of 705,660 jobs as of May 2016.  This is up from 695,000 in May 2014.  Engaging in gross, and statistical improper aggregation, the average DOT code represents circa 12,000 jobs.  Two of the DOT codes in this group require sedentary exertion.

Ampoule sealer (DOT 559.687-014) exists in the pharmaceutical industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

Hand bander (DOT 920.687-030) exists in the tobacco manufacturing industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

First, let's to the O*NET.  This comes from a joint effort of the Department of Labor and the Employment and Training Administration.  The O*NET says that packers and packagers, hand spend time standing on the job:

98

Spend Time Standing — How much does this job require standing?

92    Continually or almost continually 8    More than half the time 0    About half the time 0    Less than half the time 0    Never

The O*NET reports that packers and packagers, hand spend time sitting on the job:

8

Spend Time Sitting — How much does this job require sitting?

0    Continually or almost continually 0    More than half the time 0    About half the time 31    Less than half the time 69    Never

While we get slightly different pictures of the occupational group depending on whether we look at standing or sitting, one conclusion remains consistent.  None of the workers sit more than half the time or continually on the job.

By now, my confidence level in the vocational expert assertion that packing jobs exist at the sedentary range of exertion dwindles.  Let's move to the Occupational Outlook Handbook (OOH), linked at the bottom of the page of the detail report tab in the O*NET for this group.  The OOH puts packers and packagers, hand with other hand laborers and material movers.  The OOH reports employment by industry for each SOC in the group.

On line 45 of the report, we find a report of packers and packagers, hand in the pharmaceutical and medicine manufacturing industry for our ampoule sealer occupation:

                                                                                                                       Percent of
Code              Title                                                                  Employment   Industry

325400          Pharmaceutical and medicine manufacturing   2.8                   1.0
BLS reports employment in thousands, so 2,800 jobs or 1.0% of total industry employment.

But I do remember that the vocational expert told us that packers exist at all levels of exertion.  I suspect that Big Pharm employs a few hand packagers, that medium occupation.  So the number is less than 2,800, probably less than half.  Sealing ampoules is probably a fraction of the packing that goes on in the manufacture of pharmaceutical and medicine.  Most of my clients get most of their medicine in tablet form.

Moving right along to hand bander occupation in the tobacco industry.  The employment projection reports on line 26:

                                                                                                                     Percent of
Code              Title                                                                Employment   Industry

3122000        Tobacco manufacturing                                  0.3                   2.2

Read that again -- 300 packers and packagers, hand in the tobacco industry.  I suspect, having retained my commonsense, that the tobacco industry produces a lot more than cigars and pack a lot more than the banding of cigars with a wrapper.  I could be wrong, but I doubt it.

Let's go to the second item of administrative notice, just in case some ALJ might want to swill the kool-aid of vocational expert ipse dixit.  County Business Patterns reports:

                                                                                                             Paid
Geograph.    NAICS     Industry                                              Year    Employment

United States	3122	Tobacco manufacturing	2015		13,872
United States	31223	Tobacco manufacturing	2015		13,872
United States	312230	Tobacco manufacturing	2015		13,872
United States	3254	Pharmaceutical and medicine manufacturing	2015		242,329
United States	32541	Pharmaceutical and medicine manufacturing	2015		242,329
United States	325411	Medicinal and botanical manufacturing	2015		28,950
United States	325412	Pharmaceutical preparation manufacturing	2015		146,113
United States	325413	In-vitro diagnostic substance manufacturing	2015		25,818
United States	325414	Biological product (except diagnostic) manufacturing	2015		41,448

Applying 2.2% of industry employment for tobacco manufacturing yields 305 jobs.  Check.

Applying 1.0% of industry employment for pharmaceutical and medicine manufacturing yields 2,423 jobs.  Slightly lower, but check.  We could back out jobs in codes 325413 and 325414 and reduce the number of jobs by 760, but at this point, we don't have to.

I have one request from the ALJ corps.  Don't place productivity as the end all and be all of the process.  Insist on a level of honesty and integrity that passes the disgusting test.  This example of garbage testimony and equally garbage finding of fact -- just disgusting.

The Five-Day Rule

Taking a break from the  vocational issues that have dominated this blog lately.  On May 5, 2017, the five-day rule for the admission of evidence became effective.  We explore the boundaries and implications of the rule. 

20 CFR §§ 404.935(a) and 416.1436(a) provide in relevant part that:

Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in §404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

SSA states the obligation in the alternative.  Either submit the evidence five business days before the hearing or inform the ALJ of the existence of the evidence five business days before the hearing.  If the representative learns of new evidence and promptly informs the ALJ within five days of the hearing while contemporaneously making the request for records, the representative and the claimant has complied with the regulation. 

The regulations address the failure to comply with the five-day rule to inform or submit.  Subsection (b) states:

If you have evidence required under §404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you did not inform us about or submit the evidence before the deadline because: ...

This subsection confirms the reading of subsection (a).  The ALJ will accept the evidence after the passage of the deadline if the ALJ has not issued a decision and the claimant/representative did not inform the agency about the evidence before the deadline.  We don't get to the conditions for considering the late evidence if the predicate of the syllogism does not apply. 

The solution is self-evident.   Get a list of care providers from the claimant and submit that list to SSA a month or two before the hearing.  If the representative hits a snag in the collection of evidence, the informing the ALJ of the existence of the evidence 45 days ago protects the "late submission."  The regulation does not force an emergency record procurement with the attendant costs to the claimant.  Inform the ALJ of the care providers, all of them, well before the five days expires. 

Social Security Rulings 96-7p and 16-3p

The Commissioner published Social Security Ruling 96-7p to establish the bases on which the agency will assess the credibility of claimants on July 2, 1996.  The Commissioner entitles the interpretive ruling as, Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an individual's Statements.  The ruling uses the words credibility, credible, or other form of the word 52 times.

The Commissioner published Social Security Ruling 16-3p effective March 28, 2016. The purpose of the ruling appears under the heading -- Purpose:

We are rescinding SSR 96-7p: Policy Interpretation Ruling Titles II and XVI Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statements and replacing it with this Ruling. We solicited a study and recommendations from the Administrative Conference of the United States (ACUS) on the topic of symptom evaluation. Based on ACUS's recommendations and our adjudicative experience, we are eliminating the use of the term “credibility” from our sub-regulatory policy, as our regulations do not use this term. In doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character. Instead, we will more closely follow our regulatory language regarding symptom evaluation.

(We discussed this last year.)  There it is -- credibility is a stranger to the regulations.  The character of the person, nestled at the heart of the credibility analysis, has no connection to the two-part analysis of the claimant's subjective perception of limitation on the ability to function.

The question heats up because the courts have thousands of cases pending where the ALJ corps used the credibility analysis from SSR 96-7p to trash the claimant's testimony.  The Commissioner now defends those decisions as compliant with SSR 96-7p and the SSR 16-3p does not apply to decisions made prior to March 28, 2016.  I call BS.

The rulings do not have force of law.  They warrant deference only to the extent that they interpret either the statute or the regulations.  When the rulings interpret the statute or regulations, they receive deference unless plainly erroneous or inconsistent with the statute or regulations.  Quang Han Van v. Bowen; Holohan v. Massanari   Because SSR 96-7p lacks force of law, any compliance with a discarded interpretation of the regulations or statute is irrelevant.  The court does not enforce the ruling; the court enforces the regulation as interpreted by the ruling under the doctrine of deference.  Auer v. Robbins ; see also Social Security Ruling 00-1c (Supreme Court defers to a policy memorandum).

 While the rulings bind the ALJ, a rescinded ruling does not bind anyone.  Because the Commissioner states as a matter of executive discretion that SSR 96-7p does not reflect an accurate reading of the regulation and is actually inconsistent with the regulation, no court should use it for guidance.  The Commissioner informs the public and the court that SSR 96-7p is wrong.  The proper inquiry turns on consistency with the medical evidence.  SSR 16-3p.  To the extent that an ALJ decision rejected limitation testimony based on credibility rather than consistency with the medical evidence, the ALJ erred.  The inquiry must turn to materiality. 

Production Workers, All Other -- Are There Significant Numbers of Unskilled Jobs?

We discuss, again, the often cited occupational group of production workers, all other.  This occupational group travels under the Standard Occupational Classification code 51-9199.  The O*NET lists 1,590 DOT codes in this group.  The Occupational Outlook Handbook moved 60 DOT codes to food processing workers, all other (SOC 51-3099) between 2010 and 2012.  We can prove that another day.  The focus of this article addresses the question of whether unskilled production worker, all other jobs exist in significant numbers.

We start with the concept of administrative notice.  The Commissioner "will take administrative notice" of the OOH.  20 C.F.R. §§ 404.1566(d)(5); 416.966(d)(5).  Because the Commissioner takes administrative notice of the OOH, we can use it to rebut vocational expert testimony.  Since the Commissioner takes administrative notice of the OOH, we need to examine what it says about this huge accumulation of DOT codes:

Production workers, all other

All production workers not listed separately.

• 2014 employment: 236,200
• May 2015 median annual wage: $27,950
• Projected employment change, 2014–24:
  • Number of new jobs: 7,700
  • Growth rate: 3 percent (Slower than average)
• Education and training:
  • Typical entry-level education: High school diploma or equivalent
  • Work experience in a related occupation: None
  • Typical on-the-job training: Moderate-term on-the-job training
• O*NET:
• 51-9199.00 - Production Workers, All Other
• 51-9199.01 - Recycling and Reclamation Workers  

The occupational group requires a high school diploma or equivalent.  That means that the majority of these occupations are unavailable to individuals with a limited or marginal education absent some factor that suggests a higher educational level capacity than achieved in school.  

The occupational group does not require experience.  These are entry-level jobs.  

The occupational group entails moderate-term on-the-job training.  These jobs are not unskilled.  

Are there some unskilled occupations and jobs inside of production workers, all other?  Maybe, but not very many.  The occupational group exists in industries not encompassed by the DOT.  The economy changed between 1977 when some of the DOT codes were last updated and changed again since 1991 when Labor last published the revised DOT.  The OOH is a source of administrative notice; it is listed on the Vocational Expert Handbook as mandatory familiarity for the vocational expert.  But when a vocational expert testifies to 30,000 sedentary unskilled and 100,000 light unskilled jobs in this occupational base, the responsible representative must ask for an explanation.  Ignorance of the OOH just means that the witness cannot provide a reasonable basis for resolving the conflict.