O*NET Slides from San Francisco

The O*NET—Why We Should Use It Now and What it Contains—Cross Examination of VEs

We Already Know That

• 20 C.F.R. §§ 404.1566(d), 416.966(d)

·        Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications.

The Department of Labor

• We Already Know That

• The O*NET uses incumbent surveys to determine the requirements of work.  The Department of Labor intended it to replace the DOT.  The data now granulates into pieces that permit you to determine whether a sit-stand option exists or whether work requires teamwork/contact with others.  Come and see how to use this information before SSA folds it into the upcoming Occupational Information System.

SSA’s Intention for the O*NET

• The OIS will combine Bureau of Labor Statistics (BLS) data with task information from the Department of Labor Occupational Information Network (O*NET), military occupations from the Military Occupational Classification (MOC), and data from BLS’ Occupational Employment Statistics into a web-based, publicly available, information technology platform known as the VIT.  BLS’ Occupational Requirements Survey (ORS) will be the primary source of information on the requirements of work.

·        https://www.ssa.gov/disabilityresearch/occupational_info_systems.html

O*NET Overview

·        The O*NET program is the nation's primary source of occupational information. Central to the project is the O*NET database, containing information on hundreds of standardized and occupation-specific descriptors.

O*NET Overview

·        The database is continually updated by surveying a broad range of workers from each occupation. Information from this freely available database forms the heart of O*NET OnLine, the interactive application for exploring and searching occupations.

O*NET Overview

·        The database also provides the basis for our Career Exploration Tools, a set of valuable assessment instruments for workers and students looking to find or change careers.

O*NET Overview

·        The O*NET is based on the Standard Occupational Classification system. 

Standard Occupational Classification

·        The DOT covers 13,000 codes

·        The SOC covers 840 groups

·        https://www.bls.gov/soc/2010/

O*NET TAXONOMY

·        The O*NET expands the SOC to

·        1,110 occupational groups

·        https://www.onetcenter.org/taxonomy.html

O*NET TAXONOMY

·        The O*NET will update to the

·        2018 SOC and cover

·        1,170 occupational groups

·        https://www.onetcenter.org/taxonomy/2010/soc2018.html

O*NET TAXONOMY

·        The O*NET will Update to the

·        2018 SOC … in about four years

·        https://www.onetcenter.org/taxonomy/2010/soc2018.html

What We Need to Know

• The O*NET is a product of the Department of Labor

• The DOL intended the O*NET to replace the DOT

• Of the 13,000 DOT codes, 10,000 were last updated in 1977

• Of the 1,110 O*NET codes, 100 of them were updated in 2018

What We Need to Know

• The O*NET is the result of a combination of incumbent surveys and vocational analyses

What We Need to Know

• The O*NET crosswalks to all published DOT codes

·        https://www.onetonline.org/crosswalk/DOT/

What We Need to Know

• The O*NET crosswalks to six governmental classifications

·        https://www.onetonline.org/crosswalk/DOT/

What We Need to Know

• The O*NET reflects a nationwide survey of work

• The vocational expert relies on anecdotal local experience

What We Need to Know

• The Department of Labor has more and better data than a vocational expert in your region, period. 
• O*NET Data

• Abilities
• Interests
• Knowledge
• Skills
• Work Activities
• Work Context
• Work Styles
• Work Values

O*NET Data

• Abilities
• Interests
• Knowledge
• Skills
• Work Activities
• Work Context
• Work Styles
• Work Values

O*NET Work Context

• Interpersonal Relationships
• Physical Work Conditions
• Structural Job Characteristics

O*NET Work Context – Interpersonal Relationships

• Contact With Others
• Coordinate or Lead Others
• Deal with External Customers
• Deal with Physically Aggressive People
• Deal with Unpleasant or Angry People
• Electronic Mail
• Face-to-Face Discussions
• Frequency of Conflict Situations
• Letters and Memos
• Public Speaking
• Responsibility for the Outcomes and Results
• Responsible for Others’ Health and Safety
• Telephone
• Work with Work Group or Team

O*NET Work Context – Physical Work Conditions

• Cramped Work Space, Awkward Positions
• Exposed to Contaminants
• Exposed to Disease or Infections
• Exposed to Hazardous Conditions
• Exposed to Hazardous Equipment
• Exposed to High Places
• Exposed to Minor Burns, Cuts, Bites, or Stings
• Exposed to Radiation
• Exposed to Whole body Vibration
• Extremely Bright or Inadequate Lighting
• In an Enclosed Vehicle or Equipment
• In an Open Vehicle or Equipment
• Indoors, Environmentally Controlled
• Indoors, Not Environmentally Controlled
• Outdoors, Exposed to Weather
• Outdoors, Under Cover

O*NET Work Context – Physical Work Conditions

• Physical Proximity
• Sounds, Noise Levels Are Distracting or Uncomfortable
• Spend Time Bending or Twisting the Body
• Spend Time Climbing Ladders, Scaffolds, or Poles
• Spend Time Keeping or Regaining Balance
• Spend Time Kneeling, Crouching, Stooping, or Crawling
• Spend Time Making Repetitive Motions
• Spend Time Sitting
• Spend Time Standing
• Spend Time Using Your Hands to Handle, Control, or Feel Objects, Tools, or Controls
• Spend Time Walking and Running
• Very Hot or Cold Temperatures
• Wear Common Protective or Safety Equipment such as Safety Shoes, Glasses, Gloves, Hearing Protection, Hard Hats, or Life Jackets
• Wear Specialized Protective or Safety Equipment such as Breathing Apparatus, Safety Harness, Full Protection Suits, or Radiation Protection

O*NET Work Context – Structural Job Characteristics

• Consequence of Error
• Degree of Automation
• Duration of Typical Work Week
• Freedom to make Decisions
• Frequency of Decision Making
• Impact of Decisions on Co-Workers or Company Results
• Importance of Being Exact or Accurate
• Importance of Repeating Same Tasks
• Level of Competition
• Pace Determined by Speed of Equipment
• Structured versus Unstructured Work
• Time Pressure
• Work Schedules

O*NET Work Abilities

• Cognitive Abilities
• Physical Abilities
• Psychomotor Abilities
• Sensory Abilities

O*NET Work Abilities – Cognitive Abilities

• Category Flexibility
• Deductive Reasoning
• Flexibility of Closure
• Fluency of Ideas
• Inductive Reasoning
• Information Ordering
• Mathematical Reasoning
• Memorization
• Number Facility
• Oral Comprehension
• Oral Expression

O*NET Work Abilities – Cognitive Abilities

• Originality
• Perceptual Speed
• Problem Sensitivity
• Selective Attention
• Spatial Orientation
• Speed of Closure
• Time Sharing
• Visualization
• Written Comprehension
• Written Expression

O*NET Work Abilities – Psychomotor Abilities

• Arm-Hand Steadiness
• Control Precision
• Finger Dexterity
• Manual Dexterity
• Multilimb Coordination
• Rate Control
• Reaction Time
• Response Orientation
• Speed of Limb Movement
• Wrist-Finger Speed

O*NET Work Abilities – Physical Abilities

• Dynamic Flexibility
• Dynamic Strength
• Explosive Strength
• Extent Flexibility
• Gross Body Coordination
• Gross Body Equilibrium
• Stamina
• Static Strength
• Trunk Strength

O*NET Work Abilities – Sensory Abilities

• Auditory Attention
• Depth Perception
• Far Vision
• Glare Sensitivity
• Hearing Sensitivity
• Near Vision
• Night Vision
• Peripheral Vision
• Sound Localization
• Speech Clarity
• Speech Recognition
• Visual Color Discrimination

Follow Along

·        www.occucollect.com

·        Register your email address

·        Use the code NOSSCR2018

Markers -- 209.587-034

• DOT Narrative: 209.587-034 MARKER (retail trade; wholesale tr.) alternate titles: marking clerk; merchandise marker; price marker; ticket maker Marks and attaches price tickets to articles of merchandise to record price and identifying information: 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. May compare printed price tickets with entries on purchase order to verify accuracy and notify supervisor of discrepancies. ay print information on tickets, using ticket-printing machine [TICKETER (any industry); TICKET PRINTER AND TAGGER (garment)].

GOE: 05.09.03 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 77

Markers -- 209.587-034

• SOC Code: 43-5081
• O*NET Code:  43-5081.02

• https://www.onetonline.org/crosswalk/DOT?s=209.587-034&g=GO

OOH – 43-5081

43-5081 Stock clerks and order fillers
Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Short-term on-the-job training
2016 Employment	2,008,600

43-5081.00 – Stock Clerks and Order Fillers

• This title represents a group of more specific occupations.  For additional information, please select one of the specific occupations below.

o   43-5081.01    Stock Clerks, Sales Floor

o   43-5081.02    Marking Clerks

o   43-5081.03    Stock Clerks- Stockroom, Warehouse, or Storage Yard

o   43-5081.04    Order Fillers, Wholesale and Retail Sales

o   https://www.onetonline.org/link/custom/43-5081.00

43-5081.02 – Marking Clerks

·        Print and attach price tickets to articles of merchandise using one or several methods, such as marking price on tickets by hand or using ticket-printing machine.

·        Sample of reported job titles: In Store Marketing Associate (ISM Associate), Inventory and Pricing Associate, Label Maker, Marking Clerk, Pricing Associate, Scan Coordinator, Ticketer, Warehouse Pricing and Inventory Clerk

o   https://www.onetonline.org/link/custom/43-5081.02 

43-5081.02 – Marking Clerks

Dictionary of Occupational Titles (DOT)

• 209.587-034    Marker
• 216.567-010    Ticket Marker
• 222.387-054    Sorter-Pricer
• 229.587-018    Ticketer

o   https://www.onetonline.org/link/custom/43-5081.02 

43-5081.02 – Marking Clerks

·        Dictionary of Occupational Titles (DOT)

• 209.587-034    Marker                            Light, SVP 2, retail/wholesale
• 216.567-010    Ticket Marker                 Light, SVP 3, wholesale
• 222.387-054    Sorter-Pricer                   Light, SVP 5, nonprofit
• 229.587-018    Ticketer                           Light, SVP 2, textile

o   https://www.onetonline.org/link/custom/43-5081.02 

43-5081.02 – Marking Clerks

·        Work Context

Interpersonal Relationships	%	Response
Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?	60	Constant contact with others
	38	Contact with others most of the time
	0	Contact with others about half the time
	1	Occasional contact with others
	0	No contact with others

43-5081.02 – Marking Clerks

·        Work Context

Interpersonal Relationships	%	Response
Work With Work Group or Team — How important is it to work with others in a group or team in this job?	27	Extremely important
	63	Very important
	8	Important
	0	Fairly important
	1	Not important at all

43-5081.02 – Marking Clerks

·        Work Context

Structural Job Characteristics	%	Response
Consequence of Error — How serious would the result usually be if the worker made a mistake that was not readily correctable?	0	Extremely serious
	10	Very serious
	28	Serious
	18	Fairly serious
	45	Not serious at all

43-5081.02 – Marking Clerks

·        Work Context

Environmental	%	Response
Impact of Decisions on Co-workers or Company Results — What results do your decisions usually have on other people or the image or reputation or financial resources of your employer?	16	Very important results
	38	Important results
	1	Moderate results
	45	Minor results
	0	No results

43-5081.02 – Marking Clerks

·        Work Context

Environmental	%	Response
Exposed to Contaminants — How often does this job require working exposed to contaminants (such as pollutants, gases, dust or odors)?	26	Every day
	8	Once a week or more but not every day
	19	Once a month or more but not every week
	20	Once a year or more but not every month
	28	Never

43-5081.02 – Marking Clerks

·        Work Context

Environmental	%	Response
Physical Proximity — To what extent does this job require the worker to perform job tasks in close physical proximity to other people?	16	Very close (near touching)
	53	Moderately close (at arm's length)
	29	Slightly close (e.g., shared office)
	0	I work with others but not closely (e.g., private office)
	1	I don't work near other people (beyond 100 ft.)

43-5081.02 – Marking Clerks

·        Work Context

Structural Job Characteristics	%	Response
Duration of Typical Work Week — Number of hours typically worked in one week.	19	More than 40 hours
	46	40 hours
	35	Less than 40 hours

43-5081.02 – Marking Clerks

·        Work Context

Postural	%	Response
Spend Time Bending or Twisting the Body — How much does this job require bending or twisting your body?	23	Continually or almost continually
	21	More than half the time
	12	About half the time
	43	Less than half the time
	0	Never

43-5081.02 – Marking Clerks

·        Work Context

Postural	%	Response
Spend Time Climbing Ladders, Scaffolds, or Poles — How much does this job require climbing ladders, scaffolds, or poles?	0	Continually or almost continually
	15	More than half the time
	1	About half the time
	32	Less than half the time
	51	Never

43-5081.02 – Marking Clerks

·        Work Context

Postural	%	Response
Spend Time Keeping or Regaining Balance — How much does this job require keeping or regaining your balance?	3	Continually or almost continually
	13	More than half the time
	0	About half the time
	39	Less than half the time
	46	Never

43-5081.02 – Marking Clerks

·        Work Context

Postural	%	Response
Spend Time Making Repetitive Motions — How much does this job require making repetitive motions?	10	Continually or almost continually
	37	More than half the time
	52	About half the time
	1	Less than half the time
	0	Never

43-5081.02 – Marking Clerks

·        Work Context

Exertional	%	Response
Spend Time Using Your Hands to Handle, Control, or Feel Objects, Tools, or Controls — How much does this job require using your hands to handle, control, or feel objects, tools or controls?	55	Continually or almost continually
	18	More than half the time
	0	About half the time
	11	Less than half the time
	16	Never

43-5081.02 – Marking Clerks

·        Work Context

Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	0	Continually or almost continually
	36	More than half the time
	5	About half the time
	50	Less than half the time
	9	Never

43-5081.02 – Marking Clerks

·        Work Context

Exertional	%	Response
Spend Time Standing — How much does this job require standing?	58	Continually or almost continually
	0	More than half the time
	13	About half the time
	30	Less than half the time
	0	Never

43-5081.02 – Marking Clerks

·        Work Context

Exertional	%	Response
Spend Time Walking and Running — How much does this job require walking and running?	27	Continually or almost continually
	19	More than half the time
	18	About half the time
	36	Less than half the time
	0	Never

43-5081.02 – Marking Clerks

·        Work Abilities, Importance

• Oral Expression — The ability to communicate information and ideas in speaking so others will understand.

·        Importance: 53

43-5081.02 – Marking Clerks

·        Work Abilities, Level

• Oral Expression — The ability to communicate information and ideas in speaking so others will understand.

·        Level: 45

43-5081.02 – Marking Clerks

·        Work Abilities, Importance

• Speech Recognition — The ability to identify and understand the speech of another person.

·        Importance: 47

43-5081.02  – Marking Clerks

·        Work Abilities, Level

• Speech Recognition — The ability to identify and understand the speech of another person.

·        Level: 14

43-5081.02 – Marking Clerks

·        Work Abilities, Importance

• Written Expression — The ability to communicate information and ideas in writing so others will understand.

·        Importance: 41

43-5081.02 – Marking Clerks

·        Work Abilities, Level

• Written Expression — The ability to communicate information and ideas in writing so others will understand.

·        Level: 32

43-5081.02 – Marking Clerks

·        Work Abilities, Importance

• Arm-Hand Steadiness — The ability to keep your hand and arm steady while moving your arm or while holding your arm and hand in one position.

·        Importance: 47

43-5081.02 – Marking Clerks

·        Work Abilities, Level

• Arm-Hand Steadiness — The ability to keep your hand and arm steady while moving your arm or while holding your arm and hand in one position.

·        Level: 38

43-5081.02 – Marking Clerks

·        Work Abilities, Importance

• Finger Dexterity — The ability to make precisely coordinated movements of the fingers of one or both hands to grasp, manipulate, or assemble very small objects.

·        Importance: 50

43-5081.02 – Marking Clerks

·        Work Abilities, Level

• Finger Dexterity — The ability to make precisely coordinated movements of the fingers of one or both hands to grasp, manipulate, or assemble very small objects.

·        Level: 50

43-5081.02 –  Marking Clerks

·        Work Abilities, Importance

• Manual Dexterity — The ability to quickly move your hand, your hand together with your arm, or your two hands to grasp, manipulate, or assemble objects.

·        Importance: 50

43-5081.02 – Marking Clerks

·        Work Abilities, Level

• Manual Dexterity — The ability to quickly move your hand, your hand together with your arm, or your two hands to grasp, manipulate, or assemble objects.

·        Level: 50

I Object to the Vocational Expert's Testimony -- Overruled

The vocational expert responds to a hypothetical question that assumes a limited education, unskilled work experience, limited to sedentary work with occasional superficial contact with coworkers and supervisors.  The vocational expert trots out the usual suspects of occupations aggregating to a million jobs because if you don't want to have to think, well 300,000 here, 200,000 there, and 500,000 in the last one just makes it easy and what the hell, the ALJ doesn't care and 95% of the representatives out there don't know enough to make a peep.  A million jobs  The 48-year old claimant loses.  But you happen to be in the 5%.

1.  Objection, the vocational expert doesn't have training in numbers of jobs.

That objection belongs before the vocational expert testified, not after.  And the truth of the matter is that vocational experts perform labor market surveys and look at employment numbers.  They know more than the public about work.  Their opinion is probative even under the inapplicable strict standards of evidence in court.  Objection overruled.

2.  Objection, the vocational expert testimony lacks foundation, has no support, is unreliable, and pulled out of thin air.

None of those are objections to the admissibility of evidence.  Those are arguments as to weight.  If the vocational expert's testimony is a feather and no evidence exists to counter the vocational expert testimony, the feather outweighs the vacuum by a factor of infinite progression.  That doesn't mean that the ALJ will accept uncontradicted evidence from an agency selected expert.   But the ALJ probably will.  Objection overruled.

3.  Objection, the vocational expert's testimony identifies work that is no longer unskilled or no longer exists.

This is a variation of objection #2.  It does not go to admissibility, it goes to weight.  Present some evidence that weighs more.

4.  Objection, the vocational expert's testimony assumes an accommodation with a sit-stand option.

Now that is an objection because agency policy does not permit consideration of an accommodation in making the assessment at step five of the sequential evaluation process.  SSR 00-1c.  The truth of the matter is that some work permits a sit-stand option as the work exists in the national economy.  Security guards is an example:

Series ID: ORUP1000000000000139

Not seasonally adjusted

Series Title: % of all workers; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: all workers

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2017	Annual	37.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000000000000139

But the ORS does not list any discernible group that contains unskilled work as having that sitting versus standing/walking at will data field.  The absence of data should be read as not allowed not license to make things up.  SSA recognizes that unskilled work requires maintaining body posture to maintain productivity.  SSR 83-12. 

These examples make clear that there is generally not an objection to the vocational expert testimony.  Admissibility is a low bar.  Weight is the correct focus.  Arguing weight requires that the claimant present additional evidence.  Setting that stage requires a set of preliminary questions:

1.  Is your testimony with the data published by the Department of Labor?

a. The Occupational Outlook Handbook
b. The Occupational Information Network
c. The employment projections
d. The occupational employment statistics
e. The current population survey 

2.  Is your testimony consistent with the the data published by the Census Bureau?

a. County Business Patterns

3.  Is your testimony consistent with the DOT industry designations?

4.  Is your testimony consistent with the data fields not contained in the printed SCO but published in the electronic versions of the DOT/SCO (Job Browser Pro, West Law, etc.)?

The response from the ALJ or the vocational expert that the witness relies on experience is this:

5.  How does your experience as a rehabilitation consultant compare to the data gathering capacity and reporting of the Department of Labor or the Census Bureau?

The best tactic is to avoid the use of the "objection."  It is not the right procedure.  The only procedure that has a chance of winning is the introduction of new evidence and then the demand tha that the ALJ resolve the conflict in the evidence.  See question 5:  how does the VE's local and anecdotal experience compare to the statistical prowess of the Department of Labor and the Bureau of Labor Statistics?  They are not in the same league. 

SSR 00-4p and Why the Courts Should Not Grant Auer Deference

We have the administrative notice regulations.  The regulations provide:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

We would expect that the regulation has a predictable application.  Administrative notice accepts as presumed to be true the matters notices through the notice and comment process.  The APA, which may or may not apply in Social Security proceedings but is still instructive, provides that:

When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.

The DOT, CBP, and OOH form the foundation of the Medical-Vocational Guidelines, the "grids."  If the APA applies directly or by analogy, then a party can show that the rule directed by the grids is wrong.  But the agency recognizes that the adjudicator cannot rebut the conclusions directed by the grids.  This means that the ALJ cannot find unskilled work for a 55-year-old claimant limited to light or sedentary work.

That understanding brings the discussion back to SSR 00-4p.  We have already discussed the problem of the ruling attributing to the DOT a description of work as the maximum of each occupation.  In a nutshell, to summarize that post, the DOT describes the occupational definitions as representing the typical way in which work gets done in the occupations analyzed and described.

But SSR 00-4p does something else that is antithetical to SSR 83-5a:  it allows the agency adjudicator to rebut that which the agency has found to be true and presumed to be true through the notice and comment process.  Heckler v. Campbell lays out the scope of administrative notice encapsulated in the grids and in the administrative notice regulations:

The first inquiry involves a determination of historic facts, and the regulations properly require the Secretary to make these findings on the basis of evidence adduced at a hearing. We note that the regulations afford claimants ample opportunity both to present evidence relating to their own abilities and to offer evidence that the guidelines do not apply to them.The second inquiry requires the Secretary to determine an issue that is not unique to each claimant — the types and numbers of jobs that exist in the national economy. This type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing. See American Airlines, Inc. v. CAB, 123 U.S.App. D.C. 310, 319, 359 F.2d 624, 633 (1966) (en banc).

As the Secretary has argued, the use of published guidelines brings with it a uniformity that previously had been perceived as lacking. To require the Secretary to relitigate the existence of jobs in the national economy at each hearing would hinder needlessly an already overburdened agency. We conclude that the Secretary use of medical-vocational guidelines does not conflict with the statute, nor can we say on the record before us that they are arbitrary and capricious.

 Campbell stands for a straightforward application of Chevron deference without applying the doctrine.  Part of that rests at the broad delegation of authority to the Commissioner to promulgate regulations to flesh out the Social Security Act.

As applied, SSR 00-4p permits the agency adjudicator to rebut application of the DOT to a particular fact question -- does a significant number of jobs exist?  That is the second Campbell inquiry:  the types and numbers of jobs that exist in the national economy.   The types and number of jobs is not unique to each claimant.  The types and number of jobs is a stable answer at any given point in time.  SSR 00-4p's grant of authority of an adjudicator to accept evidence contrary to administrative notice does so at the sacrifice of administrative efficiency and has led to the needless hindrance of an overburdened agency.

A second problem arises from the application of SSR 00-4p to the administrative notice regulation -- it carves out the DOT and its companion Selected Characteristics of Occupations as somehow functionally and substantively difference from CBP and the OOH. If anyone has the Census Reports or the occupational analyses prepared for SSA by the states, we should publish them.  But we do have access to CBP through the American FactFinder and BLS publishes the OOH describing all 840 SOC groups either in detail or in a snapshot. 

Under traditional treatment of agency subregulatory publications, the courts grant the power to persuade.  Under the evolving concepts under the Chevron watershed, court grant deference as long as the ruling is not plainly erroneous or inconsistent with the statute or regulation.  SSR 00-4p expands the scope of administrative notice to include the SCO.  The Commissioner can impose more rigorous standards on her adjudicators than either the statute or regulations require.  That deviation from the text of the regulation is a permissible deviation because it does not dampen the rights and legitimate expectations of the potential beneficiaries. 

SSR 00-4p renders administrative notice of CBP and the OOH a nullity.  That use of SSR 00-4p is inconsistent with the text of the administrative notice regulation.  Under either the power to persuade or the grant of deference standard, the Commissioner's resort to SSR 00-4p, as a basis for refusing to take notice and resolve evidentiary conflict with CBP and the OOH, fails.  The courts should not grant either respect or deference to SSR 00-4p vis-a-vis CBP or the OOH. 

Office Helper -- Simple and Repetitive -- No on Both Counts

We spent this week, with a brief detour to look at the deference doctrine, addressing the issue of simple, repetitive tasks where the occupation has a reasoning level of 2.  The circuits are split on the question of whether reasoning level 3 has an apparent conflict with a limitation to simple, repetitive tasks.  This series of posts have the intent to establish the point that reasoning level 2 does not end the inquiry but instead establishes a data point requiring further analysis.  Some skilled occupations have a reasoning level of 2 with and without the temperament for repetitive work.  Some unskilled occupations have a reasoning level of 2 and require dealing with people as an important worker function and as a temperament for dealing with people beyond receiving instructions.  We are now ready to tackle the occupation of office helper and its identification as simple, repetitive work.  We start with the DOT:

DOT Narrative: 239.567-010 OFFICE HELPER (clerical) Performs any combination of following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine. May deliver items to other business establishments [DELIVERER, OUTSIDE (clerical) 230.663-010]. May specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical). May deliver stock certificates and bonds within and between stock brokerage offices and be designated Runner (financial). GOE: 07.07.03 STRENGTH: L GED: R2 M2 L2 SVP: 2 DLU: 81

The first part of the description that belies the simple, repetitive tasks (SRT) mantra is combination.  Office helpers do not perform one task all day long; office helpers perform a combination of job duties all day long.  They furnish; handle incoming mail; they handle the outgoing mail; they act as the conduit for intra-office communication, both oral and written; and they have file clerk responsibilities.  The task elements represent the typical way in which work gets performed in the national economy per the DOT.   The parts of the narrative description following by the word may are not typical work duties.  The DOT describes may functions:

Many definitions contain one or more sentences beginning with the word "May". They describe duties required of workers in this occupation in some establishments but not in others. The word "May" does not indicate that a worker will sometimes perform this task but rather that some workers in different establishments generally perform one of the varied tasks listed. In the example, the three sentences beginning "May notify. . .", "May mount. . .", "May position. . .", are "May" items. Do not confuse "May" items with the "May be designated. . ." sentence which introduces undefined related titles.

 Contrast the may statements with the task statements that precede the may statements:

Task element statements indicate the specific tasks the worker performs to accomplish the overall job purpose described in the lead statement. The sentences in the example beginning with "Turns handwheel . . . ", "Turns screws . . . ", "Sharpens doctor . . . ", "Aligns doctor . . . ", "Dips color . . . ", etc. are all task element statements. They indicate how the worker actually carries out the job duties.

 The SCO provides a better understanding of the occupation:

PHYSICAL DEMANDS:

CL

BA

ST

KN

CO

CW

RE

HA

FI

FE

TA

HE

TS

NA

FA

DP

AC

CV

FV

N

N

O

N

N

N

F

F

F

N

O

O

N

F

N

N

N

N

N

ENVIRONMENTAL CONDITIONS:

WE

CO

HO

WT

NO

VI

AT

MV

EL

HI

RA

EX

TX

OT

N

N

N

N

3

N

N

N

N

N

N

N

N

N

Frequent use of the hands; occasional speaking; occasional hearing; frequent near acuity; office noise.   Nothing surprising, just data.  The electronic files, the data described in the Revised Handbook for Analyzing Jobs (Dept. of Labor 1991) provides more data points and moves the analysis toward that non-SRT conclusion.

APTITUDES:

G	V	N	S	P	Q	K	F	M	E	C
3	4	4	4	4	3	4	3	3	5	5

TEMPERAMENTS: V

The aptitudes for average general learning ability, clerical perception, finger dexterity, and manual dexterity suggest that a third of population never had the innate ability to perform work and a person with impaired cognitive, perception, or dexterity cannot.  The presence of significant dexterity requirements also suggests that this occupation rests at the high end of that unskilled rating.  The temperament rating of V does require further exploration.  The RHAJ defines V as:

Preform a VARIETY of Duties: Involves frequent changes of tasks involving different aptitudes, technologies, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.

Office helpers shift seamlessly from task to task without loss of efficiency or composure.  A limitation to occasional changes in a work setting would eliminate this occupation from consideration. 

The last sentence of the V-definition brings out the issue that I tend to ignore in examining unskilled work -- work field and MPSMS codes.  The OccuCollect DOT-SCO summary report lists the codes for the data:

MPSMS: 890 899 0
WF: 231 011 221

We have to go back to the RHAJ to define the three work fields.

231 VERBAL RECORDING-RECORD KEEPINGPreparing. keeping, sorting, and distributing records and communications, primarily verbal in character but including symbol devices, to communicate and systematize information and data by methods not specifically defined elsewhere. as in Developing-Printing (202), Imprinting (192), Photographing (201), Printing (191), and Stock Checking (22 I). Distinguish from Numerical Recording-Record Keeping (232), where records are also involved but the primary activity is computation.

011 MATERIAL MOVING
Conveying materials manually and by use of machines and equipment, such as cranes, hoists, conveyors, industrial trucks, elevators, winches, and handtrucks. Distinguish from Transporting (013), which involves conveyance of passengers and materials by common carrier.

221 STOCK CHECKINGReceiving, storing. issuing. requisitioning, and accounting for stores of materials and materials in use; involves the physical handling of the materials. Representative job activities covered by this work field include processing records and keeping materials on hand in balance with operational needs; assigning locations and space to items according to size, quantity, and type; verifying quantity, identification, condition, and value of items and the physical handling of items, such as binning, picking, stacking, and counting; receiving. checking. and delivering items; verifying completeness of incoming and outgoing shipments; preparing and otherwise committing stocks for shipment; keeping and conducting inventory of merchandise, materials, stocks, and supplies; filling orders and requisitions; and issuing tools, equipment, and materials.

Following the rabbit down the trail, we need to understand the definition of work fields

Work Fields. a component of Work Performed. are categories of technologies that reflect how work gets done and what gets done as a result of the work activities of a job: the purpose of the job. There are 96 Work Fields identified for use by the USES for classification of all jobs in the economy in terms of what gets done on the job.

Work Fields range from the specific to the general and are organized into homogeneous groups. based on related technologies or objectives. such as the movement of materials. the fabrication of products, the use of data. and the provision of services. Each Work Field is identified by a three-digit code, a brief descriptive title, and a definition. In many cases. a comment is included which enlarges upon the definition and limits or extends the application of the Work Field. Also, cross-references are frequently included which distinguish one Work Field from other related Work Fields

Why aren't Office Helpers simple, repetitive tasks:  (1) they perform a combination of duties; (2) they occasionally interact verbally with other people; (3) they perform a variety of duties; (4) they must have the ability to change duties without loss of efficiency or productivity; (5) they work in three different work fields; and (6) they work with three different categories of unrelated technologies or objectives.  Office Helper is not simple and it is not repetitive (substitute routine here for your case).

Kavanaugh, Deference, the Administrative State, and Smith v. Berryhill

We start with Garco Construction, Inc. v. Speer.  Justices Thomas and Gorsuch dissenting from the denial of certiorari complained that Garco was the right case to revisit and presumably gut if not kill the Auer deference doctrine.  In Perez v. Mortgage Bankers Ass'n, Justice Alito said that he waited for the right case to explore Seminole Rock, the progenitor of Auer deference.  In Decker v. Northwest Environmental Defense Center, Chief Justice Roberts stated that it may be appropriate to review Seminole Rock, but not in that case.  For those keeping score at home, that is four votes to revisit the Seminole Rock-Auer deference doctrine.  Kavanaugh will make five and that my friends is a majority of a nine-person court.  (I write this on the assumption that Judge Kavanaugh will be Justice Kavanaugh in three days or less). 

As a refresher - an agency promulgates regulations permitted by statute to fill in the gaps in the statute or to even interpret the statute.  As long as the interpretation is not inconsistent with the statute or plainly erroneous, the understanding of the statute in the regulations gets deference.  The understanding of the statute may not be the best interpretation, just not inconsistent or plainly erroneous.  That is the Chevron deference doctrine off the back of my hand.  Regulations go through notice and comment requiring the agency to respond.  That regulatory rule making process has a safeguard in the notice and comment process. 

But regulations are written by people and sometimes those regulations are ambiguous.  Enter the Seminole Rock-Auer deference doctrine.  The agency can tell us what the regulation means by stroke of the pen.  That interpretation does not need notice or comment.  No procedural safeguards exist.  The agency just changes its mind. 

Acquiescence Ruling 99-4(11) informed the Social Security world that the Eleventh Circuit decision in Bloodsworth v. Heckler was wrong.  Here is what the agency said in restricting Bloodsworth to the boundaries of the Eleventh Circuit:

The Eleventh Circuit held that an Appeals Council dismissal of a request for review of an ALJ decision is a "final decision of the Secretary made after a hearing" (now a "final decision of the Commissioner of Social Security") within the meaning of section 205(g) of the Social Security Act and, therefore, subject to judicial review.

Contrary to the holding of the court in Bloodsworth, SSA policy is that the regulations make a clear distinction in regard to rights of judicial review between dismissals and determinations on the merits by the Appeals Council. The Appeals Council may take three types of action following an ALJ decision: (1) it may grant a request for review; (2) it may deny a request for review; or (3) it may dismiss a request for review. The dismissal of a request for review of an ALJ decision is binding and not subject to further review. 20 CFR 404.972, 416.1472. See also 20 CFR 404.955, 416.1455, 422.210. The Appeals Council will dismiss a request for review if it is untimely filed and the time for filing has not been extended.[6]The Appeals Council may also dismiss a request for review for other prescribed reasons. 20 CFR 404.971, 416.1471.

SSA's position, based on the above-cited regulations, is that an Appeals Council dismissal is not a "final decision of the Commissioner of Social Security made after a hearing." Therefore, such a dismissal is not judicially reviewable under section 205(g) of the Social Security Act (42 U.S.C. 405(g)).

That issue is now before the Supreme Court in Smith v. Berryhill on a petition for certiorari.  The Solicitor General agrees with Smith that the AR followed by the Sixth Circuit is wrong and that the Supreme Court needs to resolve the issue to fix the split in the circuits. 

In the administrative state, the courts permit the agency to interpret the statute.  In the administrative state, the courts permit the agency to change the rules by interpreting the regulations.  When the agency takes these acts through the subregulatory process, the agency does so without notice and comment.  Our liberal colleagues may not like the conservatives on the Supreme Court but on this issue and in reigning in the agency's reinterpretations in flux, those justices hostile to the blowing winds of discretion are our friends.