Significant number of jobs.

David Traver · Posted: Mon May 05, 2008 01:07 pm Post subject: Significant number of jobs.

Three cases, all at step five of the sequential evaluation process. Three different Judges.

Claimant is age 35. She lives in Waco Texas. What is a significant number of jobs for her?

Claimant is 45, illiterate. He lives in Strawberry California. What is a significant number of jobs for him?

Claimant is 56. He lives in Toma Wisconsin. What is a significant number of jobs for him?

Does the RFC make a difference? Why?

Reasoning?

SSA Sources?

Is there a "right" answer? Why? Who says so? (using SSA sources please)

(Don't bother with the case law at this point please.)

Thanks for the help.

JOA · Joined: 13 May 2004 Posts: 1693

SSA policy on what counts as a significant number of jobs will likely be hard to find. What’s below is the best I can come up. It’s only tangentially on point. Maybe quite tangentially.

Adapting from Shaw (or Wilde, or Churchill), SSA has two groups of disability adjudicators who are divided by a single system of evaluation. The two groups are comprised of those at the DDSs and those in ODAR. At DDS, the vocational question at step 5 has to do with occupational base. At ODAR this is, or at least tends to be, transformed into questions about significant numbers of jobs.

As I read them SSA’s policy statements on vocational matters are aimed at the larger of the two audiences, at the DDSs. The vocabulary for such rulings as 83-10 to 83 14, 85-15, 96-9p, and others as well, is dominated by occupational base, not significant numbers.

So that’s why I think SSA policy on significant numbers will be hard to finds. SSA mostly talks vocational policy in DDS terms, and the dominant terminology has to do with occupational base. Those who remember the old Connect board will remember how "erosion of the occupational base" fluffed the feathers of those ALJs who posted on the old board.

So there's a historical hostility to occupational base reasoning. Nonetheless ,it strikes me that the current push to screen ODAR cases for quick on-the-record decisions and the addition of a fairly large number of new ALJs might be a chance for advocates to push harder for what I believe is a proper reliance on SSR 83-12.

SSR 83-12 doesn’t get enough attention for its policy about what we might call borderline RFCs. If an exertional RFC is just a little bit above the RFC contemplated by a favorable (lower) grid rule, then it can be appropriate to rely on the favorable rule. This dodges the question of significant numbers, at least superficially, but at the cost of language about how the borderline RFC might indication “little more than the occupational base” for the favorable rule.

It’s my belief that as a matter of rhetoric advocates who want to invoke SSR 83-12 in connection with cases at ODAR might be well advised to avoid the phrase “occupational base” as much as possible. The approach instead could be to argue that with the right facts, SSA policy is that the right rule is the lower rule. Don’t say “occupational base.” Avoid “erosion.” Sticking with the plain jane basics of SSR 83-12 might be a way to avoid offending that class of ODAR adjudicator whose hackles rise when occupational base comes up.

http://www.ssa.gov/OP_Home/rulings/di/02/SSR83-12-di-02.html

All of the above is about policy interpretation and pragmatic considerations the rhetoric or arguments. I will be sorry to have posted if it turns out that this thread represents a new round a criticism of SSA’s adjudicatory system and vocational policies.

Craig Jarvis · Posted: Tue May 06, 2008 02:09 pm Post subject:

To expand on what JOA has said -- which I think is very good -- I cannot see how one can escape the conclusion that "significant numbers" is a moving target, which expands or contracts based on the factors of the Grid. That is the only way that I can reconcile the language of the statute with the framework of the Grid.

Here is the really hard question: What do you do with countervailing "factors" in the grid? Take this example: A 50 year old woman with severe bilateral neuropathies. Past work as a secretary. Everyone agrees that she is limited to sedentary exertional abilities, except she could be on her feet all day, and occasional use of both upper extremities for manipulation and feeling. She can't return to work as a secretary because of the restrictions on manipulation. But she does have skills from this occupation. How many occupations does SSA have to find to show that a "significant number" of jobs exist for her? You have one factor which is going to "erode" the occupational base for sedentary unskilled work: limitations on manipulation. You have two factors which will expand it: the ability to be on one's feet and skills learned as a secretary.

In the past, I have tried to argue that you have to look at each factor separately and get a sense of how much each factor is likely to either expand or contract the occupational base of unskilled, sedentary work. This argument has been greeted almost universally by judges and ALJs alike with a collective, Huh?