Posted: Wed May 07, 2008 11:42 pm Post subject: Wonky stuff about SSR 83-12, DI 25025.001, and Fast
Yesterday I posted about SSR 83-12, about RFCs that fall between two rules, the upper being unfavorable and the lower, unfavorable. I argued that SSR 83-12 permits reliance on a lower sedentary rule when an RFC is for seated light work. This have been a favorite theory for 10, maybe 20 years. I have dragged out this favorite theory as especially pertinent for the current circumstances because of how it might allow screening ODAR's enormous backlog for cases deserving a favorable decision.
This evening I won’t be adding any substance to this. I am putting up this rather overlong post out of a wonky fascination for connections. Here are the connections I with attempt to show:
1. from SSR 83-12 to POMS DI 25025.001,
2. from POMS DI 25025.001 to the COSS’s brief to the 7th circuit in Fast, and
3. from the COSS’s brief in Fast back to what I posted yesterday about SSR 83-12
From SSR 83-12 to POMS DI 25025.001
I think POMS has changed over the last decade. These days POMS regurgitates lots of language borrowed from the rulings. If memory serves, prior to the 1996 process unification rulings, POMS had it own idiosyncratic instructions about sedentary RFCs and use of a cane. But now POMS recites SSR 96-7p in its entirety.
DI 250025.001 isn’t just about RFCs that fall between rules. It deals with other things as well, including some stuff that you can’t find elsewhere. Thus, there are POMS-only instructions at DI 25005.001 that give this advice about using the grids for nonexertional limitations: first you size up the occupational base that’s left after you peel off everything that’s nonexertionally precluded. After you have an idea of the size of the remaining occupational, you go to the grid rule that has the most similar occupational base, and that also matches the right age, education, and work history.
From DI 25025.001 to Fast
Joe Shull from Fort Wayne took DI 25025.001 all the way to the 7th circuit, in Fast , 397 F.3d 468, 2005, essentially on the idea that a mentally impaired claimant over age 50 who has the right kind of mental limitations can lay claim to a sedentary rule, no matter what the exertional limitations might be.
The 7th circuit was not welcoming, referring to Joe’s theory as a “rather odd argument” (397 F.3d at 472). This is not the place to rehearse why I agree with Joe that the alternative to his argument is an absurd disparity in outcome for individuals who have the same age, education, work experience but who are different for having physiological versus mental impairments. But there are connections.
From Fast back to SSR 83-12
Joe Shull wanted to invoke POMS instructions about sizing up the occupational base. SSR 83-12 is about judging the size of the occupational base. This similarity makes the COSS’s reply brief for fast pertinent—especially if I’m correct that OGC filed the brief only after consulting with central office about policy interpretation.
My .pdf copy of the COSS’s brief runs to 54 pages of double spaced text. Some of the arguments in these 54 pages are complex enough that I don’t understand them. But insofar as my limited understanding goes, the arguments against applying the size-of-the-occupational-base instructions in DI 250025.001 run like this:
1. Everything in POMS about this sort of thing is merely “guidance.” It's not mandatory.
2. What’s more, nothing about any framework application of a grid rule is mandatory.
3. Because State agencies don’t have access to the same resources available to ALJs, they “must use general vocational resources to approximate the more individualized analysis that a vocational expert might provide . . . .”
Just as the COSS’s reply said for Fast, SSR 83-12 doesn’t lay out anything that’s mandatory. All the ruling says is that in the right circumstances, the size of the occupational base “could justify finding of ‘Disabled.’ “But if this kind of approximation is endorsed by SSR 83-12, and is in use at the State agencies, as the COSS;s Fast brief tells us, then surely it’s OK to apply it as a screening criteria for favorable action on cases in the backlog. After all, SSA is already screening the backlog for cases that can be informally remanded to the State agencies for applications of this same non-mandatory approximation of occupational base.
As the COSS's brief presents it, State agencies are reduced to vocational kludges. But kludge for the goose is kludge for the gander. Sure enough, this isn't going to work at the ODAR level if a vocational expert comes into the picture. But if SSA is going to informally remand large number of ODAR cases for DDS to consider under DDS-style vocational approximations, it’s hard to see any good reason not to direclty apply the same sort of vocational approximations right there in ODAR, for on-th-record decisions. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
Joined: 11 Jun 2004 Posts: 157 Location: Montpelier, Vermont
Posted: Thu May 08, 2008 03:54 pm Post subject:
Can you post or link to COSS's brief to Fast? The 7th Circuit does not allow access to it.
How would COSS answer these questions:
1) Are the presumptions regarding the ability to adjust to other work for someone with exertional limitations different in any way from someone with only non-exertional limitations? If so, the why?
2) Is there something about the transferabilty of the skills to a lower exertional level that changes the presumptions regarding the ability to adjust to other work? Example: assume two people who have done the same level of semi-skilled or skilled work . For one person the skills are transferable to a lower exertional level, for the other they are not. Assume further that the actual occupational base for these two individuals is the same. Are the presumptions about adaptability different for these two individuals?
I will reveal a cynical suspicion that "the ability to adjust to other work" is really a meaningless term which serves a function to deal with an economic reality which the statute says that SSA cannot consider: That as a person gets older, they are less likely to be rehired.
No can link. My copy of the COSS’s brief did not come from public sources. I will attempt to answer your next two questions in reverse order.
Quote:
How would COSS answer these questions:
2) Is there something about the transferabilty of the skills to a lower exertional level that changes the presumptions regarding the ability to adjust to other work? Example: assume two people who have done the same level of semi-skilled or skilled work . For one person the skills are transferable to a lower exertional level, for the other they are not. Assume further that the actual occupational base for these two individuals is the same. Are the presumptions about adaptability different for these two individuals?
The way I understand SSA policy, you have proposed a faulty assumption that “the actual occupational base for these two individuals is the same.". What separates your two similarly situated individuals is the existence of transferable skills. Skills are transferble only if they are pertinent to particular jobs. Here's what SSR 83-10 tell us, in some quite awkward language:
Quote:
Rules which include the transferability of a person's work skills to skilled or semiskilled occupations within his or her RFC (or use of recent education for direct entry into such work) impose specific skilled or semiskilled occupations upon the unskilled occupational base.)
The individual with transferable skills has an occupational base expanded by imposition. The two occupational bases are not the same.
Quote:
1) Are the presumptions regarding the ability to adjust to other work for someone with exertional limitations different in any way from someone with only non-exertional limitations? If so, the why?
Remember, you’ve asked that I give the COSS’s answer. That means not my own. The way I read the COSS’s reply brief, we need to distinguish between presumptions and conclusions. A presumption is what is thought to be the correct answer in the absence of better evidence. (Mind you, SSR 83-5a tells us that grid rules are conclusive, not presumptive. But let’s not get distracted.) The grid rules are based on exertional categories. The presumptions for the grids thus only extend to these same exertional categories. The COSS has made no similar presumptions about nonexertional limitations. Thus, there is this one difference of the kind you ask about: the COSS makes presumptions about exertional limitations that he does not make about nonexertional limitations.
So when there are nonexertional limitations, for which the COSS does not make presumptions, what does the COSS do? Two things:
1. For State agencies, who have no access to information from a vocational expert, the COSS has arranged for some approximations, as in DI 25025.001.
2. At the Administrative Law Judge level, where vocational expert evidence is available, there is no need for presumptions. Instead, the Administrative Law Judge secures direct evidence on work adjustment as this is affected by age, education, and work experience.
There. I managed to type this with (if only you could see) a straight face. On to your final comment:
Quote:
I will reveal a cynical suspicion that "the ability to adjust to other work" is really a meaningless term which serves a function to deal with an economic reality which the statute says that SSA cannot consider: That as a person gets older, they are less likely to be rehired.
I wonder whether “cynical” is the right label for your suspicion. You are suggesting, I think, that grid rule age categories are an attempt to do social justice via subterfuge. If a cynic is one who by Oscar Wilde’s definition knows the price of everything and the value of nothing, then it might be that cynical doesn’t apply—neither to SSA’s intent as you suspect it, or to your suspicion itself. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
Joined: 11 Jun 2004 Posts: 157 Location: Montpelier, Vermont
Posted: Fri May 09, 2008 04:12 am Post subject:
It is possible that two individuals have actual available occupational bases that are the same (or at least comparable) where one has transferable skills but the other does not. It requires that the one with transferable skills have additional non-exertional limitations. It poses the same problem as Fast. Here is an example: a 50 year old secretary with bilateral carpal tunnel syndrome. RFC is sedentary with occassional use of the hands for manipulation. The occupational base of unskilled sedentary work is greatly reduced. But at least some semi skilled occupations would presumably be available, like information clerk. Such a person faces the same problem that Fast faced. The actual occupational base available to her is less than the full occupational base for unskilled sedentary work. Are the few semiskilled occupations available to her enough to find her not disabled? Presumably the 7th Circuit would say the same thing: that there is nothing mandatory about applying the Grids as a framework. If you happen to fall directly into one of the Grid rules that mandates a finding of disabled, congratulations, you hit the jackpot. If not, then tough luck. Any finding by a VE of jobs that exist in signficant numbers will do.
In practice, I resort to a framework argument only as a last resort. If you win it great, there are some ALJ's who will accept it. But if you don't, then the appeal is going to go the way of Fast.
My suspicion is cynical not because I think that the original intent of this term "ability to adjust to other work" was to do justice through subterfuge. I applaud that. My suspicion is cynical because the belief implies that COSS is promulgating a bunch of BS to avoid the full implications of the Grids.
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