Mar 5, 2015

I Think This Is New

     An example added recently to Social Security's Program Operations Manual Series (POMS):
A 50-year-old claimant with a high school education and unskilled past relevant work has an RFC [Residual Functional Capacity] for standing/walking 2 hours of an 8-hour day and sitting approximately 6 hours of an 8-hour day. He is able to lift/carry/push/pull 20 pounds occasionally and 10 pounds frequently. This RFC falls between rule 201.12, which has a decision of disabled, and 202.13, which has a decision of not disabled. In this case, use rule 201.12 as a framework for a decision of disabled because the definitions in DI 25001.001 (Medical-Vocational Quick Reference Guide) indicate light work usually requires walking or standing for approximately 6 hours of an 8-hour day. Since the claimant can only walk or stand for 2 hours, he has a significantly reduced capacity to perform light work and a sedentary medical-vocational rule applies as a framework for a determination.

28 comments:

Anonymous said...

This is not new. SSR 83-10 has always delineated the difference between sedentary and light as the amount of standing and walking.

Anonymous said...

What is new is that there has never been a "clean" reference on point to site to an ALJ in this situation. While the standing/walking has always been the difference in theory, I can tell you from experience that I have seen many, many and I mean many ALJ instructions that did not seem to grasp the fact that light work "requires a great deal of walking" and try to fit the claimant into the light category based on the lifting ability via a VE or even without a VE. I think this new section makes this point clearer now.

Anonymous said...

While most VE testimony would seem to be consistent with this example, I still run into the occasional VE who would say that light work could be performed under the terms of the example based on 20/10 lifting.

This certainly will help to put all of that nonsense to rest.

Dan Smith said...

I too have had a number of ALJ's try to use a few Light jobs that the VE testified could be performed with out much standing or walking as a basis for using the entire Light grid to direct a finding of "not disabled".

Anonymous said...

If I give an RFC of light, stand walk 2 hours and sit for 6 and the VE gives me jobs, it will be a denial.. They are the experts.

Anonymous said...

"If I give an RFC of light, stand walk 2 hours and sit for 6 and the VE gives me jobs, it will be a denial.. They are the experts."

Isn't that in direct conflict with this new POMS?

Anonymous said...

I dont think this is new. If someone can only stand two hours obviously they cant do light.
A 50 year old always grids out at sedentary.

Anonymous said...

@12:56PM You would like to think this has always been the case but look at 12:12PM and you will see that it is not.

There are VEs who feel obligated to give jobs under any scenario an ALJ presents (even if they have to go so far as to create them) and ALJs who will rely on this testimony even if it contrary to SSA policy.

This POMS example is just another arrow in our quiver to combat such actions.

Anonymous said...

This concept has been around since at least SSR 83-12 was promulgated--it makes the same point without the specific example. It makes the point that if the range of work available is close to the lower exertional category, use that grid rule to justify disability. If the range is only slightly reduced, use the higher exertional category. If the range is in the middle, have a VE sort it out. I would argue that, because this example says to use the lower grid rule as a framework, i.e. not to direct a verdict of disabled, the proper course would still be to ask a VE both whether the limitation resulted in a significant erosion of the light occupational base and, if so, whether there are occupations existing in signficant numbers that would satisfy the parameters of the hypothetical question. I would also point out that,while Rulings are binding on all components of the Agency, there's a good argument that POMS is not.

Anonymous said...

As for the questionn of "newness" of the specific POMS example, it is currently found in Transmittal 6, effective date 02/13/2015, at DI 25025.015. I think that makes it "new".

Dan Smith said...

@1:25
Exactly what i was about to write.

If a VE comes back with just 3 Light occupations (out of 1200 Light jobs in the DOT) a finding a 'disabled' doesnt comport with SSR 83-12. I've gotten a VE to admit on the record that the jobs they're citing comprise just a tiny fraction of the Light occupational base and still saw a denial come back.

Dan Smith said...

*edit. Sorry, the VE didnt admit that the jobs theyre citing comprise a tiny fraction of the base. It was that the available light jobs remaining would.

Anonymous said...

12:12, with all due respect your Honor, you cannot use a VE to circumvent the grids and that is what your example does. The only thing new is that this new POMS makes it clear that someone limited to 2 hours of walking is limited to sedentary work. It was always true, just ignored. I am sure that if you keep doing this, your cases will start coming back at warp speed.

Anonymous said...

@1:25Pm I must disagree with your analysis in terms of still needing to call on a VE. SSR 83-12 states "Where the extent of erosion of the occupational base is not clear, the adjudicator will need to consult a vocational resource."

The new example in the POMS tells us that in that circumstance the claimant "has a significantly reduced capacity to perform light work and a sedentary medical-vocational rule applies as a framework for a determination." As a result, there would be no no need to call a VE.

Now if you want to argue that ALJs don't have to follow the POMS, thats a different animal but I would relish making an argument in USDC that they improperly relied on the VE testimony which is contrary to SSA internal policy. Although I think most VEs, when confronted by SSA policy statements in a hearing will cower into the corner and finally agree with SSA's position.

Anonymous said...
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Anonymous said...

Re Anonymous 1:25 PM, March 05, 2015

Actually, the POMS are binding on all adjudicators.

SSR 13-2p clarified this in March 2013.
See that ruling, specifically 15. a (and, no, this does not just apply to DAA cases).

And it would be wise to advise those, such as 12:12 PM, March 05, 2015 who believe or adjudicate otherwise.

See SSR 13-2p 15. a. General. We require adjudicators at all levels of administrative review to follow agency policy, as set out in the Commissioner's regulations, SSRs, Social Security Acquiescence Rulings (ARs), and other instructions, such as the Program Operations Manual System (POMS), Emergency Messages, and the Hearings, Appeals and Litigation Law manual (HALLEX). Under sections 205(a) and (b) and 1631(c) and (d) of the Act, the Commissioner has the power and authority to make rules and regulations and to establish procedures, not inconsistent with the Act, which are necessary or appropriate to carry out the provisions of the Act. The Commissioner also has the power and authority to make findings of fact and decisions as to the rights of any individual applying for payment under the Act. Because of the Commissioner's delegated authority to implement the provisions of the Act, we may, from time to time, issue instructions that explain the agency's policies, regulations, rules, or procedures. All adjudicators must follow our instructions.

Anonymous said...

These POMS people are out of control. Who is the internal regulatory supervisor and ombudsman for those who continue to produce new and novel POMS?

Haven't they promulgated enough POMS material? How is it in 2015 there can even be any POMS to promulgate given the rapid clip of the development of the modern POMS program?

After decades and decades of unending promulgation of various regulations, rulings, restrictions, and sundry internal cross-referencing commentary, commentary that may or may not be binding upon decision makers, administrators, adjudicators, and The Commissioner himherself, such POMS necessarily covering areas that are not inherently and unquestionably reserved to The Commissioner, have they not reached the end of all potential and, dare I say, possible POMS promulgation?

Anonymous said...

ohh, you silly ALJs. Of course POMS applies to you. Just like HALLEX. And just like Bice's memos and directives. You all have some significant protections, but at the end of the day you are an employee of SSA. As such, all these internal sources of law apply to you.

Now outside our Admin Law Kingdom walls, no. That stuff is fair game to attack and ignore. But you aren't private attorneys anymore, you're agency employees. You're bound. Get over it.

Anonymous said...

Agreed 4:01

As for the query -who is the internal regulatory supervisor ……blah blah blah

Why, the Commissioner with the oversight of Congress.

Are the various regulations including “cross-referencing commentary” et al, binding?

You bet and refined.

Have “they” have reached the “end of all potential” and promulgation.

Thankfully, no.

Nor has the stasis of Adjudicators apostasies.

Anonymous said...

3:14 and 4:01, and just what does the ALJ do when the Reg's, etc, conflict and contradict each other?? It is impossible.

Anonymous said...

The regulations seem to acknowledge that there are essentially "seated" light jobs (20 CFR 404.1567(b), 416.967(b)):
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, OR when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities...", which explains why VEs can cite to such jobs, but if SSA wants to use this POMS as an expedient to permit allowance of more 50-yr olds at sedentary, then good for claimants as DDS or ALJs should be able to pay citing to this POMS and not even use a VS or VE in these cases. However, expect to see more DDS denials placing 50+ folks at medium exertion. What about the claimant who can stand/walk somewhere in between 2-6 hrs? What if it's 3, closer to sedentary? If 4 or 5, closer to light?

Anonymous said...

"What about the claimant who can stand/walk somewhere in between 2-6 hrs? What if it's 3, closer to sedentary? If 4 or 5, closer to light?"

Without a properly promulgated POMS, the adjudicator with be forced to utilize adjudicatorial discretion, potentially working in tandem with a vocational source, such as a Vocational Expert, in order to clarify, with such precision as is possible given the blurry nature of such a hypothetical, the value of the mechanical application of the POMS promulgation given the clear and convincing failure of the claimant to clearly satisfy, in terms of substantial evidence, the requirements that would direct a purely mechanical application of the grid regulations in light of this most recent promulgated POMS.

Anonymous said...

Not sure what without a properly promulgated POMS means.

POMS releasing information = Promulgation.

At the very least this POMS is a clarification of issues previously set forth in SSR 83-12 probably intended to avoid discretion and or mechanical application.

Anonymous said...

Just another example of how outdated the grids are and should be abolished. The vast majority of jobs are sedentary, and many should be classified under a new category of less than sed, where lifting is 0 lbs and s/w is 0. The generalization that a 50 y/o who is limited to sed work is assumed disabled unless their prw is sed is ridiculous.

Anonymous said...

No one has addressed the point that the POMS section indicates only that the sedentary grid rule should be used as a framework. If they meant to say the sedentary grid rule directed a verdict of disabled, they would have said so, as they certainly know the diference between direct application of a grid rule and using a grid rule as a framework. I don't think one can argue they said "used as a framework" because there were nonexertional limitations, because, in their example, there were not. It may well be that whoever wrote this POMS section was a bit careless in using their terms, which is one reason why POMS sections might not be as persuasive as promulgated regulations or Rulings.

As has been mentioned, there are many occupations that are classified as light, not because of the standing requirements, but because of either the periodic lifting requirements, the need to use foot controls, or near constant upper extremity activity. Those occupations could be cited in response to the hypothetical question, and in my experience, frequently are. So, if the grid rule doesn't direct a verdict of disabled, why shouldn't we take VE testimony as to amount of the erosion of the light occupational base and then see if there are occupations representing a significant number of jobs?

Finally, I think, maybe, there are a number of members of the 9th Circuit Court of Appeals who would disagree with the assertion that POMS provisions are binding upon ALJs. Don't have a cite, just a vague memory of a case or two, one concerning the nonmechanical application of the grids.

Anonymous said...

well, then the 9th Circuit would be (and not for the first time ;)) wrong.

Anonymous said...

The point of the POMS is for 2 hours stand/walk AND "unskilled". The RFC must be unskilled for this new POMS to apply.

It looks to me like a marriage between 83-14 and 96-9p on the issue of stand/walk with "unskilled" presumably eroding the base now per the POMS.

As a practitioner who goes to fed court often, ill tell you (and ALJs too) there will be remands on this point if you don't grid out these people.

Courts see regulations and want them followed. There may be nuance, yes, but courts want clarity. Apply the grid and avoid remand.

But again, this POMS has limited application. It doesn't apply to all people with a 10-20# limit at 2 hrs stand/walk. It only applies to people age 50+ with that RFC + unskilled at Step 5.

Anonymous said...

Dear Dan Smith:

I rarely agree with much of what you say...but you sure are pretty. are you married?

;)