Apr 13, 2015

I Keep Coming Back To This

     I keep coming back to this since it's such an interesting example of what's been happening at Social Security for the last few years as the agency, seems obsessed with making it harder to get disability benefits. Somebody made a mistake and wrote something sensible in Social Security's policy manual but it could be interpreted as helping claimants in some minor way so it had to be quickly excised but the change couldn't be announced or explained. Here's what I've posted before:
Not too long ago someone told me that this example had been added 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.
I posted about this. Not long after I posted about it, without any announcement of a change, the example disappeared from the POMS section to which I cited. However, you can still see the example on the transmittal sheet, which is available online, which notified the various components of the agency about this and other changes. As long as it's there, it's going to be cited to courts and Administrative Law Judges. So, now, the question is whether the example will disappear from the transmittal sheet? Will the agency pretend that none of this ever happened? I've heard of the concept of a non-person. Can there be a non-thing? Can Social Security permanently erase this from the memory bank?
    And here's an e-mail I received from a reader:

Regarding POMS section DI 25025.015, transmittal sheets disappear from the public site after 60 days, so you might want to save a copy. 
Transmittal sheets and archived POMS sections are maintained on SSA's internal web site indefinitely.
I don't know enough about the disability program to understand why the example was problematical, but the people who maintain the POMS web site were asked to remove the example (and did so) on March 27.  You can see at the bottom of the section, in small type, "Batch Run" and "Rev" dates indicating when it was changed.

I'd prefer you didn't mention my name if you use this information.

10 comments:

Anonymous said...

Another example showing why POMS is NOT LAW - some idiot in the Agency just added that language to the manual, not knowing what he or she was doing, and somebody who did, deleted it.

Anonymous said...

It was problematic as it was not a full range of sedentary or a full range of light, ergo, it goes to the Vocational Expert to assist us.

Dan Smith said...

@8:11

Yes, but what exactly is the VE there to assist with? Because in the many "falling between two grids" cases I've handled, the only question I've seen posed to the VE is the generic "3 representative job titles" request. Which says next to nothing about the matter at hand. SSR 83-12/83-14 indicate that in a situation where the grid determination comes down to a RFC that falls somewhere between two exertional levels, the claimant's remaining occupational base at each level should dictate which grid to use. The grids themselves stipulate that there are 200 separate occupations in the unskilled sed base and 1400 in the light base. Therefore, citing three occupations that the cl's RFC still permits would say almost nothing about that exertional level's remaining occupational base on the whole vis-a-vis SSR 83-12/83-14.

Let's take, for instance, hypothetical situation where a 51-year-old claimant is limited to standing/walking two hours daily, lifting 20/10, and has an additional non-exertional impairment (let's say, no more than occasional handling with the non-dominant upper extremity). Are there three jobs at Light that someone could perform with this RFC? Probably. Are there many more than that at Light? No. Do slightly more than three jobs cited by a VE comprise enough of the existing 1400 Light jobs to justify using the Light grids according to SSR 83-12/14? Of course not.

I don't handle federal appeals work and haven't touched ConLaw since law school, but I don't understand how treating claimants whose impairments fall between exertional levels differently from claimants who neatly fall into an exertional level satisfies the 5th Amendment's Equal Protection component. Even at rational basis scrutiny (which this group would clearly warrant) I don't understand how this arrangement would pass constitutional muster.

Anonymous said...

Dan, we don't have to have three jobs. All we have to have is one job that, we as the Judge, determine to be of significant numbers. So, if I am given one job and it has anywhere from 1,000 to 10,000 jobs in the National Economy, I am good to go.

Dan Smith said...

And that pithy approach renders the grids, or at least using them as a framework for decision-making, utterly meaningless. This is not the first time that the POMS were changed on this topic. According to Thomas Bush, POMS DI 25025.001 C.4 once offered a way to evaluate borderline grid cases. It apparently once read: "It is first necessary to approximate the size of the remaining occupational base at all exertional levels... Then it is necessary to compare the approximated occupational base to the number of occupations represented by the appendix 2 tables to determine the appropriate table(s) to be used. The rule(s) in the table(s) selected that correspond to the person's age, educational level and previous work experience, provide guidance as to the proper decision of disabled or not disabled."

Apparently that POMS was changed about a decade ago and replaced with the almost incomprehensible approach of merely citing three occupations.

Anonymous said...

The Judge comment (not Dan... sorry Dan) is ignoring the "little more than" part of the SSR.

Anonymous said...

SSR 83-12: Requires threshold inquiry as to whether the "regulatory criteria" of the higher exertional category represents "little more than the occupational base for the lower rule." All this talk about VEs identifying some number of occupations at the higher level is a common mistake, but it misses the point of the SSR: get a VE to pick one exertional level based on the regulatory criteria. Only if the VE identifies the higher exertional level should you take additional framework testimony (adding all the nonexertional limitations into the hypo) and get examples of occupations to which the claimant can adjust. Any other reading renders meaningless the "little more than" clause in the SSR.

The POMS Example: It was almost certainly removed because it is preempted by the SSR and the regulatory definition of light work. As noted above, SSR 83-12 refers to the "regulatory criteria." 404.1567(b) defines light work as requiring "a good deal" of standing and walking. That's pretty vague, but it is what the regulation says. The POMS example merely cited to another POMS section using a different definition of light work, not to any "regulatory criteria."

Anonymous said...

whether the *hybrid RFC* represents "little more than the occupational base for the lower rule" with reference to the "regulatory criteria." Sorry, I'm really struggling to make sense tonight.

Anonymous said...

For anyone interested, the Seventh Circuit Court of Appeals addressed this issue in
Haynes v. Barnhart, 416 F.3d 621 (7th Cir. 2005).

Anonymous said...

Because ODAR does not agree with the ODP's interpretation and believes they should be able to trump the policy with VE testimony.