On August 24, 2020 the 9th Circuit Court of Appeals issued a decision in Maxwell v. Saul, 971 F.3d 1128, holding that coming up with two job titles to which a claimant could transfer skills isn't enough to support a finding of transferable skills. Since that time the agency has been thinking about what to do about the Maxwell decision. It's still thinking about whether to issue an Acquiescence Ruling but it's now told its staff to follow Maxwell in the 9th Circuit.
I don't know whether to attribute this extraordinary delay to a sclerosed decision-making process or stubborness. Maybe they're both contributing factors.
11 comments:
My only thought would be that the Court left open the number of occupations which must exist to which transferable skills exist, just finding "range" is at least two, so "significant range" must mean at least 3. Which is oddly straightforward.
So maybe SSA is contemplating VEs give a certain number, more than 3? It would make sense, since building a buffer of at least 1 protects an ALJ's step 5 denial under a harmless error analysis in the event one of the jobs listed is flawed, which isn't particularly uncommon. But SSA likely doesn't want to get VEs to testify to an exhaustive list which, if disproven, would support an award as opposed to remand at court. It's like threading a needle.
Our judges like how many jobs exist in the national economy and sometimes there are so many toll takers that there's just no excuse for not working. Did you know there are 3 million toll takers in the national economy?
"sclerosed decision-making process" That's good. I am going to use.
@12:45
"Cane Cutter (DOT 763.687-030) exist in a few hundred positions nationally which I find to constitute significant numbers. I won't address how many regionally. Denied."
Seriously, if there is one black hole as to rationality in the entire process, it's as to job numbers and the evidence underlying them.
The VE testimony is a total sham. I wonder how many judges realize that but continue to rely on it. So much for being "independent" adjudicators, huh?
sclerosed decision making process or stubbornness... perhaps incompetence?
I've worked at SSA for 10+ years, I remember hearing about the "new" updates to the DOT that were coming...in 2010. Still not out. This is a tricky process and will require a rethinking of what "disabled" means. Too often we rely on self-reported symptoms of depression that ALJs and reps rely on to support a limitation to 'unskilled' work that requires no contact with others. The reality is, nearly every 'unskilled' job now requires the use of a computer and at least some personal interaction. So we either give many more people disability benefits or decide that people can transition to this type of work, despite their depression and lack of education.
@3:11
My thoughts are that generally jobs have become less physically demanding, but more skillful. But verifying that through undertaking a DOT 2.0 apparently is impossible.
@12:45, if a VE opined there are 3 million toll takers, THEY are a scam. A responsible VE would never offer that number.
What is considered "skilled" vs "unskilled" work?
For instance, is working at a fast food restaurant labeled as unskilled if you aren't required to run a register or maybe a stocker at a grocery store?
@7:33am: "skilled" and "unskilled" (and "semi-skilled") are defined terms for Social Security purposes. The DOT assigns every occupation a Specific Vocational Preparation (SVP) rating which is a nine-point scale for how long it takes to learn the job - ranging from SVP 1 (short demonstration) to SVP 9 (ten years or more). "Unskilled" work is work that can be learned in 30 days or less (SVP 2). "Semi-skilled" work takes more than 30 days to learn but not more than 6 months (SVP 3-4). Anything above that is "skilled."
Transferable skills cannot, by definition, flow from "unskilled" work.
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