Are 30,000 people still using this flash cube? Thankfully the Eastern District of New York says ‘NO’

Author: Sharmine Persaud, NOSSCR Sustaining Member

In the past few years one particular District Court Judge in the Eastern District of New York has issued numerous decisions highlighting SSA’s reliance on obsolete jobs. His decision in Wagner caught my attention—inserted on the first page of the memorandum of decision & order was a color image of an antiquated camera and flash cube. I recall my father owned such a camera in the seventies; it was a big clunky item, whereby he would have to get close enough to take the picture, press a button to ignite the flashcube, temporarily blinding my siblings and me. Those were the good old days.

According to vocational witnesses and SSA, the job of photo finishing counter clerk is alive, well, and available in significant numbers. Thankfully, the court in Wagner disagreed. That case involved a firefighter who was severely injured in the line of duty when he sustained a fifteen-foot fall, leading to repeat spinal fusion operations. The ALJ determined he could not return to his past relevant work, nor could he perform light work. However, the ALJ hypothetical created an opening for the vocational witness to cite to three unskilled, simple, sedentary jobs: 1) photo finishing counter clerk, 249.366-010, 2) a children’s attendant, 349.677-018, and 3) an attendant in a tanning salon, 359.567-010.

The Court in Wagner wasted no words in condemning the ALJ for “unblinking acceptance of conclusory opinions by vocational expert testimony,” particularly that “predicated on plainly obsolete positions.” The Court went on to cite prior decisions resulting in remands where the ALJ relied on the existence of ‘document preparer’ jobs where the “vocational expert dubiously opined that 35,000 such positions await those who care to plunge into production of microfilmed records” Feuer v. Saul, 2019 WL 9042872, at *1 (E.D.N.Y. 2019), report and recommendation adopted, 2020 WL 1316528 (E.D.N.Y. 2020).

The court concluded that these jobs and the ones cited by the vocational witness are obsolete—

The notion that there are opportunities waiting for this plaintiff to work as a photo finishing counter clerk belies all common sense. The ubiquity of smartphones with built-in digital cameras has consigned consumer film processing to the most niche of markets: by one estimate in 2015, there were only 190 photo development shops left in the United States. Thus, the photo finishing counter clerk has gone the way of the VCR movie rental clerk or a carbon paper salesperson, and testimony about such archaic posts have no place in determining important rights of our citizenry.

Wagner v. SSA, 21-CV-3627(GRB) EDNY, decided August 12, 2022.

This was a good decision for Wagner and claimant’s attorney. Many courts have been issuing decisions like these and we, as attorneys, have to keep the momentum going by pushing back at hearings when the vocational witnesses cite obsolescence.

This is a guest column provided by a NOSSCR member. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.