Redux -- Biestek v. Berryhill

Biestek v. Berryhill is now a  classic, over seven years old. The vocational witness identified bench assembler and sorter representing 240,000 jobs and 120,000 jobs in the nation. The Court of Appeals tells us that the witness identified final assembler and nut sorter. At the time of the hearing, no data source suggested 240,000 sedentary production worker jobs or 120,000 sorter jobs. It was spurious then and spurious now. The Employment Projections and Occupational Employment and Wage Statistics report wage and salary employment (for the EP) and total employment (for both). The EP is the foundation of the job numbers in the OOH and the O*NET. The OEWS is cited in SSR 24-3p. 

Final assembler is described in the DOT as existing in the optical good industry. The NAICS changes the name to the ophthalmic goods manufacturing industry (NAICS 339115). Ophthalmic goods manufacturing is a specific industry belonging to the larger industry group medical equipment band supplies manufacturing (NAICS 339100) and the larger-specific industry bearing the same name (NAICS 339110). How many jobs do the EP and OEWS report for production workers in medical equipment and supplies manufacturing?

51-9199 - Production workers, all other
31-33 - Manufacturing

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	292,800	277,060
TE1000	Self-employed workers	10,900	No Data
TE1000	Total wage and salary employment	281,900	No Data
31-330	Manufacturing	129,300	128,800
339100	Medical equipment and supplies manufacturing	3,800	3,790

In May  2015, the OES reported 241,910 jobs for production workers, all other, including final assembler. OES 2015. The 2014 Employment Projections reported 236,200 jobs for production workers, all other, including final assembler. EP 2014. That relates to the current employment numbers, 277,000 to 282,000 jobs reported now. Tell me how to justify 240,000 bench or final assembler jobs. It is indefensible. SkillTRAN suggests 71 jobs final assembler jobs using medical equipment and supplies manufacturing. County Business Patterns states that medical equipment and supplies manufacturing represents 308,388 jobs in all occupations and that ophthalmic goods manufacturing represents a mere 23,391 jobs.  Using NAICS 339100 results in an overestimate of jobs. 

Erin O'Callaghan used the entire SOC code and swore under penalty of perjury that every single job belonged to final assembler. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence. 

Nut sorter is described in the DOT as existing in the canning and preserving industry. SkillTRAN suggests other food manufacturing (NAICS 311900), merchant wholesalers, nondurable goods (NAICS composite 4240A1 including 424400 and 424800), and farm product raw material merchant wholesalers (NAICS 424500). Using those three industry groups and assuming two to eleven other DOT codes at the SOC-NAICS intersections, SkillTRAN estimates 2,370 nut sorter jobs. 

The NAICS code that corresponds to the DOT stated industry is fruit and vegetable preserving and specialty food manufacturing industry group (NAICS 311400), which includes two 5-digit industries which in turn include five 6-digit industries. NAICS 311400 represents 166,936 jobs in all occupations. NAICS 311900 contains 257,870 jobs per CBP. Using industries that that do not correspond to the DOT designation is an apparent conflict. 

Using the EP/OEWS occupation-industry matrices, we find:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
Industry Group & NAICS/National Industry - 4 & 5/6 Digit NAICS

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	598,000	591,180
TE1000	Self-employed workers	8,100	No Data
TE1000	Total wage and salary employment	589,800	No Data
311400	Fruit and vegetable preserving and specialty food manufacturing	7,300	7,210
311900	Other food manufacturing	8,100	8,210
424500	Farm product raw material merchant wholesalers	300	280
4240A1	Merchant wholesalers, nondurable goods (4244,8)	5,800	5,680

 Nowhere close to 120,000 jobs. Erin O'Callaghan did not use the entire SOC code but she used over one-fifth of the aggregate. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence. 

In the age of SSR 24-3p, the basic OEWS calculator estimates that there are less than 366 sedentary jobs in 52 sedentary unskilled DOT codes for production workers, all other, including final assembler. The basic OEWS calculator estimates less than 22.8 percent of jobs as unskilled and less than 15% of jobs as sedentary resulting in <<20,218 in 14 sedentary unskilled DOT codes. 

A less than number reported by the ORS assumes all of the standard error from the other related categories. the 2023 ORS reports that 92.6% of jobs required light to heavy exertion. The 2024 data estimates 7.5% represent sedentary work. That data set reports "-" or no estimate for what we call SVP 2. Using all three data sets, halve the number using the 2023 data set alone.

Before we terminate this piece, we must all remain aware that nut sorter is a questionable occupation. EM-24027 REV lists thirteen occupations, including nut sorter, as requiring "additional evidence from a VS or VE supporting" the proposition that this occupation is appropriate.

Biestek is the law of the land but Justice Gorsuch was right. Erin O'Callaghan's numbers came straight out of her hat.

VW testimony is Rocky and Bullwinkle. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Redux -- Biestek v. Berryhill, California Social Security Attorney (November 6, 2025) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit

On September 10, 2025, the Ninth Circuit published the opinion in Galvez v. Bisignano. The federal reporter fourth citation is pending as of the writing of this piece. 

The facts are simple. Galvez has been to the district court before. The case has been around for a very long time. The period at issue is 2008 to 2018. Eventually everyone grids out. A case that old implies or requires the inference that some of the older decisions are tainted by the appointments clause problem at issue in Carr v. Saul, 593 U.S. 83, 88–96 (2021). The Ninth Circuit extended Carr to hold that an ALJ that heard the case while not properly appointed may not hear the case on remand after being properly appointed. Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022). In Galvez, a different ALJ incorporated at least some of the rationale stated by the prior ALJ. The district court held that incorporating the current ALJ may not use nearly identical or verbatim passages from the tainted ALJ decision. Lydia G. v. O'Malley. The district court reversed and remanded. The COSS appealed.

We win cases in the district courts. We win cases that the Office of General Counsel fought tooth and nail. Those cases don't get appealed. Why? Appealing a decision on the facts is not what Justice will allow OGC to do. OGC needs permission from the Solicitor General to file an appeal in federal court, particularly if the COSS has lost a case in a lower court. The Solicitor General's office within the Department of Justice has centralized authority over all federal government litigation and appeals. Garden variety fact-based decisions will not catch the eye of the SG. Where the district court errs on a matter of statutory interpretation on in this case on the Constitution, well we know that the SG greenlighted the appeal on this case. 

The clerk's office summary describes the holding of the case succinctly:

the new ALJ’s opinion, which incorporated part of a prior, tainted opinion, was not tainted by an Appointments Clause violation. Some similar, or even identical, text in a subsequent decision is not automatically disqualifying.

 Carr holds that an ALJ must have a proper appointment. 

Cody holds that an ALJ that heard the case without proper appointment cannot later rehear the case after proper appointment. 

Galvez holds that a properly appointed ALJ may decide the case and adopt parts of the invalid decision if "it reflects the newly assigned judge's independent view of the case." Slip op. at 4, see also 12, 19, 20. 

Galvez will get another crack at the most recent denial of benefits, this time on the merits. Galvez may still win. She has capable representation. James Tree is the counsel for the appellant in Stubbs-Danielson and Gatliff as well a ton of experience. If and when Galvez wins on the merits, the EAJA fees for fighting DOJ on appeal will become available. The prevailing private party need not prevail on every issue to get paid on every reasonable hour expended. 

Time for no quarter. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit, California Social Security Attorney (October 24, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

WorkScape Analytics -- What Is Seriously Wrong, on First Blush

I had the experience of having a hearing with Victor Alberigi yesterday. He uses WorkScape Analytics. All representatives need to know what is wrong with Alberigi's testimony and I believe is a serious flaw in WorkScape. 

Alberigi believes that light work requires six hours of standing/walking in a workday and cannot be dissuaded from that concept. Alberigi testifies that WorkScape residual functional capacity (RFC) program does not allow for input of the amount of standing (including walking) required of a worker. Just the exertion level, not the amount of standing. Eric Rohlfing sat in on a training session for WorkScape several months ago. He asked the demonstrator where he could input a limitation in standing (including walking) in the RFC. WorkScape told Eric that the Occupational Requirements Survey did not cover standing (including walking) and that WorkScape did not use any measure for limitations in standing (including walking).

Alberigi is wrong. WorkScape is wrong. The ORS Collection Manual (available on the BLS website and linked as a download in https://www.occucollect.com/account/?page=Downloads) describes in Chapter 5 the inquiry into the physical demands of jobs. Section  5_02 addresses Sitting vs. Standing/Walking. The ORS states:

There are three components to this element: 

• Sitting 
• Standing/Walking 
• Sitting/Standing at Will

Page 94. When a worker can sit or stand, the demand is classified as sitting. When a worker must stand (or walk) the demand is classified as sitting. The ORS states:

Sitting is present when any of the following conditions exists: 

• Workers remain in a seated position. This includes active sitting. For example, bicyclists sit but push/pull with their feet/legs. 

• Workers are lying down. This includes active lying down. For example, a mechanic lying on a dolly working underneath a vehicle is sitting. 

• Workers may choose between sitting and standing for a given task. For example, office workers can choose a standing desk.

Id. The amount coded for sitting or standing/walking must add up to the entire workday. If they don't add up to eight, the person does not work an eight-hour day. If they up to ten, the person works a ten-hour day. The ORS addresses sitting/standing at will. The ORS states:

Sitting/Standing at Will 

The ability to alternate between Sitting/Standing at Will is present when the following conditions exist: 

• Workers typically have the flexibility to choose between sitting and standing throughout the day and 

• There is no assigned time during the day to sit or stand and 

• No external factors determine whether an employee must sit or stand.

Pages 96-97. The ability to choose whether to sit or stand at will is a choice when to perform required or critical work tasks, it may or may not alter the amount of time sitting and can never decrease the amount of the time coded for standing (including walking). 

The ORS provides examples where a choice to sit or stand does exist. A traveling sales person can choose when to drive and take breaks as needed. Software engineers use a standing desk except during client meetings. A billing supervisor may stand/walk to resolve client/customer issues. An office clerk can choose when to file and typically stands while filing invoices. A sales representative can choose when to make appointments and can make additional stops. Those workers have a choice. Using a standing desk can add time to standing. Making stops on a drive can add time to standing/walking. None of the examples subtract one second from standing (including walking). If a person has a choice, the code is sitting, not standing. 

The ORS provides examples where a choice does not exist. A teacher that escorts students to certain areas does not have a choice. Delivery drivers do not have a choice. A trucker on a schedule does not have a choice. A parking lot attendant must stand when cars enter or to accept payment is regulated by external factors -- that person does not have a choice. A security guard can choose when at a station by must walk to investigate (or make mandatory rounds) is regulated by external factors. 

Are there light and medium jobs that require not more than six hours of standing/walking during a day? Probably. Most light and medium jobs have a limit of six hours of standing/walking during a day? No, not unskilled work as defined by the regulations. Representatives must remember and apply the definition of unskilled work:

Unskilled work is work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time. The job may or may not require considerable strength. For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

20 CFR § 404.1568(a) (emphasis added). 

Now I am on a roll and really annoyed with Alberigi and WorkScape. Using WorkScape and inputting a light RFC, Alberigi identified security guard. WorkScape coughs up security guard (SOC 33-9032) at over 800,000 jobs. None of the resident DOT codes have less than SVP 3. But the ORS states that 85% of the jobs have a training time of up to one month and less than 5% have a short demonstration.  

There are two problems with this vapid conclusion. First, the ORS states clearly that credentials are required for security jobs in 85.5% of jobs and a license is required in 58.2% of jobs. Those two criteria overlap but are not co-centric or co-terminus. Why would I say that? Because security guards require more than little or no judgment. Possessing judgment is not a nice add-on, it is the core essential function of a security guard. The ORS says that most security guards must engage in problem solving less often than monthly, including never. But a security guard must always have the capacity to use judgment. Gate guard (DOT 372.667-030) is the simplest of the security guard positions. The DOT says:

Guards entrance gate of industrial plant and grounds, warehouse, or other property to control traffic to and from buildings and grounds: Opens gate to allow entrance or exit of employees, truckers, and authorized visitors. Checks credentials or approved roster before admitting anyone. Issues passes at own discretion or on instructions from superiors. Directs visitors and truckers to various parts of grounds or buildings. Inspects outgoing traffic to prevent unauthorized removal of company property or products. 

(Emphasis added). Guarding, checking, using discretion, following instructions, inspecting, and preventing theft are earmarks of judgment as used in the DOT. It may not take long to get a guard card but it takes judgment to perform the work. 

WorkScape must add on standing (including walking) and sitting to its RFC calculator. If it wants to be all-inclusive, it must make the full ORS reports available. As it is right now, WorkScape keeps the user in the dark about the rest of the data. 

Alberigi and other users of WorkScape must access the ORS data. No reasonable person should simply regurgitate what WorkScape coughs out. If a person wants to testify, that person must know the data not just repeat the indefensible. 

And now for the advertisement. WorkScape charges $89 per month or $900 per year for the basic plan. The premium plan is $188 per month or $2,000 per year. 

OccuCollect.com is $29 per week, $49 per month, or $299 per year. OccuCollect has a job numbers calculator but it also has the full array of ORS data, DOT/SCO summary and detailed reports, O*NET work abilities and work context reports, the OEWS, the OOH, the EP, the EP and OEWS industry by industry breakdown of jobs in a SOC code, and the CBP. OccuCollect.com provides all the data for 15% of the price. It is the better deal. Sign up now before prices go up in 2026. 

Legal Aid organizations get a special deal. Call Eric if you work for Legal Aid. 

Vocational witnesses will punk you and steal from your clients -- and you by extension. Don't let that happen. 

Hurry. 

___________________________


Suggested Citation:

Lawrence Rohlfing, WorkScape Analytics -- What Is Seriously Wrong, on First Blush, California Social Security Attorney (October 17, 2025, 2025) https://californiasocialsecurityattorney.blogspot.com


The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Imagine a vocational expert testifies to a light, simple and repetitive residual functional capacity for a younger individual. The witness (Skylar DePedro) testifies to:

56,000 furniture rental clerk jobs;

5,000 usher jobs; and

120,000 counter clerk jobs

The VW states that she “primarily” used SkillTRAN. That is true for the first two occupations, but only partially true. That “primary” reference is wholly false for the third.

The hearing took place in January 2023. We use that as our reference point. As of May 10, 2022, SkillTRAN estimated for furniture rental consultant:

The 56,000 jobs testimony is reasonable based on the SkillTRAN estimate through early May 2022. But the hearing took place in January 2023. SkillTRAN updates with the OEWS data that comes out. In 2022, that happened after May 10. By May 24, 2022, SkillTRAN estimate for furniture rental consultant said:

Oh no, the estimate went down by 54,000 jobs. What happened? How could that be?

The earlier estimate identified Rental and Leasing Services (NAICS 532000) and Rental and Leasing Services (NAICS 5320A1, which includes 532200, 532300, and 532400). NAICS 532000 includes any code that starts with 532 and adds other non-zero digits after 532.

In the NAICS, two non-zero digits represents a sector. Three non-zero digits represents a subsector. Four non-zero digits represents an industry group. Five non-zero digits represents a specific industry. Six digits represents a specific industry. Of the three countries in the North American Industry Classification System, only the United States uses six digits. Canada and Mexico stop at five digits.

Any vocational expert worthy of that title is obligated to know that 532000 includes all the industry groups in 5320A1. If DePedro used a SkillTRAN product, she should have read the 2021 version and known that the 56,000 jobs was wrong. If DePedro states that she is using SkillTRAN, a reasonable inference from that testimony is the most recent version of SkillTRAN. But clearly DePedro did not either use the then most recent version but used an obsolete version without an of examination of the data fields. That is reckless, at best.

But let us not leave its at furniture rental consultant, let’s proceed to usher. I don’t have a May 10, 2022, print for usher. I do have January 5, 2021:

That’s reasonably close to the 5,000 that DePedro testified for usher. Let’s look at May 24, 2022:

The difference is motion picture and video industries (NAICS 512100). That industry represents half the jobs. Why was it deleted? I don’t know. But if the witness tells me that they are using SkillTRAN and don’t confess to the recalculation by adding back in an industry and manually computing, then the statement of primary use is incomplete and misleading. DePedro did not either use the then most recent version but used an obsolete version without an of examination of the data fields.

Now we really get to have some fun. Counter clerk is, according to the DOT, an occupation that exists in the photofinishing industry. Those of you that are closely approaching or beyond retirement age will remember the 10x10 kiosks in the plaza. Those of you closely approaching age may remember that the big box stores had photofinishing booths where we could drop off our instamatic film and get that film processed. None of those jobs exist anymore. The only people using film are professionals. Here is the May 10, 2022, job number estimate for SkillTRAN:

Oh no! DePedro said 120,000. How about the update? Here is June 8, 2022:

The identification of counter clerk as representing 120,000 jobs based on SkillTRAN, that one DePedro just made that up. It is simply fabricated. DePedro might have some other rationale but that would betray her primary reliance on SkillTRAN.

And that is the problem. Biestek v. Berryhill, 139 S.Ct. 1140 (2019) tells us that we do not get to look that the VE’s actual documentation. So we submit the best we’ve got. But the courts are increasingly hostile to the same methodology approach. We must submit the data and submit it  to the Administrative Law Judge, not the Appeals Council. The ALJ has a duty to weigh the evidence. Our clients are entitled to administrative notice. Better yet, cross the witness at the time of hearing:

1.       What program are you using?

2.       What version are you using?

3.       Are you looking at it now?

4.       What does the program state as the job number?

Drill down like your client’s economic livelihood depends on it, because it does.

___________________________


Suggested Citation:

Lawrence Rohlfing, Addresser -- A Persistent Favorite of Vocational Witnesses, California Social Security Attorney (originally September 12, 2025, corrected October 18, 2025) https://californiasocialsecurityattorney.blogspot.com


The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Addresser -- A Persistent Favorite of Vocational Witnesses

Assume a person of the same age, education, and work experience of the claimant and assume that the person is limited to sedentary work, sitting six hours in an eight-hour day, frequent handling, frequent fingering, and limited to simple work with no more than occasional interactions with coworkers, supervisors, and the public. Any work?

That person could work as an addresser representing 30,000 jobs in the national economy. 

Is that occupation performed as described in the DOT.

Sometimes workers use typewriters and hand-address labels and envelopes. Sometimes the worker will simply apply labels to envelopes, packages, and cards.

We have heard the mantra. It is nonsense. It is also the recommended explanation that SSA gives to VW in their training. Let's also beat them at their own game.

SkillTRAN estimates that addresser works in eight industries and is also self-employed for a total of 1,952 jobs. Self-employed work is not unskilled work -- it is running a business. Most of the jobs exist in local government, 1,253 jobs. SkillTRAN does not support the existence of 30,000 addresser jobs. 

The OEWS estimates 36,030 jobs for word processors and typists (SOC 43-9022). The EP, OOH, and O*NET reporting the same data set estimate 40,000 jobs. It is curious that a word processor is applying labels. There might be people applying pre-printed labels but they are not word processors and typists, they are general office clerks or mail clerks. The crosswalk places addresser in word processors and typists. The OEWS and OOH defines word processors and typists:

Use word processor, computer, or typewriter to type letters, reports, forms, or other material from rough draft, corrected copy, or voice recording. May perform other clerical duties as assigned. Excludes “Court Reporters and Simultaneous Captioners” (27-3092), “Medical Transcriptionists” (31-9094), “Secretaries and Administrative Assistants” (43-6010), and “Data Entry Keyers” (43-9021).

The O*NET omits the "excludes" portion of the description but is otherwise identical. None of the descriptions leave room for application of labels. 

The crosswalk tells us that word processors and typists contains eight DOT codes, one of them is unskilled, all are sedentary. We should doubt that all word processors and typists are unskilled addressers. 

The 2023 ORS confirms that word processors and typists represent sedentary work in greater than 99.5% of jobs. Call it 100% and move on. The ORS estimates that 26.3% of jobs have up to one month of training. Semi-skilled and skilled work represent 70.6% of jobs. The "less than" estimate of 10% of jobs with a short demonstration (up to four hours) contains all the standard error. If the five state estimates are accurate, the residual is 3.1% of jobs. Let's round up and call it 30% of jobs are unskilled. That means that 10,800 jobs are sedentary and unskilled. Call that progress. 

The ORS describes greater than 50% of jobs have a choice of sitting or standing, less than 50% do not have a choice. Word processors and typists sit 75% of the day at the 10th percentile and more than 75% of the day at all other reported percentiles. Because the "choice" of sitting or standing is "when" and not "how much," the conclusion would leave a person limited to six hours of sitting in a day to 1,080 jobs. 

The O*NET confirms the obvious -- clerical employees work together with other employees. Word processors and typists have constant contact with other in 69% of jobs and most of the time in 31% of jobs. Any limitation on contact or interaction with others eliminates all jobs. The ORS describes all jobs as requiring at least basic people skills. The ORS states that word processors and typists have verbal interactions less than hourly in 23.8% of jobs. The ORS might lead to 2,400 jobs. 

Finally, my favorite source of job numbers. The OEQ assumes 258,841 word processor and typist jobs with one-eighth of them sedentary and unskilled, to wit 32,385 jobs. The SOEUQ suggests 22,695 jobs. Both sources claim reliance on the OES which is the OEWS. We started with the OEWS -- 36,030 jobs total. 

The existence of 30,000 addresser jobs is not sustainable. The only source consistent with that estimate is the OEQ. The SOEUQ contradicts that estimate and comes from the same publisher. Both sources state reliance on the OES, which does not exist. The OEWS and the EP/OOH/O*NET are wholly inconsistent with the OEQ/SOEUQ. And we end where we started, word processors and typists do not affix labels to envelopes, packages, and cards. That is not their job.

The Emergency Message tells the adjudicator to get a further explanation for addresser. When the adjudicators suggest and explanation without looking at the occupational description, we end with a conspiracy to commit idiocy. SSA should go back to the promise made almost 50 years ago -- take administrative notice of jobs, requirements, and job numbers. 

Disgusted.

___________________________


Suggested Citation:

Lawrence Rohlfing, Addresser -- A Persistent Favorite of Vocational Witnesses, California Social Security Attorney (September 12, 2025) https://californiasocialsecurityattorney.blogspot.com


The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

The Problems with the ORS -- Jeff Truthan Speaks at NOSSCR

If you did not attend NOSSCR in San Diego either in person or virtually, you missed out on a very important message from Jeff. He detailed the incomplete nature of the Occupational Requirements Survey (ORS) and data conflict within the ORS. SkillTRAN holds me out as an important reviewer and co-presenter with Jeff. I have standing to comment. 

1. The ORS covers 477 of 848 civilian Standard Occupational Classification (SOC) codes in the second wave. It does cover 90% of the jobs in the national economy and additional SOC codes get covered in the first or third waves.   
2. The ORS does not cover General Educational Development (GED) and therefore does not cover Reasoning, Math, and Language (RML). It does cover limited education under the heading of no minimum education required as well and literacy in not required.  
3. The ORS does not cover either Aptitudes or Temperaments. SSA rejects them anyway. 
4. The ORS does not cover Balancing, Feeling, or Tasting. In 40 years, theses physical requirements have never been an issue. 
5. The ORS does not cover visual Accommodation, Color Vision, or Depth Perception. The need for depth perception does arise in some cases. 
6. The ORS does not consistently report Specific Vocational Preparation (SVP). This is a problem if the case turns on transferability of skills, which is less and less likely with the short past relevant work period. 
7. The ORS does not consistently merge educational and certificate requirements into SVP. This is a problem because it could lead to the misidentification of work as unskilled when it is not. 
8. The ORS does not consistently report Strength. Not all strength levels matter so the criticism lacks context. The DOT also contains exertion mistakes -- escort vehicle driver for instance. 
9. The ORS does not cover Work Fields or Materials, Products, Subject Matter, or Services (MPSMS). This is again a transferability issue; SSA recognizes this data in POMS but does not ask witnesses to use the data.
10. The ORS does not cover Guide to Occupational Exploration (GOE) codes. The DOT and SCO do report the GOE codes. No one uses them. They are potentially relevant in the little or no adjustment issues for older workers in transferability. But no one uses them. 
11. The ORS does not cover job duties or tasks. Jeff suggests that the Occupational Wage and Employment Statistics and O*NET cover this data. For our purposes, actual job duties come up under SSR 00-4p, which is now rescinded. 

We have some data. Some data is better than no data. New data is better than out-of-date data. Where the data is missing or the analysis of that data is incomplete, we still have the DOT. And SSA needs to grow up and start using the O*NET for the data points that are unrelated to exertion -- for the same reasons. Some data is better than no data or out-of-date data. The Courts must start enforcing the administrative notice regulation. 20 CFR 404.1566(d). 

If you missed the San Diego conference, get the sessions from NOSSCR. Not just this session but certainly including this session. 

Just do it. 

___________________________


Suggested Citation:

Lawrence Rohlfing, The Problems with the ORS -- Jeff Truthan Speaks at NOSSCR, California Social Security Attorney (September 12, 2025) https://californiasocialsecurityattorney.blogspot.com


The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Boonthong -- Replicating Vocational Witness Methodology at the Appeals Council

Where should the intrepid representative submit evidence -- to the ALJ at or after the hearing or to the Appeals Council? The ALJ asks three questions at the hearing:

1. The medical-vocational profile that the ALJ intends to find.
2. A medical-vocational profile that the ALJ might find if it results in jobs. 
3. A medical-vocational profile that the ALJ will not find -- 20% off-task, three absences per month, not full-time work. 

Question #3 is a placebo, a deep fake to the claimant that he/she has been heard and understood. "The jobs person agreed that I could not work." How often does the ALJ rely on question #3? Not very often at all. Anecdotally, representatives tell me that ALJ X adopted question #3 in the residual functional capacity assessment and found the person disabled. Most ALJs ask the profile that will be adopted in the first question. 

What do we do in that circumstance? Go after the vocational witness with hammer and tongs. Get a clear indication of methodology and destroy the credibility of the witness. If a representative really does not want to upset the ALJ because there are three more cases today or this week, get out of the business. Every claimant deserves full effort at the hearing. 

Boonthong v. Bisignano is a failure to cross. The ALJ assessed the profile and the witness identified jobs. "The evidence submitted to the Appeals Council is not sufficiently probative to warrant remand." (Emphasis added, cleaned up). Boonthong relied on White v. Kijakazi. In White, the witness stated that the job numbers came from Job Browser Pro. The Court did not find JBP inherently reliable or always sufficient to contradict the testimony as a matter of law. White relied on Buck v. Berryhill (evidence "presumably from the same source, is simply too striking to be ignored"). A claimant has the right to submit rebuttal evidence to the ALJ. Heckler v. Cambell. Rebuttal evidence does not have to come from the same source or same methodology. It is rebuttal evidence.

Why doesn't that work at the Appeals Council review? Glad you asked. The Appeals Council does not review the ALJ decision de novo. The Appeals Council reviews for:

1. Abuse of discretion.
2. Error of law.
3. Substantial evidence.
4. Broad policy concerns. 
5. New evidence for which good cause exists for not submitting it to the ALJ. 

20 CFR 404.970. "I should have submitted this post hearing to the ALJ but I was really counting on hypothetical #3" is not good cause. 

The question with rebuttal evidence is substantial evidence. Could a reasonable person find that the vocational witness was right? On a record without conflict, the answer is "yes." If the representative does not leave the witness frothing at the mouth because the nonsense has suffered exposure or the witness does not engage in frank capitulation, the representative has failed in the duty to vigorously represent the claimant. 

The Court went on to apply Wischmann v. Kijakazi. Wischmann is a bad OCR where the PDF program thrashed the document. Judge Ikuta is clear in the decision that no one could be confident what was and was not butchered in the record. If an attorney on appeal does not address the underlying problem with Wischmann, that attorney has not thoroughly digested the decision. 

One comment is in order for the unpublished memorandum in Boonthong. The variable that a person can use in Job Browser Pro 1.7.x are:

1.  The DOT code.
2. The local region.
3. Full-time and/or part-time.

In older versions, users could add or subtract industries and change the outcome. That has not been true for at least eight years. 

For the variables that a user can select, the DOT code is obvious; the local region is irrelevant (we are looking at national jobs); and full-time vs. part-time is obvious on the face of the screen shot or the printed report. One more sidebar -- the part-time designation by JBP is not policy compliant. SSA defines full-time as 40 hours, not 35 hours used by SkillTRAN. 

Hammer and tongs means "with great force, vigor, or violence." I would add one more emotive component, enjoyed defense of my client. 

___________________________


Suggested Citation:

Lawrence Rohlfing, Boonthong -- Replicating Vocational Witness Methodology at the Appeals Council, California Social Security Attorney (September 1, 2025) https://californiasocialsecurityattorney.blogspot.com


The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.