Tuesday, February 11, 2020

The Death of SSR 00-4p

This is the brief in Anthony D. v. Saul raising the colorable claim that SSR 00-4p is not entitled to deference:

A.   The Death of Social Security Ruling 00-40p

The substantial evidence question involves two discrete components: (1) is there a discernible path from the vocational expert’s local knowledge that uses a reliable method to extrapolate to national data; and (2) is the vocational expert testimony feeble or contradicted. Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019). There is no discernible path from the vocational expert’s testimony from local data to national statistics because no one asked.

Kisor v. Wilkie, 139 S.Ct. 2400 (2019) retools the deference doctrine found in Auer v. Robbins, 519 U.S. 452, 461 (1997). To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation. Social Security Rulings are frequent recipients of deference. Quang Han Van v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989); Wellington v. Berryhill, 878 F.3d 687, 872 (9th Cir. 2017). The rulings bind all components of the agency. 20 C.F.R. § 402.35(b). Under Kisor, that automatic deference is now up for reconsideration. Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003). [D.] examines deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. [D.] starts with the text of the administrative notice regulation:
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
The Commissioner takes administrative notice of reliable job information from various governmental and other publications. Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:
In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.
The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.
The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook. Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:
The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.
The first Kisor question returns to the Chevron watershed: is the regulation ambiguous? 139 U.S. at 2415. If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore v. Swift & Co., 323 U.S. 134 (1944), but it does not get deference. There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples. Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses. Because the regulations are not ambiguous, the ruling gets no deference.

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity? 139 U.S. at 2415-16. Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed. Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. The Commissioner cannot create a new regulation by interpreting a clear one to say something that the regulation does not suggest. Christensen v. Harris County, 529 U.S. 576, 588 (2000).

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner. That is the third Kisor question. 139 U.S. at 2416. There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy.

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency. Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise. That expertise belongs to the Secretary of Labor. Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration. But here is what Labor says about the subject:
The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.
Dept. of Labor, Office of Administrative Law Judges, Dictionary of Occupational Titles –  Fourth Edition, Revised 1991, electronic version at https://www.oalj.dol.‌gov/‌‌LIBDOT.HTM.  The O*NET is an ongoing process of data collection and refinement.  See 84 Fed.Reg. 24822 (May 29, 2019). 

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek. The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published. The O*NET is updated every year. Most of the DOT is over 40 years out-of-date. When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek. With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:
Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.
The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set version 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT as to the descriptions contained in the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.



Lawrence Rohlfing, The Death of SSR 00-4p, California Social Security Attorney (February 11, 2020),

A Word About Numerosity

That is the title of the section of the court decision in Anthony D. v. Saul, CV 19-134 MRW.  It is not available on Google Scholar or WestLaw.  Here are the important snippets from the court decision by Magistrate Judge Wilner:

13 ... Some judges [fn. 1] doubt whether the twentieth century's DOT (last revised in 1991) remains a legitimate, dependable source of employment data in contemporary America. The database continues to trumpet the availability of jobs that simply don't exist anymore.

14. It is especially eye-opening that the U.S. Department of Labor endorses a competing compilation (the O*Net) as the "primary source of occupational information" for use in industry and litigation — even as the Labor Department explains that it posts DOT information on its website solely as an accommodation to the Social Security Administration. (oalj.dol.gov/LIBDOT.HTM (accessed Jan. 9, 2020).)

15.  Plaintiff makes colorable arguments as to why SSR 00-4p should not receive Kisor-Auer deference. Counsel also may have my ear some day in asserting that vocational expert testimony based on archaic DOT job data and descriptions does not constitute "substantial evidence" adequate to support an adverse agency ruling. Biestek v. Berryhill, U.S. , 139 S. Ct. 1148, 1154 (2019). However, because the action is remanded on another ground, I get to duck the issue today.

16.  By the way, so did the Ninth Circuit in Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). The government is literally correct in quoting the passage from Shaibi that the circuit could "find no case, regulation, or statute suggesting" that an ALJ must turn to other data sources in lieu of the DOT. (Docket # 21 at 23 (quoting Shaibi, 883 F.3d at 1109).) But the Ninth Circuit clearly did not view that issue as either ripe or preserved at the time — the main and obvious holding in the case was that Mr. Shaibi "forfeited his challenge to the VE's job numbers." Id., 883 F.3d at 1108.

17.  Are other aspects of the decision merely nonbinding dicta? Perhaps Pasadena will deal with this roiling question soon. If so, the agency may need to reconsider its defense of the dusty DOT data.  

And footnote 1 lists some cases casting doubt on blind application of the DOT:

Including me. See Analia D. v. Berryhill, No. CV 18-3869 MRW, 2019 WL 856854 at *2 (C.D. Cal) ("To that end, a growing number of courts have resisted agency findings that historic jobs — like those involving the word processing devices formerly known as typewriters — exist in substantial numbers in the 2019 economy. See, e.g., Skinner v. Berryhill, No. CV 17-3795 PLA, 2018 WL 1631275 (C.D. Cal. Apr. 2, 2018) (`addresser' jobs have 'significantly dwindled in number since 1991 in light of technological advances'); Hilda V.A. v. Berryhill, No. ED CV 18-195 KES, 2018 WL 5291930 (C.D. Cal. 2018) (discussing percentage of time that 'accounting clerk' currently spent on keyboarding tasks); Boomhower v. Berryhill, 2017 WL 7167116 (D. Or. 2017) (remanding for determination whether 'addresser' and 'nut sorter' are jobs 'still performed' as described in DOT); Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (retired Circuit Judge Posner's doubts about the validity of job information for positions like 'pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist').") 

We will make progress in this endeavor if we persevere and fastidiously demand that the agency produce reliable evidence of the existence of work.   



Lawrence Rohlfing, A Word About Numerosity, California Social Security Attorney (February 11, 2020),

Saturday, January 25, 2020

A Plain Conflict Between the Regulation, Ruling, and POMS

In 2003, Social Security amended the regulations concerning adverse medical-vocational profiles that warrant a finding of disability without the assessment of residual functional capacity. Social Security added paragraph (b) to §§ 404.1562, 416.962Prior to the 2003 amendment, the regulations provided:
If you have only a marginal education and work experience of 35 years or more during which you did arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s), we will consider you unable to do lighter work, and therefore, disabled. However, if you are working or have worked despite your impairment(s) (except where the work is sporadic or is not medically advisable), we will review all the facts in your case, and we may find that you are not disabled. In addition, we will consider that you are not disabled if the evidence shows that you have training or past work experience which enables you to do substantial gainful activity in another occupation with your impairment, either on a full-time or a reasonably regular part-time basis.
(Example omitted).  The regulation now reads:
(a) If you have done only arduous unskilled physical labor. If you have no more than a marginal education (see § 404.1564) and work experience of 35 years or more during which you did only arduous unskilled physical labor, and you are not working and are no longer able to do this kind of work because of a severe impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), we will consider you unable to do lighter work, and therefore, disabled.
(b) If you are at least 55 years old, have no more than a limited education, and have no past relevant work experience. If you have a severe, medically determinable impairment(s) (see §§ 404.1520(c), 404.1521, and 404.1523), are of advanced age (age 55 or older, see § 404.1563), have a limited education or less (see § 404.1564), and have no past relevant work experience (see § 404.1565), we will find you disabled. If the evidence shows that you meet this profile, we will not need to assess your residual functional capacity or consider the rules in appendix 2 to this subpart.
The concept of a person of advanced age, lacking past relevant work, and limited to medium exertion was presumptively disabled.  Appendix 2, Rules 203.02, 203.10.   The explanation for the rules contained in Social Security Ruling 82-63. In that ruling, the agency expands:
Rules 203.02 and 203.10 in Table No. 3 of Appendix 2 reflect the policy decision in July 1975 with respect to persons who have a severe exertional impairment which limits them to the medium level of work exertion. However, should only rules 203.02 and 203.10 be considered, a person with a severe nonexertional impairment who is of advanced age, has a limited education, and has no recent and relevant work experience might not be found to be disabled.
The 1982 ruling states that a person of advanced age, limited education, and severe mental impairment "might not be found to be disabled." The 2003 regulation states that if a person is of advanced age, possesses no more than a limited education, has no past relevant work experience, and has a severe medically determinable impairment, that person is presumptively disabled.  The regulations are clearly positive law. The ruling is binding on agency adjudicators. Something is wrong.

The SSA also issues POMS DI 25010.001. There, the agency describes the paragraph (a) arduous unskilled work profile, the paragraph (b) no work experience profile, and a third lifetime commitment profile (not currently working at SGA levels; lifetime commitment of 30 years or more to a field of work that is either unskilled or leaves no transferable skills; no longer able to perform past work because of a severe impairment; closely approaching retirement age; and having no more than a limited education).

To resolve the tension between the ruling, amended regulation, and current POMS provision, we need to understand that rulings are not positive law but are instead policy statements or interpretations of regulations or the statute. SSR 83-63 properly interpreted the provisions of rules 203.02 and 203.10, but did not anticipate the 2003 regulatory changes. The statement that a person with a nonexertional impairment otherwise meeting the adverse vocational profile "might not be found disabled" is inconsistent with the regulatory language. Because it is inconsistent with the regulatory language, it is not entitled to deference.

The POMS provision is more troublesome in its addition of the lifetime commitment profile for an individual at least 60 years of age.  The current version of the adverse vocational profile regulation does not include this profile. Whether an ALJ would apply the lifetime commitment profile to an individual age 60 or over represents a fair question.

The take away from this is simple: just because a ruling is still in place does not mean that it is entitled to deference. It might be wrong. It might not be consistent with amended regulations. Or it might not be entitled to deference for other reasons.



Lawrence Rohlfing, A Plain Conflict Between the Regulation, Ruling, and POMS," California Social Security Attorney (January 25, 2020), revised (January 27, 2020)

Wednesday, January 22, 2020

Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work

Sometimes it is worth examining our presumptions about what terms and phrases of art mean.  We explore the issue of the exertional demands of the different ranges of work.  The Occupational Requirements Survey is a creature of the Bureau of Labor Statistics.  The ORS is intended as the eventual replacement for the Dictionary of Occupational Titles.  Here is the ORS definitions of light through very heavy work.

Table 1. Determining strength level based on duration of lifting or carrying
Strength level
Duration of lifting or carrying
Light work
11-20 pounds
11-20 pounds
1-10 pounds
Negligible weight
Medium work
21-50 pounds
21-50 pounds
11-25 pounds
1-10 pounds
Heavy work
51-100 pounds
51-100 pounds
26-50 pounds
11-20 pounds
Very heavy work
>100 pounds
>100 pounds
>50 pounds
>20 pounds

The definition of sedentary is a residual category, a process of excluding other ranges of work. 

Table 2. Special cases for calculating strength level
Strength level
If it is unknown whether lifting or carrying occurs occasionally, frequently, or constantly or none of the conditions in the strength level chart are met and standing or walking or sitting are unknown.
If none of the conditions in the strength level chart are met and standing or walking occurs less than or equal to 1/3 of the work schedule.
Light work
If none of the conditions in the strength chart are met and does not meet the special conditions for unknown or sedentary.

The amount of standing/walking in a day is a factor only in differentiating between sedentary and light work.  The statement is SSR 83-10 that the primary difference between sedentary and light work is the amount of standing/walking conforms to Labor definitions.  The statements in SSR 83-10 that light and medium work involve standing/walking six hours in a workday was not correct in 1983, not correct in 1991, and not correct today.  Light work involves standing/walking from zero to eight hours per day. 



Lawrence Rohlfing, Definitions of Sedentary, Light, Medium, Heavy, and Very Heavy Work," California Social Security Attorney (January 22, 2020),

Saturday, January 11, 2020

The Industries Assigned to Small Products Assembler I -- DOT Conflict

We addressed the use of DOT industry designations and narrative job descriptions to create unexplained conflict between the DOT and Job Browser Pro using lens inserter as our example.  We can now examine a bigger and more damaging problem in the occupation of small products assembler I (DOT 706.684-022).  We start with the DOT entry for the occupation:
706.684-022 ASSEMBLER, SMALL PRODUCTS I (any industry) alternate titles: bench assembler 
Performs any combination of following repetitive tasks on assembly line to mass produce small products, such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors: Positions parts in specified relationship to each other, using hands, tweezers, or tongs. Bolts, screws, clips, cements, or otherwise fastens parts together by hand or using handtools or portable powered tools. Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker. Loads and unloads previously setup machines, such as arbor presses, drill presses, taps, spot-welding machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or light metal-cutting operation on assembly line. May be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor. May be known according to product assembled.
GOE: 06.04.23 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 79
 The first thing to notice is the designation of any industry.  Here is what the DOT says about that any industry designation:
Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry."
The mass production of small products such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors do not occur in nearly all industries but do occur n a number of industries, not most industries.  When the vocational expert identifies small products assembler, it is incumbent to establish those self-evident facts.

So what does JBP describe as the industries?  We take them groups as a time.
311100 Animal food manufacturing
311200 Grain and oilseed milling
311300 Sugar and confectionery product manufacturing
311400 Fruit and vegetable preserving and specialty food manufa
311500 Dairy product manufacturing
311600 Animal slaughtering and processing
311700 Seafood product preparation and packaging
311800 Bakeries and tortilla manufacturing
312100 Beverage manufacturing
314000 Textile product mills
316000 Leather and allied product manufacturing
321100 Sawmills and wood preservation
321200 Veneer plywood and engineered wood product manufact
321900 Other wood product manufacturing
322000 Paper manufacturing
323000 Printing and related support activities
324000 Petroleum and coal products manufacturing
3250A1 Chemical manufacturing
3250A2 Chemical manufacturing
325400 Pharmaceutical and medicine manufacturing
These industries would not appear to manufacture small products on an assembly line.
326100 Plastics product manufacturing
326200 Rubber product manufacturing
These categories are possible and do not create an easily established apparent conflict.
331200 Steel product manufacturing from purchased steel
331300 Alumina and aluminum production and processing
331400 Nonferrous metal (except aluminum) production and proc
331500 Foundries
3320A1 Fabricated metal product manufacturing
3320A2 Fabricated metal product manufacturing
332710 Machine shops
332800 Coating engraving heat treating and allied activities
More questionable industries.  
3330A1 Machinery manufacturing
333300 Commercial and service industry machinery manufacturin
333500 Metalworking machinery manufacturing
333600 Engine turbine and power transmission equipment manuf
334100 Computer and peripheral equipment manufacturing
334200 Communications equipment manufacturing
334300 Audio and video equipment manufacturing
334400 Semiconductor and other electronic component manufact
334500 Navigational measuring electromedical and control instr
334600 Manufacturing and reproducing magnetic and optical medi
335100 Electric lighting equipment manufacturing
335200 Household appliance manufacturing
335300 Electrical equipment manufacturing
335900 Other electrical equipment and component manufacturing
336100 Motor vehicle manufacturing
336200 Motor vehicle body and trailer manufacturing
336300 Motor vehicle parts manufacturing
336400 Aerospace product and parts manufacturing
336900 Other transportation equipment manufacturing
337000 Furniture and related product manufacturing
339000 Miscellaneous manufacturing
339100 Medical equipment and supplies manufacturing
Some of these facially fit the DOT occupation description.  Others require an explanation. 
4230A1 Merchant wholesalers durable goods
423100 Motor vehicle and motor vehicle parts and supplies merch
423400 Professional and commercial equipment and supplies mer
423800 Machinery equipment and supplies merchant wholesaler
4240A1 Merchant wholesalers nondurable goods
4240A2 Merchant wholesalers nondurable goods
4240A3 Merchant wholesalers nondurable goods
424300 Apparel piece goods and notions merchant wholesalers
424500 Farm product raw material merchant wholesalers
425000 Wholesale electronic markets and agents and brokers
441000 Motor vehicle and parts dealers
444000 Building material and garden equipment and supplies deal
445000 Food and beverage stores
448000 Clothing and clothing accessories stores
451000 Sporting goods hobby musical instrument and book stor
453000 Miscellaneous store retailers
454000 Nonstore retailers
493000 Warehousing and storage
561320 Temporary help services
Wholesalers and retailers do not manufacture.  They employ production workers, all other, but not this DOT code, not without a reasonable explanation.
624300 Vocational rehabilitation services
Sheltered work does not count. 
811200 Electronic and precision equipment repair and maintenanc
Workers repairing and maintaining do not manufacture. 
TE1100 TESelf-employed workers
 This last category of self-employed production workers probably does not fit the unskilled mantra.

The industries listed by JBP for small products assembler are questionable for many of those listed.  This is fertile grounds for cross-examining the VE.



Lawrence Rohlfing, The Industries Assigned to Small Products Assembler I -- DOT Conflict," California Social Security Attorney (January 11, 2020),

Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro

We talked about the release of Job Browser Pro 1.7 last year.  Here is the most important features of ver. 1.7 that differ from prior versions:
Because the extensive research we have done has enabled estimation of employment at a weighted average of 88.3% for each SOC/OES group, we no longer allow customers to immediately modify NAICS industries for a DOT occupation. We do allow customers to submit suggestions, which we will review and incorporate into a subsequent update as appropriate. We want to prevent double counting and inappropriate NAICS, so we will study each suggestion in the context of the impact of that suggestion on the entire SOC/OES Group.
The emphasis belongs to SkillTran.  A vocational expert that uses a prior version of JBP can add industry codes, double count two, three, four, five, and six digit NAICS codes.  That makes the job number estimate unreliable.

 Our objective is to establish that the industry code (NAICS) assignments either double count or are just wrong.  We can start with lens inserter (DOT 713.687-026).  JBP assigns lens inserter to jewelry and silverware (NAICS 332210) and estimate 183 jobs.  But the DOT industry assignment is optical goods manufacturing, not jewelry and silverware.

We can show the correct industry assignment for occupations in the optical goods industry by examining final assembler (DOT 713.687-018).  JBP assigns final assembler to the medical equipment and supplies manufacturing industry group (NAICS 339100).  JBP links to its restatement of County Business Patterns, the blue CBP link.  That leads here.  Once there, we can click on the Show Products for this NAICS button.  Medical equipment and supplies manufacturing group includes the manufacture o eyeglass frames (NAICS 339115), the focus of final assembler job duties.  NAICS 339115 is the specific industry for ophthalmic goods manufacturing, a subset of medical equipment and supplies manufacturing industry.

We return to lens inserter and find the duties involve fitting lenses into sunglass frames.  The manufacture of sunglasses and goggles is a medical equipment and supplies manufacturing industry group is found in NAICS 339115, the ophthalmic goods manufacturing manufacturing industry.  Clearly lens inserter should include NAICS 339100 as the industry group that includes NAICS 339115.  But should it include NAICS 332210, jewelry and silverware manufacturing?

No.  Following the blue CBP link for jewelry and silverware manufacturing leads here.  The Show Products for this NAICS button displays the products manufactured in this specific industry.  The manufacture of glass(es), frame(s), lens(es), or anything related to the optical goods industry and the narrative description of lens inserter is missing.

That leads to the SSR 00-4p question of apparent conflict with the DOT.  There is an apparent conflict if and only if the JBP report for lens inserter is in the record.  The DOT is in the record by virtue of the ruling.  But the submission of the JBP report is the representative's responsibility on a post-hearing submission.  We must create a record that shows an apparent conflict and then ask the ALJ to resolve the conflict based on a reliable methodology.

Obviously the report of 183 jobs is rarely a concern.  The VE probably did not identify 183 jobs reported by JBP.  The VE probably identified what most of them identify, circa 20,000 jobs.  Submission of the JBP report for lens inserter establishes a conflict point and the submission of final assembler represents a more reliable estimate.  JBP reports 281,335 employees in the medical equipment and supplies manufacturing industry group.  If anyone believes that 9% of those jobs are unskilled sedentary production workers, all other, I do have a bridge to sell.

A more common problem is identification of unskilled light work, e.g. small products assembler I (DOT 706.684-022).  We address that occupation in the next blog.



Lawrence Rohlfing, Using the DOT Industry Designation to Erode Numbers Reported by Job Browser Pro," California Social Security Attorney (January 11, 2020),

Tuesday, December 31, 2019

Occupations Identified as "An Example"

Vocational experts have been trained to use the phrase "as an example" when identifying jobs within an occupation.  That "as an example" allows significant slough in the evidence that dutiful representation must clarify.  ALJ discretion is the bane of the claimant's representative.

The first task is to define "as an example."  That phrase could mean 20,000 jobs as a lens inserter including other similar sedentary unskilled occupations aggregating to 20,000 jobs.  Alternatively, the phrase could mean 20,000 jobs as a lens inserter and there are a lot more jobs that are similar to lens inserter.  The two alternatives make a difference.  If the testimony contends that there are 20,000 lens inserter jobs, that is an easy rebuttal.  If the testimony contends that there are 20,000 sedentary unskilled production worker jobs, that is a more cumbersome rebuttal.

1. 20,000 Lens Inserter Jobs

That specific testimony, which does occur, is statistically unsustainable.  Job Browser Pro provides an estimate of 208 jobs.  That's wrong.  JBP provides the estimate placing lens inserter in the jewelry and silverware manufacturing industry.  The DOT places lens inserter in the optical goods industry.  The optical goods industry corresponds to the ophthalmic goods manufacturing industry, part of the medical equipment and supplies manufacturing industry group (four digits).  The similar occupation of final assembler has a JBP estimate of 32 jobs.  That is based on the assumption that 65 DOT codes made up 2,077 jobs at the SOC-NAICS intersection. 2,077 / 65 = 31.95.  Round it off to 32.  Equal distribution rules the day.

But if the occupation exists in the ophthalmic goods manufacturing industry, we need to examine County Business Patterns.   Medical equipment and supplies manufacturing industry group represents 281,335 jobs in the nation.   The OES Query System estimates:

Occupation (SOC code)Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)
Ophthalmic Laboratory Technicians(519083)
Helpers--Production Workers(519198)
Production Workers, All Other(519199)
Packers and Packagers, Hand(537064)
The production workers, all other number of jobs is slightly in excess of the intersection reported by JBP.

Ophthalmic goods manufacturing industry represents 24,988 jobs in the nation.  That is 8.9% of the medical equipment and supplies manufacturing industry group total employment.  Assuming similar staffing in the  ophthalmic goods manufacturing industry, we would get:

Occupation (SOC code)Employment
Inspectors, Testers, Sorters, Samplers, and Weighers(519061)
Ophthalmic Laboratory Technicians(519083)
Helpers--Production Workers(519198)
Production Workers, All Other(519199)
Packers and Packagers, Hand(537064)
There are 20 DOT codes assigned to the optical goods industry.  How many jobs are there as a lens inserter or final assembler?  Less than 10 each.

2. 20,000 Sedentary Unskilled Production Worker All Other Jobs, e.g. Lens Inserter

To respond to this testimony takes knowing some basic facts -- asking the vocational expert to state them or profess ignorance.

a. How many DOT codes exist within production workers, all other?  (1,590 by the O*NET, 1,589 by US Publishing, 1,526 by JBP).

b. How many sedentary unskilled DOT codes exist within production workers, all other? (52 by all three sources).

c. Do all 52 DOT codes have the characteristics that meet the hypothetical question posed?  (2 SVP 1, 50 SVP 2; 19 R1, 33 R2; 19 constant handling, 33 frequent handling).

d. How many jobs exist for this DOT example?  (See analysis for Scenario 1).

e. If the Department of Labor, Bureau of Labor Statistics published data that suggested that there are significantly fewer jobs at the unskilled sedentary variety within production workers, all other, would you defer to the BLS data?

The fluid use the DOT/SCO, O*NET, OOH, and ORS (all available on OccuCollect.com) along with CBP and JBP allows us to find out exactly what the vocational expert means and then to prove the lack of reliability.

Happy New Year!



Lawrence Rohlfing, Occupations Identified as "An Example," California Social Security Attorney (December 31, 2019),