Thursday, March 19, 2020

Documented Occupational Erosion Using BLS Data Accepted by the ALJ

I had a telephone hearing with an ALJ. Judge states that he found the pre-hearing brief persuasive and intends to award benefits for a younger individual, high school education in a foreign country, illiterate in English, past work semi-skilled and light. The residual functional capacity is for a limited range of light work: standing two hours; walking two hours. Clearly a mixed bag on the medical-vocational criteria. I attach an everything report from OccuCollect.com for the two occupations cited. The everything report includes the DOT, SCO, OOH, O*NET, and ORS data along with calculations for the common factors encountered. With those reports attached, here is the argument presented, the client's name replaced with CLAIMANT, to protect privacy:

The prior vocational expert testified to assembler of plastic hospital products (DOT 712.687-010) representing 115,000 jobs; assembler, electrical accessories (DOT 729.687-010) representing 20,000 jobs. The testimony is easily contradicted and rendered feeble. It is not substantial evidence. You should find CLAIMANT disabled under the Medical-Vocational Guidelines, Rule 201.17 by analogy.

1. Assembler of Plastic Hospital Products

Assembler of plastic hospital products is a light unskilled occupation. DICOT 712.687-010. Assembler of plastic hospital products belongs to the occupational group of production workers, all other (SOC 51-9199). Production workers, all other represents a large occupational group containing 1,590 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-9199. The Occupational Outlook Handbook describes production workers, all other, as representing 244,700 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-9199.

Production workers, all other, have no minimum educational requirement in 49.1% of jobs. They require literacy in 31% of the jobs. That leaves 18.1% of the jobs is not requiring literacy. Production workers, all other, engage in unskilled work in 53% of jobs. Production workers, all other, engage in medium work in 63.9% of jobs. Production workers, all other, stand/walk 6.75 hours per day at the 25th percentile; 7.92 hours per day at the 50th percentile; and 8.0 hours per day at the 75th and 90th percentiles. There is no significant range of work in the occupational group of production workers, all other, that permit standing/walking equal to or less than four hours in an eight-hour day. Occupational Requirements Survey (2018), 51-9199.00.

2. Assembler of Electrical Accessories I

Assembler of electrical accessories I is a light unskilled occupation. DICOT 729.687-010. Assembler of electrical accessories I belongs to the occupational group of electrical and electronic equipment assemblers (SOC 51-2022.00). Electrical and electronic equipment assemblers is a large occupational group containing 61 DOT codes at all levels of exertion and skill. O*NET OnLine, DOT crosswalk, 51-2022. The Occupational Outlook Handbook describes electrical and electronic equipment assemblers as representing 218,900 jobs in the nation with a typical educational requirement of a high school diploma or equivalent and typical on-the-job training of moderate-term — more than 30 days and up to one year. Occupational Outlook Handbook (2018), 51-2022.

Electrical and electronic equipment assemblers have no minimum educational requirement in 26.7% of jobs. Literacy is required in all, 26.7% of jobs. Electrical and electronic equipment assemblers engage in unskilled work in 29.2% of jobs. Electrical and electronic equipment assemblers engage in light work and 28.3% of jobs. Electrical and electronic equipment assemblers do not sit at the 10th percentile; sit for hours per day at the 50th percentile; sit 6.4 hours per day at the 75th percentile; and sit 7.2 hours per day at the 90th percentile. Electrical and electronic equipment assemblers stand/walk 1.6 hours per day at the 25th percentile; 4.8 hours per day at the 50th percentile; 7.2 hours per day at the 75th percentile; and 8.0 hours per day at the 90th percentile. Very few electrical and electronic equipment assemblers meet the residual functional capacity assessed, but none of them meet the educational deficiency of illiteracy in English. Occupational Requirements Survey (2018), 51-2022.00.

3. Conclusion

A limitation to four hours of standing/walking in an eight-hour day erases the ability to perform light work. First and foremost, the ability to stand is far more important than the ability to walk for light work. Social Security Ruling 83-10. The primary difference between light and sedentary work is standing/walking. Id. You should apply Grid rule 201.17 and find CLAIMANT disabled.

The ALJ directed the vocational expert to the brief in the E section.  The vocational expert confirmed that the person could not perform any identifiable work.  Hearing concluded. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Documented Occupational Erosion Using BLS Data Accepted by the ALJ, California Social Security Attorney (March 19, 2020)
http://californiasocialsecurityattorney.blogspot.com/2020/03/documented-occupational-erosion-using.html

Friday, March 13, 2020

Ford v. Saul and the Five-Day Rule for VE Rebuttal

Ford v. Saul holds that a request to subpoena records from the vocational expert is too late under 20 C.F.R. § 404.935(a) (the five-day rule).  We analyze why that holding is wrong and why it does not constitute law of the circuit.  


We start with our premise:  the five-day rule does not apply to rebuttal evidence at step five of the sequential evaluation process.  That position rests on plain error of law.  We start with the regulation:
When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

20 C.F.R. §§ 404.935(a), 416.1435(a).   The required (404.1512 and 416.912) sections describe the claimant’s responsibility:
you must inform us about:
(i) Your medical source(s);
(ii) Your age;
(iii) Your education and training;
(iv) Your work experience;
(v) Your daily activities both before and after the date you say that you became disabled;
(vi) Your efforts to work; and
(vii) Any other factors showing how your impairment(s) affects your ability to work. In §§ 404.1560 through 404.1569, we discuss in more detail the evidence we need when we consider vocational factors.
 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).  Paragraph (2) describes the completeness issue:
The evidence in your case record must be complete and detailed enough to allow us to make a determination or decision about whether you are disabled or blind. It must allow us to determine—
(i) The nature and severity of your impairment(s) for any period in question;
(ii) Whether the duration requirement described in § 404.1509 [§ 416.909] is met; and
(iii) Your residual functional capacity to do work-related physical and mental activities, when the evaluation steps described in § 404.1520(e) or (f)(1) [§ 416.920(e) or (f)(1)] apply.
20 C.F.R. §§ 404.1512(a)(2), 416.912(a)(2).  The regulations do not impose a duty on the claimants to present evidence about the step five question before the hearing.  That duty rests on the Commissioner.  20 C.F.R. §§ 404.1512(b)(3), 416.912(b)(3):
In order to determine under § 404.1520(g) [§ 416.920(g)] that you are able to adjust to other work, we must provide evidence about the existence of work in the national economy that you can do (see §§ 404.1560 through 404.1569a [§§ 416.960 through 416.969a]), given your residual functional capacity (which we have already assessed, as described in § 404.1520(e) [§ 416.920(e)]), age, education, and work experience.
 The five-day rule does not apply to evidence in rebuttal to (b)(3).  The five-day rule does not embrace evidence after the step three interim finding of residual functional capacity for completeness.  While a claimant must inform the Commissioner about work experience, the evidentiary hearings typically spend time on that subject — the five-day rule does not apply to developing and completing the record for past relevant work purposes. The Commissioner recognizes the problem of surprise at a hearing generally.  81 Fed. Reg. 90987, 90991 (Dec. 16, 2016):
 if an ALJ introduces new evidence at or after a hearing, the claimant could use the exception in 20 CFR 404.935(b)(3) and 416.1435(b)(3) to submit rebuttal evidence. The claimant could also rebut evidence introduced at or after the hearing by submitting a written statement to the ALJ. As  previously mentioned, we added language to 20 CFR 404.949 and 416.1449 to clarify that the 5-day requirement applies only to pre-hearing written statements, not to post-hearing written statements.
Ford v. Saul, ___ F.3d ___, part D (9th Cir. Feb. 20, 2020) cites the five-day rule for the purposes of requesting a subpoena.  Ford does not analyze the scope of §404.1512.  Ford does not control the analysis of §404.1512 to the five-day rule by failing to discuss it.  See Miranda B. v. Kitzhaber,328 F.3d 1181, 1186 (9th Cir.2003) (per curiam) (“As we have noted before, ‘where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’” (quoting United States v. Johnson,256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J. concurring)).  Ford does not confront the scope of §404.1512 and fails the law of the circuit test. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul and the Five-Day Rule for VE Rebuttal, California Social Security Attorney (March 13, 2020) edited (March 13, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-and-five-day-rule-for-ve.html

Wednesday, March 4, 2020

Douglas Prutting, Vocational Expert and Probable Prevaricator

Vocational experts are not used to being challenged.  We need to make the challenge ordinary.  The time investment up front is extraordinary but the dividends in the long run will more than compensate for the initial investment.  Douglas Prutting, Colorado Springs, Colorado, is the example of the day.

We get to a light residual functional capacity, simple repetitive tasks, minimal educational requirements, and limited to standing/walking four hours in a workday.  Prutting identifies small products assembler I (DOT 706.684-022).  Prutting uses Job Browser Pro.
Which version?
 The latest version that came out in July 2019.  
Houston, we have a problem.  The latest version of JBP did not come out in July 2019.  Version 1.7 came out in October 2019.
How many jobs does JBP state there are for small product assembler?
218,000.
Is that for the entire SOC group (51-9199) and not the for the DOT code?
Yes.  
How many jobs does JBP estimate exists for small product assembler?
I don't know how to get that number.  
JBP uses the OES job numbers.  JBP is plain about that.  The current OES job number for production workers, all other is 230,760.  I do not have to check JBP, I know that Prutting is not looking at a 2019 release of JBP, either the last installment of ver. 1.6 or ver. 1.7.  He is not truthful.

The May 2014 OES data, released by BLS in May 2015, estimates the number of production workers, all other (SOC 51-9199) at 217,500.  No other year comes close.  Data for years after 2014 are too high.  Data for 2013 reports 206,600 jobs.  Prutting is using the JBP release from 2015 and has either never bothered to check current data or never updated JBP, another misstatement.

Douglas Prutting is a prevaricator.  It is just that plain.  He got caught using old data and resorted to the natural human instinct of self-defense by speaking falsely.  Prutting probably is not used to anyone challenging him or caring that he lies.  But I do.  I care.  And so should the agency.  The ALJ has access to JBP at their desk on the fly and can check witness testimony that relies on JBP.  But they don't care.  Neither does the agency.  Public confidence in the system demands that we expose false testimony and demand that Prutting and his ilk speak truthfully and accurately.  The quality of life of disabled people depends on it.  In an age of budget retraction, we have to prove disability when the person cannot work.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Douglas Prutting, Vocational Expert and Probable Prevaricator, California Social Security Attorney (March 4, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/douglas-prutting-vocational-expert-and.html

Sunday, March 1, 2020

Ford v. Saul -- What Jobs and How Many?


The Ninth Circuit decided Ford v. Saul on February 20, 2020.  Ford is capable of a limited range of sedentary work.  We consult the District Court decision to fill in some of the gaps.  Ford can perform sedentary work with no climbing of ladders, ropes, or scaffolds; no climbing of stairs, crouching, crawling, or kneeling; occasional stooping; frequent handling and fingering; avoiding concentrated exposure to extreme cold; understand, remember, and carry out simple and routine tasks; no fast-paced production work; superficial contact with the public; can work in small groups; can interact with co-workers and supervisors to complete tasks.

The Ninth Circuit reports that the vocational expert identified 130,000 jobs as an addresser and 9,800 jobs as ink-printing.  Addresser belongs to the occupatinal group of word processors and typists (SOC 43-9022)..  Ink printer belongs to the occupational group of printing press operators (SOC 51-5112).

Addresser is obsolete.  Addresser is a word processor and typist (SOC 43-9022) occupation.  Word processors and typists contains eight DOT codes.  BLS reported in May 2015 (data that would have been published in 2016 and have been the most current data in the November 2016 hearing) that there were 68,660 word processors and typists in the nation.  The OOH relied on the 2014-24 employment projections as of November 2016, estimating the number of word processors and typists at 90,700.  That would represent the number for the O*NET OnLine as of November 2016.  The two BLS sources (EP and OES) do no support the 130,000 jobs as an addresser in 2016 or even 130,000 jobs in the group of word processors and typists.  The vocational expert lied and the failure to submit available evidence from the BLS allowed the witness to get away with it. 

An “everything report” from OccuCollect gives the data that we need to destroy the testimony.  The O*NET reports that addresser is the only unskilled DOT code.  The O*NET Resource Center reports that 51.54% of word processors and typists have 30 days or less of on-the-job training; 4.05% do not require related work experience of more than 30 days; and 51.57% of jobs require a high school education or less.  SVP is a function of training, work experience, and education.  The SVP can never be lower than the smallest component.  The exception is the exchange of experience or education where those criteria are treated interchangeably as qualifications.  Then the lowest of the two defines the SVP.  For word processors and typists, the requirement for six months to two years of related work experience means that most of the jobs are skilled.  Relatively few (8.12%) of word processors and typists are semi-skilled. 

The O*NET Resource Center does not support the presence of more than 4,500 addresser jobs in the nation in 2016. Current OOH job numbers permit the inference of 3,000 addressers.  Current OES job numbers permit the inference of 2,600 addressers.  The testimony of the vocational expert in Ford, that there were 130,000 addresser jobs, is patently false. 

Ink printer is a printing press operator (SOC 51-5112) occupation.  The ORS component of the  “everything report” from OccuCollect tells us that the OOH describes printing press operators stand/walk five hours per day at the 10th percentile.  Printing press operators engage in unskilled work in 23.8% of jobs.  Printing press operators engage in medium work in 62.7% of jobs and lift up to 25 pounds at the 25th percentile.  That data point tells us that at least 13% of the jobs require heavy or greater exertion (62% above the 25th percentile is 87%).  If there are sedentary printing press operators, they represent less than 10% of the jobs.  The testimony that ink printer represent 9,800 jobs is possible. 

Ford waived the important issues at the hearing level.  The vocational expert gave unreliable testimony.  The court embarrassed itself by allowing junk to decide the entitlement to benefits.  SSA embarrassed itself by defending that kind of testimony.  The public confidence in the system of administrative justice should go down. 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Ford v. Saul -- What Jobs and How Many?, California Social Security Attorney (March 1, 2020) edited (March 2, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/03/ford-v-saul-what-jobs-and-how-many.html

Wednesday, February 26, 2020

Valerie Williams, VE, Relies on Job Browser Pro 2017

Valerie Williams testifies as a vocational expert in Las Vegas and the nine southern California Social Security hearing offices -- that I know of.

Here are some facts that I have gleaned:

1. Williams does not own a license for Job Browser Pro -- she shares a copy with another expert.
2. The copy of Job Browser Pro is version 2017.
3.  Williams does not check current job numbers.

Really, a vocational expert that is pinching pennies does not have her own copy of JBP.  It is $549 for the initial license and significantly less for annual renewals.  While we are on this rant, attorneys must have access to a current version of JBP.  If an attorney does not have access to a copy of JBP, then the attorney cannot submit rebuttal evidence to vocational expert testimony.

SkillTran launched version 1.7 in the fall of 2019.  Use of any version prior to that date is irresponsible and unreliable.  Version 1.6.3 is not reliable when the publisher declares openly that the methodology and ability of users to add and subtract industries constituted a flaw.  The version out in 2017 is at least one release behind in terms of ver. 1.6 and completely misses the 1.7 improvements.  That does not mean that JBP is correct or reliable in every instance but it is always useful evidence.

And here it is, Williams testifies to 85,000 jobs as an usher (DOT 344.677-014) and 40,800 jobs as a barker (DOT 342.657-010).  The ALJ confirmed that these are full-time job numbers.  Cross-examination confirmed that JBP version 2017 (no such designation) is the data source for the job numbers.

But that is not what JBP says, not even close.  JBP estimates the number of full-time ushers at 4,460 in the nation and the number of full-time barkers at 3,144 in the nation.  Williams played fast and loose with the job numbers and misrepresented what she did not have to look at.  That is negligent at best, more likely reckless, if not plainly false testimony.

A check of the OES job numbers of OccuCollect.com estimates that ushers, lobby attendants, and ticket takers represent 133,970 jobs in the nation.  The OOH job numbers of OccuCollect.com estimates job numbers for ushers, lobby attendants, and ticket takers at 136,400 jobs.  The OES and OOH reports are free non-subscription reports available by registering your email address.

The O*NET OnLine states that 90% of ushers, lobby attendants, and ticket takers work less than full-time.  The O*NET is part of the subscription package on OccuCollect.com.  JBP estimates the number of part-time workers at 86%.  JBP uses the definition of full-time at 35 hours per week.  the O*NET uses 40 hours per week.  It is impossible for the occupational group of  ushers, lobby attendants, and ticket takers to represent 85,000 jobs in the nation.

A check of the OES job numbers of OccuCollect.com estimates that amusement and recreation attendants represent 318,900 jobs in the nation.  The OOH job numbers of OccuCollect.com estimates job numbers for amusement and recreation attendants at 338,600 jobs.

The O*NET OnLine states that 59% of amusement and recreation attendants work less than full-time.  The O*NET is part of the subscription package on OccuCollect.com.  JBP estimates the number of part-time workers at 71%. The Everything Report from OccuCollect.com uses the Occupation Requirements Survey to describe amusement and recreation attendants as unskilled in 80% of jobs; lifting/carrying 20.56 pounds at the mean; standing/walking 80% of the day at the 25th percentile and 66.7% of the day at the 10th percentile; and no minimum education requirement in 72.6% of jobs.  Most of the jobs are part-time and don't count; most of the jobs require medium exertion; and some reduction is warranted for skill and education.

Usher and barker are targets because of the SCO description of occasional handling.  The ORS states that amusement and recreation attendants require gross manipulation with both hands in 82.3% of jobs and require fine manipulation in 97.5% of jobs.  Limitations to light work with six hours of standing/walking and occasional use of one or both hands will not leave a significant number of jobs.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Valerie Williams, VE, Relies on Job Browser Pro 2017, California Social Security Attorney (February 26, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/valerie-williams-ve-relies-on-job.html

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.
And:
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.


_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, The Death of SSR 00-4p, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/the-death-of-ssr-00-4p.html

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.


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SUGGESTED CITATION:

Lawrence Rohlfing, A Word About Numerosity, California Social Security Attorney (February 11, 2020),
https://californiasocialsecurityattorney.blogspot.com/2020/02/a-word-about-numerosity.html