The current practice of adducing numbers of jobs evidence constitutes a request for a statement of the numbers of jobs. The current prevailing practice violates the regulations. The Commissioner takes administrative notice of the number of jobs from reliable governmental and non-governmental sources. 20 C.F.R. §§ 404.1566(d); 416.966(d). Those subsections provide:
Two published sources of job numbers data form the cornerstone of the subject of administrative notice for the numbers of jobs. Those are the County Business Patterns (CBP) and Bureau of Labor Statistics (BLS). CBP publishes job numbers data by industry using North American Industry Classification System (NAICS) codes. See http://www.census.gov/econ/cbp/overview.htm. The Bureau of Labor Statistics (BLS) provides job numbers data by occupational category using the Standard Occupational Classification (SOC) system. See http://www.bls.gov/soc/. The label SOC or OES are interchangeable and refer to the same data sets. See http://www.bls.gov/oes/current/_stru.htm.
The BLS states that production workers represent 1.02% of the workers within that industry. CBP states that the industry 32600 and its subparts represented 559,991 jobs in the nation as of March 2011. Applying the BLS percent of total employment to the CBP statement of the job size of the industry leads to an estimate of 5,712 jobs. That industry employed 46,105 people in California as of March 12, 2012. Total employment of production workers in California in the plastic product manufacturing industry represented 471 jobs total at all exertional and skill levels.
Under the HALLEX provisions and using Social Security Ruling 00-4p by analogy, a vocational expert can deviate upward or downward from the BLS or CBP estimates of the numbers of jobs for a persuasive basis. That would necessarily include a statement of the other codes within that intersection. Aggregation would require a downward estimate of the number of jobs.
If and when a vocational expert states that there are 218,740 jobs in a single occupation as a production worker, that witness gives testimony that is wholly unreliable. There are too many DOT codes within SOC group 51-9199 for that to be entertainable much less true. Of the 1,526 DOT codes in SOC group 51-9199, fully 869 are skilled or semi-skilled occupations. Thirty-nine that are unskilled require very heavy or heavy exertion. One hundred seventy six unskilled production worker occupations are classified as requiring medium exertion. Almost a quarter of the unskilled light occupational base exist within this classification, i.e. 390 occupations. The sedentary unskilled occupational base finds 52 of its members in SOC group 51-9199.
The Social Security Administration should demand the basis for administrative notice of jobs numbers data. That basis for administrative notice includes the SOC group, the NAICS code(s), and a statement of the number of DOT codes within that intersection. The vocational expert should explain how he/she accounted for the other DOT codes in making the final estimate of the number of jobs. The fundamental basis of judicial notice requires that the Court receive the necessary information so that the fact can be accurately and readily ascertained. See generally FRE Rule 201(b) and (c).
Administrative notice allows the Social Security Administration to establish the existence of facts without resorting to formal methods of proof. See 2 KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.6, at 150 (3rd ed. 1994); 4JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 25.01, at 2 (1993). “A court or an agency can make a finding of fact without evidentiary support by taking judicial or official notice, respectively, of that fact.” 2 id.; see MCCORMICK ON EVIDENCE § 359, at 1028-33 (Edward W. Cleary ed., 3rd ed. 1984). With administrative notice, an administrative law judge “bypasses the normal process of proof and relies upon facts and opinions not supported by evidence ‘on the record.’” Id. at 1028.