Can We Refer to the O*NET in Disability Cases?

In the discussion of final assembler and lens inserter, anonymous asked

Do you know of legal authority that supports using O*NET job descriptions to show the VE's testimony presents an apparent conflict with the DOT?? I guess another way of asking it is what authority is there for relying on O*NET to show the government did not meet its step 5 burden?

Here is the complete entry for production workers, all other from the Occupational Outlook Handbook, Data for Occupations Not Covered in Detail.

Production workers, all other

All production workers not listed separately.

·         2014 employment: 236,200

·         May 2015 median annual wage: $27,950

·         Projected employment change, 2014–24:

o    Number of new jobs: 7,700

o    Growth rate: 3 percent (Slower than average)

·         Education and training:

o    Typical entry-level education: High school diploma or equivalent

o    Work experience in a related occupation: None

o    Typical on-the-job training: Moderate-term on-the-job training

·         O*NET:

o    51-9199.00 - Production Workers, All Other

o    51-9199.01 - Recycling and Reclamation Workers 

The OOH refers to the O*NET. For every occupational group covered in detail, the OOH and the O*NET cross-link to each other. The OOH refers uses to the O*NET “for more information.”

For cashiers (SOC 41.2011) the OOH says:

More Information, Including Links to O*NET

Learn more about cashiers by visiting additional resources, including O*NET, a source on key characteristics of workers and occupations.

On the More Info tab, the OOH links:

O*NET

Cashiers

The O*NET links back to the OOH:

Cashiers. Bureau of Labor Statistics, U.S. Department of Labor. Occupational Outlook Handbook, 2016-17 Edition.

More importantly, the regulations use the DOT, CBP, and OOH as examples –

In response to the question of "whether the O*NET could take the DOT's place in the disability adjudication process", the SSA has responded in the negative. See Soc. Sec. Admin., OIS ProjectFrequently Asked Questions: Why are you developing a new occupationalinformation system (OIS)? Why can't the Department of Labor (DOL) update theDictionary of Occupational Tiles (DOT), or why can't you use the OccupationalInformation Network (O*NET) (noting the O*Net "does not describe the physical requirements of occupations at the level of detail needed for claims adjudication.")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 valid question is whether the O*NET meets the prior clause’s requirements:

we will take administrative notice of reliable job information available from various governmental and other publications

Does the O*NET meet that test?  I submit that it does because it is reliable job information cross-linked to the OOH. 

 See Anders v. Colvin. Anders is wrong.

Final Assembler, Lens Inserter, and the Optical Goods Industry

Building on our inquiry into the morass of standardless vocational expert testimony, this article focuses on the frequently cited occupations of final assembler and lens inserter.  These two sedentary unskilled jobs are favorites of vocational experts asked to identify simple, repetitive, work.  With reasoning, language, and math ratings of 1, these are the lowest rung of simplicity.  They are one- and two-step instruction occupations.  They meet all the criteria of a vocational expert bent on satisfying the ALJ's request for the identification of work that exists in the national economy in significant numbers.  The problem is that they don't.

Curious, both occupations exist in the optical goods industry -- per the DOT.  Both final assembler and lens inserter belong in the Standard Occupation Classification group for production workers, all other.  The O*NET describes production workers, all other in the same way that it describes every SOC group ending in 99:

"All Other" titles represent occupations with a wide range of characteristics which do not fit into one of the detailed O*NET-SOC occupations. O*NET data is not available for this type of title. For more detailed occupations under this title, see below.

The O*NET tells us that the SOC group contains 236,000 jobs in 2014.  A question from the gallery -- doesn't that leave wide latitude for the vocational expert to identify tens of thousands of jobs in the national economy?  That answer depends on one more factor -- how big is the optical goods manufacturing industry?  Optical Goods Manufacturing, NAICS code 339115, provides the starting point for the interim answer.   County Business Patterns informs us that this industry employs 24,935 people.  That is the entire industry, not just the final assembler and the lens insert, the entire industry.

The structure of the NAICS needs a refresher.  We use the concept of drilling down.  The manufacturing sector is 31-33.  Every industry code with more than two digits is a subset of 31, 32, or 33.  Optical Goods Manufacturing belongs to the manufacturing sector (31),  Adding interim digits gets the industry designation more and more specific.  All miscellaneous manufacturing belongs to the three-digit group 339.  Medical equipment and supplies manufacturing belongs to the four-digit group 3391 and the five-digit group 33911.  The five specific industries in that group are surgical and medical instrument manufacturing; surgical appliance and supplies manufacturing; dental equipment and supplies manufacturing; and ophthalmic goods manufacturing.

Now we turn to the employment projections from the Bureau of Labor Statistics.  BLS sorts the tables by industry or occupation.  The XLSX link for production workers, all other gives the data. So does the XLSX link for medical equipment manufacturing.   Production workers make up 3,500 of the employees in the medical equipment manufacturing industry or 1.1% of the workforce.  But the ophthalmic goods manufacturing industry employs 24,910 people.  That tells us that 274 production production workers have employment in the industry.

We already know that final assemblers and lens inserters are both production workers.  It gets better.  Production workers, all other contains 1,590 or 1,526 different DOT codes (depending on whether we use the 2010 allocations or the 2012 changes).  Twenty of them work in the optical goods industry.  Of the 274 production workers in the ophthalmic goods industry, those people work in 20 different occupations.

To testify that the occupations of final assembler or lens inserter comprise hundreds, thousands, or tens of thousands of jobs in the national economy requires either (1) overt prevarication of the witness; or (2) reckless disregard for the truth.  To believe that those occupations represent more than 274 jobs in the national economy takes either (1) a desire to deny benefits to people that cannot engage in identifiable work; or (2) complete naivete.  Pick 'em.

There are No Sedentary Packing Jobs in the Economy

Claimant limited to unskilled sedentary work with some additional limitations.  The vocational expert identifies work as a packers and packager, hand.  Can you rebut the vocational expert testimony identifying work as:

1. Ampoule Sealer, DOT 559.687-014, Sedentary, SVP 2
2. Hand Bander, DOT 920.687-030, Sedentary, SVP 2

Both occupations belong to SOC code 53-7064.

O*NET for ampoule sealer; and hand bander. 

According to the O*NET, the occupational group of packers and packager, hand have the following requirements for standing in the workday:

Spend Time Standing — How much does this job require standing?

92    Continually or almost continually 8    More than half the time 0    About half the time 0    Less than half the time 0    Never

As to these two occupations, the O*NET suggests that they no longer exist as sedentary work. 

The pharmaceutical industry employs about 2,800 packers and packager, hand. 

The tobacco industry employs about 300 packers and packager, hand.  The DOT has nine different codes that are classified in packers and packager, hand that work in the tobacco industry. 

The DOT lists three occupations that work in any industry, which means more than one.  The most important of those is Packager, Hand, DOT 920.587-018, medium exertion, SVP 2. 

The next time the vocational expert testifies that there are sedentary jobs in this group, pull out the O*NET and cross-examine.  While you are at it, the next time the ALJ limits the claimant to six hours of standing and walking in a day, ask whether 92% of these jobs require continuous or almost continuous time spent standing.