Saturday, May 27, 2017

The Vocational Expert is Not a Statistician

So sayeth the ALJ in a decision to deny benefits.  A claimant may not demonstrate that the vocational expert uttered bogus numbers of jobs by pointing to statistical evidence subject to administrative notice.  We have entered full-force into the world of ipse dixit.  The jobs exist in not just significant numbers but huge numbers because the vocational expert breathed them into existence.

The vocational expert testified -- you know, under oath -- that packers exist at all exertional levels and that 30,000 existed in the national economy at the sedentary range of exertion.  No DOT code, not a sedentary one anyway, just because the vocational expert said so.  That is ipse dixit.

There are 111 DOT codes with the title of "packer."  None of those require sedentary exertion.  Of that accumulation of occupations, 61 of them belong to packers and packagers, hand (SOC 53-7064).  Six belong to machine bearers and off-loaders (SOC 53-7063).  Three belong to the ubiquitous production workers, all other (SOC  51-9199).  The Bureau of Labor Statistics (BLS) scatters the rest in other occupational groups in clusters of eight, nine, eleven, and so forth.  Our intrepid vocational expert identified packager, hand (DOT 920.587-018).  For those so inclined to look it up -- yes, packager, hand requires medium exertion.  It belongs to packers and packagers, hand (SOC 53-7064).  And yes, the claimant has a limitation to sedentary exertion.

I know my way around the DOT, OOH, CBP, O*NET, and their related publications.  How does anyone cross-examine this kind of bile in the context of an administrative hearing that is supposed to last 45 minutes.  This occupation alone takes at least two hours to unpack, pun accidentally discovered and used with glee.

Start with the size of the occupational group of packers and packagers, hand (SOC code 53-7064).  BLS put 59 DOT codes inside of the group.  BLS counts jobs, after all, it specializes in labor statistics.  BLS estimates that the occupational group consists of 705,660 jobs as of May 2016.  This is up from 695,000 in May 2014.  Engaging in gross, and statistical improper aggregation, the average DOT code represents circa 12,000 jobs.  Two of the DOT codes in this group require sedentary exertion.

Ampoule sealer (DOT 559.687-014) exists in the pharmaceutical industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

Hand bander (DOT 920.687-030) exists in the tobacco manufacturing industry.  The DOT describes the occupation as requiring sedentary exertion.  Labor last updated this DOT code in 1977.  It belongs to packers and packagers, hand (SOC 53-7064).

First, let's to the O*NET.  This comes from a joint effort of the Department of Labor and the Employment and Training Administration.  The O*NET says that packers and packagers, hand spend time standing on the job:

98 
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
The O*NET reports that packers and packagers, hand spend time sitting on the job:

8 
Spend Time Sitting — How much does this job require sitting?
0    Continually or almost continually
0    More than half the time
0    About half the time
31     Less than half the time
69     Never
While we get slightly different pictures of the occupational group depending on whether we look at standing or sitting, one conclusion remains consistent.  None of the workers sit more than half the time or continually on the job.

By now, my confidence level in the vocational expert assertion that packing jobs exist at the sedentary range of exertion dwindles.  Let's move to the Occupational Outlook Handbook (OOH), linked at the bottom of the page of the detail report tab in the O*NET for this group.  The OOH puts packers and packagers, hand with other hand laborers and material movers.  The OOH reports employment by industry for each SOC in the group.

On line 45 of the report, we find a report of packers and packagers, hand in the pharmaceutical and medicine manufacturing industry for our ampoule sealer occupation:

                                                                                                                       Percent of
Code              Title                                                                  Employment   Industry

325400          Pharmaceutical and medicine manufacturing   2.8                   1.0

BLS reports employment in thousands, so 2,800 jobs or 1.0% of total industry employment.

But I do remember that the vocational expert told us that packers exist at all levels of exertion.  I suspect that Big Pharm employs a few hand packagers, that medium occupation.  So the number is less than 2,800, probably less than half.  Sealing ampoules is probably a fraction of the packing that goes on in the manufacture of pharmaceutical and medicine.  Most of my clients get most of their medicine in tablet form.

Moving right along to hand bander occupation in the tobacco industry.  The employment projection reports on line 26:

                                                                                                                     Percent of
Code              Title                                                                Employment   Industry

3122000        Tobacco manufacturing                                  0.3                   2.2

Read that again -- 300 packers and packagers, hand in the tobacco industry.  I suspect, having retained my commonsense, that the tobacco industry produces a lot more than cigars and pack a lot more than the banding of cigars with a wrapper.  I could be wrong, but I doubt it.

Let's go to the second item of administrative notice, just in case some ALJ might want to swill the kool-aid of vocational expert ipse dixit.  County Business Patterns reports:

                                                                                                             Paid
Geograph.    NAICS     Industry                                              Year    Employment
United States3122Tobacco manufacturing201513,872
United States31223Tobacco manufacturing201513,872
United States312230Tobacco manufacturing201513,872
United States3254Pharmaceutical and medicine manufacturing2015242,329
United States32541Pharmaceutical and medicine manufacturing2015242,329
United States325411Medicinal and botanical manufacturing201528,950
United States325412Pharmaceutical preparation manufacturing2015146,113
United States325413In-vitro diagnostic substance manufacturing201525,818
United States325414Biological product (except diagnostic) manufacturing201541,448

Applying 2.2% of industry employment for tobacco manufacturing yields 305 jobs.  Check.

Applying 1.0% of industry employment for pharmaceutical and medicine manufacturing yields 2,423 jobs.  Slightly lower, but check.  We could back out jobs in codes 325413 and 325414 and reduce the number of jobs by 760, but at this point, we don't have to.

I have one request from the ALJ corps.  Don't place productivity as the end all and be all of the process.  Insist on a level of honesty and integrity that passes the disgusting test.  This example of garbage testimony and equally garbage finding of fact -- just disgusting.

2 comments:

  1. I see how to get the SOC from ONET. How do I find the industry, which I presume is the NAICS code? What is the difference between industry and sector? Inquiring minds want to know. Thanks! Maryjean Ellis

    ReplyDelete
  2. The DOT contains an industry designation (tobacco). Read the narrative of the DOT occupation. It might take a bit of research.

    ReplyDelete