Thursday, October 26, 2017

Be Prepared to Defend Cross-Examination on the OOH and CBP

Judges and vocational experts want to keep maximum discretion.  The regulations are clear:  the COSS takes administrative notice of the Dictionary of Occupational TitlesCounty Business Patterns; and the Occupational Outlook Handbook.  We know the regulations call for administrative notice for determining the number of jobs -- but the ALJ and VE will collude to deprive you of looking into the black box.  Here is a primer of why they cannot.  

1.  Heckler v. Campbell, 461 U.S. 458,469-70 (1983).  When an agency decides a claim based on administrative notice of facts, a claimant must have the opportunity to respond.  But when the agency has tested the accuracy of the facts administratively notice by rulemaking, the regulations provide sufficient procedural protection.  

2.  5 U.S.C. § 556(e) (emphasis added). 
      When an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.

3.  20 C.F.R. §§ 404.1566(d); 416.966(d) (2017) (emphasis added).  
      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—

The purpose of administrative notice is to prove facts without the evidence appearing in the record.  That is the APA.  The presence of notice in the regulations provides all the notice the agency has to provide.  The claimant gets the opportunity to show that notice is wrong and that different facts exist.  The whole purpose of the administrative notice regulation is to determine job data and whether that work exists in significant numbers. 

We don’t seek to show the contrary – we seek to enforce the administrative notice and that the VE has not met the burdensome task of showing that the facts subject to administrative notice are wrong. 

And always remember to confirm -- the vocational expert is not a statistician.  


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