Tuesday, October 24, 2017

The Occupational Outlook Handbook -- Why Do ALJs and Vocational Experts Question the Application

At a hearing last week, I asked the Shaibi question:  is your testimony today consistent with the Occupational Outlook Handbook?  The ALJ asked me for the relevance of the question. 

This week, I asked the Shaibi question:  is your testimony today consistent with the Occupational Outlook Handbook?  The vocational expert wanted to dance off the question.  The ALJ asked me to testify consistent with the DOT, not the OOH.  What part of the OOH are you talking about?  Clearly non-responsive to the question. 

The ALJ asks the vocational expert to assume the same age, education, and work experience of the claimant and then adds to that base the residual functional capacity.  The vocational expert identifies occupations and states the incidence of jobs.  The OOH identifies work duties, educational requirements, experience requirements, post-employment training, and numbers of jobs.  That is the base information for all occupational groups, including those not addressed in detail.  The OOH provides more information about occupational groups that it addresses in detail.  What part of the OOH should the vocational be prepared to address?  Education, experience, training, and the number of jobs.  Is your testimony today consistent with the OOH?  It is a yes or no question. 

Part of the problem rests on the shoulders of the representatives handling Social Security cases.  Y'all ain't asking the question.  Representatives need to ask the Shaibi question -- is the testimony consistent with the OOH and County Business Patterns

And ALJs need to read the regulations.  I should not have to write that.  ALJs need to read the regulations.  Really, they do.  The regulations state that the Commissioner "will" take administrative notice of the OOH and CBP.  Will -- not might, if the agency feels like it -- will take notice.  That is the same promise that the agency expresses vis-a-vis the DOT.  It is an expressed requirement, not implied vis the SCO.  So yes, the ALJs need to start taking the regulations seriously and take administrative notice of the OOH and CBP without the need for the claimant to insist that the agency follow the law. 

3 comments:

  1. Great Post. As attorneys, we have to be willing to put in the effort to ensure we have a good record.
    PLM- Van Nuys

    ReplyDelete
  2. Gotta make a record! Great post Patricia.

    ReplyDelete
  3. I've set up the question by having the VE confirm the OOH has been updated more recently than the DOT. Mike Kelly-Morgan & Weisbrod-Dallas

    ReplyDelete

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