The Occupational Outlook Handbook -- Equivalence to the DOT

A number of district court cases have rejected the proposition that an ALJ must consider the occupational information contained in the Occupational Outlook Handbook to the vocational expert testimony.  The district court decisions rest on Shaibi v. Berryill, 883 F.3d 1102, 1109 (9th Cir. 2018).  The quest is to fill in the gaps.  

Shaibi rejected the theory that the ALJ had a sua sponte obligation to compare County Business Patterns and the OOH to the vocational expert's job numbers.  The court found no authority for forcing the ALJ to take sua sponte administrative notice of the economic data contained in CBP or the OOH.  Slip op. at 16.  The court continued to apply the existing precedent that the ALJ could rely on the vocational expert testimony as to job numbers.  Slip op. at 17.  

The OOH states not only the number of jobs but also the typical education, training, and experience requirements of work.  For example, production workers, all other (SOC 51-9199) provides:

Production workers, all other

All production workers not listed separately.

• 2016 employment: 263,500
• May 2017 median annual wage: $28,890
• Wages come from the Occupational Employment Statistics (OES) program, click here for more OES data on this occupation
• Projected employment change, 2016–26:
  • Number of new jobs: 11,600
  • Growth rate: 4 percent (Slower than average)
• Education and training:
  • Typical entry-level education: High school diploma or equivalent
  • Work experience in a related occupation: None
  • Typical on-the-job training: Moderate-term on-the-job training
• O*NET links:
• 51-9199.00 - Production Workers, All Other
• 51-9199.01 - Recycling and Reclamation Workers

Education and training are not economic data.  They are baseline requirements.  The OOH glossary defines the terms -- moderate means more than 30 days. The glossary defines entry level as the starting level for those new to the job.  Education, training, and experience are phrased in terms of the level typically needed.  

Is that different from the DOT?  The DOT states that it describes the typical way in which occupations are performed.  DOT App. D.  Compare that statement in the DOT to the SSA view of the DOT -- that it describes the maximum requirements that the occupations requires.  SSR 00-4p.  So if the ALJ should compare the VE testimony to the maximum requirements of work, then the ALJ ought to glance at the typical requirements.  

Some of the district court cases are pending in the Court of Appeal.  I will report back to you in 24 months.