Helpers - Production Workers Overwhelmingly Require Medium and Heavy Exertion

The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  Of that 553 occupations, 12 unskilled sedentary; 157 unskilled light; 172 unskilled medium; 105 unskilled heavy; and 6 unskilled very heavy.  The other 101 require skills.  The OOH describes the group:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education	High school diploma or equivalent
Work experience in a related occupation	None
On the job training	Short-term on-the-job training
Number of jobs, 2016	426,000
Employment Projections	XLSX

We really need to know how many of these occupations require light and sedentary exertion. For that, we turn to the OccuCollect compilation of the Occupational Requirements Survey.

Series ID: ORUP1000030A00000663
Not seasonally adjustedSeries Title: % of helpers--production workers; strength is medium work
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: strength is medium work

Year	Period	Estimate
2017	Annual	74.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000663

Almost three quarters of the jobs require medium exertion even though a third of the DOT codes suggest medium exertion as the typical requirements. Let's run down the rabbit hole a bit further:

Series ID: ORUP1000030A00000664
Not seasonally adjustedSeries Title: % of helpers--production workers; strength is heavy work
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: strength is heavy work

Year	Period	Estimate
2017	Annual	15.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000664

This incidence of heavy work brings the total to 89.8%. We have not accounted for very heavy exertion but the amount of light and sedentary work cannot exceed 10.2% of the occupational base.

We can examine standing/walking to get more insight:

Series ID: ORUP1000030A00001004
Not seasonally adjustedSeries Title: helpers--production workers; % of day standing/walking is required (10th percentile)
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: % of day standing/walking is required (10th percentile)

Year	Period	Estimate
2017	Annual	75

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001004

At the 10th percentile, helpers - production workers stand/walk about 6 hours per day or less. Remember that the percentile describes everything below that point in line. How about lifting/carrying:

Series ID: ORUP1000030A00000234
Not seasonally adjustedSeries Title: helpers--production workers; pounds maximum weight lifted/carried (10th percentile)
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: pounds maximum weight lifted/carried (10th percentile)

Year	Period	Estimate
2017	Annual	20

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000234

If the maximum weight lifted is 20 pounds, does that make the occupation light? No. If the maximum weight is lifted frequently during the day, the work is medium. If the maximum weight lifted is lifted constantly during the day, the work is heavy. A constant exertion of negligible force constitutes light exertion, if the frequent lifting/carrying is less than or equal to 10 pounds and occasional lifting/carrying is less than or equal to 20 pounds.

Series ID: ORUP1000030A00000261
Not seasonally adjustedSeries Title: % of helpers--production workers; lifting/carrying negligible weight is required, constantly
Requirement: Physical Demands
Occupation: helpers--production workers
Estimate: lifting/carrying negligible weight is required, constantly

Year	Period	Estimate
2017	Annual	20.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00000261

This data suggests that at least half of the constant lift/carry of negligible weight require medium or greater exertion.

There are fewer than 43,000 jobs that require sedentary, light, and very heavy jobs within this classification. The 10th percentile marks the cutoff for standing/walking six hours in an eight-hour day. The ORS reports the mean, 25th, and 10th percentiles for sitting. This data suggests very few sedentary jobs and any identifiable light occupation would represent very few jobs.

Steam Presser and 20,000 Jobs -- Wholly Unreliable

Following up on the Mary Jesko-garment sorter kerfuffle, this time we look at Steam Presser.   To recap and make this post complete, the hypothetical question:

Case #1:  Assume younger individual with limitation to light work; occasional postural activities; no crouching; limited to simple repetitive tasks defined as one- and two-step instructions; no fast paced work; at an observably slower pace. 

Assuming less than a 10% loss of productivity measured over a day, Jesko identified:

Steam Presser 789.687-166
Light SVP 1
28,000 jobs

Jesko did not have the SOC codes, claimed that she used the OES codes, and did not have those either.  Jesko appeared by phone at the hearing wholly unprepared to submit to cross-examination. 

Using the easiest way to garner the information about the SOC/OES codes, I run to OccuCollect  From OccuCollect's DOT full report, the first five lines:

DOT Code: 789.687-166
SOC Code: 51-9198.00
O*NET URL: https://www.onetonline.org/link/summary/51-9198.00
DOT-O*NET Crosswalk: https://www.onetonline.org/crosswalk/DOT?s=789.687-166 &g=GO
DOT Name: Seam steamer (garment)

Steam presser is not the name of the occupation, nor is it the alternate title, pipe steamer.  Using the non-title of the occupation serves the useful purpose of confusing the representative and masking the deception of the vocational expert.  Moving on.  Seam steamers have two very important commonalities with garment sorters:  they are in the same occupational group and in the same industry designation.  Any aggregate analysis will capture both.  So we look back at the Occupational Outlook Handbook and Employment Projections that we looked at for garment sorter. 

SOC 51-9198 are the helpers production workers.  The OOH provides:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education	High school diploma or equivalent
Work experience in a related occupation	None
On the job training	Short-term on-the-job training
Number of jobs, 2016	426,000
Employment Projections	XLSX

The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  That XLSX link in the OOH box opens up the Employment Projections for this group. The DOT narrative identifies the industry as garment; knitting.  The EP state the job numbers:

Code

Title

Employment

313-40

Textile mills and textile product mills

5.9

315-60

Apparel, leather and allied product manufacturing

3.2

The employment numbers are in thousands:  9,100 jobs in the textile and apparel manufacturing industry subsectors.  Our friends at Job Browser Pro identify industry groups 313200, 315100, and 315200.  The EP does not have a separate listing for 313000.  But we have basic math skills and take the 5,900 for 313-40 and subtract the number of jobs in 314000.  

Code

Title

Employment

314000

Textile product mills

2.6

That leaves 3,300 jobs that belong to the group 313000.  The EP captures the other two industry groups (315100 and 315200) in the subsector (315000):

Code                Title                                                                                                   Employment

315000

Apparel manufacturing

2.6

Now we are down to 5,900 jobs in the nation.  Aggregation takes Jesko down from 20,000 to 5,900 and that is not a valid end point for the statistical analysis.  Chasing the rabbit down the hole requires use of JBP, the OES, and CBP. 

JBP lists 40 helpers - production workers that exist in the textile mills industry (313200); 8 that exist in apparel knitting mills (315100), and 21 that exist in apparel manufacturing (315200).  JBP estimates 75 seam steamers in the nation.  

/The OES sinks Jesko.  The current OES numbers as of May 2017 state that employment of helpers - production workers has declined to 402,140 jobs in the nation.  The top industry employing helpers is employment services (NAICS 561300) at 129,160 jobs.  The next highest employer of helpers is animal slaughtering and processing (NAICS 311600) at 24,210.  None of the next three industries amount to 20,000 jobs and none of them touch on the garment industries.  The OES does not throw a bone to Jesko, not even a sliver.  

County Business Patterns will pour cement in the testimonial trap.  CBP now has the 2016 data.  For our two industry subsectors for this occupation:

NAICS code         Name                                          Paid Employees March 12, 2016

313                       Textile mills                               101,952

315                       Apparel manufacturing               96,791

The EP provides the percentage of helpers in the industries:  2.6% and 2.0%. The OccuCollect aided analysis would lead to a gross conclusion of about 4,000 helpers - production workers that includes seam steamer in the nation in these two industry subsectors. 

JBP does not identify the textile mills subsector; it identifies the fiber, yarn, and thread mills industry group.  Nor does JBP identify the three industry groups inside of 315000.  JBP identifies 315100 and 315200.  We know that there is at least one more (315900) from our look at garment sorter.  CBP describes those industries: 

NAICS code         Name                                          Paid Employees March 12, 2016

313100                  Fiber, Yarn, and Thread Mills    25,170
315100                  Apparel Knitting Mills               12,014
315200                  Cut and Sew Apparel Mfg.         5,430

Those aren't the helper jobs, those are ALL the jobs in the industry.  Take a slice out of 35,600 industry jobs.  Three percent gives a number larger than JBP reported and does not account for the 8, 21, and 40 other DOT codes that are both in the industry and are helpers - production workers.  

Garment Folder Represents 57,000 Jobs: How Do You Know That?

In two separate hearings, Mary Jesko testified as a vocational expert.  In neither case was Jesko prepared for cross-examination.  That puts the cases in post for interrogatories and possible supplemental hearings.  

Case #1:  Assume younger individual with limitation to light work; occasional postural activities; no crouching; limited to simple repetitive tasks defined as one- and two-step instructions; no fast paced work; at an observably slower pace.  Assuming less than a 10% loss of productivity measured over a day, Jesko identified:

Garment folder – 789.687-066 Light SVP 2
57,000 jobs
 Gluer – 795.687-014
Light SVP 2
20,000 jobs
 Steam Presser 789.687-166
Light SVP 1
28,000 jobs

When asked for the Standard Occupational Classification codes, Jesko said she didn't have them but would have to look them up on a crosswalk.  

When asked how she estimated the job numbers, Jesko testified that she used the Occupational Employment Statistics as the base and then considered the industries to get the job numbers.  

Q: Well, then you must have the OES numbers since you used the OES statistics. 
A: No, I would have to use the crosswalk to get the OES numbers.   

That is actually a good answer because the OES numbers and the SOC codes are the same six-digit codes.   Your intrepid examiner looked up the occupational groups on OccuCollect and posed them to Jesko.  Nope, she wouldn't acknowledge the easily ascertained information.  From OccuCollect's DOT full report, the first five lines:

DOT Code: 789.687-066
SOC Code: 51-9198.00
O*NET URL: https://www.onetonline.org/link/summary/51-9198.00
DOT-O*NET Crosswalk: https://www.onetonline.org/crosswalk/DOT?s=789.687-066 &g=GO
DOT Name: Garment folder (garment)

SOC 51-9198 are the helpers production workers.  The OOH provides:

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education	High school diploma or equivalent
Work experience in a related occupation	None
On the job training	Short-term on-the-job training
Number of jobs, 2016	426,000
Employment Projections	XLSX

The DOT crosswalk inside of the O*NET lists 553 distinct DOT codes that form helpers - production workers.  That pesky XLSX link in the OOH box opens up the Employment Projections for this group. The DOT narrative identifies the industry as garment; knitting.  The EP state the job numbers:

Code

Title

Employment

313-40

Textile mills and textile product mills

5.9

315-60

Apparel, leather and allied product manufacturing

3.2

The employment numbers are in thousands:  9,100 jobs in the textile and apparel manufacturing industry subsectors.  Our friends at Job Browser Pro identify industry groups 314900, 315200, and 315900.  The EP for those applicable subsectors:

Code

Title

Employment

314000

Textile product mills

2.6

315000

Apparel manufacturing

2.6

Now we are down to 5,200 jobs in the nation.  JBP lists 30 helpers - production workers that exist in the textile product mills industry; 21 that exist in apparel manufacturing (315200); and 23 that exist in the second apparel manufacturing industry group (315900).  JBP estimates 63 garment folders in the nation.  

Jesko's affinity with the OES will not save her.  The current OES numbers as of May 2017 state that employment of helpers - production workers has declined to 402,140 jobs in the nation.  The top industry employing helpers is employment services (NAICS 561300) at 129,160 jobs.  The next highest employer of helpers is animal slaughtering and processing (NAICS 311600) at 24,210.  None of the next three industries amount to 57,000 jobs and none of them touch on the garment industries.  The OES does not throw a lifeline to Jesko.  

County Business Patterns will pour cement in the testimonial trap.  CBP now has the 2016 data.  For our two industry subsectors for this occupation:

NAICS code         Name                                          Paid Employees March 12, 2016

314                       Textile product mills                   113,013

315                       Apparel manufacturing               96,791

The EP provides the percentage of helpers in the industries:  2.2% and 2.0%.  

With a hotspot and computer or internet enabled phone everything presented here is available on the fly.  How does Mary Jesko know that there are 57,000 jobs as a garment folder in the national economy?  She doesn't.  There is no statistical support for that testimony.  

Is the Treating Physician Rule Dead for Cases Filed After March 27, 2017?

The Commissioner amended the regulations on the weighing of medical opinion evidence for cases in process (sec. 404.1527) and for cases filed after March 27, 2017 (sec. 404.1520c).  Some have suggested that the treating physician rule is dead, that the new regulations treat all opinion evidence in one basket, and that the sky is falling.  When we look at 404.1520c, we will not find a controlling weight regulation.  But that does not put the treating physician, the consultative examiner, and the non-examining physicians on the same plane.  We start with paragraph (c)(3), the weight factors as they pertain to dividing the sources. 

(c) Factors. We will consider the following factors when we consider the medical opinion(s) and prior administrative medical finding(s) in your case:

[...]

(3) Relationship with the claimant. This factor combines consideration of the issues in paragraphs (c)(3)(i) through (v) of this section.

(i) Length of the treatment relationship. The length of time a medical source has treated you may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).

(ii) Frequency of examinations. The frequency of your visits with the medical source may help demonstrate whether the medical source has a longitudinal understanding of your impairment(s).

(iii) Purpose of the treatment relationship. The purpose for treatment you received from the medical source may help demonstrate the level of knowledge the medical source has of your impairment(s).

(iv) Extent of the treatment relationship. The kinds and extent of examinations and testing the medical source has performed or ordered from specialists or independent laboratories may help demonstrate the level of knowledge the medical source has of your impairment(s).

(v) Examining relationship. A medical source may have a better understanding of your impairment(s) if he or she examines you than if the medical source only reviews evidence in your folder.

We can start at the bottom.  The factor of examining relationship weighs against the state agency physician and the testifying medical expert.  They have no examining relationship.  

Subparagraphs (i) - (iv) give weight to a treating source.  These are the regulatory weight factors. They do not apply to the examining or non-examining physician.  All things being equal in terms of specialty and supportability, the tie goes to the treating physician under (c)(3).  

The claimant has a gait disturbance and some lower extremity weakness.  The CE and DDS opine that the person can stand/walk for four hours in a day.  The treating physician offers the opinion of two hours.  The person is 53 and the amount of standing/walking makes the difference in the case.  The representative should argue that under (c)(3) the recognition by all the physicians that some limitation in standing/walking applies requires more weight to the longer treatment relationship, the more frequent doctor-patient interaction, the purpose of the visits (to cure and relieve), and the extent of the relationship (advice, therapy, medication, and referrals), as well as the repeated examinations all point weight to the treating physician.  

Is the treating physician opinion different?  Yes.  Is the treating physician rule and the extra weight to the treating physician dead?  No.  It is still breathing under (c)(3).  

No Teamwork -- A Look at Helpers - Production Workers

The claimant has a limitation to no teamwork.  The vocational expert rolls out the standard list of unskilled jobs.  Simple question:

Q.  Does the Department of Labor publish data that confirms your testimony.

Turns out that DOL does.  In the occupational group of Helpers - Production Workers, we find 12 of the unskilled sedentary occupations; 157 of the light unskilled occupations; and 172 of the medium unskilled occupations.  There are 111 heavy and very heavy unskilled occupations as well.  This is a big occupational base and balance of the 782 occupations in this huge group requires some level of skill.  

Now that we established the importance of this occupational group in the 2,400 unskilled sedentary to medium occupations, we can focus on the incumbent perception of the incidence and importance of working with a team in 341 sedentary, light, and medium unskilled occupations.  Here is what the O*NET says about this group (from OccuCollect):  

Interpersonal Relationships	%	Response
Work With Work Group or Team — How important is it to work with others in a group or team in this job?	28	Extremely important
	50	Very important
	12	Important
	2	Fairly important
	8	Not important at all

The O*NET suggests that Helpers - Production Workers work with a team and that it is at least fairly important in 92% of jobs.  If the hypothetical question includes no teamwork or includes an occasional contact with co-workers and supervisors, the O*NET provides a basis for cross-examination.  

Q.  Is your experience less than, equal to, or greater than the survey of incumbents conducted in the collection of O*NET data?

We should check some of the other interpersonal relationship data for this occupational group:

Interpersonal Relationships	%	Response
Contact With Others — How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?	39	Constant contact with others
	24	Contact with others most of the time
	20	Contact with others about half the time
	17	Occasional contact with others
	0	No contact with others

Coordinate or Lead Others — How important is it to coordinate or lead others in accomplishing work activities in this job?	17	Extremely important
	16	Very important
	39	Important
	8	Fairly important
	21	Not important at all

Deal With External Customers — How important is it to work with external customers or the public in this job?	4	Extremely important
	15	Very important
	13	Important
	11	Fairly important
	57	Not important at all

Responsible for Others' Health and Safety — How much responsibility is there for the health and safety of others in this job?	20	Very high responsibility
	14	High responsibility
	50	Moderate responsibility
	16	Limited responsibility
	0	No responsibility

Helpers - Production Workers not only engage in teamwork in 92% of jobs, they have moderate or greater responsibility for safety of other in 84% of jobs; deal with customers in 43% of jobs; coordinate or lead others in 79% of jobs; and most importantly have more than occasional contact with others in 83% of jobs.  

Here is the OOH report (from OccuCollect):  

Occupational Outlook Handbook Report

Quick Facts: Helpers--production workers
Typical Entry-Level Education	High school diploma or equivalent
Work experience in a related occupation	None
On the job training	Short-term on-the-job training
Number of jobs, 2016	426,000
Employment Projections	XLSX

While 8% of the number of jobs is a big number, how many of them have the other characteristics contained in the hypothetical question and how do you know that?  Vocational experts are not statisticians.  

Crossing Guards -- Clearly Part-Time

Vocational experts identify crossing guard as a viable occupation for the claimant limited to occasional handling.  Vocational expert claims between 20,000 and 74,000 jobs.  What do we do?

This is a problem.  Patton v. Berryhill, (D. S.D. 2018); Walker v Berryhill, (W.D. Wash 2018); Toloai v. Berryhill, (C.D. Cal. 2018).  We, as the professional representatives, must preserve the issue for appeal.

Q:  Aren't these jobs part-time, mornings and afternoons when children come and go to school?
A:  I already reduced the number of that.  There are 74,000 jobs in the nation and I reduced to 20,000 to account for just the full-time jobs.  

The next question has to be, "How do you know that beyond the amorphous and slippery '30 years of experience.'"  Most ALJs and the courts will allow this kind of garbage testimony, after all the VE is the expert.  The SOC describes the occupation (from OccuCollect):

DOT: 371.567-010
SOC: 33-9091
O*NET URL: https://www.onetonline.org/link/summary/33-9091.00

Strength:  L

SVP: 2
PHYSICAL DEMANDS:

Cl

Ba

St

Kn

Co

Cw

Re

Ha

Fi

Fe

Ta

He

TS

NA

FA

DP

Ac

CV

FV

N

N

N

N

N

N

F

O

N

N

F

F

N

F

O

N

N

O

O

REACHING: Frequently
Extending hand(s) and arm(s) in any direction. In Part A, the rating for the Reaching component appears eighth in the first Physical Demand column under the vertical heading Re.
 HANDLING: Occasionally
Seizing, holding, grasping, turning, or otherwise working with hand or hands. Fingers are involved only to the extent that they are an extension of the hand, such as to tum a switch or shift automobile gears. In Part A, the rating for the Handling component appears ninth in the first Physical Demand column under the vertical heading Ha.
 FINGERING: Not Present
Picking, pinching, or otherwise working primarily with fingers rather than with the whole hand or arm as in handling. In Part A, the rating for the Fingering component appears tenth (last) in the first Physical Demand column under the vertical heading Fi.
 Selected Characteristics of Occupations (Dept. of Labor 1993)

The O*NET OnLine link gives the information.

Structural Job Characteristics	%	Response
Duration of Typical Work Week — Number of hours typically worked in one week.	0	More than 40 hours
	0	40 hours
	100	Less than 40 hours

Environmental	%	Response
Work Schedules — How regular are the work schedules for this job?	66	Regular (established routine, set schedule)
	14	Irregular (changes with weather conditions, production demands, or contract duration)
	20	Seasonal (only during certain times of the year)

All part-time and most have a non-seasonal regular schedule.  The work context reports come from incumbent surveys and does not break down the data beyond what we see.  How many occupations exist in this SOC group (from the O*NET custom reports, crosswalk (not currently available on OccuCollect):

Dictionary of Occupational Titles (DOT)371.567-010    Guard, School-Crossing
371.667-010    Crossing Tender
372.667-022    Flagger

The OOH (from OccuCollect) confirms that these occupations are unskilled and do not require a high school education equivalency.  

Now that we have in information, we continue the cross-examination:

Q:  How many job analyses have you performed for this occupation?
Q:  When did you perform them/it?
Q:  How many labor market surveys have you performed for this occupation?
Q:  When did you perform them/it?
Q:  Does your method for estimating the number of crossing guard jobs meet the OMB standards?
Q:  How does your experience compare with the data collection from the Department of Labor?
Q:  If I represent to you that the DOL states that 100% of crossing guards, as well as crossing tenders and flaggers, work part--time, would you agree that DOL's report is more trustworthy than your experience based on X job analysis and Y labor market surveys?

Close with, "the claimant (please use the person's name) requests seven days to submit the DOL reports to rebut the surprise testimony given today by the vocational expert."

Just for fun, the employment projections (hyperlinked from OccuCollect) state that there are 10,700 crossing guards in state, local, and private educational services.

Educational services; state, local, and private	10.7
Educational services; state, local, and private	10.7
Elementary and secondary schools; state, local, and private	10.6
Elementary and secondary schools; private	0.3
Elementary and secondary schools; local	10.3

Raise the issue and preserve the client's rights on appeal.