What You Need to Effectively Cross-Examine Vocational Experts

We talked about Biestek v. Berryhill, 139 S. Ct. 1148 (2019) last week.  The question is how to create conflict.  It starts with basic curiosity.  "How do you know that?"  "How does that work?"  Once the curiosity takes root, we begin to use the data sources available to disassemble the vocational expert's testimony; we begin to understand.  Here's is what a representative handling Social Security disability cases needs to be minimally ready to follow along with the vocational expert's testimony on cross-examination:

1. Access to the Dictionary of Occupational Titles;
2. Access to the Selected Characteristics of Occupations; 
3. Access to the electronic files of the DOT/SCO;
4. Access to the Revised Handbook for Analyzing Jobs:
5. Access to the O*NET OnLine;
6. Access to the O*NET Resource Center;
7. Access to the Occupational Outlook Handbook; 
8. Access to the Employment Projections;
9. Access to the Occupational Employment Statistics;
10. Access to the County Business Patterns; and 
11. Access to the Occupational Requirements Survey.  

Those 11 sources form the foundation of the statistics that most vocational experts do not grasp.  They cite to the Bureau of Labor Statistics without understanding or knowing that a difference exists between the OES and the EP.  But we have to know the differences exist and the significance of those differences.  Vocational experts cite to the DOT/SCO, act as if it is controlling, and then deviate unknowingly.  We have to know when they deviate and when that deviation matters. 

For items 1-3, the U.S. Publishing provides the data in the Specific Occupation Selector.  USP uses current population surveys for job numbers.  USP uses equal distribution to estimate job numbers for occupational groups, SOC codes. 

For items 1-4, WestLaw provides the data in a single page report by DOT code.  WestLaw does not provide job numbers or access to job numbers, correlation with the O*NET, OOH, OES, EP, CBP, or the ORS. 

For items 1-4 and 9, Job Browser Pro provides access to the data.  JBP integrates the OES with industry designations found in the EP and the CBP.  JBP hyperlinks to the O*NET.  JBP lists data from out-of-date versions of the OOH.  JBP uses an intersection of occupational group and industry to estimate job numbers at the intersection and then equal distribution within that intersection of SOC and NAICS codes. 

For items 1-8 and 11, OccuCollect provides the data.  OccuCollect does not provide data for the OES (coming later this year) or integrate CBP.  The focus is on the incidence of work across the occupational group using a DOT code as an example.  OccuCollect estimates job numbers based on a cascaded approach to characteristics within an occupational group across (or ignoring) industry designations. 

We need to have access to all the data.  We need the data to ask whether occupations exist and if occupations exist, how many jobs exist.  Those are the two Biestek questions.  If we don't create a conflict, the vocational expert testimony will stand.  Create the conflict. 

How Does the Department of Labor Define the Sit-Stand Option?

The sit-stand option is a common thread in the adjudication of Social Security disability cases.  The ability to sit or stand at will of the worker to address the presence of pain or other physical discomfort arises with regularity.

Some ALJs describe the sit-stand option as changing positions with the loss of productivity or efficiency.  That assumption -- that a person can change positions at will without the loss of productivity or efficiency -- lacks the support of substantial evidence.  Getting up requires diverting the hands and arms while using the feet or legs for balance with the added concept of core strength that necessarily distracts from the productivity or efficiency of the job functions, unless the person has a job that is not physical.  These jobs have "not significant" codes for data and things at the fourth and sixth digits of the DOT codes.  See DICOT Appendix B and the free DOC/SCO/SCO summary report for all 13,000 DOT codes on OccuCollect.  (You must register to get free reports, that is all).

The observation starts the inquiry with the premise that SSA adjudicators do not know what a sit-stand option means.  It starts with the training and extends with adjudicatory bias.  The analysis starts with the Department of Labor nomenclature: "sitting vs. standing/walking at will."

Sitting or standing at will - workers can alternate between sitting and standing. Sitting or standing at will is present when the following conditions exist:

• Workers typically have the flexibility to choose between sitting and standing throughout the workday. Riding a bicycle includes pushing or pulling with feet and legs; while mowing may include gross manipulation or pulling and pulling with the hands and arms.

• There is no assigned time during the day to sit or stand.

• No external factors determine whether an employee must sit or stand.

While there may be tasks that require workers to be sitting or standing, if workers can determine when to perform that specific critical tasks, then they may still have the ability to sit or stand at will. For example, 95.4 percent of computer systems analysts can choose between sitting, standing, or walking at will while 97.7 percent of workers in food preparation and serving related occupations cannot choose between these physical demands.

 The three elements that make up the sitting vs standing/walking at will are flexibility, the absence of an assigned time to sit or stand, and the absence of external factors that require the worker to sit or stand.  The first sentence of the explanation synthesizes the three elements: when a job requires sitting or standing to perform job duties, the sitting vs standing/walking at will exists when the worker can choose "when" to perform those critical tasks.

The 2016 and 2017 data sets had very limited estimates for sitting vs standing/walking at will.  The 2018 data set, released April 25, 2019, has a more expansive list of occupations that permit the sitting vs standing/walking at will.  These include the ubiquitous production workers, all other, (SOC 51-9199).

Don't let the inclusion of a sitting vs standing/walking at will get too overwhelming -- the number of jobs that permit sitting vs standing/walking at will is 23.6%.  That does not change 53% of jobs that do not require skills (SVP 2),  the 63.9% that require medium exertion, or that production workers stand/walk 87.5% of the day at the 25th percentile.  Sitting vs standing/walking at will does not represent an elimination of whether the worker must sit or stand, it changes the when the worker will sit or stand.

Labor will continue to describe work as it is actually performed in the national economy and SSA will likely continue to listen to its own institutional bias and uninformed vocational experts.  Labor does not have a dog in the fight and is therefore inherently more trustworthy.  SSA must abide by its promise to take administrative notice.

Biestek v. Berryhill -- Some Plums to Pick

Biestek v. Berryhill, 139 S. Ct. 1148 (2019) is in the books and it is the law of land.  The proposition that the agency will lever is the restatement of substantial evidence:

Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains "sufficien[t] evidence" to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U. S. 197, 229 (1938)(emphasis deleted). And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." Ibid.; see, e.g., Perales, 402 U. S., at 401 (internal quotation marks omitted). It means—and means only—"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison, 305 U. S., at 229. See Dickinson v. Zurko, 527 U. S. 150, 153 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

 The question for the practitioner, that the majority did not answer, is whether 240,000 bench assembler jobs or 120,000 sorter jobs nationwide is adequate to persuade the reasonable mind.  The Court found on the uncontradicted record that the naked testimony of vocational evidence was substantial evidence.  The majority opinion observes, "And nothing in the rest of the record conflicts with anything she says."  When that happens, the claimant always loses absent frank conflict with the DOT/SCO.

There is no "gotcha" in cross-examining vocational experts.  No one question that guts the evidence spewed out.

Biestek v. Commissioner of Social Security, 880 F. 3d 778 (2018) [...] recognized that the Seventh Circuit had adopted the categorical rule Biestek proposed, precluding a vocational expert's testimony from qualifying as substantial if the expert had declined an applicant's request to provide supporting data. See id., at 790 (citing McKinnie v. Barnhart, 368 F. 3d 907, 910-911 (2004)). But that rule, the Sixth Circuit observed in joining the ranks of unconvinced courts, "ha[d] not been a popular export." 880 F. 3d, at 790 (internal quotation marks omitted). 

And no more is it so today.

No key that unravels the vocational expert testimony.

Biestek gives the out. Because the claimant loses in the absence of contradictory evidence.  The obverse is therefore the path to changing the vocational evidence into less than a preponderance of evidence.  That preserves the argument for review by the Appeals Council, District Court, Court of Appeals, or the Supreme Court that the contradicted vocational expert testimony is not substantial evidence.  Just old fashioned bare knuckle lawyering.

And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.

The task of the representative at the hearing or on review to the Appeals Council is to make the vocational expert look feeble.  The representative must gut the vocational expert, from top to bottom.  

She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.

The attack examines the survey, looks at the specific information, explores the process of extrapolation, and assesses whether the witness used a well-accepted methodology.  The agency won the battle in Biestek but cannot win the war.  The vocational experts either use a well-accepted methodology or the representative goes to the mattresses.  Of course the representative that does not eviscerate the vocational expert during the hearing or in a post-hearing submission to the agency falls below the standard of care.  Some people call that malpractice.