Establishing the Vocational Expert's Methodology Requires Verification

The objective of cross-examination of the vocational expert must hone in one establishing that the vocational expert testimony is feeble or contradicted.  Biestek v. Berryhill instructs:

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 Ninth Circuit decision in Buck v. Berryhill establishes the same proposition:

"An ALJ may take administrative notice of any reliable job information, including information provided by a VE." Bayliss, 427 F.3d at 1218. "A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id.

Buck erroneously reads the above language from Bayliss to require that the ALJ independently assess the reliability of VE testimony. However, as is clear from the language of Bayliss, at least in the absence of any contrary evidence, a VE's testimony is one type of job information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its reliability.

The representative must present contrary evidence and show that the vocational expert is not reliable.

In a hearing yesterday out of Evanston, Illinois, with the claimant appearing in Rockford by video conference and me on phone from sunny Santa Fe Springs, the vocational expert testified that the claimant's medical vocational profile permitted such a person to perform work as a mail clerk (DOT 209.687-026) as representing 10,400 jobs in the nation and office helper (DOT 239.567-010) representing 55,000 jobs in the nation.  After dancing around claiming to use the Occupational Employment Statistics and disavowing knowledge or use of the NAICS industry codes, the VE  distilled her methodology for estimating job numbers as relying on Job Browser Pro published by SkillTran.

Rebutting JBP is tough business.  Rebutting JBP requires reverse engineering and understanding the limits of the program as well as its use of equal distribution at the occupation-industry intersection.  But we don't have to go there.  We need to compare the VE testimony to the content of JBP.

JBP describes mail clerk as representing 2,130 jobs as of 2018.  That is a far cry from 10,400 jobs and marks substantial progress in showing conflict and feebleness of the VE testimony.

JBP describes office helper as representing 3,711 jobs as of 2018.  The drop from 55,000 jobs to 3,711 jobs is a change from clearly significant to insignificant.

Here is the probable explanation:  VEs do not go back and check their data.  Establishing conflict is as simple as owning a copy of JBP and running the numbers.  I take screen shots of the DOT estimate page to capture all of the statements of the aggregate number of jobs at the SOC-OES/NAICS intersection, the number of DOT codes, and the estimate applicable to the specific DOT code.  I then print the formal report that restates the DOT narrative (sans the industry designation), the number of DOT codes in the group, the incidence of full-time versus part-time, and then the SOC-OES/NAICS intersection without the statement of the number of DOT codes in that intersection.

In this case, the vocational expert has not offered testimony that is reliable.  In her own stated methodology, the number of jobs is wrong.  The testimony is feeble and contradicted.  The ALJ now has to deal with that conflict in the evidence.

Labor Classifies the Sit-Stand Option as Sitting

The Occupational Requirements Survey is the intended replacement for the Dictionary of Occupational Titles.  Question 2 of the General Questions and Answers states:

SSA uses five steps of Sequential Evaluation to determine whether disability applicants qualify for benefits. At steps 4 and 5 of this process, adjudicators need information about a representative sample of occupations in the national economy to determine whether people with functional limitations resulting from severe impairments can still perform work. Currently, SSA uses the Dictionary of Occupational Titles (DOT) at steps 4 and 5, and it has not been updated in more than 20 years. SSA is developing an Occupational Information System to replace the DOT which will incorporate the data collected through ORS. This information is crucial to the equitable and efficient operation of SSA‘s disability programs.

The ORS gathers data according to Labor's understanding of SSA needs.   The Collection Manual, Third Edition, describes the data and defines the terms.  Chapter 7 describes the physical demands of work to perform the critical tasks.  Sitting vs. standing/walking at will exists when:

• Workers typically have the flexibility to choose between sitting and standing throughout the day.  
• There is no assigned time during the day to sit or stand/walk. 
• No external factors determine whether workers must sit or stand/walk.

Collection Manual, page 78.  Examples of sitting vs. standing/walking at will include:

1. An office clerk can choose when to file and typically stands while filing invoices. 
2. A pharmaceutical sales rep driving to clients can choose when to make trips and additional stops.
3. An elementary teacher may sit or stand to instruct students and while monitoring them on duties.

Id.  Examples of work that is not classified as sitting vs. standing/walking at will include:

1. An over-the-road truck driver must meet a delivery schedule. He stops to refuel and for weigh stations.
2. An event parking lot attendant must stand when cars are entering the parking lot to accept payment and direct cars.
3. A security guard chooses to sit or stand, except when she walks to investigate suspicious situations.

Id.  The SSO envisions the worker performing the same tasks while either sitting or standing.  If that option exists for all workers, it is not an accommodation.  Id., page 9.  

The phrasing of a sit/stand option (SSO) represents a different problem than sitting v. standing/walking at will.  The ORS defines sitting as the function critical to performing work:

• Workers remain in a seated position. This includes active sitting. For instance, bicyclists sit but pushes/pulls with their feet/legs.
• Workers are inactive and seated or prone. For instance, a medical resident on call for a thirty-hour shift taking a strategic nap is sitting.
• Workers may choose between sitting and standing for a given task. For example, office workers can choose a standing desk.

Id., page 73.  An occupation that permits the worker to choose between sitting and standing at will throughout the day to perform the sames tasks carries the descriptor of sitting, not standing/walking.

The broad classification of production occupations (SOC 51-0000.00) would not permit an SSO throughout the day:

Series ID: ORUP1000047P00001002

Not seasonally adjusted

Series Title: production occupations; % of day sitting is required (90th percentile)

Requirement: Physical Demands

Occupation: Production Occupations

Estimate: % of day sitting is required (90th percentile)

Year	Period	Estimate
2018	Annual	66.7

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000047P00001002

A significant range of production occupations do have the ability to change tasks during the workday:

Series ID: ORUP1000047P00000139

Not seasonally adjusted

Series Title: % of workers in production occupations; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: Production Occupations

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2018	Annual	15.1

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000047P00000139

Production occupations represent 9.4 million jobs in the economy and 6.5 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 51.  Production occupations (SOC 51-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The broad classification of transportation and material moving occupations (SOC 53-0000.00) warrants individual occupational group investigation on the question of SSO:

Series ID: ORUP1000048P00001002

Not seasonally adjusted

Series Title: transportation and material moving occupations; % of day sitting is required (90th percentile)

Requirement: Physical Demands

Occupation: Transportation and Material Moving Occupations

Estimate: % of day sitting is required (90th percentile)

Year	Period	Estimate
2018	Annual	90

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000048P00001002

A less significant range of transportation and material moving occupations do have the ability to change tasks during the workday:

Series ID: ORUP1000048P00000139

Not seasonally adjusted

Series Title: % of workers in transportation and material moving occupations; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: Transportation and Material Moving Occupations

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2018	Annual	9.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000048P00000139

Transportation and material moving occupations represent 10.8 million jobs in the economy and just under 1 million jobs in the manufacturing sector.  This includes every line item SOC group with the first two digits of 53.  Transportation and material moving occupations (SOC 53-0000.00) is summary designation that includes smaller summary designations and line items (specific SOC designations).  

The cross-examination path when a vocational expert identifies work permitting an SSO focuses first on the availability of the SSO to all workers.  If the SSO is not available to all workers, it is an accommodation.  

Second, cross-examination must establish whether the worker has more than one critical work function that requires different positions (sitting or standing/walking).  Those occupations do not have an SSO, they have the ability to choose when to perform other tasks as long as all the sitting and standing/walking tasks are done during the workday.  

Third, cross-examination or post-hearing development must establish whether the ORS classifies the critical work functions as performed sitting or standing/walking.  If the ORS classifies the work functions as standing/walking, the work does not permit an SSO.  If the ORS classifies the work functions as sitting, then the work might permit an SSO.  That might require further exploration of the first question.  

An SSO is a devastating work limitation as described in SSR 83-12.  

Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will.

An SSO for unskilled jobs should be the exception, not the rule  -- unless the Commissioner intends to rescind the statement of binding agency policy. 

The ALJ Says that the COSS Rejects the O*NET -- What do I do Now?

Our friends at SkillTran post a memorandum from SSA stating that the O*NET is not suitable for use in disability litigation.  The memorandum is in response to a request for information (RFI) dated June 4, 2004.  The question is whether this memorandum licenses the adjudicator to reject O*NET-based information without any other reason. 

As with any question, we start with the law - the statute and regulations.  The statute is silent as to the sources of vocational information.  The regulations provide for administrative notice of reliable job information from governmental and private resources.  Let's assume that in a memorandum that is not published in HALLEX or POMS that the COSS can describe a data set as not reliable.  Let's also assume that this unavailable memorandum survives the Kisor v. Wilkie test for deference or that a court would find it persuasive under Skidmore. 

The response to the RFI is clear:

SSA has determined through contracted research and through further investigation that O*NET, as it currently exists, cannot be used in SSA’s disability determination process (see Bibliography of research and investigations following).

The critical phrase from the 2004 response to the RFI is as it currently exists.  The question is whether the O*NET exists today as it did in 2004.  The O*NET has updated vocational data over every occupation for work context -- the data that Social Security representative are most interested.  Three occupations were last updated in 2004 and nine in 2005.  The other 1,004 have been updated between 2006 and 2019.  The O*NET does not exist today as it existed in 2004. 

The O*NET changed its taxonomy to version 10.0 in 2006.  The 2019 data set reflects version 24.0.  The O*NET does not exist today as it existed in 2004.  The O*NET now describes:

Occupational Requirements

A comprehensive set of variables or detailed elements that describe what various occupations require.

This domain includes information about typical activities required across occupations. Task information is often too specific to describe an occupation or occupational group. The O*NET approach is to identify generalized work activities (GWAs) and detailed work activities (DWAs) to summarize the broad and more specific types of job behaviors and tasks that may be performed within multiple occupations. Using this framework makes it possible to use a single set of descriptors to describe many occupations. Contextual variables such as the physical, social, or structural context of work that may impose specific demands on the worker or activities are also included in this section.

Generalized Work ActivitiesWork activities that are common across a very large number of occupations. They are performed in almost all job families and industries.
Intermediate Work ActivitiesWork activities that are common across many occupations. They are performed in many job families and industries.
Detailed Work ActivitiesSpecific work activities that are performed across a small to moderate number of occupations within a job family.
Organizational ContextCharacteristics of the organization that influence how people do their work
Work ContextPhysical and social factors that influence the nature of work

It is the work context description.  The physical and social factors that influence work are important to the disability analysis.  The data presentation describing the percentages of work within an occupation that require constant contact with others or very important work function of working with a group or team are exactly the kind of data that resolves holes in the DOT. 

And that brings the question back full circle to the Kisor question about deference and the Skidmore question about respect to the ability to persuade.  The Department of Labor is the agency that has the expertise to determine which of its publications constitutes the best source of information about the existence and requirements of work in the national economy.  Labor states about the DOT:

The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.

Whether the DOT, SCO, O*NET, or ORS answers every question about work represents a different question than whether any of those sources answer one or more questions about the number of jobs, the erosion of the occupational base, and the requirements of work.  Which takes us back to the first Kisor question, the regulation is not ambiguous.  The COSS takes administrative notice of reliable governmental data.  The only question is whether the O*NET is reliable and if so whether is answers the specific question that we have today. 
 

Answers to Questions from the New Orleans NOSSCR Conference

20           An example of a cross or rebuttal to “no fast pace production or piece rate quota” ?

The O*NET OnLine describes pace requirement in the work setting.  The data for cashier, for example:

Environmental	%	Response
Pace Determined by Speed of Equipment — How important is it to this job that the pace is determined by the speed of equipment or machinery? (This does not refer to keeping busy at all times on this job.)	0	Extremely important
	0	Very important
	20	Important
	13	Fairly important
	67	Not important at all

So cashiers are not pace determined by speed of equipment as extremely important or very important. 

14           Can you please post your slides on your blog?

I posted from:

https://www.bls.gov/opub/hom/ors/calculation.htm

https://www.bls.gov/ors/information-for-survey-participants/pdf/occupational-requirements-survey-collection-manual-072017.pdf

9             But if you ask the VW, they will say the cashier slides the case of water across the scanner, they will say the VW is not lifting that weight.

The BLS (ORS) states that:

Series ID: ORUP1000066700000663

Not seasonally adjusted

Series Title: % of cashiers; strength is medium work

Requirement: Physical Demands

Occupation: Cashiers

Estimate: strength is medium work

Year	Period	Estimate
2018	Annual	58.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000066700000663

What is your basis for disagreeing with that finding. 

9             What is the citation for SVP 1 is 4hours demonstration?

https://www.bls.gov/opub/hom/ors/calculation.htm

5             How do counter a vocational witness that you know is not being forthcoming or honest?

I just want an answer to the question that the Supreme Court directs me to ask:  do you have a reliable methodology for extrapolating your local experience to the national economy?

5             In my experience, if my cross of the VE possibly works, the ALJ finds on another issue, so it is difficult to tell how my cross was received. How can you tell if what you are doing is winning more hearings? Are you just preserving the record for appeal?

I can do this all day long.  If the claimant has significant limitations, you can erase any occupation.  Just persevere. 

4             The payment of MEs/VEs is available through FOIA. How do you suggest we use that as a bias argument?

I don’t have to prove bias.  I have to prove that the testimony is feeble and contradicted.  Stick to what the claimant must prove. 

4             the answer VEs give to cashier lifting a case of water is that it is left in the cast & they don't have to lift it.

The BLS states that cashiers engage in medium work in most jobs, do you have a statistical basis to show that the BLS is wrong?

4             Please zoom in!

Get your free 30 days at www.occucollect.com. 

4             Has SSA formally accepted the ORS data for use in administrative hearings?

https://www.bls.gov/ors/questions-and-answers.htm Q. 1

ORS provides information about the requirements of work in the national economy conducted under an interagency agreement with the Social Security Administration (SSA).

https://www.ssa.gov/disabilityresearch/occupational_info_systems.html

2             How do you know that JBP uses an equal distribution method? Where does it say that?

https://skilltran.com/index.php/support-area/documentation/223-jbp-defense

2             With the cashier issue and 60% being medium, couldn't the VE just say they could do one of the 40% that is not medium and that's still a significant number of jobs?

The 60% medium is a response to “as generally performed.”  AGP, cashiers are medium. 

If your client can perform the full range of light work, including stand/walk 7+ hours per day, the client is not disabled.  To prove disability for the sub-55 claimant, the record needs to prove a stand/walk limitation, an interaction with others limitation, or something else. 

2             Do you need to buy a subscription to Occu Collect to get all the screens you showed?

www.occucollect.com reproduces in one location the DOT, SCO, O*NET work context, O*NET work abilities, and the ORS.  You can go to four different websites and cobble the data together.  I have done it.  It takes about two hours per occupation.  If you use occucollect, it takes about 20 minutes per occupation once you have done it a handful of time.  The reports that are not available in a report format are the specialty reports that I did not cover, the Sedentary Compendium in the store, and the O*NET education training and experience report.   

2             When a VW says, "this is how the job is generally performed," when we ask about reliable method for extrapolating local experience to national economy, the VW inevitably says it is discussed at conferences, their VW chat groups, etc... how do we knock it out at that point?

What was the reliable methods used in the group?  Did you ask your chat club members about their reliable methods? 

Remember that 100 scientists got together and told the world that Einstein was wrong about relativity. 

2             If you don’t have a letter from the treating physician and the CE puts the claimant at medium. How do you come up with hypotheticals to the VE? How do we assume the amount off task in a day and/or any supportive hypothetical

The CE will typically describe a limitation to six hours of standing/walking.  Medium work requires seven or eight hours of standing/walking.  The CE might have described a limited range of motion for forward flexion.  This is sometimes a fruitful avenue.  Look for gait disturbance in the record, that might give you more. 

2             Is there a Federal Court case that you can cite where the court said the equal distribution method is not a valid way to calculate job numbers?

Chavez v. Berryhill, 895 F.3d 962 (2018)

Brault v. SSA Comm’r, 683 F.3d 443 (2012)

2             Which website was it in which the BLS writes that they maintain DOT only because of SSA, and that if you want reliable current data, go to the O*Net? I'd love to have that webpage so I can print it and submit in every case.

https://www.oalj.dol.gov/LIBDOT.HTM

1             What is the BLS?

Bureau of Labor Statistics

1             Good case law on VE - DOT conflict in 11th Circuit (Washington) & 4th. Extend to VE conflict with O-NET etc?

Wait for it.  This depends on Kisor v. Wilkie application to SSR 00-4p.  See the blog at:

http://californiasocialsecurityattorney.blogspot.com/2019/07/ssr-00-4p-describing-dot-as-primary-and.html

What is Your Reliable Methodology for Extrapolating Your Experience?

That is the question that we should all ask in the course of cross-examining vocational experts in Social Security disability hearing.  What is your reliable methodology for extrapolating your local experience to the national economy?  The reason that this question should be deeply ingrained into the practice of every representative that does this kind of work is simple, that is the question that the Supreme Court directs us to ask.  Biestek v. Berryhill says:

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. 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.

(Emphasis added). 

The well-accepted methodology could take the form of using Job Browser Pro because the vocational expert could say that it is accepted by the community of vocational experts as reliable.  The  First Circuit accepted that testimony in Purdy v. Berryhill.  Well-accepted should not include the equal distribution method of calculating job numbers, at least not when conflicting evidence is present.  The Seventh Circuit suggested that result in Chavez v. Berryhill.  Here is what Biestek says about the Chavez line of questioning:

Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969-970 (CA7 2018).

Most vocational experts either use Job Browser Pro, the equal distribution method (with or without knowing it), or have no discernible methodology at all.  This results in identifying the entire SOC/OES number of jobs as applicable to a single DOT code.  That methodology is worse by equal distribution; it is just lazy and ignorant. 

Here is a working list after hearing the vocational expert identify jobs and job numbers:

1. Confirm the DOT code.
2. Obtain the SOC/OES code.
3. Obtain the number of jobs in the SOC/OES code (most will not know).
4. Obtain the number of DOT codes within the SOC/OES code (most will not know).  
5. Ask for the reliable and well-accepted methodology for extrapolating the local experience to the national economy.  

With that information, we can disassemble the vocational expert testimony post-hearing.  If we use the O*NET and the Occupational Requirements Survey during the hearing (use OccuCollect.com), we can ask after an offer of proof of what the Department of Labor says:

6.  Who as greater resources for accumulating job requirements data (or job numbers data) in the national economy, you or the Department of Labor?

We still have the industry-occupation matrix used by Job Browser Pro, the BLS employment projections, and the Occupational Employment Statistics.  If that route is necessary ask:

7. In what industries, by NAICS code and name, does this occupation work?

We must have the first five.  Number six is the concession by which we hang the witness testimony.  Number seven tightens the knot.  We must use the data from Labor for the sake of our client's benefit entitlement.