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.