Tuesday, February 11, 2020

A Word About Numerosity

That is the title of the section of the court decision in Anthony D. v. Saul, CV 19-134 MRW.  It is not available on Google Scholar or WestLaw.  Here are the important snippets from the court decision by Magistrate Judge Wilner:

13 ... Some judges [fn. 1] doubt whether the twentieth century's DOT (last revised in 1991) remains a legitimate, dependable source of employment data in contemporary America. The database continues to trumpet the availability of jobs that simply don't exist anymore.

14. It is especially eye-opening that the U.S. Department of Labor endorses a competing compilation (the O*Net) as the "primary source of occupational information" for use in industry and litigation — even as the Labor Department explains that it posts DOT information on its website solely as an accommodation to the Social Security Administration. (oalj.dol.gov/LIBDOT.HTM (accessed Jan. 9, 2020).)

15.  Plaintiff makes colorable arguments as to why SSR 00-4p should not receive Kisor-Auer deference. Counsel also may have my ear some day in asserting that vocational expert testimony based on archaic DOT job data and descriptions does not constitute "substantial evidence" adequate to support an adverse agency ruling. Biestek v. Berryhill, U.S. , 139 S. Ct. 1148, 1154 (2019). However, because the action is remanded on another ground, I get to duck the issue today.

16.  By the way, so did the Ninth Circuit in Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2017). The government is literally correct in quoting the passage from Shaibi that the circuit could "find no case, regulation, or statute suggesting" that an ALJ must turn to other data sources in lieu of the DOT. (Docket # 21 at 23 (quoting Shaibi, 883 F.3d at 1109).) But the Ninth Circuit clearly did not view that issue as either ripe or preserved at the time — the main and obvious holding in the case was that Mr. Shaibi "forfeited his challenge to the VE's job numbers." Id., 883 F.3d at 1108.

17.  Are other aspects of the decision merely nonbinding dicta? Perhaps Pasadena will deal with this roiling question soon. If so, the agency may need to reconsider its defense of the dusty DOT data.  

And footnote 1 lists some cases casting doubt on blind application of the DOT:

Including me. See Analia D. v. Berryhill, No. CV 18-3869 MRW, 2019 WL 856854 at *2 (C.D. Cal) ("To that end, a growing number of courts have resisted agency findings that historic jobs — like those involving the word processing devices formerly known as typewriters — exist in substantial numbers in the 2019 economy. See, e.g., Skinner v. Berryhill, No. CV 17-3795 PLA, 2018 WL 1631275 (C.D. Cal. Apr. 2, 2018) (`addresser' jobs have 'significantly dwindled in number since 1991 in light of technological advances'); Hilda V.A. v. Berryhill, No. ED CV 18-195 KES, 2018 WL 5291930 (C.D. Cal. 2018) (discussing percentage of time that 'accounting clerk' currently spent on keyboarding tasks); Boomhower v. Berryhill, 2017 WL 7167116 (D. Or. 2017) (remanding for determination whether 'addresser' and 'nut sorter' are jobs 'still performed' as described in DOT); Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (retired Circuit Judge Posner's doubts about the validity of job information for positions like 'pin setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist').") 

We will make progress in this endeavor if we persevere and fastidiously demand that the agency produce reliable evidence of the existence of work.



Lawrence Rohlfing, A Word About Numerosity, California Social Security Attorney (February 11, 2020),

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