Use of the OOH and O*NET Accepted by the Court

The district court reverse and remanded Cymande S. v. Berryhill, 2019 WL 4148351, at *3 (C.D. Cal. May 16, 2019).  The decision is not available on Google Scholar.  No freebies.

This a straight Occupational Outlook Handbook and O*NET OnLine assault on vocational expert testimony mounted at the Appeals Council.  The district court summarized the issue:

Plaintiff also argues that the ALJ could not have reasonably relied on the testimony of the VE given that the VE's figures for a single job exactly matched the OOH reported figures for a category of jobs containing 18 distinct DOT job codes in one instance and 782 distinct DOT job codes in another instance.

Inspectors, testers, sorters, samplers and weighers (SOC 51-9061) is the occupational group that contains 782 DOT codes.  The OccuCollect.com everything report summary for any of the 782 DOT codes (including nut sorter) states:

There are 782 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

67 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary

14 are SVP 2

585 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light

3 are SVP 1 132 are SVP 2

117 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Medium

17 are SVP 2

13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Heavy

1 are SVP 1 6 are SVP 2

The unskilled occupations make up 173 DOT codes out of the 782 total codes.  The OOH currently describes the occupational group as typically requiring a high school diploma or equivalent, moderate-term on-the-job training, and representing 574,000 jobs.  The OOH glossary defines moderate-term as more than 30 days and up to one year.  The work is typically semi-skilled or skilled.  Inspectors, testers, sorters, samplers and weighers are not typically unskilled.  A nut sorter (DOT 521.687-086) cannot represent 574,000 jobs.  

This is one of occupations identified in Biestek v. Berryhill.  The proposition that 120,000 jobs as a nut sorter existing in the national economy ever is laughable.  Justice Gorsuch identified that concept in dissent.  

Cashiers (SOC 41-2011) is the occupational group that contains 18 DOT codes.  The OccuCollect.com everything report summary for any of the 18 DOT codes (including toll collector) states:

There are 18 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

5 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary

13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light

6 are SVP 2

The unskilled occupations make up 6 of the 18 total codes.  The OOH currently describes the occupational group as typically requiring no formal educational credential, short-term on-the-job training, and representing 3,648,500 jobs.  Toll collector cannot represent 3.4 million jobs.  

Cymande S. v. Berryhill represents progress is using the OOH combined with the O*NET crosswalk report to demonstrate the fallacy of job numbers.  Other data not mentioned by the court concerned the standing/walking of inspectors and cashiers, the predominant part-time nature of cashier work, as well as unskilled vs. semi-skilled or skilled work as reported by the O*NET (full-time) and ORS (other job characteristics).  Cymande S. v. Berryhill can be your next win if you present the vocational rebuttal to the ALJ or the Appeals Council (where AC evidence matters). 

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SUGGESTED CITATION:

Lawrence Rohlfing, Use of the OOH and O*NET Accepted by the Court, California Social Security Attorney (April 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/use-of-ooh-and-onet-accepted-by-court.html

Come on Down! Let's Make a Deal!

Let's Make a Deal is the iconic TV game show that debuted in 1963 and continues to this day.  Whether you remember Monty Hall or the new version with Wayne Brady, Let's Make a Deal is the risk of the bird in the hand or pursue the two in the bush only to find that the two in the bush was a box of rocks.  Administrative Law Judges play that game too.

I will use the experience of yesterday.  I could use similar experiences from 30 years ago.  The conversation goes something like this:

ALJ:  I am willing to find your client disabled as of February 1, 2020, the week before the psychiatrist signed the medical source statement.
ATTY:  The PA that authored that MSS completed two more with congruent findings, the first in 2008.
ALJ:  I know that.  If you don't want to take the February 1, 2020, date, then I will send the claimant out for a consultative psych eval -- who knows how long that will take.  Your choice counsel.
ATTY:  Compromising the claim is never my choice.  I will speak to my client.
ALJ:  I will put the call on hold and the monitor will text me when I can pick up.  

The vocational expert hangs up on my insistence.  I explain the game of Let's Make a Deal.  Not only do I not know who the consultative examiner will be, I have no idea what that person will write.  It isn't even a testifying medical expert where I can choose what exhibits to point out.  The consultative examiner is the worst option.  The client, desperate for security and tired of general relief subsistence, takes the ALJ offer rather than wait until December to get a decision whether the same, better, or worse.

We address this issue based on the Code of Conduct for Unites States Judges.  Canon 3A(4), second paragraph, states:

A judge may encourage and seek to facilitate settlement but should not act in a manner that coerces any party into surrendering the right to have the controversy resolved by the courts.

Is the threat of a consultative examination coercive?  Is the statement that getting the claimant out to a consultative examination when the unending COVID-19 crisis ends coercive?   I submit that the choice of pay now or wait an indeterminate amount of time with an unknown variable is coercive.  We further the analysis with the last clause of the oath of office of every office other than the President and elected or appointed offices:

I will well and faithfully discharge the duties of the office on which I am about to enter.

 The oath of justices and judges is similar:

I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me ...

The authority of an ALJ includes taking appropriate measures necessary to enable him or her to discharge the duties of office.

The clear import of the duty of the ALJ is to pay the claims of people that meet the disability standard on the date that the ALJ believes is proven by the record and to deny benefits to people that have not met the burden of proof.  Pay every dime due and deny every dime not due.

In our case from yesterday, the ALJ was either not persuaded of disability as of February 1, 2020, or was using that date as a coercive lever to preclude resolution of the controversy as to the earlier date.  The February 1, 2020, date is an endorsement date, not a medically based onset date.  It is a coerced result.

That is the bottom line.  The ALJ either put someone on the disability rolls that did not belong there by stripping that person of to right to have the earlier period adjudicated, or the ALJ simply coerced the person into giving up rights to protect the government fisc or some other improper purpose.

When an ALJ suggests an amendment to the onset date or the termination of disability, that suggestion or offer should stand without precondition.

I am prepared to find your client disabled as of February 1, 2020.  You may amend your onset date or I will prepare a partially favorable decision, leaving the exceptions and review rights intact.  What would your client like to do?  

That is the type of statement that complies with the oath of office and the judicial canons, used here by analogy.

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SUGGESTED CITATION:

Lawrence Rohlfing, Come on Down!  Let's Make a Deal!, California Social Security Attorney (April 16, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/come-on-down-lets-make-deal.html

O*NET OnLine Will Migrate to the SOC 2018 in November 2020

New O*NET-SOC Taxonomy Transition Tools within O*NET Web Services

With the release of the O*NET 25.1 Database in November 2020, O*NET Web Services will transition to the O*NET-SOC 2019 taxonomy. This taxonomy, based on the 2018 SOC, introduces several changes to the occupations returned by our services. It includes 1,016 occupational titles, 923 of which represent O*NET data-level occupations. For more information on these changes, see the O*NET-SOC Taxonomy page at the O*NET Resource Center.

To help O*NET Web Services users with the upcoming taxonomy transition, Taxonomy Services are now available to enable developers to connect occupational data between existing systems based on the O*NET-SOC 2010 taxonomy, and the future O*NET-SOC 2019 taxonomy-based O*NET Web Services.

That's the announcement from the Department of Labor, Employment Training Administration (ETA). One big change comes in production workers, all other (51-9199).  This probably the most statistically abused group in terms of the number of DOT codes (1,590), the number of unskilled sedentary and light DOT codes (457), and the insidious use of equal distribution.  Part of that will go away in November.  Here is what is happening to SOC 51-9199 and its detailed occupation 51-9199.01 Recycling and Reclamation Workers:

51-9161.00 Computer Numerically Controlled Tool Operators
51-9162.00 Computer Numerically Controlled Tool Programmers
51-9199.00 Production Workers, All Other
53-7062.04 Recycling and Reclamation Workers

Some DOT codes, maybe, and a significant number of jobs will move to other O*NET/SOC codes.  Part of the gross data aggregation will go away.  Production workers, all other will get numerically smaller.  None of the unskilled sedentary and light DOT codes currently resident in production workers, all other fit the three new classifications.

Another statistical mess will get cleaned up.  Stock clerks and order fillers will consolidate four detailed occupations back into the single SOC code:

43-5081.01 Stock Clerks, Sales Floor
43-5081.02 Marking Clerks
43-5081.03 Stock Clerks- Stockroom, Warehouse, or Storage Yard
43-5081.04 Order Fillers, Wholesale and Retail Sales

Those four detailed occupations and the constituent 2 million jobs will all end up in Stockers and Order Fillers with a new numerical designation, but same name:

53-7065.00 Stockers and Order Fillers

We can expect the ORS will track the new changes.  Counting unskilled light stockers and order fillers will get easier because the data will designate light and unskilled jobs.  We will still have to put the numbers together.  My suspicion is that the number of light markers will go down significantly because the range of medium exertion includes constant lifting/carrying of 2 pounds or frequent lifting/carrying of 11 pounds in addition to the recognized occasional lifting/carrying of 21 pounds all to that maximum of seldom lifting/carrying of 50 pounds.

When the data arrives, you can expect to see it incorporated into OccuCollect and its heralded everything report.

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SUGGESTED CITATION:

Lawrence Rohlfing, O*NET OnLine Will Migrate to the SOC 2018 in November 2020, California Social Security Attorney (April 2, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/onet-online-will-migrate-to-soc-2018-in.html