Another Example of Vocational Expert Prevarication

VE - Antonio Reyes

RFC - light work as defined in 20 CFR 404.1 567(b) and 416.967(b) with the ability to lift, carry, push, and pull 10 pounds frequently and 20 pounds occasionally. She can stand and/or walk for six hours in an eight-hour workday and she can sit for six hours in an eight-hour workday. The claimant cannot climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, and crawl. She can less than occasionally climb ramps and stairs. The claimant cannot be exposed to unprotected heights or dangerous machinery or equipment. The claimant can perform simple routine tasks and she can make simple routine decisions. She can adapt to simple routine changes of work processing and settings. The claimant can have only incidental contact with the public. The claimant cannot work at production rate pace where productivity is governed by a fixed external force such as an assembly line, but is able to meet productivity expectations. The claimant can have occasional contact with coworkers. She cannot bc part of a work team that requires regularly working directly with others to accomplish a task.

AEW - younger individual, high school, and no transferable skills.

Occupations:

1. Cleaner, housekeeping - 323.687-014 - 400,000 jobs
2. Sorter I - 706.684-022 - 15,000 jobs
3. Assembler, small products I - 706.684-022 - 360,000 jobs

Foundation - the vocational expert testified that his job numbers were based upon numbers from the Bureau of Labor Statistics data, which the vocational expert analyzed such that he was able to narrow the job numbers to be more specific to the Dictionary of Occupational Titles.

The VE cited no basis for the standing/walking six hours; the production rate pace testimony; the absence of an assembly line or other external force driving productivity; occasional contact with coworkers; and no teamwork.  The VE testimony is shameful.  

Small products assembler I  work on an "assembly line to mass produce small products" and "frequently works at bench as member of assembly group."  DOT conflict.  Small products assembler is a production workers, all other occupation per the DOT-SOC crosswalk.  BLS data from the OEWS:  194,360 production workers, all other covering 1,590 DOT codes.  BLS data from the OOH:  203,600 production workers, all other covering 1,590 DOT codes.  Conflict with the cited job numbers source.  BLS data from the ORS:  production workers, all other stand 90% of the workday at the 10th percentile.  There is no basis for the conclusion that small products assembler does not work in a team or on an assembly line, the job numbers are clearly bogus, and the standing limitation wipes out the jobs according to Labor.  

Sorter is an inspector, tester, sorter, sampler and weigher occupation.  The O*NET says that inspectors have occasional or less contact with other in 2% of jobs.  The data sheets describe occasional and no contact as 0,55%, each.  They round each to 1% yielding an estimate of 2%.  Inspectors always work with a group or team as important job functions.  Inspectors stand 80% of the day at the 50th percentile.  Inspectors sit 90% of the day  at the 90th percentile.  There is a small sliver of jobs around and below the 75th percentile but above the 50th percentile that could fall within the six hours of sitting or standing/walking.  And only 21% of the jobs are unskilled.  The key to this occupation is the contact with others and the need for work with a group or team.  

Housekeeping cleaner is a maids and housekeeping cleaner occupation.  This is a huge occupational base.  Occasional or less contact with others is 18%.  No teamwork is 4% of the jobs.  Because we start with 1.2 million jobs, we need less than 1%.  The teamwork limitation has this occupation under 50,000.  The presence of part-time work in 14% of jobs provides some potential reduction.  But we still are not "there."  The key is six hours of standing/walking.  Maids stand 80% of the workday at the 10th percentile.  There is no statistical basis for the inference that a quarter of the maids in the economy are standing six hours per day or less.  Because the full-time work, teamwork, and standing are independent variables, we apply them serially.  There are fewer than 4,000 jobs that might meet the standing/walking limitation in the RFC.  

If we don't check the witness against the data, we don't know whether the VE is reliable or pulling the jobs out of a hat.  It is clear that this VE did not use BLS data.  It is clear that this VE does not use any reliable methodology.  We can do better, we must do better.  

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Suggested Citation:

Lawrence Rohlfing, Another Example of Vocational Expert Prevarication, California Social Security Attorney (November 14, 2021)  https://californiasocialsecurityattorney.blogspot.com