We pick up from the discussion of DPT and Temperaments and GED and Aptitudes. EM-21065 says on interesting thing that is kind of helpful and also myopic:
O*NET information. The information in O*NET has been grouped in such a way that it is not readily usable in our adjudication process. The data is not as specific as the DOT and is not associated with individual DOT occupations. However, adjudicators may use O*NET coding to search for similar DOT occupations for a TSA assessment. See DI 25015.017.
The O*NET is not banned from consideration. Nor can SSA ban reliable published governmental information. That is the definition of the scope of administrative notice. It is also axiomatic that "when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond." Heckler v. Campbell.
So let's test this proposition that the data in the O*NET is not as specific as the DOT and therefore not useful. First, the DOT is a statement of the typical way in which an occupation is performed within local and employer variances. DOT Appendix D. Typical does not mean the majority of jobs. M-W defines typical as "combining or exhibiting the essential characteristics of a group," "conforming to a type," or "constituting or having the nature of the type." This would include the majority but also include a plurality or the median of a particular set. The DOT is, by definition, a statistical fudge.
So is the O*NET. For well over 100 SOC-O*NET codes, the data describes a single DOT code. Take telephone solicitor as an example. It is the only DOT code in telemarketers. The O*NET describes telemarketers as semi-skilled to skilled. But the O*NET Resource Center describes telemarketers as overwhelmingly requiring less than 30 days of on-site training, on-the-job training, and related work experience. The vast majority of telemarketers do not require more than a high school education. The data suggests that telemarketers are typically unskilled. We have heard the mantra, they just read from a script. The O*NET tells the world that most telemarketers work less than 40 hours per week. Most telemarketers work in groups or teams and all have more than occasional contact or interactions with others. The data in the O*NET is more specific.
Hand packager is another good example. The DOT never states the amount of sitting or standing/walking required, except for sedentary work is at least 5.7 hours per day. The O*NET states that hand packagers never sit in 50% of jobs. That is important information when a person has a 6.0 hour standing/walking limitation. There are 59 DOT codes but this is good information about how packers typically work and to explore the vocational witness's understanding of how much standing/ walking packagers actually do and how the VW acquired that information.
When it comes to the nature and requirements of work, SSA is not the expert agency. SSA's expertise is the medical evidence and the nature of impairments. There, the agency gets deference. In terms of occupational information, SSA must get that information from one or two agencies: the Department of Labor and the Census Bureau. What does DOL say about the DOT and the O*NET? This:
The Dictionary of Occupational Titles (DOT) was created under the sponsorship by the Employment and Training Administration (ETA), and was last updated in 1991. The DOT was replaced by the O*Net, and ETA no longer supports 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.
The DOT was loaded onto the OALJ website because it was a standard reference in several types of cases adjudicated by the OALJ, especially immigration related matters. Time has passed, DOL’s regulations have changed, and OALJ now rarely adjudicates cases that reference the DOT.
So, why is the DOT still on the Office of Administrative Law Judges (OALJ) website? It is because the DOT is still used in Social Security disability adjudications and the OALJ copy of the DOT is often cited as an authoritative source of the DOT.
The Social Security Administration (SSA) is developing a new Occupational Information System (OIS), which will replace the DOT as the primary source of occupational information for use in the SSA disability adjudication process. SSA intends to have the OIS operational and to make necessary regulatory and policy updates by 2020.
Because the EM comes form the non-expert agency, it fails the basic deference test. Kisor v. Wilkie. When we want information about the requirements of work in the national economy, we should always use the most recent DOL published information.
That takes us to the rub. The VW has local experience. The VW projects to the nation what the VW saw one time in a plant or office 20 years ago or assumes that the accommodation that VW worked out with an employer for one person 15 years ago is the norm. The VW must answer the question and explain how the witness "extrapolat[es] those findings to the national economy by means of a well-accepted methodology." The VW never has one. The courts and the agency have swallowed the Kool-Aid that any VW appearing at the hearing is doing anything other than flying by the seat of his/her pants. Administrative notice is the basic concept of establishing the number of jobs and the requirements of those jobs. The O*NET serves that purpose. A VW can help interpret that data, but even that assumes that the VW has statistical training. They don't.
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