What's Wrong with SSR 24-3p?

 SSR 24-3p introduces a new interpretation of the stable administrative notice regulation, 20 CFR 404.1566(d). The Commissioner has long held as a matter of law to the proposition that when it comes to unskilled sedentary, light, and medium work, the Commissioner will take administrative notice of reliable governmental and other (private) published data for the requirements and numbers of jobs. SSR 00-4p responded to a growing number of cases -- and a split in the circuits -- that the ALJ must address conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). 20 CFR 404.1566(d)(1). The Commissioner conceded to the fact that the Selected Characteristics of Occupations (SCO) was part of the single data set. SSR 00-4p imposed on the ALJ the duty to investigate the existence of a conflict or apparent conflict and to resolve that conflict based on evidence. 

But the DOT and its dataset never stated job numbers, never. Job numbers are now and in 1978 stated in the Occupational Outlook Handbook (OOH) and County Business Patterns (CBP). 20 CFR 404.1566(d)(2), (5).Now, the Bureau of Labor Statistics publishes online the Employment Projections (EP) and the Occupational Employment and Wage Statistics (OEWS, formerly the OES). 

Labor abandoned the DOT and its data set never updating the DOT fourth edition, revised published in 1991 or the SCO published in 1993. Labor transferred responsibility of the Employment Training Administration from the DOT to the Occupational Information Network (ONET). Recognizing the problem that 10,000 of the 13,000 DOT codes had a date last updated of 1977, the Commissioner was forced to collaborate with Labor to develop a new data set -- the Occupational Requirements Survey (ORS). 

Private sources published data as well. United Stat Publishing published and publishes what is now known as the Occupational Employment Quarterly (OEQ) in various formats for national, state, and local data. That publication uses the equal distribution method of estimating job numbers -- each DOT code within a Standard Occupational Classification (SOC) represents the same number of jobs. The OEQ publishes the job numbers sorted by exertion/skill combinations. United Stat Publishing also publishes the Specific Occupational Employment - Unskilled Quarterly (SOEUQ). The SOEUQ estimates sedentary occupations by industry. The SOEUQ does not state its methodology. 

SkillTRAN publishes OccuBrowse, Job Browser Pro, and OASYS. The latter two estimate job numbers by DOT code. SkillTRAN uses a SOC/OEWS code intersection with selected industries (NAICS codes) and uses equal distribution to estimate the number of jobs per DOT code at those SOC-NAICS intersections. SkillTRAN uses a proprietary and unpublished methodology and does not use the data from the EP or OEWS that publish SOC-NAICS data. SkillTRAN uses the CBP to modify the data. The SkillTRAN SOC-NAICS data resembles but does not duplicate either the EP or OEWS SOC-NAICS data. 

That is the basic lay of the data. Job requirements are still found in the DOT and the Commissioner clings to that data set. Job requirements are found with current data in the ONET and the ORS. Job numbers are still found in the OOH and CBP -- they are up to date -- as well as the EP and OEWS. Three data sets for requirements and four data sets for job numbers. No one should use the OEQ for any purpose. JBP and OASYS continue to have utility for stating the SOC-NAICS intersection job numbers but does not parse that data based on occupational classifications nor erode for any impairment. JPB and OASYS are starting points. 

Here is the problem. The vocational witness claims to have considered the broad range of data along with their vast (local and anecdotal) experience to derive a job numbers based on no discernible methodology. Some will default to JBP/OASYS. That is at least a defensible starting point. Some will claim that the OEQ remains in the mix. That is bogus. 

And the ALJ corps blindly accepts testimony that is incoherent and meaningless. The witnesses are not consistent across time. They are not consistent with each other according to the cases. Because the claimants have privacy of their medical data, we never get to see the testimony that the witnesses give in different cases or to compare different witnesses in same and similar cases. The system lacks accountability and reliability. The system invoked by SSR 24-3p creates vocational witness lottery. That is not a system of administrative justice; it is legalized gambling with people's lives and the social safety net. 

But I never get passionate about these issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, What's Wrong with SSR 24-3p?, California Social Security Attorney (February 26, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

The ORS Suggests 700,000 Sedentary, SVP 1 and 2 Office Clerks, General

But do they meet the definition of unskilled work in the regulatory paradigm? We start with the Occupational Requirements Survey math problems counting jobs in the occupational group, reduce for full-time work, SVP, and exertion. 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2024)	# SVP 2
1,847,314	44.6%	823,902
# of Jobs	% Sedentary (ORS 2024)	# Sedentary
823,902	84.6%	697,021

There are 74 DOT codes associated with this SOC group, you can find more information on these DOT codes by running the 2019 O*NET-SOC To DOT Crosswalk Report

The ORS 2023 data set suggests 504,884 jobs. 

The only  source that uses the definition of full-time work expressed in SSR 96-8p is the O*NET. You should use the O*NET because it meets SSA policy. The O*NET Crosswalk report references in the calculator identifies three sedentary, unskilled DOT codes, seven light, unskilled DOT codes, and one medium, unskilled DOT code. That translates to eleven out of seventy-four DOT codes. So much for equal distribution. Here's the list:

I include data-people-things because the regulation says that the matter. The 2021 version of EM-21065 cautioned adjudicators to not use "Temperaments (what the software tool manufacturer calls work situations or situations) or DPT (what the software manufacturer calls work functions) to determine the demands of work." We discussed this in 2022. EM-21065 Rev. 2 does not contain that caution. 20 CFR sec. 404.1568(a) describes unskilled by example:

For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

The regulation sets out three alternates joined with a conjunctive and to learning the job in 30 days or less. The three alternatives also have an adjective phrase, primary work duties. The DOT defines the things codes related to the regulation:

5 Tending: Starting, stopping, and observing the functioning of machines and equipment. Involves adjusting materials or controls of the machine, such as changing guides, adjusting timers and temperature gauges, turning valves to allow flow of materials, and flipping switches in response to lights. Little judgment is involved in making these adjustments.

6 Feeding-Offbearing: Inserting, throwing, dumping, or placing materials in or removing them from machines or equipment which are automatic or tended or operated by other workers.

7 Handling: Using body members, handtools, and/or special devices to work, move, or carry objects or materials. Involves little or no latitude for judgment with regard to attainment of standards or in selecting appropriate tool, object, or materials.

The DOT dataset reported by WestLaw, Lexis, SkillTRAN (Job Browser Pro and OASYS), and OccuCollect.com set forth whether the work function is primary by use of the designation significant or not significant. 

The reduces our list six DOT codes, two sedentary, three light, and one medium occupations. All have the code "7" representing handling. All have at least one other significant work function, either data or people. Six have significant work functions dealing with data and two deal with people:

Most of the Reasoning level 3 occupations deal with people. We are not simple -- customers that is. Data is not simple. SSR 85-15. 

When SSA says that SVP 1 and 2 work meets the definition of unskilled simple work, the agency is wrong. "And" is conjunctive, not disjunctive. In order to qualify as simple unskilled work in the regulatory paradigm, the work functions (the sixth DOT code number) must be a 5, 6, or 7, that work function must be designated as significant, and the data/people work functions must be designated as not significant. 

I cannot identify any DOT code classified as a general office clerk that meets those criteria. The correct number of general office clerk jobs that meet the 404.1568(a) definition of "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time" is zero. That phrase does not define SVP 1 and 2 work but instead limits the scope of SVP 1 and 2 work that meets the test. 

We have long used the R3 as a tool to limit the scope of simple work. That remains a tool but it is a shortcut to the significant things code to the exclusion of other significant work functions. The two concepts overlap but DPT is the right tool under the regulation. 

Can we just follow the law. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The ORS Suggests 700,000 Sedentary, SVP 1 and 2 Office Clerks, General, California Social Security Attorney (February 10, 2025)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.