Imagine a vocational expert testifies to a sedentary, simple and repetitive residual functional capacity for a younger individual. The witness (Skylar DePedro) testifies to:

56,000 furniture rental clerk jobs;

5,000 usher jobs; and

120,000 counter clerk jobs

The VW states that she “primarily” used SkillTRAN. That is true for the first two occupations, but only partially true. That “primary” reference is wholly false for the third.

The hearing took place in January 2023. We use that as our reference point. As of May 10, 2022, SkillTRAN estimated for furniture rental consultant:

The 56,000 jobs testimony is reasonable based on the SkillTRAN estimate through early May 2022. But the hearing took place in January 2023. SkillTRAN updates with the OEWS data that comes out. In 2022, that happened after May 10. By May 24, 2022, SkillTRAN estimate for furniture rental consultant said:

Oh no, the estimate went down by 54,000 jobs. What happened? How could that be?

The earlier estimate identified Rental and Leasing Services (NAICS 532000) and Rental and Leasing Services (NAICS 5320A1, which includes 532200, 532300, and 532400). NAICS 532000 includes any code that starts with 532 and adds other non-zero digits after 532.

In the NAICS, two non-zero digits represents a sector. Three non-zero digits represents a subsector. Four non-zero digits represents an industry group. Five non-zero digits represents a specific industry. Six digits represents a specific industry. Of the three countries in the North American Industry Classification System, only the United States uses six digits. Canada and Mexico stop at five digits.

Any vocational expert worthy of that title is obligated to know that 532000 includes all the industry groups in 5320A1. If DePedro used a SkillTRAN product, she should have read the 2021 version and known that the 56,000 jobs was wrong. If DePedro states that she is using SkillTRAN, a reasonable inference from that testimony is the most recent version of SkillTRAN. But clearly DePedro did not either use the then most recent version but used an obsolete version without an of examination of the data fields. That is reckless, at best.

But let us not leave its at furniture rental consultant, let’s proceed to usher. I don’t have a May 10, 2022, print for usher. I do have January 5, 2021:

That’s reasonably close to the 5,000 that DePedro testified for usher. Let’s look at May 24, 2022:

The difference is motion picture and video industries (NAICS 512100). That industry represents half the jobs. Why was it deleted? I don’t know. But if the witness tells me that they are using SkillTRAN and don’t confess to the recalculation by adding back in an industry and manually computing, then the statement of primary use is incomplete and misleading. DePedro did not either use the then most recent version but used an obsolete version without an of examination of the data fields.

Now we really get to have some fun. Counter clerk is, according to the DOT, an occupation that exists in the photofinishing industry. Those of you that are closely approaching or beyond retirement age will remember the 10x10 kiosks in the plaza. Those of you closely approaching age may remember that the big box stores had photofinishing booths where we could drop off our instamatic film and get that film processed. None of those jobs exist anymore. The only people using film are professionals. Here is the May 10, 2022, job number estimate for SkillTRAN:

Oh no! DePedro said 120,000. How about the update? Here is June 8, 2022:

The identification of counter clerk as representing 120,000 jobs based on SkillTRAN, that one DePedro just made that up. It is simply fabricated. DePedro might have some other rationale but that would betray her primary reliance on SkillTRAN.

And that is the problem. Biestek v. Berryhill, 139 S.Ct. 1140 (2019) tells us that we do not get to look that the VE’s actual documentation. So we submit the best we’ve got. But the courts are increasingly hostile to the same methodology approach. We must submit the data and submit it  to the Administrative Law Judge, not the Appeals Council. The ALJ has a duty to weigh the evidence. Our clients are entitled to administrative notice. Better yet, cross the witness at the time of hearing:

1.       What program are you using?

2.       What version are you using?

3.       Are you looking at it now?

4.       What does the program state as the job number?

Drill down like your client’s economic livelihood depends on it, because it does.

___________________________


Suggested Citation:

Lawrence Rohlfing, Addresser -- A Persistent Favorite of Vocational Witnesses, California Social Security Attorney (September 12, 2025) https://californiasocialsecurityattorney.blogspot.com


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