Biestek v. Berryhill is now a classic, over seven years old. The vocational witness identified bench assembler and sorter representing 240,000 jobs and 120,000 jobs in the nation. The Court of Appeals tells us that the witness identified final assembler and nut sorter. At the time of the hearing, no data source suggested 240,000 sedentary production worker jobs or 120,000 sorter jobs. It was spurious then and spurious now. The Employment Projections and Occupational Employment and Wage Statistics report wage and salary employment (for the EP) and total employment (for both). The EP is the foundation of the job numbers in the OOH and the O*NET. The OEWS is cited in SSR 24-3p.
Final assembler is described in the DOT as existing in the optical good industry. The NAICS changes the name to the ophthalmic goods manufacturing industry (NAICS 339115). Ophthalmic goods manufacturing is a specific industry belonging to the larger industry group medical equipment band supplies manufacturing (NAICS 339100) and the larger-specific industry bearing the same name (NAICS 339110). How many jobs do the EP and OEWS report for production workers in medical equipment and supplies manufacturing?
31-33 - Manufacturing
NAICS | INDUSTRY | EP 2024 #'s | OEWS 2024 #'s |
TE1000 | Total employment | 292,800 | 277,060 |
TE1000 | Self-employed workers | 10,900 | No Data |
TE1000 | Total wage and salary employment | 281,900 | No Data |
31-330 | Manufacturing | 129,300 | 128,800 |
339100 | Medical equipment and supplies manufacturing | 3,800 | 3,790 |
In May 2015, the OES reported 241,910 jobs for production workers, all other, including final assembler. OES 2015. The 2014 Employment Projections reported 236,200 jobs for production workers, all other, including final assembler. EP 2014. That relates to the current employment numbers, 277,000 to 282,000 jobs reported now. Tell me how to justify 240,000 bench or final assembler jobs. It is indefensible. SkillTRAN suggests 71 jobs final assembler jobs using medical equipment and supplies manufacturing. County Business Patterns states that medical equipment and supplies manufacturing represents 308,388 jobs in all occupations and that ophthalmic goods manufacturing represents a mere 23,391 jobs. Using NAICS 339100 results in an overestimate of jobs.
Erin O'Callaghan used the entire SOC code and swore under penalty of perjury that every single job belonged to final assembler. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence.
Nut sorter is described in the DOT as existing in the canning and preserving industry. SkillTRAN suggests other food manufacturing (NAICS 311900), merchant wholesalers, nondurable goods (NAICS composite 4240A1 including 424400 and 424800), and farm product raw material merchant wholesalers (NAICS 424500). Using those three industry groups and assuming two to eleven other DOT codes at the SOC-NAICS intersections, SkillTRAN estimates 2,370 nut sorter jobs.
The NAICS code that corresponds to the DOT stated industry is fruit and vegetable preserving and specialty food manufacturing industry group (NAICS 311400), which includes two 5-digit industries which in turn include five 6-digit industries. NAICS 311400 represents 166,936 jobs in all occupations. NAICS 311900 contains 257,870 jobs per CBP. Using industries that that do not correspond to the DOT designation is an apparent conflict.
Using the EP/OEWS occupation-industry matrices, we find:
Industry Group & NAICS/National Industry - 4 & 5/6 Digit NAICS
|
NAICS |
INDUSTRY |
EP
2024 #'s |
OEWS
2024 #'s |
|
TE1000 |
Total
employment |
598,000 |
591,180 |
|
TE1000 |
Self-employed
workers |
8,100 |
No Data |
|
TE1000 |
Total
wage and salary employment |
589,800 |
No Data |
|
311400 |
Fruit
and vegetable preserving and specialty food manufacturing |
7,300 |
7,210 |
|
311900 |
Other
food manufacturing |
8,100 |
8,210 |
|
424500 |
Farm
product raw material merchant wholesalers |
300 |
280 |
|
4240A1 |
Merchant
wholesalers, nondurable goods (4244,8) |
5,800 |
5,680 |
In the age of SSR 24-3p, the basic OEWS calculator estimates that there are less than 366 sedentary jobs in 52 sedentary unskilled DOT codes for production workers, all other, including final assembler. The basic OEWS calculator estimates less than 22.8 percent of jobs as unskilled and less than 15% of jobs as sedentary resulting in <<20,218 in 14 sedentary unskilled DOT codes.
A less than number reported by the ORS assumes all of the standard error from the other related categories. the 2023 ORS reports that 92.6% of jobs required light to heavy exertion. The 2024 data estimates 7.5% represent sedentary work. That data set reports "-" or no estimate for what we call SVP 2. Using all three data sets, halve the number using the 2023 data set alone.
Before we terminate this piece, we must all remain aware that nut sorter is a questionable occupation. EM-24027 REV lists thirteen occupations, including nut sorter, as requiring "additional evidence from a VS or VE supporting" the proposition that this occupation is appropriate.
Biestek is the law of the land but Justice Gorsuch was right. Erin O'Callaghan's numbers came straight out of her hat.
VW testimony is Rocky and Bullwinkle.
___________________________
Suggested Citation:
Lawrence Rohlfing, Redux -- Biestek v. Berryhill, California Social Security Attorney (November 6, 2025) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
