Redux -- Biestek v. Berryhill

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?

51-9199 - Production workers, all other
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:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
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

 Nowhere close to 120,000 jobs. Erin O'Callaghan did not use the entire SOC code but she used over one-fifth of the aggregate. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence. 

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.

Biestek vs. SSR 24-3p

I have seen this occupation in my vast experience as a vocational rehabilitation provider and based on my education, training, and experience, a person that could stand/walk four hours could perform this occupation with a sit-stand option at will in 50% of those jobs. 

We have been there and been exposed to this kind of nonsense for decades. Let's assume that the vocational witness (VW) has 30 years of experience and seen 100 of of the 3,000 unskilled jobs 10 times. Based on a random sample of 10 viewings, the VW extrapolates that experience to estimate the existence of 30,000 jobs.

Slow the roll and take some time to let that sink in. Using the CheckMarket Sample Size calculator, a population size for any unit requires a sample size of a specific number to have statistical validity to a 95% reliability:

                            Population Size            Required Sample Size
                            

                            2,000                              1,092

                            20,000                            2,144

                            200,000                          2,373

We have common knowledge understanding that polls have 3% margin of error and are often more than 3% difference between some polls. Bias in the sample selection matters. Who do rehabilitation specialists visit? Employers that are known to provide accommodations as a routine such that they cease to be accommodations, just they way the job is done at that facility. 

Let us assume the truly large Standard Occupational Codes (SOC): maids, janitors, and stockers (markers). Maids and housekeeping cleaners represent over 830,000 jobs on the 2023 OEWS report. Janitors and cleaners represent over 2.1 million jobs on that same report. Stockers and order fillers represent over 2.8 million jobs. The CheckMarket sample sizes:

                            Occupation                 Population Size            Required Sample Size
                            

                            Maids                          830,000                         2,394

                            Janitors                       2.1 million                     2,399

                            Stockers                      2.8 million                     2,399

In order to comment in any meaningful manner about the distribution of job requirements in a SOC group, the VW should have a random sample of over 2,300 jobs per occupation. No VW has the experience to gather 2,300 job viewing for 100 DOT occupations that the witness holds on their belt. I have never heard a VW say the minimum of 1,000 viewings for the smallest of sample sizes. Once the population size gets to 12,000, the random sample is over 2,000. 

Why does this matter? Because the Supreme Court says so. Biestek v. Berryhill holds:

She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.

The COSS binds the agency as a matter of law to the proposition that she "will take administrative notice" of reliable published data from governmental and other resources about the requirements and numbers of jobs. 20 CFR § 404.1566(d). 

Who publishes data that uses a well-accepted methodology for describing the requirements of work and the number of jobs? The Department of Labor does. DOL tells us:

if you are looking for current occupational information you should use the O*Net.

The Occupational Requirements Survey abides by OMB statistical standards. The OEWS and the Employment Projections comply with OMB standards. What standards to VW comply with? The seat of their pants, wet finger in the wind, I ate too much for breakfast. They have not manner of extrapolating their local experience to the national economy by means of a well-accepted methodology. No VW has the ability to gather and synthesize data anything close to the prowess of the Bureau of Labor Statistics. 

VW are not qualified to override the statistical experience of reporting the requirements and numbers of jobs in the national economy. Not by education, training, or experience. They lack the time to gather that much data, to synthesize that data, and to report on that data. Observing an occupation five, ten, or more times is statistically insignificant. 

Biestek is the answer to the question posed by general description of methodology. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Biestek vs. SSR 24-3p, California Social Security Attorney (January 27, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley

 Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at a second of those dispositions. 

2. Cuestas v. O'Malley - Cuestas argued that the ALJ did not explain how the agency considered supportability and consistency. The Court disagreed, but did not give examples.

Cuestas argued that the ALJ relied on objective basis for symptoms and limitations. The Court found that the ALJ did and could rely on the failure to comply with medical advice and failed to attend pain management. 

Cuestas argued that the ALJ did not pose all the limitations to the vocational witness. This is a rehash of the opinion and subjective testimony issue -- not a separate issue. 

Cuestas argued that the ALJ disregarded evidence of interaction with other people as stated by the Bureau of Labor Statistics. The Court found that the ALJ could rely on the DOT and the vocational testimony to reach the conclusion that Cuestas could perform other work.

COMMENT: The courts have this issue wrong. Heckler v. Campbell, 461 U.S. 458, 469, n.13 (1983):

Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.^[13] See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

13 The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980)." Id., at 298.

(Emphasis added). The COSS takes administrative notice of the DOT by regulation and expands that notice to include the SCO. Most of the DOT codes have a Date Last Updated code of 1977. Vocational witnesses have local experience, not national experience. An ALJ can rely on unrebutted nonsense. Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). But if the vocational testimony is "feeble" or "contradicted," the testimony is no longer unrebutted. Id. at 1156. The claimant can show that the testimony was "untrustworthy" or "contradicted." Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). 

Cuestas rebutted the vocational testimony with BLS data. The testimony is now contradicted under Biestek and Ford. Why did the ALJ reject the BLS data? The Court does not say why. The Court says that the ALJ may rely on vocational testimony and the DOT regardless of what BLS publishes. 

As a society, we continue with the national consternation over whether private parties or the government can count. The vocational witnesses called by the COSS should travel under two names: Rudy and Sidney. We should label the data published by the Department of Labor -- when the O*NET, ORS, EP, or OEWS -- as the national election bureau. Believing that housekeeping cleaner, photocopy machine operator, or marker don't have extensive contact with others is nonsense. From the District Court decision:

The VE stated that she had no data to refuse the BLS statistic indicating that for the job of Photocopy Machine Operator, up to 82 percent of the people who do that job have contact with others constantly or most of the time. AR 65-66. For the job of Marketer, the BLS data indicated that 90 percent of people performing that job had contact with others most of the time or constantly. The VE stated that she had no data to refute that statistic. AR 66-67.

The record has statistical data from the Department of Labor that the vast majority of photocopy machine operators and markers have frequent or constant contact with others. The witness does not have a statistical basis for refuting what DOL reports according to OMB standards. That is not substantial evidence. That is garbage. 

1. The DOT does not address work contact with coworkers. 

2. The witness does not have a basis for overcoming DOL data (the source that describes contact with others is the O*NET, published by the ETA, not BLS). 

3. Would a reasonable mind accept Rudy and Sidney's word as election experts over the Georgia Secretary of State? No. Nor should the courts accept every bile that vomits from the vocational witnesses mouth. 

The unaddressed issue of housekeeping cleaners is the problem. About 18% of those jobs have occasional (8%) or no (10%) contact with others. That probably makes the contact with others harmless. But the ORS (a BLS product) confirms that housekeeping cleaners do not sit two hours a day. 

Cuestas is wrong at step five. I vigorously dissent, but I'm not a judge. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

Reliability of the Occupational Requirements Survey

Biestek v. Berryhill contains the essence of vocational expert testimony and cross-examination.

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant's lawyer. And nothing in the rest of the record conflicts with anything she says.

Nestled inside of the body of this statement is the long sentence describing the vocational expert explaining (1) a survey of a range of representative employers; (2) amassing information about labor needs of employers; and (3) extrapolating that data by a well-accepted methodology to the national economy.  The question is whether the vocational expert is reliable.   

To confirm the reliability of the Occupational Requirements Survey. the Bureau of Labor Statistics provides measures for assisting users of the data:

1. Standard errors provide users with a measure of the precision of an estimate to ensure that it is within an acceptable range for their intended purpose.  These include sampling and non-sampling errors.  
2. The ORS program uses a variety of quality assurance programs to mitigate collection and processing errors by using data collection re-interviews, observed interviews, computer edits of the data, and systematic professional review of the data.

The description of standard errors as including sampling errors describes the reliance on the anecdotal experience of a single vocational expert that does not use a well-accepted methodology to extrapolate local experience to the national economy.  

Sampling errors occur because the sample makes up only a part of the population it represents. The sample used for the survey is one of a number of possible samples that could have been selected under the sample design, each producing its own estimate. A measure of the variation among sample estimates is the standard error.

Because the ORS uses measures of standard error to mitigate sampling and non-sampling errors and uses quality assurance through re-interview, auditing, editing, and review of data, the ORS is reliable.  The vocational expert does not use standard error or quality assurance at any level.  That observation confirms what Justice Gorsuch suspected in dissent in Biestek:

And thanks to its conclusory nature, for all anyone can tell it may have come out of a hat—and, thus, may wind up being clearly mistaken, fake, or speculative evidence too.

Don't let vocational experts pull your client's case out of the win column and into the lose column by pulling job numbers out of any source. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Reliability of the Occupational Requirements Survey, California Social Security Attorney (June 27, 2021)  hhttps://californiasocialsecurityattorney.blogspot.com/2021/06/reliability-of-occupational.html

Answers to Questions from the New Orleans NOSSCR Conference

20           An example of a cross or rebuttal to “no fast pace production or piece rate quota” ?

The O*NET OnLine describes pace requirement in the work setting.  The data for cashier, for example:

Environmental	%	Response
Pace Determined by Speed of Equipment — How important is it to this job that the pace is determined by the speed of equipment or machinery? (This does not refer to keeping busy at all times on this job.)	0	Extremely important
	0	Very important
	20	Important
	13	Fairly important
	67	Not important at all

So cashiers are not pace determined by speed of equipment as extremely important or very important. 

14           Can you please post your slides on your blog?

I posted from:

https://www.bls.gov/opub/hom/ors/calculation.htm

https://www.bls.gov/ors/information-for-survey-participants/pdf/occupational-requirements-survey-collection-manual-072017.pdf

9             But if you ask the VW, they will say the cashier slides the case of water across the scanner, they will say the VW is not lifting that weight.

The BLS (ORS) states that:

Series ID: ORUP1000066700000663

Not seasonally adjusted

Series Title: % of cashiers; strength is medium work

Requirement: Physical Demands

Occupation: Cashiers

Estimate: strength is medium work

Year	Period	Estimate
2018	Annual	58.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000066700000663

What is your basis for disagreeing with that finding. 

9             What is the citation for SVP 1 is 4hours demonstration?

https://www.bls.gov/opub/hom/ors/calculation.htm

5             How do counter a vocational witness that you know is not being forthcoming or honest?

I just want an answer to the question that the Supreme Court directs me to ask:  do you have a reliable methodology for extrapolating your local experience to the national economy?

5             In my experience, if my cross of the VE possibly works, the ALJ finds on another issue, so it is difficult to tell how my cross was received. How can you tell if what you are doing is winning more hearings? Are you just preserving the record for appeal?

I can do this all day long.  If the claimant has significant limitations, you can erase any occupation.  Just persevere. 

4             The payment of MEs/VEs is available through FOIA. How do you suggest we use that as a bias argument?

I don’t have to prove bias.  I have to prove that the testimony is feeble and contradicted.  Stick to what the claimant must prove. 

4             the answer VEs give to cashier lifting a case of water is that it is left in the cast & they don't have to lift it.

The BLS states that cashiers engage in medium work in most jobs, do you have a statistical basis to show that the BLS is wrong?

4             Please zoom in!

Get your free 30 days at www.occucollect.com. 

4             Has SSA formally accepted the ORS data for use in administrative hearings?

https://www.bls.gov/ors/questions-and-answers.htm Q. 1

ORS provides information about the requirements of work in the national economy conducted under an interagency agreement with the Social Security Administration (SSA).

https://www.ssa.gov/disabilityresearch/occupational_info_systems.html

2             How do you know that JBP uses an equal distribution method? Where does it say that?

https://skilltran.com/index.php/support-area/documentation/223-jbp-defense

2             With the cashier issue and 60% being medium, couldn't the VE just say they could do one of the 40% that is not medium and that's still a significant number of jobs?

The 60% medium is a response to “as generally performed.”  AGP, cashiers are medium. 

If your client can perform the full range of light work, including stand/walk 7+ hours per day, the client is not disabled.  To prove disability for the sub-55 claimant, the record needs to prove a stand/walk limitation, an interaction with others limitation, or something else. 

2             Do you need to buy a subscription to Occu Collect to get all the screens you showed?

www.occucollect.com reproduces in one location the DOT, SCO, O*NET work context, O*NET work abilities, and the ORS.  You can go to four different websites and cobble the data together.  I have done it.  It takes about two hours per occupation.  If you use occucollect, it takes about 20 minutes per occupation once you have done it a handful of time.  The reports that are not available in a report format are the specialty reports that I did not cover, the Sedentary Compendium in the store, and the O*NET education training and experience report.   

2             When a VW says, "this is how the job is generally performed," when we ask about reliable method for extrapolating local experience to national economy, the VW inevitably says it is discussed at conferences, their VW chat groups, etc... how do we knock it out at that point?

What was the reliable methods used in the group?  Did you ask your chat club members about their reliable methods? 

Remember that 100 scientists got together and told the world that Einstein was wrong about relativity. 

2             If you don’t have a letter from the treating physician and the CE puts the claimant at medium. How do you come up with hypotheticals to the VE? How do we assume the amount off task in a day and/or any supportive hypothetical

The CE will typically describe a limitation to six hours of standing/walking.  Medium work requires seven or eight hours of standing/walking.  The CE might have described a limited range of motion for forward flexion.  This is sometimes a fruitful avenue.  Look for gait disturbance in the record, that might give you more. 

2             Is there a Federal Court case that you can cite where the court said the equal distribution method is not a valid way to calculate job numbers?

Chavez v. Berryhill, 895 F.3d 962 (2018)

Brault v. SSA Comm’r, 683 F.3d 443 (2012)

2             Which website was it in which the BLS writes that they maintain DOT only because of SSA, and that if you want reliable current data, go to the O*Net? I'd love to have that webpage so I can print it and submit in every case.

https://www.oalj.dol.gov/LIBDOT.HTM

1             What is the BLS?

Bureau of Labor Statistics

1             Good case law on VE - DOT conflict in 11th Circuit (Washington) & 4th. Extend to VE conflict with O-NET etc?

Wait for it.  This depends on Kisor v. Wilkie application to SSR 00-4p.  See the blog at:

http://californiasocialsecurityattorney.blogspot.com/2019/07/ssr-00-4p-describing-dot-as-primary-and.html

What is Your Reliable Methodology for Extrapolating Your Experience?

That is the question that we should all ask in the course of cross-examining vocational experts in Social Security disability hearing.  What is your reliable methodology for extrapolating your local experience to the national economy?  The reason that this question should be deeply ingrained into the practice of every representative that does this kind of work is simple, that is the question that the Supreme Court directs us to ask.  Biestek v. Berryhill says:

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.

(Emphasis added). 

The well-accepted methodology could take the form of using Job Browser Pro because the vocational expert could say that it is accepted by the community of vocational experts as reliable.  The  First Circuit accepted that testimony in Purdy v. Berryhill.  Well-accepted should not include the equal distribution method of calculating job numbers, at least not when conflicting evidence is present.  The Seventh Circuit suggested that result in Chavez v. Berryhill.  Here is what Biestek says about the Chavez line of questioning:

Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969-970 (CA7 2018).

Most vocational experts either use Job Browser Pro, the equal distribution method (with or without knowing it), or have no discernible methodology at all.  This results in identifying the entire SOC/OES number of jobs as applicable to a single DOT code.  That methodology is worse by equal distribution; it is just lazy and ignorant. 

Here is a working list after hearing the vocational expert identify jobs and job numbers:

1. Confirm the DOT code.
2. Obtain the SOC/OES code.
3. Obtain the number of jobs in the SOC/OES code (most will not know).
4. Obtain the number of DOT codes within the SOC/OES code (most will not know).  
5. Ask for the reliable and well-accepted methodology for extrapolating the local experience to the national economy.  

With that information, we can disassemble the vocational expert testimony post-hearing.  If we use the O*NET and the Occupational Requirements Survey during the hearing (use OccuCollect.com), we can ask after an offer of proof of what the Department of Labor says:

6.  Who as greater resources for accumulating job requirements data (or job numbers data) in the national economy, you or the Department of Labor?

We still have the industry-occupation matrix used by Job Browser Pro, the BLS employment projections, and the Occupational Employment Statistics.  If that route is necessary ask:

7. In what industries, by NAICS code and name, does this occupation work?

We must have the first five.  Number six is the concession by which we hang the witness testimony.  Number seven tightens the knot.  We must use the data from Labor for the sake of our client's benefit entitlement. 

SSR 00-4p Describing the DOT as Primary and as Setting Out Maximum Requirements Does Not Survive Kisor

Kisor v. Wilkie retools the deference doctrine found in Auer v. Robbins.  To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation.  Social Security Rulings are frequent recipients of deference.  The rulings bind all components of the agency.  Under Kisor, that automatic deference in most circuits is now up for reconsideration.  Today, we examine deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. 

We start with the text of the administrative notice regulation:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

The Commissioner takes administrative notice of reliable nob information from various governmental and other publications.  Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:

In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.

And

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.

The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook.  Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:

The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.

The first Kisor question returns to the Chevron watershed:  is the regulation ambiguous?  If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore, but it does not get deference.  There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples.  Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses.  Because the regulations are not ambiguous, the ruling gets no deference. 

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity?  Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed.  Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. 

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner.  That is the third Kisor question.  There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy. 

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency.  Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise.  That expertise belongs to the Secretary of Labor.  Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration.  But here is what Labor says about the subject:

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.

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill.  The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published.  The O*NET is updated every year.  Most of the DOT is over 40 years out-of-date.  When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek.  With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.

The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.