The Training Video and Why the O*NET Remains Important

An Introduction to New Social Security Ruling 24-3p for Vocational Experts is a must watch. Deputy Associate Chief ALJ David Pang is your host. Administrative Appeals Judge Patrick McGuire lends an assist. Neither judge expresses any accurate knowledge about the O*NET. But they carry the agency's water. Here is what SSA says about the O*NET:

O*NET is not generally usable per EM-21065-REV because the information has been grouped in a way that is not generally usable in the agency's adjudication process. 

 Tr. 40:44.  EM-21065-REV actually says:  

Occupational Information Network (O*NET) Information: O*NET does not define physical exertion requirements in a way that is consistent with SSA regulations (20 CFR 404.1567 and 416.967). O*NET instead groups lifting with activities that SSA rules define as non-exertional (e.g., climbing, stooping, and handling). Accordingly, the information in O*NET is not generally usable in our adjudication process.

Fair enough, the O*NET does not break down occupational groups by defining physical exertion requirements consistent with the sedentary, light, and medium paradigm. If a witness, claimant, or ALJ wants to determine the exertional levels of work in the national economy, the O*NET does not work. The O*NET does not group lifting activities with non-exertional activities such as climbing, stooping, and handling anymore than the Selected Characteristics of Occupations (SCO) does, it lists them separately. Under the broad heading of physical requirements, the O*NET has two categories: postural and exertional. Postural includes cramped work space; bending or twisting; climbing ladders scaffolds, or poles; keeping or regaining balance; kneeling, crouching, stooping, or crawling; and time making repetitive motions. Exertional includes sitting, standing, using the hands, and walking or running. None of those categories permit classification of strength. All of them give insight into the requirements of work. 

The question is beyond the exertion question, does the O*NET provide useful information to adjudicate claims for disability? Again, the answer there is "yes." Cognitive and mental demands includes, among other data points, contact with others, dealing with external customers, work with a group or team, duration of the work week, and work schedules (regular, irregular, and seasonal). 

The video contains a mock hearing with a hypothetical question that assumes "light work as defined in the regulations." That is light work as defined in 20 CFR 404.1567 416.697 -- not SSR 83-10. The hypothetical continues to limit the person to occasionally climbing ramps and stairs. No one can frequently climb ramps and stairs up to two-thirds of the day, not even a college athlete. Going up and down the stairs for 5.5 hours is a mountain climber, not a worker. The hypothetical limits the person to simple instructions. More about this later. Finally, the question describes a limitation to occasionally interact with supervisors and coworkers. That's our focus for O*NET purposes.

Does the DOT describe interaction with supervisors and coworkers? No. Some witnesses will look at talking and hearing. Interacting with coworkers is not part of talking and hearing. Read the SCO Appendix C. Does the Occupational Requirements Survey use seldom, occasional, frequent, and constant to address workplace interactions? No. The ORS uses:

1. Constantly, every few minutes
2. Not constantly but more than once per hour
3. Not more than once per hour but more than once per day
4. At least once per day
5. Once per day or less often
6. At least once per week
7. Less than once per week including never

Contrast that with the O*NET description of contact with others. First, contact with others is defined:

How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

Contact with others is synonymous with interaction. It is not working in proximity and rubbing shoulders. The O*NET separately describes physical proximity, "to what extent does this job require job tasks in close physical proximity to other people?" The categories for contact with others are:

1. Constant contact with others
2. Contact with others most of the time
3. Contact with others about half the time
4. Occasional contact with others
5. No contact with others

Those categories speak directly to the hypothetical question of "occasionally interact with supervisors and coworkers." Do you trust the local vocational witness with local experience or the national data gathering over that last 30 years of the Employment Training Administration, Department of Labor to inform this file and this limitation how many jobs require occasional or less contact (interaction) with others? The concept of administrative notice says what Labor says about the O*NET, 

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

The O*NET also classifies work based on the importance of work with a work group or team. The data point provides greater insight into this question of interaction with supervisors and coworkers. 

The vocational witness identifies document preparer, cutter-and-paster, and cleaner housekeeper. Document preparer (249.587-018) and cutter-and-paster (249.587-014) are both resident in office clerks, general (SOC 43-9061). 

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 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
622,545	81.1%	504,884
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
504,884	2%	10,098

This snippet from an OccuCollect report combines 2.5 million jobs from the OEWS, reduces for 74% full-time work from the O*NET, looks at SVP 2 work from the 2023 ORS dataset, and uses the 2% contact with others from the O*NET. 

Are there 30,000 general office clerk jobs in all sedentary unskilled work with occasional contact (interaction) with others? Not according to Labor's data. How about light work? 

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 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Light (ORS 2023)	# Light
622,545	14.9%	92,759
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
92,759	2%	1,855

 We are still shy of 12,000 jobs total. Turns out that office work requires working with others. The 2% that do not have more than occasional contact with others are probably in the two-thirds of jobs are that skilled or semi-skilled. 

The O*NET informs the process and answers the question by  administrative notice. The sample examination is illustrative of just how ad hoc VW testimony really is. 

Back to housekeeping cleaner. Just 18% of maids and housekeeping cleaners have occasional contact with others resulting in 18,683 jobs. But that is not the killer. Standing and walking eliminates the light work as generally understood by the agency and witnesses -- six hours of a workday:

37-2012 - Maids and Housekeeping Cleaners
Percent of Day Standing

% of Day Standing	Percentile	# of Jobs
Total Jobs (OEWS 2023)	100%	836,230
87.5%	10%	83,623
95.0%	25%	209,058
100.0%	50%	418,115
100.0%	75%	627,173
100.0%	90%	752,607

No measured number of maid jobs stand/walk not more than six hours in an eight-hour workday.

I hope against reality that the Social Security Administration would set forth examples that are real, verifiable, and unquestionably reliable. But the examples the agency puts forward in this training video are exhibits 1, 2, and 3 of VW nonsense. The agency does not expect reliable testimony, it expects testimony that it can lean on to decide claims. Unrebutted garbage is substantial evidence.   

Saddened that we are faced with more nonsense. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Training Video and Why the O*NET Remains Important, California Social Security Attorney (January 28, 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.

 

The Social Security Adjudicators Will Abuse SSR 24-3p

We are now over a month since the publication and three weeks post effective date of SSR 24-3p. As we discussed last month, SSR 24-3p rescinded SSR 00-4p which rescinded AR 00-3(10).  SSR 00-4p held the agency to resolving apparent conflicts with the Dictionary of Occupational Titles (DOT) and companion Selected Characteristics of Occupations (SCO). 

SSR 00-4p had the salutary benefit of allowing claimants to compare vocational evidence to the content of the DOT/SCO seeking reversal of decisions by the Appeals Council, District Court, or Court of Appeals. SSR 24-3p clearly states that the agency will no longer require adjudicators to resolve conflicts or apparent conflicts with the DOT/SCO and vocational testimony. 

Does an agency adjudicator have a responsibility to resolve conflicts in the record? That is the million dollar question. It is clear that it is the responsibility of the claimant representative to bring up conflicts during the hearing process. Raising apparent or arguable conflict later is too late. The record must raise the issue before the process is complete.

Some ALJs will rule that the record is closed and deny a post-hearing submission. The ruling says:

At the hearing level, when the claimant is represented, we expect the representative to raise any relevant questions or challenges about the VE's testimony at the time of the hearing and to assist in developing the record through appropriate questions to the VE.

 At a recent hearing the vocational witness identified in response to a sedentary, simple repetitive, and six hours of sitting hypothetical for a younger individual with a limited education but semi-skilled past work:

1. Order clerk, food and beverage – 209.567-014 – 19,516
2. Patcher – 723.687-010– 26,420
3. Circuit board assembler 726.684-110 – 22,919

The witness claimed that he consulted but his testimony was inconsistent with the Job Browser Pro, OASYS, OEWS, ORS, ONET, and DOT. He derived his testimony from the Occupational Employment Quarterly after which he considered the industries in which the occupation existed. The ALJ ruled that this satisfied the "general" description of the methodology employed. 

But the methodology is bankrupt. The primary complaint about JBP/OASYS was, "those are estimates." The OEWS and ORS did not describe sedentary work. Only the OEQ matched exertion and skill to the DOT codes. Absolutely moronic. 

1. Order Clerk (DOT 209.567-014)

Order clerk, food and beverage requires reasoning level 3. It is not simple. 

OASYS estimates 923 jobs out of 1,529 jobs at the SCO/NAICS (occupation/industry) intersections. 

JBP estimates 922 jobs.

The OEWS estimates 1,590 jobs at the SOC/NAICS intersections. 

The Employment Projections estimate 1,700 jobs at the SOC/NAICS intersections. 

More importantly, US Publishing estimates unskilled sedentary work. The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that order clerk, food and beverage represents 1,620 jobs in the nation. SOEUQ, page 3 line 209.567-014. Not even US Publishing believes the number of jobs derived from equal distribution.

2. Patcher (DOT 723.687-010)

OASYS determined that 5,518 production workers work in those three industry groups and 86 of those jobs belong to patcher. 

Job Browser Pro estimates 85 jobs. 

OEWS and EP estimate 8,000 jobs at the SOC/NAICS intersections compared to 5,518 by OASYS. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 76 jobs in the nation. SOEUQ, page 11 line 723.687-010. Not even US Publishing believes the number of jobs derived from equal distribution.

3. Circuit board assembler (DOT 726.684-110)

OASYS estimates that circuit board assembler represents 1,182 jobs in the nation. 

Job Browser Pro estimates 1,179 jobs. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 3,312 jobs in the nation. SOEUQ, page 6 line 726.684-119. Not even US Publishing believes the number of jobs derived from equal distribution.

The estimate of 67,000 jobs in the three DOT codes is fabricated, it is wrong. I have wrestled recently whether it is worse to encounter a vocational witness that (1) knowingly lies, or (2) lacks the awareness that they don't know. It is clear that a prevaricating moron is the worst. But as between someone willing to make up numbers that they know are specious and someone that just repeats numbers fed to them by other witnesses or blind ignorance, that is a toss up. 

Pick 'em. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Social Security Adjudicators Will Abuse SSR 24-3p, California Social Security Attorney (January 23, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

Social Security Ruling 24-3p -- Reliable Sources of Rebuttal Evidence

I am reminded of Game of Thrones, "winter is coming." And so is SSR 24-3p. We discussed the ruling in the Zoom meeting on December 17, 2024. If you did not get a chance to participate (we had over 170 attendees at different points), it is available. The question is how to prepare for the winter that is coming, what are the reliable data sources that we can use and request administrative notice? 

    1. Occupational Requirements Survey (ORS) 

We addressed the ORS in May 2022. The hyperlink to the Handbook of Methods now opens the version last modified on January 29, 2024. That is the beauty of links to pages that change without changing their address. The ORS responds to the question of reliability of its calculations. 

The ORS provides occupation information at the SOC code 

    2. Occupational Information Network (O*NET)

SSA has long eschewed use of the O*NET because it does not fit the Appendix 2 guidelines. That does not mean that the O*NET is not useful for non-exertional limitations and assessing the incidence of full-time work. It is reliable and used by rehabilitation professionals. The O*NET provides occupation information at the SOC code plus two more digits (typically .00), making the SOC code an O*NET code. 

On November 14, 2024, OMB approved a three-year extension of the O*NET Data Collection effort. In 2023, the O*NET project sought OMB approval for this extension. As part of the clearance process, public comments were sought on the data collection. A Federal Register Notice, published on July 31, 2023, announced the availability to the public of the O*NET "Information Collection Request" (ICR). A second Federal Register Notice, published on January 17, 2024, announced an additional comment period which concluded on February 16, 2024.

The 2024 OMB Clearance Package is available on the O*NET. 

    3. Occupational Employment and Wage Statistics (OEWS)

SSR 24-3p specifically mentions the OEWS. The OEWS provides job numbers at the occupation-industry intersection (SOC-NAICS) in a searchable format not easily accessed. 

    4. Occupational Outlook Handbook (OOH)

The administrative notice regulation identifies the OOH as an example of reliable published government data. 20 CFR 404.1566(d)(5). It is updated about every two years.

    5. Employment Projections (EP)

The OOH reports and links to the EP for its current job numbers and 10-year projections. It is updated about every two years. The EP tables linked in the OOH provide job numbers at the occupation-industry intersection (SOC-NAICS). 

    6. County Business Patterns (CBP)

The administrative notice regulation identifies the CBP as an example of reliable published government data. 20 CFR 404.1566(d)(2). It is updated every two years. The data is not easily accessed. CBP reports job numbers by industry (NAICS). 

    7. Dictionary of Occupational Titles (DOT) 

The DOT continues to as a reliable source for SSA adjudication despite its age (10,000 DOT codes have a DLU of 1977 and 3,000 DOT codes have a DLU after 1977 but before 1991). 20 CFR 404.1566(d)(1).

    8. Selected Characteristics of Occupations (SCO)

The SCO is the DOT companion publication. It is part of the DOT dataset. Additional parts of the data set not included in the DOT and SCO are work fields; materials, products, subject matter, and services (MPSMS) codes; temperaments; and aptitudes. SSA applies WF and MPSMS as part of the transferability of skills analysis. 

    9. North American Industry Classification System (NAICS Manual 2022)

 The NAICS Manual explains the two-digit sectors, three-digit subsectors, four-digit industry groups, and five- and six-digit specific industries used by SkillTRAN, OEWS, EP, and CBP. Download it as it is amended. The last sequence was 2017 and 2022. 

    10. Revised Handbook for Analyzing Jobs (RHAJ)

The RHAJ explains the information contained in the complete DOT data set including the DOT, SOC, and the unselected characteristics including the WF and the MPSMS codes. Download it once. 

            Use of the data sources is not complicated but it is cumbersome the first ten times. It gets easier. A witness identifies a DOT code. Each DOT code is assigned to one or more SOC codes. SOC codes correspond directly to OEWS and O*NET codes. 

            If the case calls for discerning job numbers, those numbers appear first in the SOC codes found in the EP and OEWS. DOT codes exist in one or more industries. SkillTRAN products identify those industries. Some of those industry selections have an apparent conflict with the DOT industry designation or the job functions described. The SOC group job number is never applicable to a DOT code. 

            If the witness relies on generic SOC code assignments, the industry may not matter. It is incumbent to ask which industries the witness observed the occupation working. Both with DOT and SOC based identification, the ORS and O*NET must be used to erode the occupational base. The factors come from the residual functional capacity:

                1. Skill level

                2. Full-time vs. part-time

                3. Exertional demands

                     a. Strength

                     b. Sitting limitations

                     c. Standing (including walking) limitations

                     d. Other parts of strength not included in the sedentary-light-medium classification

                4. Non-exertional demands

                     a. Contact with others (face-to-face, telephone, or otherwise)

                     b. Interaction with the public

                     c. Teamwork limitations

                     d. Pace limitations

                     e. Postural limitations

                     f. Manipulative limitations

This list is illustrative and not exhaustive. A case might require more or less investigation. 

I recommend www.occucollect.com. We have the data accessible and presentable. 

Bon voyage. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Social Security Ruling 24-3p -- Reliable Sources of Rebuttal Evidence , California Social Security Attorney (December 23, 2024) https://californiasocialsecurityattorney.blogspot.com

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

 

Social Security Ruling 24-3p -- The Demise of 00-4p

The Social Security Administration published SSR 24-3p on December 6, 2024. By administrative proclamation (without notice and comment), SSA announces new rules for steps four and five of the sequential evaluation process. SSR 24-3p:

1. Rescinds SSR 00-4p (referred to twice as SSR 00-04p). 

2. Explains a new standard for evaluating whether vocational evidence is sufficient to support a decision. 

SSR 00-4p resulted from the Tenth Circuit decision in Haddock v. Apfel. SSA initially responded to Haddock with AR 00-3(10) to cabin the the duty to inquire into the consistency with the Dictionary of Occupational Titles (DOT) to the Tenth Circuit. SSA explained:

According to our procedures, an ALJ must resolve conflicts in the evidence. This includes conflicts in opinion evidence from a VE and job information contained in the DOT. When such conflicts are evident, the expert should be asked to explain the basis for his or her opinion and the reason it differs with the DOT. The ALJ is responsible for resolving the conflict and must explain in the determination or decision how the conflict was resolved. Unlike the court's holding, our procedures do not place an affirmative responsibility on the ALJ to ask the expert about the possibility of a conflict between the evidence that he or she provides and the information in the DOT.

...

We intend to clarify the regulations at issue in this case, 20 CFR 404.1566 and 416.966, through publication of an SSR and we may rescind this Ruling when the clarification is made. 

 SSA made the affirmative responsibility on the ALJ about consistency with the DOT national policy when it published SSR 00-4p. SSR B24-3p restates the explanation of agency policy in AR  00-3(10):

Adjudicator Responsibilities 

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.16

16Our determinations and decisions are based on the preponderance of the evidence standard. See 20 CFR 404.902, 404.920, 404.953, 416.1402, 416.1420, and 416.1453.

The phrase "expected information and explanation" does not appear elsewhere in the ruling nor does the word "expected."  SSA confirms in the purpose statement that the agency would obtain a reasonable explanation and resolve conflicts between testimony and the DOT/SCO and explain that resolution. SSA affirms the validity and reliability of the DOT as a source for occupational information. SSA observes that federal statistical data is not reported in the Standard Occupational Classification (SOC) system. 

 NEWS FLASH - The DOT has never reported job numbers -- see footnote 12. 

 In the last last clause of the last sentence in the penultimate paragraph of the statement of policy, SSA nails why we need this ruling:

and the requirements of SSR 00–4p might discourage VSs and VEs from using occupational data in sources other than the DOT.

The new policy interpretation confirms that SSA continues to take administrative notice of the DOT. SSA clings to the notion that the DOT described the maximum requirements of work as generally performed. This awkward language is in SSR 00-4p. It is wrong and continues to be wrong. First, maximum and generally set up an oxymoron. As the work is generally performed, this is the maximum. That does not make sense. Furthermore, the DOT Appendix D states that it sets forth the requirements of work as typically performed in the national economy. 

 SSA now allows vocational witnesses to rely on the Occupational Employment and Wage Statistics (OEWS) and the Occupational Requirements Survey (ORS). It is not clear why SSA has not pointed to the Occupational Outlook Handbook and its source Employment Projections as a source for job numbers. The regulations do identify the OOH as an example of administrative notice. The OOH explicitly relies on the EP. For the numbers of jobs within a SOC-industry classification (NAICS), the EP is much easier to use than the OEWS. OccuCollect.com makes them equally accessible to ascertain occupation- industry job numbers. 

And there we have it. The door is wide open to use the Bureau of Labor Statistics data to prove the requirements for work and the number of jobs in occupations courtesy of SSR 24-3p. Now use them. The valuable resources to establish job numbers in a DOT code:

1. Employment Projections (SOC job numbers and industry specific job numbers)
2. Occupational Employment and Wage Statistics (SOC job numbers and industry specific job numbers)
3. Occupational Requirements Survey (for the requirement of work)
4. Occupational Information Network (O*NET) (for the requirements of work)

5. County Business Patterns (for job numbers in specific five and six digit industry codes not captured by the EP and OEWS)

SkillTRAN products are useful for identifying industries applicable to an occupation and to identify co-existing DOT codes at that SOC-NAICS intersections. SkillTRAN does not parse data using the ORS or O*NET but instead uses equal distribution at the SOC-NAICS intersections. Some of SkillTRAN's industry selections are also subject to attack.  

And now the bad news -- raise it or forfeit it. Footnote 10 cites to 20 CFR 404.1740, 416.1540 and states:

Raising relevant questions about or challenges to the VE’s testimony at the time of the hearing, when the VE is ready and available to answer them, furthers the efficient, fair, and orderly conduct of the administrative decision-making process.

SSA provides an example estimating 1.3 million fast food workers in the national economy, representing a plurality of the jobs in SOC 35–3023 Fast Food and Counter Workers. The O*NET states that 79% of fast food workers do not work 40 hours per week. A mere 21% work full-time. Before starting with the exertional and non-exertional limitations for a claimant, we reduce the 3.3 million jobs to 268,950 under SSR 96-8p (full-time at step five). The ORS reports that 60.2% of jobs require light exertion. Now we are down to 420,353. The ORS states that 94% of jobs are unskilled, causing an additional 6% reduction. We are looking for the coups de grace and jump to standing/walking. The ORS reports that fast food workers stand 95% of the day at the 10th percentile. If the claimant has a limitation to standing/walking about six hours in a workday, this occupation does not meet that limitation. 

We are not robbed of our commonsense when we appear in a hearing. We know that fast food workers are part-time, that some of them require skills, and we know that the cooks and cashiers do not get to sit down on the job. Cross examination? Yes, please. 

Q. What percentage of fast food workers in SOC 35-3023 engage in full as opposed to part-time work?

Q. What percentage of fast food workers in SOC 35-3023 engage in unskilled work?

Q. What percentage of fast food workers in SOC 35-3023 engage light work?

Q. What percentage of fast food workers in SOC 35-3023 have a requirement to stand/walk more than six hours in a full-time workday?

Q. Is your testimony consistent with the Occupational Requirements Survey?

Q. Is your testimony consistent with the O*NET OnLine?

 Whatever limitations the ALJ frames, that is the starting point for examination. Study and become familiar with the ORS, O*NET, OEWS, EP, CBP, and all SkillTRAN products. 

And then eviscerate the witness.

___________________________

Suggested Citation:

Lawrence Rohlfing, Social Security Ruling 24-3p -- The Demise of 00-4p, California Social Security Attorney (December 6, 2024) https://californiasocialsecurityattorney.blogspot.com

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