Orozco v. Kijakazi -- the List for Conflict Expands

The District Court issued a decision in Jesus V.O. v. Kijakazi, 2021 WL 5500528 (C.D. Cal. Oct. 18, 2021) vacated and remanded Orozco v. Kijakazi, 2022 WL 17844618 (9th Cir. Dec. 22, 2022). V.O. declared that conflict between the vocational witness and sources other than the DOT did not impose a duty of reasonable explanation on the ALJ. Orozco clarifies the point -- the ALJ must state reasons for rejecting the evidence in conflict.

Orozco holds that when the VW admits that her source for job numbers (here, Job Browser Pro) conflicts with the testimony, the ALJ must reconcile the conflict. The VW testified that production assembler (actually solderer) represented 71,000 jobs but JBP described less than 6,000 jobs. To allow the VW to inflate the number of jobs would permit the witness to pull the number out of a hat.

The VW testified that Orozco could perform work as an electrical assembler and wafer line worker. The Occupational Requirements Survey described 26.7% of jobs in the category that includes both unskilled jobs as not having an educational requirement but all 26.7% of jobs required literacy. The balance of jobs required a high school equivalency or more education, 73.3% of the jobs in the category.

The Ninth Circuit elevated Job Browser Pro to a source that requires conflict resolution in White and in the unpublished opinion in Perkins. The Ninth Circuit relied to County Business Patterns and/or the Occupational Employment Statistics by reference in Erickson. The Ninth Circuit relied on the O*NET as a basis for finding that work was not full-time in Jaquez. Orozco adds to the list -- the ORS.

In Jaquez and Orozco, the O*NET and ORS data presented consisted of printouts from OccuCollect.com. The Commissioner will likely complain bitterly in the future that this author has an interest in OccuCollect. That is true and irrelevant. The COSS has never come forward with even a scintilla of evidence that the data presented in OccuCollect is anything other than up-to-date and accurate reflections of the DOT, SCO, O*NET, OEWS, CBP, and ORS.

Drop the mic. 

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Suggested Citation:

Lawrence Rohlfing, Orozco v. Kijakazi -- the List for Conflict Expands, California Social Security Attorney (December 28, 2022) https://californiasocialsecurityattorney.blogspot.com

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

 

Assembler, Production (DOT 706.687-010) and the JBP Industries

This is the first follow-up on the generic instruction to always check the NAICS codes when the VE uses JBP as a basis for job number evidence.  Production occupations are the bread the butter of vocational experts (VE).  The American economy has a large manufacturing sector.  It makes sense that production work exists.  The question is how many exist as light, unskilled work.  A VE could identify production assembler and cite Job Browser Pro (JBP) for the proposition that this single DOT represents over 67,000 jobs.  The question that the representative must ask is whether JBP is reliable as to this occupation.  We start with the DOT code:

706.687-010 ASSEMBLER, PRODUCTION (any industry)
Performs repetitive bench or line assembly operations to mass-produce products, such as automobile or tractor radiators, blower wheels, refrigerators, or gas stoves: Places parts in specified relationship to each other. Bolts, clips, screws, cements, or otherwise fastens parts together by hand, or using handtools or portable power tools. May tend machines, such as arbor presses or riveting machine, to perform force fitting or fastening operations on assembly line. May be assigned to different work stations as production needs require. May work on line where tasks vary as different model of same article moves along line. ay be designated according to part or product produced.
GOE: 06.04.22 STRENGTH: L GED: R2 M1 L1 SVP: 2 DLU: 80

The DOT designates any industry but the narrative specifies the mass production of radiators, blowers, wheels, refrigerators, and gas stoves. Any industry does not mean all industries, it means many industries and at least more than four. The narrative narrows the scope of any industry to those industries that make vehicle parts, refrigerators, and gas stoves. Anything outside of that scope requires an explanation under SSR 00-4p.

JBP starts the list of North American Industry Classification System (NAICS) list with food manufacturing subsector (NAICS 311000).  The manufacture of food does not involve the mass production of vehicles parts, refrigerators, or gas stoves.  It requires an explanation for that apparent conflict with the DOT.  

JBP lists eight industry groups (NAICS 311100 - 311800) after listing the food industry subsector.  That is double counting.  Each of the industry groups list between 4 and 12 DOT codes in each occupation-industry intersection.  The line for the industry subsector claims that production assembler is the only DOT code at that intersection.  The counting of the industry subsector fails to account for the other DOT codes in the industry groups.  

The CBP hyperlink in JBP lists no DOT codes.  The CBP page for other food manufacturing (NAICS 311900) does not list any production workers, all other (SOC 51-9199) occupations.  There are more jobs for production workers within NAICS 311000 than there are for NAICS 311100 - 311800.  

The next industry subsector listed by JBP is beverage and tobacco manufacturing (NAICS 312000).  JBP duplicates the number of jobs with industry group of beverage manufacturing (NAICS 312100).  The group has six DOT codes, the industry subsector just has production assembler.  Production assembler does not manufacture beverages or tobacco products and JBP has double counted.  

JBP lists textile product mills (NAICS 314000) and leather and allied product manufacturing (NAICS 316000).  JBP lists the printing and related support activities industry (NAICS 32300) and the petroleum and coal products manufacturing industry (NAICS 324000) subsectors.  These industries require an explanation in light of the narrative description of what production assemblers do on the job.  

JBP lists wood product manufacturing subsector (NAICS 321000) and three industry groups (NAICS 321100 - 321900).  JBP commits the same errors in listi9ng the paper manufacturing industry subsector (NAICS 322000)  and the pulp, paper, and paperboard mills manufacturing industry group (NAICS 322100).  JBP lists chemical manufacturing subsector (NAICS 325000) and seven industry groups (six of them in two composite groups) (NAICS 325100 - 325900).  JBP suggests the plastics and rubber products manufacturing subsector (NAICS 326000) as well as the plastics industry group and the rubber product manufacturing group (NAICS 326100 - 326200).  There is an apparent conflict with the DOT and double counting without accounting for all the DOT codes listed in the industry groups.  

The process of questioning the NAICS code assignment and the double counting problem continues.  JBP has not set forth a reliable methodology and any testimony based in whole or in part of JBP for this occupation is necessarily flawed.  

JBP confesses the unreliable methodology on the face of the Estimated DOT Employment Numbers tab.  JBP states that the Occupational Employment Statistics estimates that 1,590 DOT codes inside of production workers, all other represent 222,230 jobs in the nation.  The selected industries represent 274,076 jobs in version 1.70.2 of JBP.  The part cannot exceed the size of the whole.  JBP's job number estimate is not reliable for this occupation.  

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Lawrence Rohlfing, Assembler, Production (DOT 706.687-010) and the JBP Industries, California Social Security Attorney (October 6, 2020), https://californiasocialsecurityattorney.blogspot.com/2020/10/assembler-production-dot-706687-010-and.html

When the Vocational Expert Cites Job Browser Pro for Job Numbers; Check the NAICS Codes

 The title says it all and if you know exactly what that means, this piece tells you something that you already know.  For those that don't know exactly what the title of this piece means, this is a primer.  

DOT

The DOT contains a parenthetical statement of industry.  The industry statement is an integral and inseparable part of the DOT description of any occupation. The Introduction, Parts of the Occupational Definition to the DOT says exactly that.  

The body of the definition contains the lead statement that describes worker actions; objective or purposes of worker actions; machines, tools, equipment and work aids used; materials, products, subject matter dealt with or services rendered; and instructions/judgment involved.  This is the other clue to where the occupation belongs.  

Job Browser Pro

JBP uses the Department of Labor crosswalk to determine the SOC code for an occupation.  This used to be always true; it is now true most of the time.  See the prior post about Goode v. Commissioner.  

JBP uses a combination of the industry designation and the narrative definition of the occupation to assign the industry according to the NAICS codes.  NAICS codes are the foundation of County Business Patterns and are used by both the Occupational Employment Statistics and Employment Projections to distribute jobs within a SOC code.  

NAICS Codes

NAICS codes in four flavors:  two-digit industry sectors; three-digit industry subsectors; four-digit industry groups; and five and six-digit specific industries.  Other than the six digit variety, the NAICS code is the same in the United States, Canada, and Mexico.  The key to understanding what is presented is easy -- ignore the zeroes, they are place holders, not digits for coding.  

The Problem

On many occupations, JBP cites NAICS codes using three and four-digit to describe the SOC-NAICS code intersections.  When JBP does that, it double counts the jobs and will not do so consistently between the other DOT codes involved.  The problem is the OES.  Labor does not always report four-digit codes for job numbers within the SOC or does not report all of the four-digit codes within the SOC.  Where the DOT code exists in more than one industry group but OES does not report all the industry groups, JBP will report the three-digit subsector and then also report the four digit subsectors that OES does report.  This is an invalid methodology.  We will look at production assembler as an egregious example of this problem later this week.  Production assembler has multiple industry subsector and industry group assignments that lead unreliable job numbers.   

The second problem is not obvious.  JBP reports an industry group for one occupation and the industry subsector for another occupation.  This is again an invalid methodology and wrong.  This is the problem with advertising distributor.  

The third problem is apparent upon inspection of the JBP for the occupation cited by the VE.  JBP assigns industries that are in conflict with either the DOT industry designation or the narrative lead statement of the work performed.  Next week, we will look at small products assembler (I and II) as an example of this problem.  As a tease, know that small product assemblers do not work in any food industry.  

When JBP double counts jobs, the method is facially unreliable.  When JBP assigns NAICS codes inconsistently between DOT codes in the same SOC-NAICS intersection, the method is facially unreliable.  When JBP assigns DOT codes to industries inconsistent with either the DOT industry designation or the narrative, JBP has an apparent conflict with the DOT without a reliable explanation to permit resolution of the conflict.  More about this in the posts to come.  

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Lawrence Rohlfing, When the Vocational Expert Cites Job Browser Pro for Job Numbers; Check the NAICS Codes, California Social Security Attorney (October 4, 2020), https://californiasocialsecurityattorney.blogspot.com/2020/10/when-vocational-expert-cites-job.html