What's Wrong with the OEQ -- Attacking Its Foundation and Methodology

Ah, the Occupational Employment Quarterly (OEQ), it used to be the only game in town. Ridiculed by David Traver so many years ago, superseded by Job Browser Pro (JBP), and obsoleted by the Occupational Requirements Survey (ORS) joined by the Occupational Employment and Wage Statistics (OEWS). I have labeled the OEQ statistical trash, mostly because it is. But the OEQ does have a cadre of devotees that cling to it like a plank of balsa wood adrift in a sea storm. What's wrong with the OEQ? I am so glad that you asked. 

The OEQ is well-known for its use of the equal distribution method of calculating job numbers. The Seventh Circuit labels that methodology as preposterous. Alaura v. Colvin. As Kevin Liebkemann points out in Job Incidence Numbers in Social Security Disability Claims: ACase Study and Analysis, even SkillTRAN publicly derides the OEQ as using a preposterous equal distribution methodology in its SkillTRAN Process for Estimating Employment Numbers (citing the later decision in Hill v. Colvin). 

In Woods v. Bisignano, the Ninth Circuit affirmed the vocational witness's patent use of the OEQ using the equal distribution method. Judge Nelson concurring states that a categorical rule excluding testimony based on the equal distribution method runs afoul of Biestek v. Berryhill. Woods is wrong and so is Judge Nelson. Job numbers in Standard Occupational Classification (SOC) groups with very few DOT codes leads to results that are absurd. Consider telemarketers -- one sedentary semi-skilled DOT code. The Occupational Outlook Handbook disagrees. Telemarketers typically have short-term on-the-job training. The 2018 ORS dataset describes telemarketers as having up to 1 month of training in 50.3% of jobs. Equal distribution should require an explanation -- every single time it is used. The Seventh Circuit is right.

But let us assume that Judge Nelson is right, the equal distribution method is not so inherently flawed that there do exist some circumstances where it might be reasonable to use it. Let's play along. Ask the witness this question:

What is the data source that US Publishing uses to estimate job numbers stated in the OEQ?

The first page of the OEQ II  3.2 states that column 4 sets out the "current employment for this occupation." The last page of the OEQ 3.2 states that  

- All data are estimates from government sources including the U.S. Department of Labor, Division of Occupational Employment Statistics and of the Local Area Unemployment Statistics.

The US Publishing web site invokes the 2010 decennial census. Clearly US Publishing has not updated its page or claim to use the 2020 decennial census. Nowhere does US Publishing claim to use the Current Population Survey or any other data source. Nor the US Publishing recognize that the OES is now the OEWS. A rose by any other name is still a rose and the OEWS and the OEWS data is found at www.bls.gov/oes/. 

Since we know the US Publishing relied on OES/OEWS data from the OEQ and from the web page, we can compare and contrast the gross job number cited by the OEQ to the OEWS. A sample:

Occupation	OEQ total employment 4th Qtr. 2024	OEWS total employment  2024
Credit Authorizers, Checkers, and Clerks SOC 43-4041	63,662	11,960
Order Clerks  43-4151	216,280	83,420
Couriers and Messengers SOC 43-5021	232,941	71,920
Word Processors and Typists  SOC 43-9022	258,841	36,020
Office Clerks, General SOC 43-9061	2,351,948	2,510,550
Electrical and Electronic Equipment Assemblers SOC 51-2022	179,597	261,140 SOC 51-2028 (includes SOC 51-2022 and SOC 51-2023)
Inspectors, Testers, Sorters, Samplers, and Weigher SOC 51-9061	727,005	591,180
Helpers—Production Workers SOC 51-9198	273,294	167,490
Production Workers, All Other SOC 51-9199	813,370	277,060
Cleaners of Vehicles and Equipment SOC 53-7061	395,474	373,960
Packers and Packagers, Hand SOC 53-7064	676,479	601,440
Stock Clerks and Order Fillers SOC 43-5081	2,009,370	2,779,530 Stockers and Order Fillers SOC 53-7065

 The numbers are not reconcilable. Most of the occupations selected off the top of my head are so far off that they are clearly unreliable. 

That is strike two against the OEQ. US Publishing uses equal distribution based on the number of exertion-skill DOT codes resident in the SOC code. US Publishing's stated source for job numbers does not support the job numbers stated. Of the 867 codes in the 2018 SOC, 485 have at least some change from the 2010 SOC. US Publishing and its OEQ have not kept up nor paid attention to the combination of two SOC detailed groups into a single reported group (51-2028) in the current dataset. 

The OEQ as it is currently constituted needs to die.

___________________________



Suggested Citation:

Lawrence Rohlfing, What's Wrong with the OEQ -- Attacking Its Foundation and Methodology, California Social Security Attorney (August 27, 2025) https://californiasocialsecurityattorney.blogspot.com


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

A Brief List of Problems with the JBP Estimate for Small Products Assembler I

 Vocational experts frequently  identify small products assembler I (DOT 706.684-022) (aka small parts assembler or bench assembler) as a responsive occupation to a light residual functional capacity with or without a sit-stand option.  We address Job Browser Pro's (JBP) estimate in version 7.3.1 that this occupation represents 19,707 full-time jobs.  

1.  Inappropriate Industries

The food manufacturing subsector (NAICS 311000) is not involved in the basic functions of a small products assembler I.  The DOT defines small products assembler I:

 Performs any combination of following repetitive tasks on assembly line to mass produce small products, such as ball bearings, automobile door locking units, speedometers, condensers, distributors, ignition coils, drafting table subassemblies, or carburetors: Positions parts in specified relationship to each other, using hands, tweezers, or tongs. Bolts, screws, clips, cements, or otherwise fastens parts together by hand or using handtools or portable powered tools. Frequently works at bench as member of assembly group assembling one or two specific parts and passing unit to another worker. Loads and unloads previously setup machines, such as arbor presses, drill presses, taps, spot-welding machines, riveting machines, milling machines, or broaches, to perform fastening, force fitting, or light metal-cutting operation on assembly line. May be assigned to different work stations as production needs require or shift from one station to another to reduce fatigue factor. May be known according to product assembled.

None of the typical work functions have anything to do with food.  Small products assembler I works on an assembly line to mass produce small products.  The food subsector includes the JBP identified NAICS groups (four non-zero digits) for animal, sugar and confectionary, fruit and vegetable, dairy, animal slaughtering, seafood, and bakeries.  This industry groups does not involve assembly line work to mass product small products.  The identification of those industry groups has an apparent conflict with the DOT that requires a reasonable explanation.  This conflict raises serious questions about 896 jobs.   

The beverage and tobacco (NAICS 312000), textile (NAICS 314000), and leather (NAICS 316000) subsectors have the same apparent conflict.  Those industries do not carry descriptions related  to the assembly of small products on an assembly line.  These industry designations raise DOT conflict with 177 jobs.   

Printing and related support activities involve the printing of newspapers, books, labels, business cards, stationery, business forms, and other materials.  Workers perform activities involving data imaging, platemaking services, and bookbinding.  NAICS 323000.  These industries do to involve the mass production of small products.  This raises another conflict as to 31 jobs.  

The chemical manufacturing subsector in based on the transformation of organic and inorganic raw materials by a chemical process and formulation of products.  NAICS 325000.  JBP designates OEWS industry clusters NAICS 3250A1 and 3250A2.  JBP separately identifies NAICS 325400.   Those designations cover all 7 industry groups.  This raises a conflict as to 130 jobs JBP.    

The wood product manufacturing subsector (NAICS 321000) could have some assembly line work until we examine the specific industries within the subsector.  We should not get to exorcised over this as JBP identifies 69 jobs in three industry groups.  In some circuits, it might be necessary to raise questions about these small products assembled in the industry subsectors, group, and industries designated.  

Plastics and rubber product manufacturing do involve the manufacture of products.  NAICS 326000.  Most do not involve assembly characteristic of a small products assembler I.  Using molding or casting to create products does not involve assembly.  NAICS 326100.  Vulcanizing, cementing, molding, extruding, and lathe-cutting do not involve assembly characteristic of small products assembler I.  This represents another DOT-based conflict with 83 jobs.  

Primary metal manufacturing does not involve job duties performed by a small products assembler I.  NAICS 331000.  Primary metal manufacturing smelt or refine metals form ore, pig, or scrap.  Stamping and casting processes are excluded from NAICS 331000.  This observation from the NAICS Manual uncovers another DOT-based conflict with 97 jobs.    

Fabricated metal product manufacturing subsector requires careful examination of industry groups.  NIACS 332000.  JPB identifies the industry group cluster of NAICS 3320A1 and 3320A2 and separately identifies industry NAICS 332710 and industry group NAICS 332800.  The only industry within the subsector not on the list is turned product and screw, nut, and bolt manufacturing.  NAICS 332720.  Forging and stamping do not involve the assembly of small products.  NAICS 332100.  The manufacturing of metal kitchen cookware, utensils, cutlery, flatware, and saw blades do not invoke assembly line work.  Manufacture of nonpowered handtools and edge tools do not have an apparent conflict on inspection.  NAICS 332200.  Manufacture of prefabricated metal buildings, panels, and sections; structural metal products; metal plate work; metal framed windows and doors; metal sheet work; and ornamental and architectural metal products have an apparent conflict with assembly line work involving small products.  NAICS 332300.  The manufacture of power boilers and heat exchangers; tanks, vessels, and other containers; or forming light gauge metal containers has a conflict with production of small products on an assembly line.  NAICS 332400.  Hardware manufacturing of hinges, keys, and locks do not have an apparent conflict with small products assembler I.  NAICS 332500.  Cutting, bending, and heat winding or the manufacture of wire springs are assembly line processes involving the mass production of small parts and thus another DOT-based conflict.  NAICS 332600.  Machine shops involved in low volume work using lathes, screw machines, and other machines for boring, grinding, milling, and additive manufacturing are not assembly line types of work functions.  NAICS 332710.  Coating, engraving, and heat treating of metals conflict with the core duties of a small products assembler I on an assembly line.  NAICS 332800.  Valves, hose fittings, fixture fittings, trim manufacturing, and pipe fittings do not have a gross conflict with assembly line work involving small products.  NAICS 332900.  For this industry subsector, JBP is grossly overbroad.  Most of the industry groups simply do not fit.  This a long analysis to raise DOT-based conflict with 252 jobs.  

The industry sector designation 44-45 describes retail trade.  Retailers might have people that put pieces together for customers.  But the proposition that retailers have an assembly line for the production of small parts much less the examples of component parts described in the DOT produces another conflict uncovered by exploration of the NAICS Manual.  This observation form the NAICS Manual uncovers another DOT-based conflict with 902 jobs.    

 JBP states that small products assembler I represents 351 jobs in warehousing and storage.  NAICS 493000.  The warehousing and storage subsector primarily engages in operation of warehouse and storage facilities and logistical services related to distribution.  Warehousing and storage businesses would not logically have assembly line production using the services of a small products assembler I.  This observation from the NAICS manual reveals another DOT-based conflict with 351 jobs.  

JBP states that small products assembler I constitutes 934 jobs in the miscellaneous manufacturing industry subsector.  NAICS 339000.  A click on the "CBP" hyperlink and selecting staffing patterns confirms that the industry groups within the subsector includes not 6 DOT codes suggested by JBP but actually 136 DOT codes.  The denominator stated by SkillTran reduces the occupation-industry intersection of 5,606 jobs to 41 jobs, not 934 jobs.  

JBP lists over half the jobs in temporary help services.  NAICS 561320.  Vocational experts will state that this represents temp to regular hire process.  The NAICS disagrees.  

This industry comprises establishments primarily engaged in supplying workers to clients' businesses for limited periods of time to supplement the working force of the client. The individuals provided are employees of the temporary help services establishment. 

The interpretive ruling defines substantial gainful activity as including a concept of sustained work activity.  SSR 96-8p.  It is clear that part-time and seasonal work can constitute substantial gainful activity for past relevant work activity purposes.  SSR 83-35.  Whether seasonal or temporary work constitutes a regular and continuing basis is an open question.  SSR 96-8p.  

2. Inconsistent use of Subsectors and Industry Groups

The first big group of jobs comes in the paper manufacturing subsector (NAICS 322000).  JBP states that the subsector employs 4,564 production workers, all other in 2 DOT codes, small products assembler I and marker II.  A check of the "Show All DOTs in this OWES Group" box on the prior screen lists 1,528 DOT codes.  The DOT lists 14 codes as working in paper and pulp industry and 61 codes in the paper goods industry.  A check of those occupations within the program reveals that JPB lists those 75 occupations and another 26 codes from other industries in two industry groups: pulp, paper, and paperboard mills (NAICS 322100) and converted paper product manufacturing (NAICS 322200).  Those two industry groups comprise the entirety of the industry subsector of paper manufacturing.  

JBP attributed 4,564 jobs to small products assembler I and marker II.  JBP attributed those those same 4,564 jobs to 65 DOT codes in pulp, paper, and paperboard manufacturing and an overlapping 84 DOT codes in converted paper product manufacturing.  Because JBP uses equal distribution at the occupation-industry intersection, JBP estimates that each of those 101 codes represents 59 jobs in the two industry groups combined.  Moving small products assembler I and marker II to the industry  groups instead of the subsector increases the denominator by two in each calculation reduces the number of jobs attributable to small products assembler I to 58.  That is a far cry from the 2,282 reported by JBP.  

A click on the "CBP" hyperlink and selecting staffing patterns confirms the error in failing to use three and four digit NAICS codes designations.  SkillTran lists 101 DOT codes classified as part of production workers, all other as working in the paper manufacturing subsector.  

JBP states that small products assembler I constitutes 206 jobs in the furniture and related product manufacturing industry subsector.  NAICS 337000.  A click on the "CBP" hyperlink and selecting staffing patterns confirms that the industry groups within the subsector includes not 7 DOT codes suggested by JBP but actually 135 DOT codes.  The denominator stated by SkillTran reduces the occupation-industry intersection of 1,440 jobs to 11 jobs, not 206 jobs.  

The big employer of small products assembler I workers is temporary help services.  NAICS 561320.  JBP places 5 DOT codes in the occupation-industry intersection comprising 56,285 jobs.  Using the equal distribution method at the intersection, JBP states that small products assembler I comprises 11,384 jobs.  A click on the "CBP" hyperlink and selecting staffing patterns restates the presence of 5 production workers, all other DOT codes in NAICS 561320.  We have seen a pattern of error where JBP uses three-digit industry subsectors instead of four-digit industry groups.  Here, JBP uses a five-digit industry designation.  This calls for climbing up rather than drilling down.  Checking for national staffing patterns for industry group 561300 recites the same 5 DOT codes.  Checking the national staffing patterns for industry subsector 561000 lists 35 DOT codes.  A check of the OEWS for SOC 51-9199 and NAICS 560000 describes the intersection at 74,880 jobs.  Administrative support services (NAICS 561000) represents 72,600 jobs.  Employment services (NAICS 561300) represents 70,960 jobs.  Temporary help services (NAICS 561320) represents 67,360 jobs.  JBP lists 3 occupations in other support services (NAICS 561900) where the OEWS estimates 980 jobs.  SkillTran does not list any production worker occupations for other support services or business support services.  Discarding the 3 DOT codes designated for other support services, the question is where do the other 27 DOT codes belong?  Over 80% of the jobs in the subsector belong to the  temporary help services.  JBP and SkillTran have made inconsistent statements about which DOT codes belong in the sector, subsector, group, and industry.  It is incumbent on the proponent of the data to come forward with a logical and rational explanation of why reliance on JBP for these 11,384 jobs is reliable as opposed to a job number of 1,608.    

3.  Inconsistent Statements about Job Numbers

JBP list 866 production worker jobs in the petroleum and coal products manufacturing industry subsector (NAICS 324000).  Clicking on the "CBP" hyperlink and selecting staffing patterns reveals that SkillTran does not list production workers, all other as existing in the industry.  Checking the OccuCollect OEWS report for production workers in the manufacturing sector confirms that the petroleum manufacturing subsector employs 1,270 production workers.  The JBP estimate of 866 production workers and 51 small products assembler is reasonable.  But that conclusion is true if small products assembler I is involved in the transformation of crude petroleum and coal into usable small products.  

4.  Equal Distribution

JBP uses equal distribution at the occupation-industry intersection.  The Occupational Requirements Survey sets forth Labor's review of production workers.  In the 2020 data set. Labor states that 68% of production worker jobs require medium exertion.  Less than a third of DOT codes within production workers require medium exertion. Equal distribution overcounts sedentary and light job numbers and undercounts medium job numbers.  

Labor reports that 28% of production worker jobs require SVP 2.  Labor identifies 685 unskilled DOT codes out of a total of 1,590 DOT codes as production workers.  Equal distribution overcounts unskilled jobs numbers and undercounts semi-skilled and skilled job numbers.  

The simple observation that JBP uses equal distribution at the occupation-industry intersection makes the estimates of job numbers unreliable.  The estimate of jobs at the intersection is valuable information.  The identification of DOT codes at the intersection (sector, subsector, group, and individual industry) provides additional understanding of the work.  There are approximately 58,433 unskilled production worker jobs in the national economy.  There are 63,320 production jobs that do not require medium exertion.  Assuming that exertion and skill level are truly independent variables (that skill level and exertion do not correlate), the number of unskilled production jobs that do not require medium exertion totals 18,173.  That number of jobs is spread out in 405 light unskilled DOT codes and 52 sedentary unskilled DOT codes along with 43 heavy and very heavy occupations.  Many of light unskilled DOT codes requires frequent stooping, constant manipulation, exposure to loud or greater noise, exposure to pulmonary irritants, or exposure to workplace hazards.  

If skill levels and exertion do correlate and sedentary and light work are more likely to require skills than medium, heavy, and very heavy work, then the number of light and sedentary unskilled jobs as a proportion of that 18,173 aggregate drops.  There are not 19,707 full-time small products assembler I in the national economy.  Not unless the Department of Labor through the Bureau of Labor Statistics does not know how to count and classify jobs.  Creating conflict in the record before the ALJ forces the agency to state a logical and rational basis for rejecting the proffer and request for administrative notice. 

___________________________

Suggested Citation:

Lawrence Rohlfing, A Brief List of Problems with the JBP Estimate for Small Products Assembler, California Social Security Attorney (September 26, 2021)  https://californiasocialsecurityattorney.blogspot.com

The Heavyweight Bout of the Century -- Purdy versus Chavez

The battle royale is now set over the question of whether the vocational expert must have some logical defense of the job numbers regurgitated at a Social Security hearing.  In the blue corner, we have the Seventh Circuit on-demand rule culminating in Chavez v. Berryhill.  In the red corner, we have the rest of the country typified by the approach announced in Purdy v. Berryhill.

Purdy is simple.  The vocational expert identified job numbers using Job Browser Pro.  Counsel for Purdy asked the VE how JBP worked.  The VE didn't really know but claimed that it was generally accepted.  The SkillTran team puts out a generally reliable product.  Some of the industry codes are suspect, but the methodology is sound in using industry designations to winnow down job numbers.  Purdy's conclusion:

This is not to say that we could go to the extreme of approving reliance on evidence of the software numbers offered by a witness who could say nothing more about them than the name of the software that produced them. But that is not the case here. The VE, whose qualifications Purdy did not challenge, testified that the job numbers were from the Bureau of Labor Statistics and were stated in reference to job descriptions in the DOT; that is, they were specific to jobs, not to broad amalgams of jobs, some of which an applicant might be able to perform but not others. The VE testified that the software's conclusions on the described basis were generally accepted by those who are asked to give the sort of opinions sought here. She testified, in other words, to a reliable and practical basis of fact on which analysis was performed, and to a wide reputation for reliability.

Naming the software is not enough.  Knowing the source (BLS) of job numbers; that JBP stated DOT-specific job numbers not entire OES-SOC groups of job numbers; and the generally accepted nature of JBP in combination are sufficient.  What is missing from the Purdy presentation is any evidence that JBP was wrong about any of its job number conclusions.

Chavez set the stage as a fight between JBP and the Occupational Employment Quarterly.  Chavez does not disagree with the factors outlined in Purdy:

Establishing the reliability of a job-number estimate does not require meeting an overly exacting standard. Many variables combine to create uncertainty in a VE's job-number estimate.
...

VEs are neither required nor expected to administer their own surveys of employers to obtain a precise count of the number of positions that exist at a moment in time for a specific job. Think of the difficulty, if not impossibility, of acquiring the data necessary to tally how many residential laundry worker jobs exist throughout the United States or even in the Midwest. The VE necessarily must approximate, and there is no way to avoid uncertainty in doing so.

After discussing previous encounters with the equal-distribution method, Chavez highlights the problem with the vocational expert's testimony in this case:

And all the record shows is that the VE preferred the job-number estimates produced by the equal distribution method over those from the occupational density method. What is entirely lacking is any testimony from the VE explaining why he had a reasonable degree of confidence in his estimates. The VE, for example, could have drawn on his past experience with the equal distribution method, knowledge of national or local job markets, or practical learning from assisting people with locating jobs throughout the region, to offer an informed view on the reasonableness of his estimates. The absence of any such testimony left the ALJ without any reasoned and principled basis for accepting the job-number estimates.

Whereas the VE in Purdy stated reliance and general confidence in JBP, the VE in Chavez rejected JBP as reporting too small of numbers and just a blanket preference for the equal distribution method used in the OEQ.  The VE did not knowing the source of job numbers; could not state that the job numbers were DOT-specific; and could not or did not state that the OEQ was generally accepted as a reasonable estimate of job numbers.

Are Chavez and Purdy in conflict?  I don't think so.  They are factually distinct.  Purdy could truthfully rely on the accepted nature of JBP as an occupational density model for reporting job numbers by DOT code, it does.  Chavez could not truthfully state that VE's believe that the OEQ constitutes a reasonable basis for reporting job numbers by DOT code, it doesn't.   The 2017 Vocational Expert Handbook requires the defense described in Chavez and Purdy:

You should be prepared to explain why your sources are reliable.

NOTE: During your testimony, maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources. Particularly, any sources outside of those listed under 20 CFR 404.1566(d) and 416.966(d).

See page 38.  Absent a reasonable statement of reliability of methodology, the testimony is not substantial evidence under either Chavez or Purdy.  In the next few posts, we will talk about questions to ask the VE on cross about the OEQ and JBP to bolster the rejection of the OEQ or disassemble reliance on JBP in some cases.

We close today with the observation in Chavez:

We also recognize and underscore that VEs cannot be expected to formulate opinions with more confidence than imperfect data allows. Nor is it our place to enjoin use of the equal distribution method. What we do require, though, is more than what supported the ALJ's decision here.

The COSS should tell her ALJs to stop accepting testimony based on the equal distribution method. 

Proof of Use of the Equal Distribution Method of Calculating Job Numbers by the OEQ

Several vocational experts have testified that the Occupational Employment Quarterly uses a very complicated occupational density model to estimate job numbers based on exertion and skill level.  The testimony that the vocational experts give is demonstrably false.

I broke down and order the 4th Quarter 2017 OEQ and will likely buy the 2018 OEQ next year.  Representatives should have a copy of the OEQ to use in cross-examination.  The point is to prove that the OEQ uses an equal distribution method of stating job numbers.  I converted the rows used in the OEQ into columns.  I divided the total number of jobs by the total number of occupations.  That is the average number of jobs per DOT code.  I took the number of jobs reported in each of the 12 columns (rows on my chart) and divided that reported number by the average I previously computed.  The last column of my calculations is rounded to the nearest hundredth.  I then totaled my raw calculation and the rounded calculation just for fun.  Here is what I got:

SOC-OES Code		51-9199	Calculations
Census Code		8965
SOC - OES CODE TITLES		Production Workers, All Other	Average
Current # Employed		771,069	485.254248
# DOT Titles		1589	Quotient	Rounded
UNSKILLED EMPLOYMENT (SVP=1 OR SVP=2)	Sed.	25,233	51.99954479	52.00
	Light	196,528	405.000061	405.00
	Med.	89,772	184.9999261	185.00
	Heavy +	20,866	43.00013877	43.00
SEMI-SKILLED EMPLOYMENT (SVP=3 OR SVP=4)	Sed.	17,954	36.99916091	37.00
	Light	162,560	334.9996434	335.00
	Med.	119,858	247.0004137	247.00
	Heavy +	36,879	75.99933469	76.00
SKILLED EMPLOYMENT (=SVP >4)	Sed.	3,397	7.000453915	7.00
	Light	43,673	90.00024252	90.00
	Med.	47,555	98.00017249	98.00
	Heavy +	6,794	14.00090783	14.00
TOTALS:			1589.0000	1589

And there we have it.  Mathematical proof of equal distribution of the job numbers based on the number of DOT codes within each exertion-skill level intersection.  The same method works for every SOC-OES/Census code reported in the OEQ.  I know; I checked.  

Why the Equal Distribution Method Conflicts with County Business Patterns

We discussed why the equal distribution method of calculating job numbers violated the administrative notice provisions and the requirement to adduce and articulate a persuasive basis for resolving apparent conflict with the DOT.  In a nutshell, the DOT describes occupations as they exist in specific DOT-industry classifications.  The equal distribution method has an apparent conflict with the industry narrative because it assumes that occupations in small industries have the same occurrence in the national economy as occupations in large industries.  Fewer assembler jobs exist in the optical goods industry than in the automobile manufacturing industry.  DICOT, Occupational Titles Arranged by Industry Designation.  

But the Commissioner does not just take notice of the DOT.  The Commissioner takes administrative notice of County Business Patterns (CBP).   20 CFR § 404.1566(d)(2).  The Census Bureau published CBP to provide economic data including the number of establishments; employment as of March 12 of the year; and payroll data for all industries surveyed.  U.S. Census Bureau, County Business Patterns.  CBP tables of data sorted by industry are available on American FactFinder.  U.S. CensusBureau, American FactFinder.  Users can extract job numbers without CBP by industry sector (two-digit NAICS code), industry sub-sector (three-digit code), industry group (four-digit code), industry (five-digit codes), and specific industry (six-digit codes).  Where the five-digit industry designation has no further specificity, the six-digit code ends in “0.”  

The presence of administrative notice establishes the accuracy of facts which the agency takes notice tested through the rulemaking process.  Heckler v. Campbell, 461 U.S. 458, 460 (1983).  To exclude consideration of industry in assessing the number of jobs that exist for a particular occupation ignores the administrative notice of the statement of jobs within the industry of which the Commissioner has taken notice and tested through the notice and comment process of rulemaking. 

Most vocational experts would rather not consider CBP.  In a recent hearing, the VE testified that she did not use CBP because this is not a county-based program, but a national program.  The interesting point response is that counting the jobs in all the counties in a state yields a statewide number of jobs within an industry; counting all the states, the District, and territories yields a national number of jobs.  And we don't use a calculator to get there; CBP provides the data. 

Why the Equal Distribution Method of Estimating Job Numbers Conflicts with the DOT

We discussed the equal distribution method of calculating job numbers in the past in the Production Workers, All Other, and the Occupational Employment Quarterly.  The OEQ uses an equal distribution of jobs within an occupational group to calculate jobs numbers. 

There are two competing methodologies for the estimation of job numbers:  occupational density; and equal distribution.  Chavez v. Berryhill, ___ F.3d ___ (7th Cir. July 18, 2018).  The equal distribution method rests on the proposition that all occupations (DOT codes) within an occupational group represent the same number of jobs.  The Occupational Employment Quarterly uses the equal distribution method.  Chavez surveys the cases expressing concerns within the Seventh Circuit with the equal distribution method.  Id. (citing Alaura v. Colvin, 797 F.3d503, 507–08 (7th Cir. 2015); Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014); Herrmann v. Colvin, 772 F.3d 1110,1112–14 (7th Cir. 2014)).

The occupational density model determines the industries in which occupations listed in the DOT exist and uses the BLS reported intersection of occupation and industry as the starting point to determine job numbers.  Job Browser Pro uses the occupational density method.  At the intersection of occupation and industry, Job Browser Pro uses the equal distribution method at that significantly more granular level. 

The question is whether the equal distribution method violates agency policy by containing an unidentified and apparent conflict with the DOT.  20 CFR § 404.1566; SSR 00-4p.  Every DOT code contains a parenthetical industry designation.  DICOT, Parts of the Occupational Definition.  The DOT provides:

3) Industry DesignationThe industry designation is in parentheses immediately following the occupational base title. It often differentiates between two or more occupations with identical titles but different duties. Because of this, it is an integral and inseparable part of any occupational title. An industry designation often tells one or more things about an occupation such as:

• location of the occupation (hotel & rest.; machine shop)

• types of duties associated with the occupation (education; forging)

• products manufactured (optical goods; textile)

• processes used (electroplating; petrol. refin.)

• raw materials used (nonfer. metal; stonework)

While a definition usually receives the designation of the industry or industries in which it occurs, certain occupations occur in a large number of industries. When this happens, the industry assigned is a cross-industry designation. For example, clerical occupations are found in almost every industry. To show the broad, cross-industry nature of clerical occupations, "clerical" is an industry designation in itself. Among other cross-industry designations are: "profess. & kin.", "machine shop", and "woodworking".
Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry." The job title in the example is assigned this designation. It should always be identified as CLOTH PRINTER (any industry) 652.382-010.
In compiling information for the DOT, analysts were not able to study each occupation in all industries where it occurs. The industry designation, therefore, shows in what industries the occupation was studied but does not mean that it may not be found in others. Therefore, industry designations are to be regarded as indicative of industrial location, but not necessarily restrictive.

The equal distribution method ignores the restriction that occupations exist within industries.  It necessarily conflicts with the specification of industry by the DOT.  This becomes more complicated when the DOT uses the designation of "any industry."   The DOT defines this classification.  DICOT, Occupational Titles Arranged by Industry Designation.  The DOT states:

any industry--ANY INDUSTRY: This designation includes occupations that are not allocated to other classifications. The principal groups of jobs included under this designation are: (1) occupations
that characteristically occur in practically all industries; (2) occupations that occur in a number of industries (which number is not exactly determinable) but that do not characteristically occur
in most industries; and (3) occupations that are not considered to have any particular industrial attachment. The occupations included under this designation are considered to be essentially the same
wherever they occur, in that they involve the same fundamental functions, and are performed for the same general purpose wherever they exist. Familiarity with a given job in one industry, however,
may not permit a worker to transfer to the same job in another industry without some training period to acquaint the worker with the processes, terminology, hazards, or other factors in the
industry to which he or she is being transferred that would affect the occupation in question in that industry. Many occupations that occur in various industries, and could logically fall within this
group as defined above, are allocated to such classifications as CLERICAL AND KINDRED OCCUPATIONS (clerical); FOUNDRY (foundry); [M]ACHINE SHOP (machine shop); PROFESSIONAL AND KINDRED OCCUPATIONS (profess. & kin.); and WOODWORKING (woodworking); all of which embrace occupations that cut across industry lines.

The three primary bases for putting a DOT code with a designation of "any industry" requires the vocational expert to tell SSA which one applies.  Assembler occupations exist in may industries, but all within the manufacturing sector of the economy.  Consider:

ASSEMBLER, PRODUCTION 706.687-010
ASSEMBLER, SMALL PRODUCTS I 706.684-022
ASSEMBLER, SMALL PRODUCTS II 739.687-030
ASSEMBLY-PRESS OPERATOR 690.685-014

All carry the "any industry" designation; none of them would logically work outside of manufacturing; and none of them would work in the food manufacturing subsector.  

Using the equal distribution method always ignores the industry designations.  That requires that we ask the simple question after the ALJ asks about conformity with the DOT:

Q:  Does your testimony take into account the industry designation contained in the DOT?

That leaves open the next line of inquiry into how the equal distribution method accounts for industry designation at all.