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.

Use of the OOH and O*NET Accepted by the Court

The district court reverse and remanded Cymande S. v. Berryhill, 2019 WL 4148351, at *3 (C.D. Cal. May 16, 2019).  The decision is not available on Google Scholar.  No freebies.

This a straight Occupational Outlook Handbook and O*NET OnLine assault on vocational expert testimony mounted at the Appeals Council.  The district court summarized the issue:

Plaintiff also argues that the ALJ could not have reasonably relied on the testimony of the VE given that the VE's figures for a single job exactly matched the OOH reported figures for a category of jobs containing 18 distinct DOT job codes in one instance and 782 distinct DOT job codes in another instance.

Inspectors, testers, sorters, samplers and weighers (SOC 51-9061) is the occupational group that contains 782 DOT codes.  The OccuCollect.com everything report summary for any of the 782 DOT codes (including nut sorter) states:

There are 782 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

67 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary

14 are SVP 2

585 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light

3 are SVP 1 132 are SVP 2

117 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Medium

17 are SVP 2

13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Heavy

1 are SVP 1 6 are SVP 2

The unskilled occupations make up 173 DOT codes out of the 782 total codes.  The OOH currently describes the occupational group as typically requiring a high school diploma or equivalent, moderate-term on-the-job training, and representing 574,000 jobs.  The OOH glossary defines moderate-term as more than 30 days and up to one year.  The work is typically semi-skilled or skilled.  Inspectors, testers, sorters, samplers and weighers are not typically unskilled.  A nut sorter (DOT 521.687-086) cannot represent 574,000 jobs.  

This is one of occupations identified in Biestek v. Berryhill.  The proposition that 120,000 jobs as a nut sorter existing in the national economy ever is laughable.  Justice Gorsuch identified that concept in dissent.  

Cashiers (SOC 41-2011) is the occupational group that contains 18 DOT codes.  The OccuCollect.com everything report summary for any of the 18 DOT codes (including toll collector) states:

There are 18 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report

5 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary

13 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light

6 are SVP 2

The unskilled occupations make up 6 of the 18 total codes.  The OOH currently describes the occupational group as typically requiring no formal educational credential, short-term on-the-job training, and representing 3,648,500 jobs.  Toll collector cannot represent 3.4 million jobs.  

Cymande S. v. Berryhill represents progress is using the OOH combined with the O*NET crosswalk report to demonstrate the fallacy of job numbers.  Other data not mentioned by the court concerned the standing/walking of inspectors and cashiers, the predominant part-time nature of cashier work, as well as unskilled vs. semi-skilled or skilled work as reported by the O*NET (full-time) and ORS (other job characteristics).  Cymande S. v. Berryhill can be your next win if you present the vocational rebuttal to the ALJ or the Appeals Council (where AC evidence matters). 

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Use of the OOH and O*NET Accepted by the Court, California Social Security Attorney (April 18, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/04/use-of-ooh-and-onet-accepted-by-court.html

Inspectors, Testers, Sorters, Samplers, and Weighers -- Shockingly Low Job Numbers

Inspectors, testers, sorters, samplers, and weighers (inspectors) (SOC 51-9061) is a huge occupational group containing 782 DOT codes ranging from SVP 1 to 8 and from sedentary to heavy. Labor places 14 sedentary and 135 light unskilled DOT codes in inspectors.  That makes up about 10% of the unskilled DOT codes forming the foundation of the Medical Vocational Guidelines.  Here is the list of the sedentary codes:

DOT Code	DOT Title	SVP	STRENGTH
521.687-086	NUT SORTER	2	S
529.666-014	CIGARETTE-MAKING-MACHINE CATCHER	2	S
539.485-010	WEIGHT TESTER	2	S
669.687-014	DOWEL INSPECTOR	2	S
712.687-018	GAUGER	2	S
716.687-030	LENS-BLOCK GAUGER	2	S
726.684-050	FILM TOUCH-UP INSPECTOR	2	S
726.684-110	TOUCH-UP SCREENER, PRINTED CIRCUIT BOARD ASSEMBLY	2	S
734.687-042	BUTTON RECLAIMER	2	S
734.687-094	ZIPPER TRIMMER, HAND	2	S
737.687-026	CHECK WEIGHER	2	S
737.687-126	SHADOWGRAPH-SCALE OPERATOR	2	S
739.687-182	TABLE WORKER	2	S
979.687-026	TYPE-COPY EXAMINER	2	S

Nut sorter is pending before the Supreme Court.  Weight tester, dowel inspector, and table worker are identified by vocational experts frequently.  Inspectors represents a large number of jobs, collectively. 

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

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Moderate-term on-the-job training
2016 Employment	520,700

The OOH reports the Bureau of Labor Statistics employment projections jobs number and the observation that these occupations have a typical requirement of a high school diploma or equivalent and moderate-term on-the-job training, i.e. they are semi-skilled or skilled with more than 30 days and up to one year of training. 

To evaluate the number of sedentary and light unskilled jobs, we must ascertain the boundaries of that education and training data.  We use the ORS for that purpose:

51-9061.00 (inspectors, testers, sorters, samplers, and weighers)

Series ID: ORUV1000005A00000065

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; svp is beyond short demonstration, up to & including 1 month

Requirement: Education, Training, And Experience

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: svp is beyond short demonstration, up to & including 1 month

Year	Period	Estimate
2017	Annual	16.5

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000005A00000065

The ORS confirms the observation made by the OOH about skill level. In doing so, the ORS drops the estimate of the number of unskilled inspector jobs to 85,915 – at all exertion levels. We can now break down the exertion question.

Series ID: ORUP1000005A00000236

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; pounds maximum weight lifted/carried (50th percentile - median)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: pounds maximum weight lifted/carried (50th percentile - median)

Year	Period	Estimate
2017	Annual	25

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000236

Series ID: ORUP1000005A00000239

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; lifting/carrying up to 10 lbs is required, seldom

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: lifting/carrying up to 10 lbs is required, seldom

Year	Period	Estimate
2017	Annual	23

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000239

Lifting/carrying 10 pounds does not establish sedentary, it establishes lifting/carrying. To qualify as sedentary, the occupation must also permit sitting most of the day with occasional standing/walking.

Series ID: ORUP1000005A00001001

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; % of day sitting is required (75th percentile)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: % of day sitting is required (75th percentile)

Year	Period	Estimate
2017	Annual	62.5

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00001001

Series ID: ORUP1000005A00001002

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; % of day sitting is required (90th percentile)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: % of day sitting is required (90th percentile)

Year	Period	Estimate
2017	Annual	90

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00001002

If we use 67% of the day as the minimum amount of sitting to qualify as sedentary, we would use a percentile higher than the 75th. If we use six hours per day as the minimum amount of sitting to qualify as sedentary, we would use a percentile lower than the 90th. The lifting limitation appears to represent a reasonable approximation, 23% of the jobs qualify as sedentary. The summary conclusion is that the 14 sedentary unskilled jobs represent in the aggregate very few jobs.

# of Jobs	% Unskilled	# Unskilled
520,700	16.5%	85,916
# Unskilled	% Sedentary	# Sedentary
85,916	23.0%	19,761

Surprising is the number of jobs that qualify as light, there are fewer as compared to sedentary. If limited to six hours of sitting in a day, we would lop off at least the top 10% leaving less than 12,000 jobs and probably fewer than that.

Series ID: ORUP1000005A00000240

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; lifting/carrying > 10 lbs & <= 20 lbs is required, seldom

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: lifting/carrying > 10 lbs & <= 20 lbs is required, seldom

Year	Period	Estimate
2017	Annual	16.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000240

The 135 light unskilled jobs do not represent a significant number of jobs in the aggregate, much less individually.

# of Jobs	% Unskilled	# Unskilled
520,700	16.5%	85,916
# Unskilled	% Light	# Light
85,916	16.6%	14,262

Series ID: ORUP1000005A00000126

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; hours of standing/walking (10th percentile)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: hours of standing/walking (10th percentile)

Year	Period	Estimate
2017	Annual	0.8

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000126

Series ID: ORUP1000005A00000128

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; hours of standing/walking (50th percentile - median)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: hours of standing/walking (50th percentile - median)

Year	Period	Estimate
2017	Annual	6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000128

Series ID: ORUP1000005A00000129

Not seasonally adjusted

Series Title: inspectors, testers, sorters, samplers, and weighers; hours of standing/walking (75th percentile)

Requirement: Physical Demands

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: hours of standing/walking (75th percentile)

Year	Period	Estimate
2017	Annual	8

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000129

If the person is limited to six hours of standing/walking in a day, that assumption eliminates jobs at the 75th percentile and higher, further reducing the number of jobs by about 25%.

The aggregate of sedentary and light unskilled jobs that do not require more than six hours of sitting or standing/walking in an eight-hour day looks like less than 32,000 jobs.

# of Jobs	% Unskilled	# Unskilled
520,700	16.5%	85,916
# Unskilled	% S&L	# S&L
85,916	39.6%	34,023
# S&L	% ≤ 6 SSW	# ≤ 6 SSW
34,023	65.0%	22,115

How we whittle that number down depends on the other exertional and non-exertional impairments. With a limited education, the number of jobs within the light and sedentary classifications is 22.4% of the numbers stated. Education matters more than literacy for this group.

Series ID: ORUV1000005A00000075

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; minimum education level is none

Requirement: Education, Training, And Experience

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: minimum education level is none

Year	Period	Estimate
2017	Annual	22.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000005A00000075

Series ID: ORUV1000005A00000085

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; literacy is required

Requirement: Education, Training, And Experience

Occupation: inspectors, testers, sorters, samplers, and weighers

Estimate: literacy is required

Year	Period	Estimate
2017	Annual	21.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000005A00000085

We keep chasing the rabbit until we are satisfied that the number of jobs cited by a vocational expert is statistically reliable.