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.