Cross-examination on the Sit vs. Stand/Walk Option

This is a common fact pattern with nearly infinite variety -- assume the person needs a sit vs. stand/walk option at will, every 30 minutes, every hour, etc.  Vocational experts identify cashier, assembly, and bench work.  Some identify clerical occupations.  The key is curiosity.  

I am fascinated by how people know bits and pieces of information.  Did you read that; someone tell you that; or just have anecdotal experience with that particular phenomenon?  When vocational experts testify to the existence of work, they bring out the enigma box with the label, "I have 30 years of experience."  That is sufficient if we let that statement ride.  

How many times have you performed a job analysis on this cashier occupation?
How many different regions of the country have you been to and conducted a job analysis of this cashier occupation? 
Do you believe that you have a statistically relevant sample on which to extrapolate to the 155 million jobs in the US economy?

It is not enough to complain that the vocational expert has just made up testimony out of whole cloth.  The representative needs to ask questions that prove the lack of statistical basis for the testimony and either a concession that the Department of Labor does or that the vocational expert is ignorant of whether the Department of Labor collects that data.  Then go get and present the data to the ALJ.  

Cashiers have the option of sitting vs. standing/walking at will in 5.6% of jobs. 
Cashiers are on their feet 87.5% of the day at the 10th percentile.  

The vocational expert testified to 300,000 cashier positions requiring light exertion with standing/walking limited to six hours in a day.  The add-on of the sitting vs. standing/walking option led to the vocational expert eroding that number by half.  The ALJ will find 150,000 jobs significant; everyone in process knows that.  These two Occupational Requirements Survey reports first gutted the existence of light cashier jobs that require six hours of standing/walking and then eviscerated the concept that half of light cashier jobs have the sitting vs. standing/walking option.  

There are 3.55 million cashier jobs in the nation.  Cashiers don't require a high school education nor do they require either work experience or the acquisition of work skills per the OOH.  The ORS tells us that 20.8% of those jobs require light exertion.  How many cashiers get to sit for at least two hours per day, when they want to sit, for as long as they want to sit?  The statistics don't parse down to answer that question but our first quest is to prove that the vocational expert lacks the foundation to tell us that the number is half the cashier II jobs cited by Job Browser Pro.  

Sit-Stand Option and Production Workers, All Other -- Occupational Requirements Survey and OOH

Small products assembler; electronics assembler; hospital products assembler; and all manner of sedentary assembly occupations do not exist in significant numbers at the light and sedentary levels of exertion and certainly not with  sit-stand option.  We use the ORS with the data sets from December 2016 and 2017 -- waiting with bated breath for the 2018 data sets.  Yes!  The 2017 data set is now in the ORS. 

1.  This occupational group continues to contain 1,526 different DOT codes.  The sedentary DOT codes represent 52 unskilled entries and 44 skilled and semi-skilled entries.  The light DOT codes represent 390 unskilled entries and 410 skilled and semi-skilled entries.  That's 96 sedentary and 800 light occupations at all skill levels.  You can run a report in Job Browser Pro for the occupational group; run an O*NET OnLine report for the occupational group and manually check 1,590 DOT codes (the O*NET has not caught up to the creation of 51-3099); or take my word for it.  No link. 

2.  In the 2016 data set, the ORS reported almost 83% of production workers, all other required medium exertion.  The 2017 data set reports that 73.9% of production workers, all other require medium exertion. 

Although light and sedentary occupations make up almost 59% of the DOT codes comprising production workers, all other, they make up perhaps 26.1% of the jobs.

 3.  Standing/walking is required 75% of the day at the 10th percentile.  Read percentile data as including an understood "or less."  Standing/walking is required 87.5% of the day at the 25th percentile.  Standing/walking is required 96.7% of the day at the median. 

Very few jobs in the production workers, all other, category will meet the typical six hours of standing/walking in an eight-hour day finding.  Look for this finding to disappear in ALJ decisions in the future and get replaced with a "capacity for light exertion as defined in the regulations."  

4.  Standing/walking is required 7.00 hours per day at the 25% percentile.  Standing/walking is required 7.25 hours per day at the median. 

The operative word in these data is required.  

5.  The maximum weight lifted/carried is 10 pounds at the 10th percentile for production workers, all other.  The maximum weight lifted/carried is 25 pounds at the 25th percentile.  The maximum weight lifted/carried is 50 pounds at the median. 

6.  Production occupations -- all 144 SOC summary (36) and line (108) codes, including supervisors and skilled workers -- permit sitting vs. standing/walking at will in 16.4% of jobs. 

The sit-stand option is not as ubiquitous as the vocational expert corps would have anyone believe.  

7.  Production workers, all other, represent 263,500 jobs in the national economy as of 2016 per the Occupational Outlook Handbook. 

Assuming that the Bureau of Labor Statistics is a reliable source for occupational data, the requirement to stand/walk the vast majority of the day eliminates the notion that a significant part of the occupational group of production workers, all other permits a sit-stand option.  The availability of that data for production occupations in 108 different detailed SOC codes and the absence of that data for production workers, all other, tells us that the data for the sit-stand option is not reliable. 

Cashier II and the Sit-Stand Option

A recent case drove me to ask the question whether cashiers exist with a sit-stand option.  The O*NET OnLine lists cashiers at 41-2011.00.  Cashier II is an obnoxious favorite of vocational experts for the sit-stand option.  

The BLS Data Finder 1.0 for the Occupation Requirements Survey is where we start.  I select occupational requirements under characteristics; I include characteristics occupation and the sub-category of sales and office occupations. I select sitting/standing/walking as my physical requirement detail.  That gives me a long list of reports.  But there it is:

Data extracted on: Aug 9, 2017 (9:26:49 AM)

Occupational Requirements Survey

Series Title	:	Civilian workers; % of cashiers; sitting vs. standing/walking at will is not allowed
Series ID	:	ORUP1000066700000140
Seasonality	:	Not Seasonally Adjusted
Survey Name	:	Occupational Requirements Survey
Measure Data Type	:	Percentage
Industry	:	All workers
Occupation	:	Cashiers
Class of Worker	:	All workers
Requirements	:	Physical Requirement
Type of cases	:	Sitting vs. standing/walking at will

Latest Observation:Annual 201693.0 

Annual 2016 - Annual 2016Minimum Value: Annual 201693.0
Maximum Value: Annual 201693.0
Data Availability:2016 - 2016

The job can't be sedentary, we figured that one out.  Some of them might allow a sit-stand option -- but 93% of them do not.  

There are a lot of cashiers out there and the Occupational Outlook Handbook describes the lot of them as unskilled.  Of the 3.4 million cashier jobs, 7% is still 238,000 jobs is still significant.  But generally unskilled does not mean that all of them are unskilled, just most.  Turns out that 81.3% of cashiers have training time of one month or less.  I doubt that it would be valid to assume 7% of the light base has the SSO.  Nor would I assume that the 18.7% of skilled/semi-skilled jobs are scattered evenly among the ranges of exertion.  If the vocational expert said that there were in excess of 190,000 SSO jobs as an unskilled cashier, probably can't beat that with this data.  Give me a limitation to simple repetitive tasks, manipulative limitation, or a public contact limitation and we can still knock this occupation out.