O*NET -- Describes the Occupational Characteristics and Work Requirements

A recovering vocational expert told me that.  "The O*NET is not for legal purposes."  I have two questions -- where does the O*NET say that and what is the context of that statement?

The O*NET has a disclaimer:

O*NET OnLine is an application that was created for the general public to provide broad access to the O*NET database of occupational information. The site is maintained by the National Center for O*NET Development, on behalf of the U.S. Department of Labor, Employment and Training Administration (USDOL/ETA).

This is a service that is continually under development. We will make every effort to keep this site current and to correct errors brought to our attention.

Pages and reports on this site contain hypertext pointers to information created and maintained by other public and private organizations. Please be aware that we do not control or guarantee the accuracy, relevance, timeliness, or completeness of this outside information. Further, the inclusion of pointers to particular items in hypertext is not intended to reflect their importance, nor is it intended to endorse any views expressed or products or services offered by the author of the reference or the organization operating the site on which the reference is maintained.

 If the O*NET had a warning that it was not for legal purposes, it would be here.  It isn't.

The disclaimer tells us that the O*NET is a creature of the Department of Labor and more specifically, the Employment and Training Administration.  Allow a brief digression, the ETA was the part of the agency responsible for the DOT, SCO, GOE, and HAJ.  Back on point, the DOL has no caveat to the use of its data.  DOL says:

The O*NET system is maintained by a regularly updated database of occupational characteristics and worker requirements information across the U.S. economy. It describes occupations in terms of the knowledge, skills, and abilities required as well as how the work is performed in terms of tasks, work activities, and other descriptors.

Every occupation requires a different mix of knowledge, skills, and abilities, and is performed using a variety of activities and tasks. These distinguishing characteristics, or "descriptors", of an occupation are collected, codified, and described by the O*NET Content Model. This hierarchical model starts with six domains (or categories), describing the day-to-day aspects of the job and the qualifications and interests of the typical worker. The model includes nearly 277 descriptors collected by the O*NET program, along with other occupational data collected by other federal agencies such as the Bureau of Labor Statistics. 

 Assuming that the O*NET cautions that it isn't for legal purposes, DOL intends the O*NET to describe the occupational characteristics and work requirements -- knowledge, skills, and abilities used to perform the activities and tasks required of work.

More importantly, SSA intends to fold the O*NET into the upcoming Occupational Information System. Occucollect folds the DOT, SCO, O*NET, ORS, and OOH into one site that provides all your data needs starting Monday, May 21, 2018. 

OccuCollect

Look for OccuCollect to go live on Monday, May 21, 2018. 

OccuCollect puts all the unskilled DOT and SCO codes at the fingertips of the user.  Lots of products do that. 

OccuCollect puts the work abilities (level and importance) as well as the work context reports from the O*NET at the instant retrieval of the user to rebuttal during and post hearing. 

OccuCollect puts the Occupational Requirements Survey at the ready to address the physical, cognitive, environmental, and vocational subjects on the available data for rebuttal during and post hearing. 

OccuCollect puts the Occupational Outlook Handbook's statements about education, training, experience and numbers of jobs in the occupational group ready for comparison to vocational expert testimony.  OccuCollect will link to the employment projections for each occupational group to permit industry sector or specific industry analysis. 

Mark your calendars.  May 21, 2018. 

Manual and Finger Dexterity from the O*NET

We look at the question of dexterity -- because qualitative use of the hands matters.  The electronic files of the SCO provide a numerical ranking for motor coordination, manual dexterity, and finger dexterity.  The question is whether we can put our hands and fingers on better, more recent data.  The O*NET OnLine provides rankings for manual and finger dexterity on an importance scale and a level scale.

The O*NET uses the working definition of finger dexterity as:

The ability to make precisely coordinated movements of the fingers of one or both hands to grasp, manipulate, or assemble very small objects.

The O*NET uses the working definition of manual dexterity as:

The ability to quickly move your hand, your hand together with your arm, or your two hands to grasp, manipulate, or assemble objects.

All the work abilities "important" reports use a five category scale:

Not Important
Somewhat Important
Important
Very Important
Extremely Important

The O*NET provides a list of level scale anchors.  The work abilities "level" scale gives examples of the competence needed to function.  The work abilities level reports for finger dexterity use the markers on a 100 point scale:

29 - Put coins in a parking meter
57 - Attach small knobs to stereo equipment on an assembly line
86 - Put together the inner workings of a small wrist watch

The work abilities level reports for manual dexterity use markers on a 100 point scale:

14 - Screw in a light bulb into a light socket
57 - Pack oranges in creates as quickly as possible
100 - perform open heart surgery with surgical instruments

These level definitions give tools for examining the claimant and comparison to the demands of work as described by incumbents or analysts -- the two data sources for the O*NET.

Example form Inspectors, testers, sorters, samplers, and weighers (SOC 51-9061.00): 

39		Manual Dexterity — The ability to quickly move your hand, your hand together with your arm, or your two hands to grasp, manipulate, or assemble objects. Screw a light bulb into a light socket Pack oranges in crates as quickly as possible Perform open heart surgery with surgical instruments

Essential, Integral, or Expected Job Functions

Ruiz v. Berryhill is an unpublished opinion of the Ninth Circuit.  Ruiz warrants consideration because of how it applies Gutierrez v. Colvin and basically guts Pinto v. Massanari.  Ruiz uses the essential, integral, or expected job functions test to dispose of an otherwise apparent conflict between vocational expert testimony and the Dictionary of Occupational Titles. 

Pinto does not give us the DOT code for the hand packager occupation discussed.  It is probably hand packager, DOT 920.587-018.  Pinto performed the occupation with constant stooping.  The Selected Characteristics of Occupations defines the occupation as requiring occasional stooping.  Pinto loses because she could perform her past relevant work as generally performed -- so the ALJ found.  But Pinto had a marginal education, was illiterate and unable to communicate orally in English.   As generally performed, hand packagers require reasoning level 2, language level 1, and mathematics level 1.  The ALJ did not resolve the language level problem and Pinto reversed.  

Gutierrez affirmed the denial of benefits where the ALJ found that the claimant could perform the work of a cashier despite a limitation to no overhead reaching with the right dominant arm juxtaposed against the SCO description of cashier as requiring frequent reaching.  The SCO, Revised Handbook for Analyzing Jobs, and SSR 85-15 define a reaching description as "any direction."  Gutierrez used experience to conclude that it is uncommon for cashiers to reach overhead.  

Ruiz winds the two published decision and provides insight into how the courts will resolve apparent conflict in the future.  Ruiz is not precedential.  Ruiz worked as a sewing machine operator.  The DOT describes the occupation cited:

787.682-030 MENDER (any industry)

    Operates sewing machine to repair defects, such as tears and holes in garments, linens, curtains, draperies, and blankets: Patches, darns, or reweaves holes or tears in garments, curtains, or linens, and resews ripped seams. Sews fringe, tassels, and ruffles onto drapes and curtains. Sews buttons and trimming on garments after they have been cleaned. Operates sewing machine to restitch or replace binding ribbon on edge of blankets. May cut curtains to specified measurements and hem edges. May shorten or lengthen hems to alter size of garments. May replace pockets in coats or trousers. May sew identifying labels and emblems on uniforms, linens, or diapers for linen supply or diaper service. May repair defective stitching on articles. May be designated according to type of article sewn as Sewer, Linen Room (hotel & rest.) or machine used as Darning-Machine Operator (any industry). May examine lace webbing for defects and be designated Examiner-Mender (tex. prod., nec). Performs duties as described under SEWING-MACHINE OPERATOR, REGULAR EQUIPMENT (any industry) Master Title.
GOE: 06.02.05 STRENGTH: L GED: R3 M1 L2 SVP: 4 DLU: 78

Ruiz is apparently illiterate or unable to communicate in English orally.  Mender requires language level 2.  If Pinto applies, Ruiz gets a remand.  The court applied Gutierrez.  The DOT occupation does not imply the ability to read or speak/listen.  The master title of Sewing-Machine Operator, Regular Equipment does not imply reading or speaking/listening.  Ruiz found that English was not essential, integral, or expected on the job.  

Essential points to essential job functions.  Essential job functions is an ADA concept; if a person cannot perform the essential job functions, workplace accommodation is not applicable.  These are core job functions.  Teachers teach but it is not essential to write on the board.  

Integral has the dictionary definition in two of three offerings that uses the word essential.  Treat that as pointing to essential job functions.  Redundant, yes, but so is cease and desist.  

Expected points to a different concept.  Teachers teach and we expect that teachers will write on the board.  It is the bona fide occupational qualification standard.  The BFOQ standard generally means "traits are reasonably necessary to the normal operation of doing business."  42 U.S.C. § 2000e-2(e).

The BFOQ standard applies in Social Security disability cases. SSR 00-1c. Accommodation is irrelevant in claims adjudicated by SSA. Would an employer of menders expect that workers operating sewing machines to repair defects to speak, read, and write in English. Common experience of the world of work says -- probably not. Ruiz lost.

The SCO does describe mender as requiring occasional hearing. Hearing can point to essential, integral, or expected job functions of hearing noise or communicating orally. Menders don't require talking, just hearing. That SCO described function is not described in Ruiz and was presumably waived.

Cashiers and the Work Week -- Part Time is Not Presumptive SGA

Cashiers -- a favorite for vocational experts to identify when the claimant does not have a public contact limitation or a limitation to simple, repetitive tasks.  Cashiers require reasoning level 3.  The middle digit of the DOT (6) tells us that the occupation requires speaking-signalling.  Cashiers need average verbal aptitude to succeed in the job.  Cashiers frequently talk and hear.  DICOT 211.462-010.

The Occupational Outlook Handbook estimates that cashiers represent 3,555,500 jobs in the nation. That is a lot of jobs considering that BLS estimates the entire national workforce at 142,549,250 jobs. But are cashiers working at substantial gainful activity?

The O*NET OnLine reports that 80% of cashiers work less than 40 hours per week.  The residual 20% do work full-time and that leaves over 70,000 jobs.  We do not have to cut the head of the dragon but slay it with a thousand cuts.  Removing 80% from the equation is a gash.

SSA defines substantial gainful activity as more than $1,180 per month.  The O*NET and the OOH report $10.11 as the hourly wage.  Those two tandem sources report $21,030 as annual wages which is exactly 40 hours per week, 52 weeks per year.  A cashier not working a 40-hour workweek will not make $21,030 in the year; nor will a worker that takes time off for illness, vacation, or other reason.  The annual wages pretends that the person will work 40 hours per week, 52 weeks a year.

Half of any large statistical group will be below average.  Assuming the average hourly wage, a worker would have to work more than 27 hours per week to get over $1,180 -- about 117 hours per month.  If most cashiers work part-time, where is the statistical basis for assuming that those workers average 117 hours per month for an entire year.  Absent evidence of the number of hours, the report that 80% of cashiers do not work a 40-hour workweek or more should exclude 80% of cashiers.

As an aside, Social Security Ruling 96-8p defines a residual functional capacity as a full-time capacity.  But if a claimant has a full-time capacity for work at step 5 of the sequential evaluation process, part-time work can satisfy the Commissioner's burden if that work amounts to substantial gainful activity.  Some ALJs have taken that tact and some courts have affirmed such a finding.  It becomes incumbent to challenge the data source for the vocational expert's testimony.

Below Average Finger Dexterity -- Hearing Examination Develops the Vocational Cross

We discuss average finger dexterity last year with some examples out of the Revised Handbook for Analyzing Jobs.  Most unskilled jobs do not require average or better dexterity; they require below average dexterity.  

The regulations introduce the concept of dexterity as a work function as an example of how the ability to perform light work may not include the ability to perform sedentary work because of a loss of fine dexterity.  The electronic files of the SCO classify dexterity as an aptitude.  We see that in the West, US Publishing, and SkillTran regurgitations of the DOT/SCO.    

The RHAJ, SCO, DOT, and GOE all come out of the same data set last updated in 1991.  We have the reference in the regulations to dexterity and the inclusion in the electronic files classifying work by dexterity.  It is fair game.  First things first, define the terms.  We start with finger dexterity:

The ability to move the fingers and manipulate small objects with the fingers rapidly or accurately.

Immediately we see that frequency has very little to do with finger dexterity.  Rapidity and accuracy form the kernel of the question.  Examples clarify:

F-4:1 Mixes and bakes ingredients according to recipes to produce breads, pastries, and other baked goods:

Finger dexterity is required to work with ingredients and utensils and to perform such tasks as arranging strips of dough across tops of pies, and placing cut or formed dough in pans or on baking boards or trays.

F-4:2 Prepares, seasons, and cooks soups, meats, vegetables, desserts, and other foodstuffs for consumption in medical institutions:

Finger dexterity is required in using knives, brushes, scrapers, and other tools to clean, trim, slice, and dice vegetables, fruits, and meats; in ponioning foods; in turning dials and valves on kitchen equipment; in removing dishes, napkins, and waste materials from food carts; in sorting and stacking dishes; and in lining pans and shelves with paper

The last three examples in the RHAJ for finger dexterity address sewing; turning knobs, buttons, and switches; and using handtools and power tools.    But cooking a meal is a basic activity of daily living that warrants a relevant line of questioning.  

Q:  You told the judge that you cook meals for yourself.  Do you bake?

Q:  You told the judge that you cook meals for yourself.  Do you prepare, season, and cook meats, vegetables, desserts, and other foodstuffs?

 If the answer is no, the followup question is always why?  This gives the client the opportunity to describe weakness, pain, or difficulty moving the joints -- using the word dexterity should be avoided, describing the difficulty should be sought.  If the client cannot perform these activities because of a medically determinable impairment affecting the fingers, you have a basis for asking for a finger dexterity level 5 occupation. 

Manual dexterity provides examples that have ADL application:

M-4:4 Finishes household linens, such as sheets, pillowcases, tablecloths, and napkins:

Manual dexterity is required to shake. sort. fold. and stack laundry; to tie bundles of laundry together. and to feed and guide material into ironer.

M-4:7 Sorts rags and old clothing: 

Manual dexterity is required to rip off buttons, pockets, hooks and eyes. snaps. and other foreign matter.

A careful description of laundry and what the client does to shake, sort, fold, stack, and disassemble articles of clothing points to manual dexterity.  

A limitation to occasional use of the hands/fingers does not address the qualitative functions of hand/finger use.  But we have to ask the question to get it into the record:

Q:  How do the DOT/SCO rate the dexterity requirements for the work that you identified here today?

Then ask the question that assumes a level of dexterity consistent with the testimony and the examples.  Make the record and develop the evidence.  

Keeping the Theory of the Case in Mind During VE Cross

A claimant has a hearing.  She is 57, high school plus education, and a skilled background performing work as a court clerk (DOT 243.362-010).  She worked in covered employment. 

ALJ asks the vocational expert to assume that vocational background and a limitation to sedentary work with occasional use of the right dominant hand for gross and fine manipulation.  The SCO classifies the occupation as requiring occasional reaching, handling, and fingering.  At this point, the case is looking at a step 4 denial -- the claimant can return to her past relevant work.  The VE testifies to that. 

The record contains a good medical source statement.  That statement describes the claimant as able to use the right hand minimally.  The claimant had multiple surgeries on the hand and wrist which developed into reflex sympathetic dystrophy or regional pain syndrome.  This is a solid opinion based on good objective findings.  The representative asked the VE to assume less than occasional  of the right hand. 

This is a bad question.  We should use the MSS words whenever possible.  When we translate medical source opinions because we are trained not to plagiarize, we play the telephone game.  The meaning gets lost because less than occasional means something different than minimal.  If we think that minimal is ambiguous, we can offer a reasonable explanation.  Minimal does not mean zero.

Minimal implies less than the full range of occasional.  The SCO defines occasionally as up to a third of the time.  It includes one.  In the world of physical activity, we cannot use negative numbers so there is literally no less than occasional.  What does minimal mean in these circumstances?  We should offer definitions that fit the facts of the case and the context of the doctor's report -- we could offer the definition of rarely, or quantify it to the lower half of the occasional range, 0-16% of the day. 

The VE responds to the bad question with a response that eliminates the past relevant work.  The representative asked if other work was available.  STOP.  We have an obligation to represent the claimant, not sustain the Commissioner's burden of proof.  We should not ask that question -- unless we know that the answer is none. 

The VE responds with our favorite sedentary unskilled occupation, surveillance systems monitor. The SCO describes SSM as having no reaching, handling, and fingering.   The representative then proceeded to ask questions about the incidence of this occupation and whether it had changed.  STOP.  This claimant grids out under rule 201.06.  We do not want to confuse the record, the ALJ, or a reviewing court with a colloquy about SSM and whether it exists in significant numbers and whether the occupation had changed.  We must keep the theory of the case in mind and know the structure of the grids. 

It is that last question that forms the heart of consternation.  Had the occupation of SSM changed since the date last update?  Change that question to: has the occupation of court clerk changed since the date last updated in 1977?  Those are computer-based jobs.  Ask that question.  The ALJ in this case asked a question that leads to a step four denial; rip that concept to shreds. 

Another tact appears.  The court clerk occupation requires average motor coordination, finger dexterity, and manual dexterity per the SCO.  Ask that question, assume a person that has below average dexterity or can tolerate minimal dexterity demands, can that person perform the work of a court clerk either as actually performed or as generally performed? 

Dexterity is rated in the SCO electronic files.  It is listed in WestLaw for each DOT code as well as the SOS Manual from US Publishing and the products from SkillTran.  Dexterity is an SCO component.  Dexterity is part of the agency's regulatory consideration of work. 

The representative gets a point for reading the treating doctor's MSS.  He loses a point for using an inappropriate definition of the words used by the doctor; loses another point for asking about other work; loses another point for chasing the unskilled sedentary occupation down the rabbit-hole; and loses five points for failing to chase the nature of the past work up the tree.  The representative failed the claimant and now the case is in federal court.  We have to do better.