Questions and Answers from the NOSSCR Webinar 4/21/22

 We had a good session for the NOSSCR webinar.  Here is the post-session Q&A:

Q&A:

 

1.    919.663-022 ESCORT-VEHICLE DRIVER (motor trans.) At a hearing held 2 days ago, the  V W testify this job was sedentary. I argued in light of the use of foot pedals this job would be light. V W disagreed.

The DOT does classify ESCORT-VEHICLE DRIVER as sedentary.  The ORS data says that 97% of jobs require medium or heavy exertion.  The remaining 3% are light or sedentary.  JBP estimates 34,000 jobs but over half are self-employed. 

 

2.    I just had a hearing today where the VE testified that she relied on JBP and did not consult any other resources. I objected based upon the reasons you just set forth.

Under Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018), that is sufficient.

 

3.    Name of 11th Cir case, too, please?

Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1282 (11th Cir. 2020).

 

4.    I am in the process of submitting a post-hearing memo based upon your BLOG that this job is updated ...Escort-vehicle driver is a light truck driver occupation (SOC 53-3033). Do you have additional evidence I could use?

The DOT does classify ESCORT-VEHICLE DRIVER as sedentary.  The ORS data says that 97% of jobs require medium or heavy exertion.  The remaining 3% are light or sedentary.  JBP estimates 34,000 jobs but over half are self-employed. 

 

5.    what is a well accepted methodology

One that a significant number of vocational witnesses would agree is reliable.  Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018). 

 

 

6.    can you send Purdt cite

Purdy v. Berryhill, 887 F.3d 7, 14 (1st Cir. 2018).

 

7.    What if you have a hostile VE who pushes back and refuses to describe her methodology (Roxane Minkus)?

Your Honor, I request that you direct the witness to answer the question pursuant to Biestek v. Berryhill, 139 S.Ct. 1140, 1155-56 (2019).

 

8.    Occu-what?

www.occucollect.com

 

9.    If the ALJ recognizes the alternative source of job numbers but states that substantial evidence supports relying on Job Browser Pro as a reliable source of job numbers because it is recognized by SSA, does this work?

Then you have to reverse engineer JBP based on NAICS code double counting, NAICS codes that should not apply, use of equal distribution at the occupation-industry intersection, and conflict with the SKILLTRAN industry analyzer.  That is the CBP hyperlink inside JBP screen shot, far right. 

 

10.  Do you routinely include all of this in one ALJ hearing? How often do you have to get this from a supplemental hearing? How do you cross-examine at a supplemental hearing where the VE is diffierent?

Judges are loathe to call a supplemental hearing.  They don’t. That means that the ALJ does not have a valid evidence-based reason for rejecting the rebuttal evidence. 

 

11.  David, I liked your question, would you ask it again about the federal court assessment where thre was a lack of VE questioning.

You have to train the people that are doing the hearings.  Tell them to subscribe to JBP and Occucollect. 

 

12.  I find it hard when the ve gives their opinion at the hearing. is there a strategy to get the information ahead of time or do post hearing interrogaries.

Open JBP and Occucollect before the hearing starts.  While the ALJ is finishing the direct examination, have the first occupation open.  On Occucollect, you can open extra tabs with right click, open a new tab on the reports link.  That gives you the ability to have all occupations open.  I designed the everything report to help during cross. 

 

13.  I have definitely been able to access more information with these remote hearings, leading to better cross. Tips on doing all of this with IN PERSON hearings?

Take a hotspot or use your phone as a hotspot during hearings. 

 

14.  List of cases delineated by Larry:  Is it possible to receive a list of those cases?

 

Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015)

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998)

Anaya v. Berryhill, 2018 U.S. Dist. LEXIS 32838 (C.D. Cal. Feb. 27, 2018)

Ashley W. v. Kijakazi, 2021 WL 4635799 (D. Or. Oct. 7, 2021)

Barnhart v. Walton, 535 U.S. 212 (2002)

Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005)

Berry v. Astrue, 622 F.3d 1228 (9th Cir. 2010)

Biestek v. Berryhill, 139 S.Ct. 1140 (2019)

Brace v. Saul, 970 F.3d 818 (7th Cir. 2020)..

Brault v. Soc. Sec. Admin. Comm’r, 683 F.3d 443 (2d Cir. 2012)

Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219 (9th Cir. 2009)

Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018)

Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003)

Dept. of Commerce v. New York, 139 S.Ct. 2551 (2019)

Dept. of Homeland Sec. v. Regents of Univ. of Cal., 140 S.Ct. 1891 (2020)

Erickson v. Saul, 840 Fed. App’x 167 (9th Cir. Mar. 1, 2021)

Flores v. Shalala, 49 F.3d 562 (9th Cir. 1995)

Ford v. Saul, 950 F.3d 1141 (9th Cir. 2020)

Goode v. Comm’r of Soc. Sec., 966 F.3d 1277 (11th Cir. 2020)

Heckler v. Campbell, 461 U.S. 458 (1983)

Hu v. Holder, 652 F.3d 1011 (9th Cir. 2011)

Massachi v. Astrue, 486 F.3d 1149, 1152–53 (9th Cir. 2007)

Purdy v. Berryhill, 887 F.3d 7 (1st Cir. 2018)

Ruenger v. Kijakazi, 23 F.4th 760 (7th Cir. 2022)

Shaibi v. Berryhill, 883 F.3d 1102 (9th Cir. 2018)

Shaibi v. Saul, 2019 WL 3530388 (E.D. Cal. Aug. 1, 2019)

Shaibi v. Saul, 837 Fed. Appx. 531 (9th Cir. 2021)

Shapiro v. Saul, 833 Fed. App'x. 695 (9th Cir. 2021)

Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999)

Tracey Ann P. v. Kijakazi, 2021 WL 4993021 (S.D. Cal. Oct. 27, 2021)

Tracey Ann P. v. Kijakazi, 2022 WL 17842 (S.D. Cal. Jan. 18, 2022)

Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984)

Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015)

 

15.  It works! I submitted a post hearing letter stating the voc witness testimony was vague about his method. Have a supp hearing coming up

It does. 

 

16.  I find it  hard to check VE's statement of  jobs with any software during the time of the hearing as  might miss other information.    I can always check after the hearing but that seems too late except for AC appeal if we lose.  So, how do you check jobs during the hearing without missing other information?

That is the limitation identified in several cases.  We are up against a wall in every hearing. 

 

17.  Is it possible to ask the ALJ for post-hearing time to submit a short brief to refute the VE's statement of jobs and methodology? Ask them to hold the record open for a week?

Another attendee said:  I often do that.

Another attendee said:  DO NOT ASK-JUST SUBMIT THE BRIEF.  You have an absolute right to do that.  Don't give the ALJ a chance to say no, because the ALJ might include some explanation as to why the answer is no.

Another attendee said:  Good tip. Do you not need even to ask to keep the record open?

Another attendee said:  Problem is, I sometime CAN'T get a brief out fast enough and the record gets closed.

Another attendee said:  That was my concern.

Another attendee said:  I think maybe tell rather than ask? :-)

Another attendee said:  No, you do not have to ask the ALJ to keep the record open to submit a post-hearing memo. Get your post hearing voc evidence and submit it.

Another attendee said:  I have submitted post-hearing briefs the very next day and still have them rejected by an ALJ intent on denying the claim.    AC's response in my experience is mixed.

Another attendee said:  ^yep

Another attendee said:  A smarter ALJ would accept your brief, and then deny you. I think it would be a good issue on appeal for the ALJ to close the record for argument at any time prior to decision.  Also, you have the right to submit new post-hearing medical evidence.

If you do not ask, the answer is “no.”  You have to ask.  The response to the 5-day rule statement is that rebuttal evidence is not included per the federal register explanation. 

 

18.  I had a data source named yesterday that was completely new to me - Economic Research Institute. I am still digging in trying to learn more about it. Anyone else have this one come up?

https://www.erieri.com/

 

19.  As a federal court appeals attorney, what do you look for in a case to decide that you will take it?  What do we need to put in the record for you so that it is a good case for you to take?

I look for DOT errors, obsolete jobs, hypothetical question problems, rejection of medical evidence, and claimant testimony, in that order. 

 

20.  9th circuit Shabi v Berryhill counsel has a duty to object to VE testimony at the administrative level, so this can be a post hearing brief

Correct. 

 

21.  Sorry came in late but not understanding how COUNTY data comes into it.

Tax returns. 

 

22.  If Job Browser Pro is full of contradictions, why do you feel that it is malpractice to not have it?  Thank you.

Because vocational witnesses use it.  You cannot show it is wrong in this case if you cannot show why it is wrong in this case. 

 

23.  How do you obtain a written transcript of the trial transcript?

I don’t.  I listen to the recording if necessary. 

 

24.  I've used  Job Sleuth to also look at jobs.  Does anyone else use this and what do you think of it?

Useful tool.  Limited to apple products. 

 

25.  Is there a way to refute VE testimony that something would not require an employer accommodation (such as elevating lower extremities)?

The ORS is a report without accommodation.  The ONET is a report of employee responses, mostly. 

 

26.  A lot of this stuff is over my head... where can I go to get the basic, beginner, entry level vocational information? Or at least a basic overview to understand this stuff?

https://californiasocialsecurityattorney.blogspot.com/

 

27.  Love job sleuth. It doesn’t replace JBP but it’s great when you need a quick transferable skills analysis in a hearing

Yes.  It is a DOT/SCO reproduction. 

 

28.  Do you need to object to the VE's testimony at the time of the hearing or is the post-hearing brief sufficient?

If you do not raise issues at the time of hearing, the request for a post-hearing submission should state that you will address VW testimony in the submission. 

 

29.  What is considered a reasonable number of jobs? Do we need separate VE testimony? How do we use the Occucollect report - can we just put it in the record - do you highlight parts of it? It still shows there are some jobs - how do you use the information to make the case something you would want to take on appeal?

Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 529 (9th Cir. 2014) (25,000 jobs in the nation a “close call.”)   I argue that the percentage classifications apply serially to the aggregate number of jobs in the SOC group and/or the occupation (SOC) – industry (NAICS) intersection. 

 

30.  Since Social Security regulations state that the ALJ most use reliable government sources is it worth to ask the witness if the onet is a reliable government source of jobs information

The Department of Labor says it is.  https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT. 

 

31.  Mr. Rohlfing also will be at the Michigan SS Law Section's Summer Seminar at Boyne Highlands in Michigan on June 12-14 this summer.  More information is available if you email me at jrrinck@jrrinck.com.

A shameless plug!

 

32.  So when are we getting to the portion on how to use vocational evidence in district court?

The ALJ must resolve the conflicts in the evidence.  See the supreme court cases cited above. 

33.  How do you deal with the ALJ resetting the hearing with a new VE after you submit the Occucollect information?

By starting over.  Agency policy disfavors taking a VW off rotation. 

 

34.  On average, how long does your cross of a VE take?

Anywhere from 15 to 30 minutes. 

 

35.  I have had VE's tell me they just need one good job. Do you have to rule out all of the jobs cited by the VE in order to succeed at the federal court level?

You have to get the total to less than a significant number of jobs. 

 

36.  You have a right to file a post-hearing brief that deals, inter, alia, the with VW’s testimony:  SSR 96-9P n. 8 provides, “[w]henever a VE is used, the individual has the right to review and respond to the VE evidence prior to the issuance of a decision.”   Further, under the Administrative Procedure Act “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.” 5 U.S.C. § 556(d).

Yes! 

 

37.  Columbo is a good analogy. HA! "Just one more thing..."

Peter Falk was great in the role. 

 

38.  Where on County Business Patterns do you go to verify the testimony?

The three to six digit statement of the number of jobs, available on www.occucollect.com. 

 

39.  I don’t mind spending a day or three but don’t know where to start.

It is difficult, which is why it is rewarding professionally and financially. 

 

40.  From James Rinck to Everyone 04:08 PM

Come to Michigan for two days and you will.

Mr. Camp and Sarah Bohr will be there as well.

 

41.  What is the blog?

http://californiasocialsecurityattorney.blogspot.com/

 

42.  Read Supreme Court Case Bistek v. Berryhill

Mandatory. 

 

___________________________

Suggested Citation:

Lawrence Rohlfing, Questions and Answers from the NOSSCR Webinar 4/21/22, California Social Security Attorney (April 21, 2022)  https://californiasocialsecurityattorney.blogspot.com   

What is Your Reliable Methodology for Extrapolating Your Experience?

That is the question that we should all ask in the course of cross-examining vocational experts in Social Security disability hearing.  What is your reliable methodology for extrapolating your local experience to the national economy?  The reason that this question should be deeply ingrained into the practice of every representative that does this kind of work is simple, that is the question that the Supreme Court directs us to ask.  Biestek v. Berryhill says:

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology.

(Emphasis added). 

The well-accepted methodology could take the form of using Job Browser Pro because the vocational expert could say that it is accepted by the community of vocational experts as reliable.  The  First Circuit accepted that testimony in Purdy v. Berryhill.  Well-accepted should not include the equal distribution method of calculating job numbers, at least not when conflicting evidence is present.  The Seventh Circuit suggested that result in Chavez v. Berryhill.  Here is what Biestek says about the Chavez line of questioning:

Even without specific data, an applicant may probe the strength of testimony by asking an expert about (for example) her sources and methods—where she got the information at issue and how she analyzed it and derived her conclusions. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969-970 (CA7 2018).

Most vocational experts either use Job Browser Pro, the equal distribution method (with or without knowing it), or have no discernible methodology at all.  This results in identifying the entire SOC/OES number of jobs as applicable to a single DOT code.  That methodology is worse by equal distribution; it is just lazy and ignorant. 

Here is a working list after hearing the vocational expert identify jobs and job numbers:

1. Confirm the DOT code.
2. Obtain the SOC/OES code.
3. Obtain the number of jobs in the SOC/OES code (most will not know).
4. Obtain the number of DOT codes within the SOC/OES code (most will not know).  
5. Ask for the reliable and well-accepted methodology for extrapolating the local experience to the national economy.  

With that information, we can disassemble the vocational expert testimony post-hearing.  If we use the O*NET and the Occupational Requirements Survey during the hearing (use OccuCollect.com), we can ask after an offer of proof of what the Department of Labor says:

6.  Who as greater resources for accumulating job requirements data (or job numbers data) in the national economy, you or the Department of Labor?

We still have the industry-occupation matrix used by Job Browser Pro, the BLS employment projections, and the Occupational Employment Statistics.  If that route is necessary ask:

7. In what industries, by NAICS code and name, does this occupation work?

We must have the first five.  Number six is the concession by which we hang the witness testimony.  Number seven tightens the knot.  We must use the data from Labor for the sake of our client's benefit entitlement. 

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. 

Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi

The Ninth Circuit published the decision in Wischmann v. Kijakazi, ___ F.4th ___, 2023 WL 3488107 (9th Cir. 2023) yesterday. Yet another blow to the integrity of the adjudicative system and the courts. Why? It appears to this outsider looking in that the prints from Job Browser Pro got mangled on the way from the program to the court record. What we can discern is that either the vocational expert does not know how to use Job Browser Pro or used it improperly and on purpose. The data results cited -- simply wrong.

We can use the district court decision to gather the facts missing from the court of appeals decision. James W. v. Comm'r of Soc. Sec., recites that the ALJ found that the claimant had a light residual functional capacity with occasional reaching with the right arm. The vocational expert testified that such a person could work in 59,000 bakery helper jobs; 25,000 counter clerk jobs; and 10,600 agricultural sorter jobs. The district court recited the argument:

Plaintiff contends that the new evidence shows that the VE claimed more jobs in each of the three identified occupations than could exist based on the proffered Job Browser Pro data. Specifically, Plaintiff asserts that the new evidence shows 45 jobs existing for bakery worker, 1,527 jobs existing for counter clerk, and 1,533 positions existing for agricultural sorter, which numbers, Plaintiff argues, are substantially lower than the numbers provided in the VE's hearing testimony and do not qualify as significant in the national economy

The district court went on to reject the argument because the claimant that had applied for SSI (meaning that he met the indigency requirements for a welfare benefit at the time of application) did not hire a vocational expert to read Job Browser Pro and that the ALJ could rely on bile regurgitated by the vocational expert. 

The Ninth Circuit did not focus on the substance of the presentation to the Appeals Council but to formatting. Wischmann describes the formatting of a JBP report and a mangled fourth column with "Selt:gulgy-ed" as the last column. Here is what it should look like:

The formatting for job numbers has spaces where they should not be. Wischmann recites that the JBP report for agricultural produce supporter has an additional error in the labeling of the DOT group column. What is discernible and without a doubt is that the job numbers recited in the three reports covering six pages is that job numbers contradict those of the vocational expert. 

How does the clear formatting from JBP get mangled in the record? The problem is on SSA's end converting PDF documents to TIFF and then back to PDF in the court record. Each data conversion carries distortion and mutation. What Judge Ikuta raises as a problem for Wischmann is properly laid at the feet of the Commissioner.

In the resolution of the legal issues, Wischmann relies on Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193–94 (9th Cir. 2022). There, the attorney submitted a JBP OES report rather than the DOT job number estimate report and engaged in his own analysis using an equal distribution methodology from stale data to derive job numbers. Kilpatrick lacked sufficient foundation. 

Wischmann acknowledges Buck v. Berryhill, 869 F.3d 1040, 1047, 1052 (9th Cir. 2017). Buck found that the COSS could not rely on vocational expert testimony that ostensibly relied on JBP when JBP contradicted the job numbers. Wischmann acknowledges White v. Kijakazi, 44 F.4th 828, 837 (9th Cir. 2022). White found that JBP reports submitted to the Appeals Council deprived the agency decision of substantial evidence for job numbers. 

Wischmann holds that the ALJ (and thus the entire agency) need not accept "uninterpreted raw data." That holding conflicts with the regulations. 20 CFR 404.1566(d), 416.966(d) states without ambiguity that the COSS will take administrative notice of reliable published governmental and private sources about the requirements and numbers of unskilled work in the national economy. Wischmann did exactly what the regulations invited -- requested the agency to take administrative notice of "uninterpreted raw data." 

The presentation of "uninterpreted raw data" is critical to the function of the agency. That type and quality of published data strips the foundation from rudderless vocational testimony. "Uninterpreted raw data" is the subject of administrative notice that the Commissioner invites in her regulations. 20 CFR 404.1566(d), 416.966(d). 

Wischmann stands in conflict with White. The Court should rehear Wischmann en banc to resolve the conflict and to adhere to the regulatory principle of administrative notice. 

Let's assume that Job Browser Pro is a permissible tool for a vocational witness to use. If the witness can base testimony on Job Browser Pro, can a claimant for benefits use Job Browser Pro to show conflict with vocational testimony not based on Job Browser Pro? What is good for the goose is good for the gander. White holds that an unexplained deviation from Job Browser Pro is not substantial evidence. 

What about the unexplained deviation from Job Browser Pro when the vocational witness uses the Occupational Employment Quarterly? The Seventh Circuit is clear that the selection of the OEQ-based testimony over the JBP-based job numbers is not substantial evidence. Chavez v. Berryhill, 895 F.3d 962, 969-70 (7th Cir. 2018). Chavez's refusal to permit reliance on the OEQ in the face of conflict with JBP data is accepted as law of the circuit in Kilpatrick. 

And Job Browser Pro does not produce "raw data." There are two inputs to get to the page where JBP gives national job numbers and only one of them is relevant -- the DOT code or job title. That's it. Users can select the region but that does not change the national job number. 

What users of JBP cannot select, add, delete, or modify are industry codes (NAICS). Prior to version 1.7, JBP uses could and manipulated the program to get different results. Users could stack sectors, subsectors, groups, and industries with common digits to double count NAICS codes. Users could delete other DOT codes from the industry to enhance the number in the target DOT code. That kind of manipulation of the data (cheating the program out of ignorance or malice) ended by version 1.7. 

More importantly, the industry designation(s) are critical to the estimate of job numbers. Counter clerk (photofinishing) does not exist ubiquitously in industries outside of the photofinishing industry. It exists in industries that engage in photofinishing. The 24-hour photobooths are gone. Costco does not have a photo booth anymore. The counter clerk (photofinishing) occupation is rare. To use other industries or claim counter clerks generally is a frank unexplained deviation from the DOT. The ALJ must develop the record for apparent conflict and use of other industries is an apparent conflict once cross-examination pulls back the veil. 

There are two ways to account for industry in the published data. JBP uses the occupation (SOC/OEWS codes) and industry (NAICS codes) published in the OEWS from the Bureau of Labor Statistics. JBP takes those intersections and divides the job numbers by the number of DOT codes that share that intersection. The methodology is replicable; tedious but replicable. Users do have to take JBP's DOT code assignments or explain why the user has changed those DOT code assignments. 

The other data source for occupation-industry intersections comes from BLS in the Employment Projections. The all-industry job numbers are published in the Occupational Outlook Handbook. 20 CFR 404.1566(d)(5), 416.966(d)(5). Using the employment projections to estimate job numbers is equally as valid as using the OEWS data as long as the methodology adheres to the SOC-NAICS intersections. 

This is not a full-throated acceptance of the JBP methodology. I submit that the methodology breaks down after the SOC-NAICS intersections are selected. At that point, the job numbers should be reduced based on skill level, exertional, and non-exertional differences within the SOC group as measured by the O*NET OnLine and the Occupational Requirements Survey. Generating that kind of reliable data for 13,000 DOT codes in 800+ SOC groups await the long overdue OIS. In the meantime, the claimants' bar, the agency, and the courts should stop embarrassing themselves by accepting testimony from witnesses that no serious person believes are even remotely accurate. 

Convince me otherwise. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Wildly Implausible Testimony -- Affirmed in Wischmann v. Kijakazi, California Social Security Attorney (May 21, 2023, updated May 22, 2023) https://californiasocialsecurityattorney.blogspot.com

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

 

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.  

Answers to Questions from the New Orleans NOSSCR Conference

20           An example of a cross or rebuttal to “no fast pace production or piece rate quota” ?

The O*NET OnLine describes pace requirement in the work setting.  The data for cashier, for example:

Environmental	%	Response
Pace Determined by Speed of Equipment — How important is it to this job that the pace is determined by the speed of equipment or machinery? (This does not refer to keeping busy at all times on this job.)	0	Extremely important
	0	Very important
	20	Important
	13	Fairly important
	67	Not important at all

So cashiers are not pace determined by speed of equipment as extremely important or very important. 

14           Can you please post your slides on your blog?

I posted from:

https://www.bls.gov/opub/hom/ors/calculation.htm

https://www.bls.gov/ors/information-for-survey-participants/pdf/occupational-requirements-survey-collection-manual-072017.pdf

9             But if you ask the VW, they will say the cashier slides the case of water across the scanner, they will say the VW is not lifting that weight.

The BLS (ORS) states that:

Series ID: ORUP1000066700000663

Not seasonally adjusted

Series Title: % of cashiers; strength is medium work

Requirement: Physical Demands

Occupation: Cashiers

Estimate: strength is medium work

Year	Period	Estimate
2018	Annual	58.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000066700000663

What is your basis for disagreeing with that finding. 

9             What is the citation for SVP 1 is 4hours demonstration?

https://www.bls.gov/opub/hom/ors/calculation.htm

5             How do counter a vocational witness that you know is not being forthcoming or honest?

I just want an answer to the question that the Supreme Court directs me to ask:  do you have a reliable methodology for extrapolating your local experience to the national economy?

5             In my experience, if my cross of the VE possibly works, the ALJ finds on another issue, so it is difficult to tell how my cross was received. How can you tell if what you are doing is winning more hearings? Are you just preserving the record for appeal?

I can do this all day long.  If the claimant has significant limitations, you can erase any occupation.  Just persevere. 

4             The payment of MEs/VEs is available through FOIA. How do you suggest we use that as a bias argument?

I don’t have to prove bias.  I have to prove that the testimony is feeble and contradicted.  Stick to what the claimant must prove. 

4             the answer VEs give to cashier lifting a case of water is that it is left in the cast & they don't have to lift it.

The BLS states that cashiers engage in medium work in most jobs, do you have a statistical basis to show that the BLS is wrong?

4             Please zoom in!

Get your free 30 days at www.occucollect.com. 

4             Has SSA formally accepted the ORS data for use in administrative hearings?

https://www.bls.gov/ors/questions-and-answers.htm Q. 1

ORS provides information about the requirements of work in the national economy conducted under an interagency agreement with the Social Security Administration (SSA).

https://www.ssa.gov/disabilityresearch/occupational_info_systems.html

2             How do you know that JBP uses an equal distribution method? Where does it say that?

https://skilltran.com/index.php/support-area/documentation/223-jbp-defense

2             With the cashier issue and 60% being medium, couldn't the VE just say they could do one of the 40% that is not medium and that's still a significant number of jobs?

The 60% medium is a response to “as generally performed.”  AGP, cashiers are medium. 

If your client can perform the full range of light work, including stand/walk 7+ hours per day, the client is not disabled.  To prove disability for the sub-55 claimant, the record needs to prove a stand/walk limitation, an interaction with others limitation, or something else. 

2             Do you need to buy a subscription to Occu Collect to get all the screens you showed?

www.occucollect.com reproduces in one location the DOT, SCO, O*NET work context, O*NET work abilities, and the ORS.  You can go to four different websites and cobble the data together.  I have done it.  It takes about two hours per occupation.  If you use occucollect, it takes about 20 minutes per occupation once you have done it a handful of time.  The reports that are not available in a report format are the specialty reports that I did not cover, the Sedentary Compendium in the store, and the O*NET education training and experience report.   

2             When a VW says, "this is how the job is generally performed," when we ask about reliable method for extrapolating local experience to national economy, the VW inevitably says it is discussed at conferences, their VW chat groups, etc... how do we knock it out at that point?

What was the reliable methods used in the group?  Did you ask your chat club members about their reliable methods? 

Remember that 100 scientists got together and told the world that Einstein was wrong about relativity. 

2             If you don’t have a letter from the treating physician and the CE puts the claimant at medium. How do you come up with hypotheticals to the VE? How do we assume the amount off task in a day and/or any supportive hypothetical

The CE will typically describe a limitation to six hours of standing/walking.  Medium work requires seven or eight hours of standing/walking.  The CE might have described a limited range of motion for forward flexion.  This is sometimes a fruitful avenue.  Look for gait disturbance in the record, that might give you more. 

2             Is there a Federal Court case that you can cite where the court said the equal distribution method is not a valid way to calculate job numbers?

Chavez v. Berryhill, 895 F.3d 962 (2018)

Brault v. SSA Comm’r, 683 F.3d 443 (2012)

2             Which website was it in which the BLS writes that they maintain DOT only because of SSA, and that if you want reliable current data, go to the O*Net? I'd love to have that webpage so I can print it and submit in every case.

https://www.oalj.dol.gov/LIBDOT.HTM

1             What is the BLS?

Bureau of Labor Statistics

1             Good case law on VE - DOT conflict in 11th Circuit (Washington) & 4th. Extend to VE conflict with O-NET etc?

Wait for it.  This depends on Kisor v. Wilkie application to SSR 00-4p.  See the blog at:

http://californiasocialsecurityattorney.blogspot.com/2019/07/ssr-00-4p-describing-dot-as-primary-and.html