When Looking at Job Numbers, Why Does Industry Matter?

In SSR 24-3p, the Commissioner of Social Security doubles down on the viability of the Dictionary of Occupational Titles (DOT) as a reliable source for occupational information as well as the quest for vocational witnesses to do something that they are not trained to do, estimate job numbers. EM-21065 REV 2 cautions that OccuBrowse (the first tier of SkillTRAN products) allows searches by a variety of other lists, "such as industry." The EM makes a more general statement about Job Browser Pro and notes that OASYS uses the same methodology for its data estimates. 

On top of this layer, the importance of industry and how industry impacts job numbers analysis is not predictable in hearings. Some vocational witnesses will use a SkillTRAN product, others reject them, some do not consider industry at all, and some make up their own unique black box that we do not get to see. In the age of SSR 24-3p and the general description of methodology, the industry in which an occupation exists matters.

The introduction to the DOT in the parts of the occupational definition, the DOT recognizes that it lists industry in every DOT code. It is in parentheses. The Employment Training Administration states:

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.

To use the DOT description as applicable to an occupation in an industry not contemplated by the DOT is a misuse of the DOT. The DOT description applies to the industry or industries in which ETA studied that occupation. The industry designation "is an integral and inseparable part of any occupational title. An industry designation often tells one or more things about an occupation." The "any industry" designation has alternate meanings:

    1. Nearly all industries

    2. In a number of industries, but not most industries and which  are not considered to have any particular industry attachment. 

The lead statement (after the alternate titles, if any) provides other information that is useful in "any industry" occupations to narrow the field. 

Job Browser Pro and OASYS assign the DOT codes to the industries in which SkillTRAN believes that the occupation exists. Why? Because the DOT states industry specifically or suggests the industries in the lead statement or task element statements. When a vocational witness does not or cannot provide industry designations using the North American Industry Classification System (NAICS), that testimony is inconsistent with the DOT. 

Where else are the NAICS codes used? Glad you asked. County Business Patterns (CBP) states aggregate job numbers in specific industries, industry groups, industry subsectors, and industry sectors. CBP provides the data county-by-county, state-by-state, and nationally. CBP is number (2) on the list of sources that SSA considers reliable. 20 CFR 404.1566(d)(2). CBP uses NAICS codes and so you every vocational witness (and representative). CBP provides a real challenge to novice users. OccuCollect does the work for users. 

Are there any other governmental data sources that use NAICS codes? We are on a roll, YES. The Occupational Employment and Wage Statistics (OEWS) provides job numbers at the occupation-industry intersection (SOC-NAICS) to the industry group (four non-zero digits) and some specific industries (five- and six-digits). The OEWS reports industry sector (two digits) and subsector (three digits) as well. The OEWS is mentioned as an acceptable source in SSR 24-3p. The OEWS data is difficulty to navigate. OccuCollect does the work for users. 

Is there another one? Yes there is. The Employment Projections table 1.8 (EP) provides industry-occupation matrix date by occupation and table 1.9 by industry. The EP data is very similar to the OEWS data and easier to use. OccuCollect reports that data and in a crosswalk report puts that data side-by-side to the OEWS data. 

Lens inserter and final assembler are in the optical goods industry. That is a very small industry inside of the industry group medical equipment and supplies manufacturing (NAICS 339100). Small products assembler I puts together small parts. The DOT says "any" but the job duties belie the "any" as meaning "all." Small products assembler works in parts of the manufacturing sector (NAICS 31-33) and more likely that the last third of that huge listing, NAICS 33xxxx. Small products assembler II has a job description dealing with wood products. Small products assembler II does not work with metals. See Employment Projections, 51-9199. The EP are the foundation of the Occupational Outlook Handbook and every SOC code in the OOH hyperlinks to the EP. The OOH is number (5) on the list for administrative notice. 20 CFR 404.1566(d)(5).

When an occupation does have a clear industry designation or the lead statement/task elements suggest or exclude industries, a representative must hold the vocational expert to the task of identifying the industries considered. Industry matters. That is unless the vocational witness studied the occupation in every industry. 

I doubt it. 

___________________________

Suggested Citation:

Lawrence Rohlfing, When Looking at Job Numbers, Why Does Industry Matter?, California Social Security Attorney (March 19, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

ORS Reports for SVP 1 or 2, 35-40 Hours per Week by Minimum Education

BLS reports "SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement" in an excel spreadsheet. This same report is replicated by SOC code on OccuCollect.com. Today, we look at electrical and electronic equipment assemblers (SOC 51-2022). Line 358 of the ORS report:

SOC	Occupation	Illiterate		No Min		HS or less
512022	Electrical and electronic equipment assemblers	<10	[15]	<10	[15]	26.3	10.1

The second number in each column is the standard error. If a user runs this report in OccuCollect, that person will get a null result. Why? Thanks for asking. The OOH and OEWS report combines SOC 51-2022 and 51-2023 to form electrical, electronic, and electromechanical assemblers, except coil winders, tapers, and finishers (SOC 51-2028). The OccuCollect report, sans the ORS header, reports:

51-2022 - Electrical and electronic equipment assemblers

SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement

The OOH Dataset does not report a Job numbers for this SOC.

Minimum Education Required	Percentage	# of Jobs
Total Jobs (OOH 2023)	100%	Not Reported
No literacy	<10%	Not Reported
No Minimum	<10%	Not Reported
High School Diploma	26.3%	Not Reported

There are job numbers in the OEWS and OOH. Running the OEWS data on the report states:

51-2028 -

SVP level 1 or 2 and 35-40 weekly hours by Minimum Education Requirement

Minimum Education Required	Percentage	# of Jobs
Total Jobs (OEWS 2023)	100%	267,440
No literacy	Not Reported	Not Reported
No Minimum	Not Reported	Not Reported
High School Diploma	Not Reported	Not Reported

Users can put those two together. There are less than 10% of jobs (< 26,744) jobs that do not require a high school education, some of those may not require literacy.  The problem gets worse. The 2018 and 2023 ORS date report on education states:

Occupational Requirements – education	2018	2023	2024
no minimum education requirement	26.7	23.1
no minimum education required, and literacy is not required	--	<10
no minimum education required, and literacy is required	--	<35
minimum education level is a high school diploma	66.8	66.7
minimum education level is a high school vocational degree	-	-	--
minimum education level is an associate's degree	-	-
minimum education level is an associate's vocational degree	-	-	--
minimum education level is a bachelor's degree	-	<0.5
minimum education level is a master's degree	-	<0.5
minimum education level is a doctorate degree	-	<0.5
minimum education level is a professional degree	-	<0.5

The ORS reports two-thirds of jobs require a high school education or equivalent (see the Collections Manual for the definition of high school education) and 23.1 to 26.7% of jobs have no minimum education requirement. Of those jobs that do not have a minimum education requirement, less than 35% require literacy and les than 10% do not require literacy. Less than 35% plus less than 10% equal 23.1%. That's stats. 

This aggregation of 90+% of jobs includes all skill levels. The ORS reports for skill level SVP1 and 2:

Occupational Requirements – specific vocational preparation	2018	2023	2024
specific vocational preparation is short demonstration only	-	<0.5
specific vocational preparation is beyond short demonstration through 1 month	29.2	29.2

The difference between 29.2% of jobs as unskilled and the report of 26.3% of jobs as requiring a high school diploma or less is answered by two syllables, part-time. There are approximately 70,300 jobs in the national economy for a person limited to unskilled work. Less than 10% of those jobs exist for a person limited to simple work, less than 7,000 jobs at all exertional levels. 

The regulations define a high school education as having the "abilities in reasoning, arithmetic, and language skills acquired through formal schooling." 20 CFR 404.1564(b)(4). A limitation to simple work is in fact a limitation on the ability to access a high school education under subsection (b), "the numerical grade level that you completed in school may not represent your actual educational abilities."

Of those less than 7,000 jobs at all exertion levels, the ORS tells us that less than 3,000 are sedentary and less than 1,500 are light jobs:

Occupational Requirements – strength, exertion	2018	2023	2024
strength required is sedentary	-	34
strength required is light work	28.3	20.8

In today's economy, the number of sedentary and light jobs for a person with a limited education or a limitation to simple work is less than 4,500. Less than is the critical phrase. Because SSA defines full-time work as a 40-hour workweek or an equivalent schedule, the reliable number is even lower. 

Proper presentation of the number of jobs as rebuttal evidence requires chasing the rabbit all the way down the hole, ignoring the Cheshire Cat, evading the Queen of Hearts, and escaping the a-statistical methodology used by witnesses with a request that the agency adhere to its promise -- administrative notice. 20 CFR f404.1566(d).

Be not afraid. 

___________________________

Suggested Citation:

Lawrence Rohlfing, ORS Reports for SVP 1 or 2, 35-40 Hours per Week by Minimum Education, California Social Security Attorney (March 1, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

What's Wrong with SSR 24-3p?

 SSR 24-3p introduces a new interpretation of the stable administrative notice regulation, 20 CFR 404.1566(d). The Commissioner has long held as a matter of law to the proposition that when it comes to unskilled sedentary, light, and medium work, the Commissioner will take administrative notice of reliable governmental and other (private) published data for the requirements and numbers of jobs. SSR 00-4p responded to a growing number of cases -- and a split in the circuits -- that the ALJ must address conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). 20 CFR 404.1566(d)(1). The Commissioner conceded to the fact that the Selected Characteristics of Occupations (SCO) was part of the single data set. SSR 00-4p imposed on the ALJ the duty to investigate the existence of a conflict or apparent conflict and to resolve that conflict based on evidence. 

But the DOT and its dataset never stated job numbers, never. Job numbers are now and in 1978 stated in the Occupational Outlook Handbook (OOH) and County Business Patterns (CBP). 20 CFR 404.1566(d)(2), (5).Now, the Bureau of Labor Statistics publishes online the Employment Projections (EP) and the Occupational Employment and Wage Statistics (OEWS, formerly the OES). 

Labor abandoned the DOT and its data set never updating the DOT fourth edition, revised published in 1991 or the SCO published in 1993. Labor transferred responsibility of the Employment Training Administration from the DOT to the Occupational Information Network (ONET). Recognizing the problem that 10,000 of the 13,000 DOT codes had a date last updated of 1977, the Commissioner was forced to collaborate with Labor to develop a new data set -- the Occupational Requirements Survey (ORS). 

Private sources published data as well. United Stat Publishing published and publishes what is now known as the Occupational Employment Quarterly (OEQ) in various formats for national, state, and local data. That publication uses the equal distribution method of estimating job numbers -- each DOT code within a Standard Occupational Classification (SOC) represents the same number of jobs. The OEQ publishes the job numbers sorted by exertion/skill combinations. United Stat Publishing also publishes the Specific Occupational Employment - Unskilled Quarterly (SOEUQ). The SOEUQ estimates sedentary occupations by industry. The SOEUQ does not state its methodology. 

SkillTRAN publishes OccuBrowse, Job Browser Pro, and OASYS. The latter two estimate job numbers by DOT code. SkillTRAN uses a SOC/OEWS code intersection with selected industries (NAICS codes) and uses equal distribution to estimate the number of jobs per DOT code at those SOC-NAICS intersections. SkillTRAN uses a proprietary and unpublished methodology and does not use the data from the EP or OEWS that publish SOC-NAICS data. SkillTRAN uses the CBP to modify the data. The SkillTRAN SOC-NAICS data resembles but does not duplicate either the EP or OEWS SOC-NAICS data. 

That is the basic lay of the data. Job requirements are still found in the DOT and the Commissioner clings to that data set. Job requirements are found with current data in the ONET and the ORS. Job numbers are still found in the OOH and CBP -- they are up to date -- as well as the EP and OEWS. Three data sets for requirements and four data sets for job numbers. No one should use the OEQ for any purpose. JBP and OASYS continue to have utility for stating the SOC-NAICS intersection job numbers but does not parse that data based on occupational classifications nor erode for any impairment. JPB and OASYS are starting points. 

Here is the problem. The vocational witness claims to have considered the broad range of data along with their vast (local and anecdotal) experience to derive a job numbers based on no discernible methodology. Some will default to JBP/OASYS. That is at least a defensible starting point. Some will claim that the OEQ remains in the mix. That is bogus. 

And the ALJ corps blindly accepts testimony that is incoherent and meaningless. The witnesses are not consistent across time. They are not consistent with each other according to the cases. Because the claimants have privacy of their medical data, we never get to see the testimony that the witnesses give in different cases or to compare different witnesses in same and similar cases. The system lacks accountability and reliability. The system invoked by SSR 24-3p creates vocational witness lottery. That is not a system of administrative justice; it is legalized gambling with people's lives and the social safety net. 

But I never get passionate about these issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, What's Wrong with SSR 24-3p?, California Social Security Attorney (February 26, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

The ORS Suggests 700,000 Sedentary, SVP 1 and 2 Office Clerks, General

But do they meet the definition of unskilled work in the regulatory paradigm? We start with the Occupational Requirements Survey math problems counting jobs in the occupational group, reduce for full-time work, SVP, and exertion. 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2024)	# SVP 2
1,847,314	44.6%	823,902
# of Jobs	% Sedentary (ORS 2024)	# Sedentary
823,902	84.6%	697,021

There are 74 DOT codes associated with this SOC group, you can find more information on these DOT codes by running the 2019 O*NET-SOC To DOT Crosswalk Report

The ORS 2023 data set suggests 504,884 jobs. 

The only  source that uses the definition of full-time work expressed in SSR 96-8p is the O*NET. You should use the O*NET because it meets SSA policy. The O*NET Crosswalk report references in the calculator identifies three sedentary, unskilled DOT codes, seven light, unskilled DOT codes, and one medium, unskilled DOT code. That translates to eleven out of seventy-four DOT codes. So much for equal distribution. Here's the list:

I include data-people-things because the regulation says that the matter. The 2021 version of EM-21065 cautioned adjudicators to not use "Temperaments (what the software tool manufacturer calls work situations or situations) or DPT (what the software manufacturer calls work functions) to determine the demands of work." We discussed this in 2022. EM-21065 Rev. 2 does not contain that caution. 20 CFR sec. 404.1568(a) describes unskilled by example:

For example, we consider jobs unskilled if the primary work duties are handling, feeding and offbearing (that is, placing or removing materials from machines which are automatic or operated by others), or machine tending, and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed. A person does not gain work skills by doing unskilled jobs.

The regulation sets out three alternates joined with a conjunctive and to learning the job in 30 days or less. The three alternatives also have an adjective phrase, primary work duties. The DOT defines the things codes related to the regulation:

5 Tending: Starting, stopping, and observing the functioning of machines and equipment. Involves adjusting materials or controls of the machine, such as changing guides, adjusting timers and temperature gauges, turning valves to allow flow of materials, and flipping switches in response to lights. Little judgment is involved in making these adjustments.

6 Feeding-Offbearing: Inserting, throwing, dumping, or placing materials in or removing them from machines or equipment which are automatic or tended or operated by other workers.

7 Handling: Using body members, handtools, and/or special devices to work, move, or carry objects or materials. Involves little or no latitude for judgment with regard to attainment of standards or in selecting appropriate tool, object, or materials.

The DOT dataset reported by WestLaw, Lexis, SkillTRAN (Job Browser Pro and OASYS), and OccuCollect.com set forth whether the work function is primary by use of the designation significant or not significant. 

The reduces our list six DOT codes, two sedentary, three light, and one medium occupations. All have the code "7" representing handling. All have at least one other significant work function, either data or people. Six have significant work functions dealing with data and two deal with people:

Most of the Reasoning level 3 occupations deal with people. We are not simple -- customers that is. Data is not simple. SSR 85-15. 

When SSA says that SVP 1 and 2 work meets the definition of unskilled simple work, the agency is wrong. "And" is conjunctive, not disjunctive. In order to qualify as simple unskilled work in the regulatory paradigm, the work functions (the sixth DOT code number) must be a 5, 6, or 7, that work function must be designated as significant, and the data/people work functions must be designated as not significant. 

I cannot identify any DOT code classified as a general office clerk that meets those criteria. The correct number of general office clerk jobs that meet the 404.1568(a) definition of "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time" is zero. That phrase does not define SVP 1 and 2 work but instead limits the scope of SVP 1 and 2 work that meets the test. 

We have long used the R3 as a tool to limit the scope of simple work. That remains a tool but it is a shortcut to the significant things code to the exclusion of other significant work functions. The two concepts overlap but DPT is the right tool under the regulation. 

Can we just follow the law. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The ORS Suggests 700,000 Sedentary, SVP 1 and 2 Office Clerks, General, California Social Security Attorney (February 10, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

The Training Video and Why the O*NET Remains Important

An Introduction to New Social Security Ruling 24-3p for Vocational Experts is a must watch. Deputy Associate Chief ALJ David Pang is your host. Administrative Appeals Judge Patrick McGuire lends an assist. Neither judge expresses any accurate knowledge about the O*NET. But they carry the agency's water. Here is what SSA says about the O*NET:

O*NET is not generally usable per EM-21065-REV because the information has been grouped in a way that is not generally usable in the agency's adjudication process. 

 Tr. 40:44.  EM-21065-REV actually says:  

Occupational Information Network (O*NET) Information: O*NET does not define physical exertion requirements in a way that is consistent with SSA regulations (20 CFR 404.1567 and 416.967). O*NET instead groups lifting with activities that SSA rules define as non-exertional (e.g., climbing, stooping, and handling). Accordingly, the information in O*NET is not generally usable in our adjudication process.

Fair enough, the O*NET does not break down occupational groups by defining physical exertion requirements consistent with the sedentary, light, and medium paradigm. If a witness, claimant, or ALJ wants to determine the exertional levels of work in the national economy, the O*NET does not work. The O*NET does not group lifting activities with non-exertional activities such as climbing, stooping, and handling anymore than the Selected Characteristics of Occupations (SCO) does, it lists them separately. Under the broad heading of physical requirements, the O*NET has two categories: postural and exertional. Postural includes cramped work space; bending or twisting; climbing ladders scaffolds, or poles; keeping or regaining balance; kneeling, crouching, stooping, or crawling; and time making repetitive motions. Exertional includes sitting, standing, using the hands, and walking or running. None of those categories permit classification of strength. All of them give insight into the requirements of work. 

The question is beyond the exertion question, does the O*NET provide useful information to adjudicate claims for disability? Again, the answer there is "yes." Cognitive and mental demands includes, among other data points, contact with others, dealing with external customers, work with a group or team, duration of the work week, and work schedules (regular, irregular, and seasonal). 

The video contains a mock hearing with a hypothetical question that assumes "light work as defined in the regulations." That is light work as defined in 20 CFR 404.1567 416.697 -- not SSR 83-10. The hypothetical continues to limit the person to occasionally climbing ramps and stairs. No one can frequently climb ramps and stairs up to two-thirds of the day, not even a college athlete. Going up and down the stairs for 5.5 hours is a mountain climber, not a worker. The hypothetical limits the person to simple instructions. More about this later. Finally, the question describes a limitation to occasionally interact with supervisors and coworkers. That's our focus for O*NET purposes.

Does the DOT describe interaction with supervisors and coworkers? No. Some witnesses will look at talking and hearing. Interacting with coworkers is not part of talking and hearing. Read the SCO Appendix C. Does the Occupational Requirements Survey use seldom, occasional, frequent, and constant to address workplace interactions? No. The ORS uses:

1. Constantly, every few minutes
2. Not constantly but more than once per hour
3. Not more than once per hour but more than once per day
4. At least once per day
5. Once per day or less often
6. At least once per week
7. Less than once per week including never

Contrast that with the O*NET description of contact with others. First, contact with others is defined:

How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

Contact with others is synonymous with interaction. It is not working in proximity and rubbing shoulders. The O*NET separately describes physical proximity, "to what extent does this job require job tasks in close physical proximity to other people?" The categories for contact with others are:

1. Constant contact with others
2. Contact with others most of the time
3. Contact with others about half the time
4. Occasional contact with others
5. No contact with others

Those categories speak directly to the hypothetical question of "occasionally interact with supervisors and coworkers." Do you trust the local vocational witness with local experience or the national data gathering over that last 30 years of the Employment Training Administration, Department of Labor to inform this file and this limitation how many jobs require occasional or less contact (interaction) with others? The concept of administrative notice says what Labor says about the O*NET, 

Thus, if you are looking for current occupational information you should use the O*Net.

The O*NET also classifies work based on the importance of work with a work group or team. The data point provides greater insight into this question of interaction with supervisors and coworkers. 

The vocational witness identifies document preparer, cutter-and-paster, and cleaner housekeeper. Document preparer (249.587-018) and cutter-and-paster (249.587-014) are both resident in office clerks, general (SOC 43-9061). 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
622,545	81.1%	504,884
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
504,884	2%	10,098

This snippet from an OccuCollect report combines 2.5 million jobs from the OEWS, reduces for 74% full-time work from the O*NET, looks at SVP 2 work from the 2023 ORS dataset, and uses the 2% contact with others from the O*NET. 

Are there 30,000 general office clerk jobs in all sedentary unskilled work with occasional contact (interaction) with others? Not according to Labor's data. How about light work? 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Light (ORS 2023)	# Light
622,545	14.9%	92,759
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
92,759	2%	1,855

 We are still shy of 12,000 jobs total. Turns out that office work requires working with others. The 2% that do not have more than occasional contact with others are probably in the two-thirds of jobs are that skilled or semi-skilled. 

The O*NET informs the process and answers the question by  administrative notice. The sample examination is illustrative of just how ad hoc VW testimony really is. 

Back to housekeeping cleaner. Just 18% of maids and housekeeping cleaners have occasional contact with others resulting in 18,683 jobs. But that is not the killer. Standing and walking eliminates the light work as generally understood by the agency and witnesses -- six hours of a workday:

37-2012 - Maids and Housekeeping Cleaners
Percent of Day Standing

% of Day Standing	Percentile	# of Jobs
Total Jobs (OEWS 2023)	100%	836,230
87.5%	10%	83,623
95.0%	25%	209,058
100.0%	50%	418,115
100.0%	75%	627,173
100.0%	90%	752,607

No measured number of maid jobs stand/walk not more than six hours in an eight-hour workday.

I hope against reality that the Social Security Administration would set forth examples that are real, verifiable, and unquestionably reliable. But the examples the agency puts forward in this training video are exhibits 1, 2, and 3 of VW nonsense. The agency does not expect reliable testimony, it expects testimony that it can lean on to decide claims. Unrebutted garbage is substantial evidence.   

Saddened that we are faced with more nonsense. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Training Video and Why the O*NET Remains Important, California Social Security Attorney (January 28, 2025) https://californiasocialsecurityattorney.blogspot.com

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

Biestek vs. SSR 24-3p

I have seen this occupation in my vast experience as a vocational rehabilitation provider and based on my education, training, and experience, a person that could stand/walk four hours could perform this occupation with a sit-stand option at will in 50% of those jobs. 

We have been there and been exposed to this kind of nonsense for decades. Let's assume that the vocational witness (VW) has 30 years of experience and seen 100 of of the 3,000 unskilled jobs 10 times. Based on a random sample of 10 viewings, the VW extrapolates that experience to estimate the existence of 30,000 jobs.

Slow the roll and take some time to let that sink in. Using the CheckMarket Sample Size calculator, a population size for any unit requires a sample size of a specific number to have statistical validity to a 95% reliability:

                            Population Size            Required Sample Size
                            

                            2,000                              1,092

                            20,000                            2,144

                            200,000                          2,373

We have common knowledge understanding that polls have 3% margin of error and are often more than 3% difference between some polls. Bias in the sample selection matters. Who do rehabilitation specialists visit? Employers that are known to provide accommodations as a routine such that they cease to be accommodations, just they way the job is done at that facility. 

Let us assume the truly large Standard Occupational Codes (SOC): maids, janitors, and stockers (markers). Maids and housekeeping cleaners represent over 830,000 jobs on the 2023 OEWS report. Janitors and cleaners represent over 2.1 million jobs on that same report. Stockers and order fillers represent over 2.8 million jobs. The CheckMarket sample sizes:

                            Occupation                 Population Size            Required Sample Size
                            

                            Maids                          830,000                         2,394

                            Janitors                       2.1 million                     2,399

                            Stockers                      2.8 million                     2,399

In order to comment in any meaningful manner about the distribution of job requirements in a SOC group, the VW should have a random sample of over 2,300 jobs per occupation. No VW has the experience to gather 2,300 job viewing for 100 DOT occupations that the witness holds on their belt. I have never heard a VW say the minimum of 1,000 viewings for the smallest of sample sizes. Once the population size gets to 12,000, the random sample is over 2,000. 

Why does this matter? Because the Supreme Court says so. Biestek v. Berryhill holds:

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.

The COSS binds the agency as a matter of law to the proposition that she "will take administrative notice" of reliable published data from governmental and other resources about the requirements and numbers of jobs. 20 CFR § 404.1566(d). 

Who publishes data that uses a well-accepted methodology for describing the requirements of work and the number of jobs? The Department of Labor does. DOL tells us:

if you are looking for current occupational information you should use the O*Net.

The Occupational Requirements Survey abides by OMB statistical standards. The OEWS and the Employment Projections comply with OMB standards. What standards to VW comply with? The seat of their pants, wet finger in the wind, I ate too much for breakfast. They have not manner of extrapolating their local experience to the national economy by means of a well-accepted methodology. No VW has the ability to gather and synthesize data anything close to the prowess of the Bureau of Labor Statistics. 

VW are not qualified to override the statistical experience of reporting the requirements and numbers of jobs in the national economy. Not by education, training, or experience. They lack the time to gather that much data, to synthesize that data, and to report on that data. Observing an occupation five, ten, or more times is statistically insignificant. 

Biestek is the answer to the question posed by general description of methodology. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Biestek vs. SSR 24-3p, California Social Security Attorney (January 27, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

The Social Security Adjudicators Will Abuse SSR 24-3p

We are now over a month since the publication and three weeks post effective date of SSR 24-3p. As we discussed last month, SSR 24-3p rescinded SSR 00-4p which rescinded AR 00-3(10).  SSR 00-4p held the agency to resolving apparent conflicts with the Dictionary of Occupational Titles (DOT) and companion Selected Characteristics of Occupations (SCO). 

SSR 00-4p had the salutary benefit of allowing claimants to compare vocational evidence to the content of the DOT/SCO seeking reversal of decisions by the Appeals Council, District Court, or Court of Appeals. SSR 24-3p clearly states that the agency will no longer require adjudicators to resolve conflicts or apparent conflicts with the DOT/SCO and vocational testimony. 

Does an agency adjudicator have a responsibility to resolve conflicts in the record? That is the million dollar question. It is clear that it is the responsibility of the claimant representative to bring up conflicts during the hearing process. Raising apparent or arguable conflict later is too late. The record must raise the issue before the process is complete.

Some ALJs will rule that the record is closed and deny a post-hearing submission. The ruling says:

At the hearing level, when the claimant is represented, we expect the representative to raise any relevant questions or challenges about the VE's testimony at the time of the hearing and to assist in developing the record through appropriate questions to the VE.

 At a recent hearing the vocational witness identified in response to a sedentary, simple repetitive, and six hours of sitting hypothetical for a younger individual with a limited education but semi-skilled past work:

1. Order clerk, food and beverage – 209.567-014 – 19,516
2. Patcher – 723.687-010– 26,420
3. Circuit board assembler 726.684-110 – 22,919

The witness claimed that he consulted but his testimony was inconsistent with the Job Browser Pro, OASYS, OEWS, ORS, ONET, and DOT. He derived his testimony from the Occupational Employment Quarterly after which he considered the industries in which the occupation existed. The ALJ ruled that this satisfied the "general" description of the methodology employed. 

But the methodology is bankrupt. The primary complaint about JBP/OASYS was, "those are estimates." The OEWS and ORS did not describe sedentary work. Only the OEQ matched exertion and skill to the DOT codes. Absolutely moronic. 

1. Order Clerk (DOT 209.567-014)

Order clerk, food and beverage requires reasoning level 3. It is not simple. 

OASYS estimates 923 jobs out of 1,529 jobs at the SCO/NAICS (occupation/industry) intersections. 

JBP estimates 922 jobs.

The OEWS estimates 1,590 jobs at the SOC/NAICS intersections. 

The Employment Projections estimate 1,700 jobs at the SOC/NAICS intersections. 

More importantly, US Publishing estimates unskilled sedentary work. The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that order clerk, food and beverage represents 1,620 jobs in the nation. SOEUQ, page 3 line 209.567-014. Not even US Publishing believes the number of jobs derived from equal distribution.

2. Patcher (DOT 723.687-010)

OASYS determined that 5,518 production workers work in those three industry groups and 86 of those jobs belong to patcher. 

Job Browser Pro estimates 85 jobs. 

OEWS and EP estimate 8,000 jobs at the SOC/NAICS intersections compared to 5,518 by OASYS. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 76 jobs in the nation. SOEUQ, page 11 line 723.687-010. Not even US Publishing believes the number of jobs derived from equal distribution.

3. Circuit board assembler (DOT 726.684-110)

OASYS estimates that circuit board assembler represents 1,182 jobs in the nation. 

Job Browser Pro estimates 1,179 jobs. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 3,312 jobs in the nation. SOEUQ, page 6 line 726.684-119. Not even US Publishing believes the number of jobs derived from equal distribution.

The estimate of 67,000 jobs in the three DOT codes is fabricated, it is wrong. I have wrestled recently whether it is worse to encounter a vocational witness that (1) knowingly lies, or (2) lacks the awareness that they don't know. It is clear that a prevaricating moron is the worst. But as between someone willing to make up numbers that they know are specious and someone that just repeats numbers fed to them by other witnesses or blind ignorance, that is a toss up. 

Pick 'em. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Social Security Adjudicators Will Abuse SSR 24-3p, California Social Security Attorney (January 23, 2025) https://californiasocialsecurityattorney.blogspot.com

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