Vocational "Experts"

A vocational "expert" testifies at a hearing. The witness has the education and experience as a rehabilitation counselor. The ALJ asks about past work from the E exhibits and the claimant's testimony. The ALJ then poses a hypothetical question followed by two more questions that the ALJ typically does not intend to adopt, just to let the client know that "I heard you." The witness states an opinion about past work as actually and generally performed relying on the work history report and/or testimony. The witness offers up other work based on either a DOT code or a SOC code, or both. Either as part of direct or later as redirect, the ALJ asks for a statement of the general methodology explored. 

Some ALJs will allow cross-examination to dig deep. Others will not. The results frequently depend on the quality of the cross-examination. Most ALJs will rely on the witness testimony and reject the concessions made on cross-examination, the disconnect with objective data, and the vacuous nature of the generally described methodology. 

A vocational witness has a masters, placed people with limitations in jobs, conducted job analyses on site, and made phone calls to represent a labor market survey. A minority know the difference between a standard deviation and a standard error. Most know nothing about reading, interpreting, and understanding statistical data. Yet, the cases have case a cloak of reliability on the people donning the name "vocational 'expert.'" 

A vocational witness uses Job Browser Pro but does not know how it functions. That is OK. Purdy v. Berryhill. A vocational witness uses the Occupational Employment Quarterly, confesses that it uses equal distribution, claims that it is the only thing available, and without more in the record, that is substantial evidence. Leisgang v. Kijakazi. The failure to rebut the vocational expert at the hearing is the root cause of claimants losing their cases. 

Representatives cannot rely on sheer unbelievability. 

They must do their job AT THE HEARING. SSR 24-3p. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational "Experts", California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

From the Supremes to the District Court

 Last week, we discussed the two sedentary occupations identified in Biestek. Today, we peer into a 2025 district court decision, Ashley DK v. Dudek. The vocational witness is anonymous in the court decision. In response to a residual functional capacity for sedentary work, sitting six hours, and limited to routine tasks (a non-vocational term, not used in the DOT, SCO, O*NET, or ORS), the witness identified:

• Nut Sorter (DOT 521.687-086, 1991 WL 674226),

• Table Worker (DOT 739.687-182, 1991 WL 680217), and
• Staffer (DOT 731.685-014, 1991 WL 679811). 

The reference to staffer is a typo. Elsewhere in the decision, the court discusses stuffer. 

Nut sorter does not exist in significant numbers. We covered this in Biestek. SkillTRAN says 2,370 jobs. The OEWS says maybe 20,000 jobs but more likely 10,000 jobs in 14 sedentary unskilled DOT codes resident in inspectors, testers, sorters, samplers, and weighers (SOC 51-9061). Let me add one more erosive factor to our analysis from Biestek, sitting. A limitation to sitting six hours in a day does not mean the full range of sedentary work. Sedentary work requires standing/walking occasionally, from very little up to one-third of the day. Some sedentary work requires very little standing/walking, some sedentary work requires standing/walking a third of the day, and the rest fall somewhere in between. OccuCollect reports the ORS datasets:

51-9061 - Inspectors, Testers, Sorters, Samplers, and Weighers

Occupational Requirements – sitting, standing (including walking)	2018	2023	2025
choice of sitting or standing is allowed	31.8	30.1	34
choice of sitting or standing is not allowed	68.2	69.9	66
Percent of Day sitting is required (50th percentile - median)	-	20	20
Percent of Day sitting is required (75th percentile)	62.5	50	50
Percent of Day sitting is required (90th percentile)	90	85	75

 The two final datasets report sitting more than  75% of the day (six hours in a full-time day). Inspectors have some choice in a minority of jobs to choose when to  do the standing/walking required. The assumption that 10,000 jobs as a nut sorter do not require more than six hours of standing/walking is not tenable on the data. The 2025 data set uses that magic 75%. That data set does report standing at the 10th percentile at 25%. We must also remember that nut sorter is on the extra explanation required list. EM-24027 REV. 

Sedentary unskilled nut sorters that sit not more than six hours in a day in an age of automation do not represent a significant number of jobs. 

Table worker is in the same SOC group of inspectors, testers, sorters, samplers, and weigher (SOC 51-9061). Whatever sedentary unskilled jobs we discern from a OEWS-SOC analysis, that conclusion covers table worker as well. The 2025 data set reports 10.9% of inspector jobs require sedentary exertion.

SkillTRAN estimates 1,201 table worker jobs in the nation. SkillTRAN assumes that table worker exists in the plastic product (NAICS 326100) and the rubber product (NAICS 326200) manufacturing industries. Those industries employ 26 and 33 DOT codes, respectively, including table worker. The SOC-NAICS crosswalk form the Employment Projections and OEWS confirm the SkillTRAN mid-point:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
31-33 - Manufacturing

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	598,000	591,180
TE1000	Self-employed workers	8,100	No Data
TE1000	Total wage and salary employment	589,800	No Data
326000	Plastics and rubber products manufacturing	35,000	34,930
326100	Plastics product manufacturing	29,400	29,300
326200	Rubber product manufacturing	5,600	5,630

The industry selection by SkillTRAN is too broad. Table worker inspects linoleum tiles, flooring. That specific part of the economy is a small part of all other plastics product manufacturing (NAICS 326199) according to the NAICS Manual entry for the NAICS code and the alphabetical index. Using the plastic product industry group is too broad and the rubber product industry group does not apply when comparing the DOT industry and narrative statements to the NAICS Manual. County Business Patterns 2023 reports jobs in all occupations:

3261 - Plastics product manufacturing

NAICS	Industry Title	Jobs
3261	Plastics product manufacturing	677,305
32619	Other plastics product manufacturing	410,729
326199	All other plastics product manufacturing	392,611

Less than 60% of inspectors work in the industry studied in compiling the DOT. The number of table workers just got smaller. 

And finally, the infamous stuffer. The DOT is clear, this occupation exists in the toy-sports equipment industry. Toy stuffer belongs in the  packaging and filling machine operators and tenders (SOC 51-9111). SkillTRAN assumes this occupation works in the other miscellaneous manufacturing industry group (NAICS 339900). SkillTRAN estimates 265 jobs for stuffer. 

The straight OEWS-ORS calculator from OccuCollect estimates less than 924 jobs. The calculator gets there by assume less than 0.5% of jobs require sedentary exertion. The 2023 ORS accounts for 99% of jobs in light, medium, and heavy work. The ORS leaves open the possibility of less than 5% requiring heavy exertion and 0.5% requiring sedentary exertion. Both are less than statements. Less than means less than the number stated. 

51-9111 - Packaging and Filling Machine Operators and Tenders

Job Number Calculations
# of Jobs (OEWS 2024)	% Full-Time (O*NET 30.0)	# Full-Time
383,860	88%	337,797
# of Jobs	% Unskilled (ORS 2023)	# Unskilled
337,797	54.7%	184,775
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
184,775	<0.5%	<924

SkillTRAN counts eight DOT codes at the SOC-NAICS intersection. Stuffer gets one-eighth of the jobs at that intersection. Applying the ORS to that intersection, stuffer should get less than 0.3% (54.7% unskilled x <0.5% sedentary). That application would reduce the SkillTRAN number of jobs from 265 to 6. 

I would be remiss if we avoided the SOEUQ. 

• Nut Sorter (DOT 521.687-086) -- 5,539 jobs, 92.2% full-time. 

• Table Worker (DOT 739.687-182) -- 4,430 jobs, 92.2% full time 

• Stuffer (DOT 731.685-014) -- 21 jobs, 93.5% full-time. 

Because the SOEUQ has an opaque methodology, I give the low numbers reported little weight. There are not a significant number of jobs in sedentary, simple, little or no judgment jobs in the national economy. Not in these occupations or any of the other 137 svp 1 and 2 sedentary occupations. 

End the farse through thoughtful rebuttal evidence to the ALJ. 

___________________________

Suggested Citation:

Lawrence Rohlfing, From the Supremes to the District Court, California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Interacting with Others -- Another Look

How important is interacting with others in the scope of performing work activity? According to many vocational witnesses, a limitation to occasional interactions with others does not cause a lot of erosion. According to the ORS (2023 and 2024) less than 40% of jobs require basic people skills, the rest require more than basic people skills. If we accept the ORS as authoritative, workers must have at least basic people skills in every job. SSA policy, the basic mental demands of competitive, remunerative, unskilled work includes responding appropriately to supervision, coworkers, and work situations. POMS DI 20520.010 A.3.a. The critical requirements of unskilled work include:

f. sustain an ordinary routine without special supervision.

g. work in coordination with or proximity to others without being (unduly) distracted by them.

j. ask simple questions or request assistance.

k. accept instructions and respond appropriately to criticism from supervisors. 

l. get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

POMS DI 20520.010 B.3. 

This is standard stuff on the tool belt of many representatives. 

What is missing from the POMS fleshing out the "such as" list from 20 CFR § 404.1545(c) is a temporal restriction. The regulations and the DOT define exertion by constant, frequent, and occasional lifting, sitting, or standing. But the vocational literature does not permit the person to occasionally play well with others. POMS lays out the criteria, the worker either does not does not work with others, ask of others, accept direction, or get along with others or the worker does not. The worker is either pleasant or neutral or the worker is sometimes irritable. How often does a coworker or supervisor have to interact negatively with others in order to invoke progressive discipline? 

 Harassment, discrimination, insubordination, violence, or threats fall into the serious misbehavior category and can result in immediate termination. It is not occasional, it is one and done

Minor issues can invoke progressive discipline. Those steps can include:

Coaching/counseling

Verbal warning

Written warning

Suspension/demotion

Termination

A person that can occasionally tolerate interaction with others, as an unskilled worker, does not get to pick and choose when they will interact with coworkers or supervisors. Work happens when work needs to happen whether the impaired person is ready or not. The wide range of misconduct that does not warrant immediate termination may include:

Attendance Issues

Occasional or chronic tardiness

Taking extended or unauthorized breaks

Unexcused absences or failure to notify a supervisor when absent

Performance Issues 

Producing subpar or incomplete work

Failing to meet established productivity standards or deadlines

Conduct Issues

Minor dress code violations.

Minor incidents of unprofessional language or an inappropriate tone during discussions.

Gossiping or badmouthing colleagues.

Conducting personal business during work hours.

Unauthorized or excessive use of company equipment, such as telephones or computers, for personal use.

A generally negative attitude or unwillingness to work collaboratively.

Minor insubordination or a one-time refusal to follow a non-critical instruction

We need an example. Vocational witnesses have identified marker (DOT 209.587-034) as an occupation with a large number of jobs. The O*NET addresses the concerns of interacting with others.

Communicating with supervisors, peers, or subordinates is very important.

Getting information is very important.

Face-to-face discussions with individuals within teams is daily.

Occasional or less contact with others exists in 4% of jobs.

Working with a group or team in not important in 4% of jobs.

Dealing with external customers or the public is not important in 3% of jobs.

Working without close physical proximity exists in 11% of jobs.

The proposition that unskilled work exists for people with limitations in dealing with coworkers and supervisors is spurious at best.

One comment is in order as a concession. If a person needs more than seldom or occasional contact with supervisors after the initial training period, that person needs special supervision and is unemployable in competitive work.

Press the envelope.

 ___________________________

Suggested Citation:

Lawrence Rohlfing, Interacting with Others -- Another Look, California Social Security Attorney (April 25, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

 

Expert Witnesses that Don't Provide Services to Both Sides of the Aisle

 The ALJ qualifies the witness that they can be fair and impartial despite the fact that Social Security Administration is paying the fee. Oh yes, I can be fair and impartial. 

I call BS. I am done with this clear fiction. How many vocational experts will testify, answer interrogatories, or otherwise help a representative in a Social Security disability case? Do you know any switch hitters, that hit from both sides of the plate? I do not. 

Here's why testifying for both sides is important:

Expert witnesses who testify for both plaintiffs and defendants in different cases are highly valued for their perceived impartiality, deep understanding of both sides' strategies, and enhanced credibility in the eyes of judges and juries. By working with a mix of clients, these experts avoid appearing biased, often providing more objective, nuanced testimony that can better withstand cross-examination.  Of course experts testify for the prosection, plaintiffs, and defendants. It shows that they lack bias. Those experts are not wedded to one side or the other for their income as a professional witness.

Key Advantages of Balanced Expert Testimony:

• Increased Credibility: An expert who has represented both sides is often viewed as impartial and trustworthy, rather than a "hired gun" for a specific side.
• Strategic Insights: Having worked for both sides, these experts understand the arguments and, tactics of opposing counsel, allowing them to help attorneys prepare more effectively.
• Comprehensive Perspective: They can provide a more well-rounded view of the case, understanding the nuances of how both plaintiffs and defendants approach technical or legal issues.
• Enhanced Objectivity: Their experience helps them focus on the scientific or technical facts rather than just advocating for a specific outcome, which is crucial for influencing court decisions.
• Improved Rebuttal Testimony: They are often better equipped to anticipate opposing arguments and formulate strong rebuttals because they have previously argued those same points.

Of course experts testify for the prosection, plaintiffs, and defendants. It shows that they lack bias. Those experts are not wedded to one side or the other for their income as a professional witness. As of FY 2023, SSA paid vocational experts:

§  Study:                      $51.23

§  Remand Study:        $76.85

§  Hearing:                   $55.82

§  Interrogatory:           $45.81 

In 2016-2018, the rates were lower:

§  Service                           3/2016      3/2017     3/2018

§  Study                              $44.00      $44.00      $44.00

§  Remand Study                $66.00      $66.00      $66.00 

§  Interrogatory                   $39.00      $39.00      $39.00 

§  Additional Evidence       $33.00      $33.00      $33.00 

§  First Appearance             $77.00      $77.00      $77.00

§  Other Appearance           $39.00      $39.00      $39.00 

§  Discussion                 $55.00       $55.00           $55.00

SSA paid 1,004 vocational experts $72M in 2018. That’s an average of $66,500 per vocational expert. Averages are generally meaningless. Outliers can and do skew an average. The median, which is significantly more meaningful, is $71,800. In 2018, a vocational expert appears at five hearings in a day, gets paid for five reviews, one first appearance, and four other appearances. Assuming five hearings, the vocational expert made $453 per day. The median vocational expert on the list appeared on 158 days making $453 per day. The median vocational expert is devoting 158 of 250 workdays in a year. The typical (median) vocational expert testifies Monday to Thursday 40 weeks per year. The rest of the time has to be devoted to that paid review of the E section of the file. That person does not have time to risk that gig testifying or opining for the claimant’s bar.

If we assume that people are primarily motivated by self-interest, what reasonable person would risk that gig by testifying for the “wrong” side of the aisle? If we assume that some ALJs have an idea of when to expect no or very few jobs, what reasonable person would risk being removed from the panel? I don’t assume that vocational experts are any different than anyone else. I don’t expect them to work for the claimant’s bar or to cut against what they assume is the expectation from the payer.

Let’s assume an easy example: advanced age, high school education, medium work, six hours of standing/walking. Are their a significant number of unskilled medium jobs for a person limited to six hours of standing/walking? No. Will most witnesses identify work on that hypothetical? Yes. Will they back-off if we ask if that worker can sit two hours per day every day while on the clock? Most will not. Why did the witness identify medium work in the first instance? They thought it was six hours each, they thought is was a weekly average, they overlooked it. The excuses are numerous. But we, as the representatives, must do a better job.

Go after them.

___________________________

Suggested Citation:

Lawrence Rohlfing, Expert Witnesses that Don't Provide Services to Both Sides of the Aisle, California Social Security Attorney (April 25, 2026)  https://californiasocialsecurityattorney.blogspot.com

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

Ma v. Bisigano -- Judge Bade's Dissent Is Wrong

 The Ninth Circuit reversed in Ma v. Bisignano. The two issues presented are:

 1. The residual functional capacity limited Ma to frequent reaching, handling, and fingering but the occupation of silver wrapper requires constant handling and fingering. This is a pre-2025 decision and SSR 00-4p applies.
2. The testimony about the number of jobs had a stated foundation on Job Browser Pro. JBP printouts for 2023 rebut the witness's testimony. 

The majority opinion makes short work of the COSS defense of the ALJ decision. Constant handling and fingering is inconsistent with an RFC for frequent handling and fingering. The majority found that the Job Browser Pro reports for 2023 rendered the vocational testimony insubstantial, applying White v. Kijakazi. 

If the memorandum disposition was a 3-0 reversal, I would not write. But Ma is not a 3-0 decision, Judge Bade wrote in dissent. Judge Bade writes:

As the majority notes, the DOT describes the silver wrapper job as requiring workers to "constantly" engage in handling, fingering, and reaching, but it does not specify whether constant use of both hands is required. See DOT 318.687-018 (silver wrapper). The majority assumes that, despite the DOT's silence on this point, the silver wrapper job requires both hands. But even if we accept the majority's assumption that there is an "obvious or apparent" inconsistency between the DOT's description of the silver wrapper job and the VE's testimony, the ALJ appropriately recognized the potential conflict and resolved it.

Judge Bade summarizes the discourse between the VW and the ALJ, that these jobs could be performed with frequent limitations on the right dominant hand. The ALJ found the testimony consistent with the DOT's (actually the SCO) silence on unilateral or bilateral handling and fingering. 

Let's assume that an occupation requires frequent handling/fingering with one hand and constant handling/fingering with the other hand. Using commonsense understanding, which hand is constant and which hand in frequent as between the dominant and the non-dominant hand? You know the answer and so does Judge Bade. It is the dominant hand. 

The next point is patent. The occupation is silver wrapper. The DOT defines silver wrapper:

Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer. Spreads silverware on absorbent cloth to remove moisture. Wraps individual place settings in napkins or inserts them with prescribed accessory condiments in plastic bag and closes bag with electric sealer.

Explain to me, like I am a fifth grader, how these jobs even remotely implicate one-handed work. It is unpersuasive to believe that silver wrapper involves constant manipulation but not with the dominant hand. 

Next issue: the SCO defines handling as involving one or both hands. Fingering is not so defined. The SCO defines handling as with "hand or hands." The SCO defines fingering "with fingers rather than with the whole hand or arm as in handling." Fingering is defined as a bilateral activity. Furthermore, handling necessarily involves the fingers. Again, the SCO defines handling as "fingers are involved only to the extent that they are an extension of the hand." Frequent handling and fingering involves constant use of the fingers for either handling or fingering. 

This directs the analysis to the foundational question -- what is an apparent conflict? SSR 00-4p said (past tense intentional) "Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information." The parenthetical expression of "or apparent conflicts" is not set out as a definition of "conflicts" but an alternative, an expansion of the term. Gutierrez v. Colvin sets out the distinction as "apparent or obvious."

Most definitions of apparent imply an obvious state. Where the text reads as not redundant, it is error to read the terms as redundant. The basic axiom avoids rendering words as superfluous. Merriam Webster OnLine provides definition 4 using the synonym manifest, 

manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid.

Judge Bade presents the evidence, that the VW testified that a silver wrapper could work using the right hand frequently but not occasionally. The VW claimed consistency with the DOT (SCO, the DOT does not address manipulation). Judge Bade characterized the question of bilateral versus unilateral constant handling and fingering as silent. The SCO is not silent. Handling is stated in the alternative, one or both hands. That is not silence but a spoken alternative. Where the SCO says constant handling and fingering, it may or may not be factually valid that the work requires constant use of both hands. It is an apparent conflict. Claiming the lack of conflict is in fact disingenuous. The VW was either wrong or playing a game. You pick. 

Judge Bade reports the record as questioning the "if she could use her right hand 'frequently.'" The definition of handing requires use of the fingers as an extension of the hand. Try handling an object but do not use your fingers. Handle silverware without using your fingers. How finger the silverware without using the palms of the hands -- easy. If a person frequently handles and frequently fingers, that person is in constant use of the fingers. Frequent ranges from 34% to 67%. Frequent is at least 34%. If a person must frequently handle AND frequently finger, then 34% + 34% = 68%. Constant is 68% of the time or more.  A person that frequently handles AND frequently fingers constantly uses the fingers of the impaired hand. 

There is a process to resolving conflict or apparent conflict with the DOT/SCO. 

1.  Admit the presence of a conflict or apparent conflict.
2. State the basis for resolving the conflict. 
3. Articulate why the ALJ selected the DOT/SCO or the VW testimony.

Whether resolving conflict occurs under SSR 00-4p or revealed conflict under SSR 24-3p, 

Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.

Or

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.

Judge Bade's dissent places her in the position of assuming that the ALJ resolved a conflict. It is not discernible from the Court of Appeals or the District Court decisions that the ALJ was ever aware that silver wrapper required constant handling and constant fingering. Maybe the VW knew, maybe not. It is not the function of the courts to assume recognition and resolution of fact issues by serendipity. 

Under current agency policy, Ma loses because she did not raise the SCO issue to the ALJ or the AC. That means that representative must do a better job of rebutting VW testimony immediately post hearing. 

Back to work. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Ma v. Bisigano -- Judge Bade's Dissent Is Wrong, California Social Security Attorney (November 24, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

 

Redux -- Biestek v. Berryhill

Biestek v. Berryhill is now a  classic, over seven years old. The vocational witness identified bench assembler and sorter representing 240,000 jobs and 120,000 jobs in the nation. The Court of Appeals tells us that the witness identified final assembler and nut sorter. At the time of the hearing, no data source suggested 240,000 sedentary production worker jobs or 120,000 sorter jobs. It was spurious then and spurious now. The Employment Projections and Occupational Employment and Wage Statistics report wage and salary employment (for the EP) and total employment (for both). The EP is the foundation of the job numbers in the OOH and the O*NET. The OEWS is cited in SSR 24-3p. 

Final assembler is described in the DOT as existing in the optical good industry. The NAICS changes the name to the ophthalmic goods manufacturing industry (NAICS 339115). Ophthalmic goods manufacturing is a specific industry belonging to the larger industry group medical equipment band supplies manufacturing (NAICS 339100) and the larger-specific industry bearing the same name (NAICS 339110). How many jobs do the EP and OEWS report for production workers in medical equipment and supplies manufacturing?

51-9199 - Production workers, all other
31-33 - Manufacturing

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	292,800	277,060
TE1000	Self-employed workers	10,900	No Data
TE1000	Total wage and salary employment	281,900	No Data
31-330	Manufacturing	129,300	128,800
339100	Medical equipment and supplies manufacturing	3,800	3,790

In May  2015, the OES reported 241,910 jobs for production workers, all other, including final assembler. OES 2015. The 2014 Employment Projections reported 236,200 jobs for production workers, all other, including final assembler. EP 2014. That relates to the current employment numbers, 277,000 to 282,000 jobs reported now. Tell me how to justify 240,000 bench or final assembler jobs. It is indefensible. SkillTRAN suggests 71 jobs final assembler jobs using medical equipment and supplies manufacturing. County Business Patterns states that medical equipment and supplies manufacturing represents 308,388 jobs in all occupations and that ophthalmic goods manufacturing represents a mere 23,391 jobs.  Using NAICS 339100 results in an overestimate of jobs. 

Erin O'Callaghan used the entire SOC code and swore under penalty of perjury that every single job belonged to final assembler. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence. 

Nut sorter is described in the DOT as existing in the canning and preserving industry. SkillTRAN suggests other food manufacturing (NAICS 311900), merchant wholesalers, nondurable goods (NAICS composite 4240A1 including 424400 and 424800), and farm product raw material merchant wholesalers (NAICS 424500). Using those three industry groups and assuming two to eleven other DOT codes at the SOC-NAICS intersections, SkillTRAN estimates 2,370 nut sorter jobs. 

The NAICS code that corresponds to the DOT stated industry is fruit and vegetable preserving and specialty food manufacturing industry group (NAICS 311400), which includes two 5-digit industries which in turn include five 6-digit industries. NAICS 311400 represents 166,936 jobs in all occupations. NAICS 311900 contains 257,870 jobs per CBP. Using industries that that do not correspond to the DOT designation is an apparent conflict. 

Using the EP/OEWS occupation-industry matrices, we find:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
Industry Group & NAICS/National Industry - 4 & 5/6 Digit NAICS

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	598,000	591,180
TE1000	Self-employed workers	8,100	No Data
TE1000	Total wage and salary employment	589,800	No Data
311400	Fruit and vegetable preserving and specialty food manufacturing	7,300	7,210
311900	Other food manufacturing	8,100	8,210
424500	Farm product raw material merchant wholesalers	300	280
4240A1	Merchant wholesalers, nondurable goods (4244,8)	5,800	5,680

 Nowhere close to 120,000 jobs. Erin O'Callaghan did not use the entire SOC code but she used over one-fifth of the aggregate. Erin did not account for industry designated by the DOT nor did she account for exertion and skill level. At best, gross negligence. 

In the age of SSR 24-3p, the basic OEWS calculator estimates that there are less than 366 sedentary jobs in 52 sedentary unskilled DOT codes for production workers, all other, including final assembler. The basic OEWS calculator estimates less than 22.8 percent of jobs as unskilled and less than 15% of jobs as sedentary resulting in <<20,218 in 14 sedentary unskilled DOT codes. 

A less than number reported by the ORS assumes all of the standard error from the other related categories. the 2023 ORS reports that 92.6% of jobs required light to heavy exertion. The 2024 data estimates 7.5% represent sedentary work. That data set reports "-" or no estimate for what we call SVP 2. Using all three data sets, halve the number using the 2023 data set alone.

Before we terminate this piece, we must all remain aware that nut sorter is a questionable occupation. EM-24027 REV lists thirteen occupations, including nut sorter, as requiring "additional evidence from a VS or VE supporting" the proposition that this occupation is appropriate.

Biestek is the law of the land but Justice Gorsuch was right. Erin O'Callaghan's numbers came straight out of her hat.

VW testimony is Rocky and Bullwinkle. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Redux -- Biestek v. Berryhill, California Social Security Attorney (November 6, 2025) https://californiasocialsecurityattorney.blogspot.com

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

Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit

On September 10, 2025, the Ninth Circuit published the opinion in Galvez v. Bisignano. The federal reporter fourth citation is pending as of the writing of this piece. 

The facts are simple. Galvez has been to the district court before. The case has been around for a very long time. The period at issue is 2008 to 2018. Eventually everyone grids out. A case that old implies or requires the inference that some of the older decisions are tainted by the appointments clause problem at issue in Carr v. Saul, 593 U.S. 83, 88–96 (2021). The Ninth Circuit extended Carr to hold that an ALJ that heard the case while not properly appointed may not hear the case on remand after being properly appointed. Cody v. Kijakazi, 48 F.4th 956 (9th Cir. 2022). In Galvez, a different ALJ incorporated at least some of the rationale stated by the prior ALJ. The district court held that incorporating the current ALJ may not use nearly identical or verbatim passages from the tainted ALJ decision. Lydia G. v. O'Malley. The district court reversed and remanded. The COSS appealed.

We win cases in the district courts. We win cases that the Office of General Counsel fought tooth and nail. Those cases don't get appealed. Why? Appealing a decision on the facts is not what Justice will allow OGC to do. OGC needs permission from the Solicitor General to file an appeal in federal court, particularly if the COSS has lost a case in a lower court. The Solicitor General's office within the Department of Justice has centralized authority over all federal government litigation and appeals. Garden variety fact-based decisions will not catch the eye of the SG. Where the district court errs on a matter of statutory interpretation on in this case on the Constitution, well we know that the SG greenlighted the appeal on this case. 

The clerk's office summary describes the holding of the case succinctly:

the new ALJ’s opinion, which incorporated part of a prior, tainted opinion, was not tainted by an Appointments Clause violation. Some similar, or even identical, text in a subsequent decision is not automatically disqualifying.

 Carr holds that an ALJ must have a proper appointment. 

Cody holds that an ALJ that heard the case without proper appointment cannot later rehear the case after proper appointment. 

Galvez holds that a properly appointed ALJ may decide the case and adopt parts of the invalid decision if "it reflects the newly assigned judge's independent view of the case." Slip op. at 4, see also 12, 19, 20. 

Galvez will get another crack at the most recent denial of benefits, this time on the merits. Galvez may still win. She has capable representation. James Tree is the counsel for the appellant in Stubbs-Danielson and Gatliff as well a ton of experience. If and when Galvez wins on the merits, the EAJA fees for fighting DOJ on appeal will become available. The prevailing private party need not prevail on every issue to get paid on every reasonable hour expended. 

Time for no quarter. 

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Suggested Citation:

Lawrence Rohlfing, Galvez v. Bisignano -- A Rare COSS Appeal to the Ninth Circuit, California Social Security Attorney (October 24, 2025)  https://californiasocialsecurityattorney.blogspot.com

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