Monday, March 27, 2017

Can We Refer to the O*NET in Disability Cases?


In the discussion of final assembler and lens inserter, anonymous asked

Do you know of legal authority that supports using O*NET job descriptions to show the VE's testimony presents an apparent conflict with the DOT?? I guess another way of asking it is what authority is there for relying on O*NET to show the government did not meet its step 5 burden?

Here is the complete entry for production workers, all other from the Occupational Outlook Handbook, Data for Occupations Not Covered in Detail.

Production workers, all other
All production workers not listed separately.
·         2014 employment: 236,200
·         May 2015 median annual wage: $27,950
·         Projected employment change, 2014–24:
o    Number of new jobs: 7,700
o    Growth rate: 3 percent (Slower than average)
·         Education and training:
o    Typical entry-level education: High school diploma or equivalent
o    Work experience in a related occupation: None
o    Typical on-the-job training: Moderate-term on-the-job training
·         O*NET:

The OOH refers to the O*NET. For every occupational group covered in detail, the OOH and the O*NET cross-link to each other. The OOH refers uses to the O*NET “for more information.”

For cashiers (SOC 41.2011) the OOH says:

Learn more about cashiers by visiting additional resources, including O*NET, a source on key characteristics of workers and occupations.
On the More Info tab, the OOH links:

O*NET

The O*NET links back to the OOH:
Cashiers. Bureau of Labor Statistics, U.S. Department of Labor. Occupational Outlook Handbook, 2016-17 Edition.

More importantly, the regulations use the DOT, CBP, and OOH as examples –

(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

The valid question is whether the O*NET meets the prior clause’s requirements:

we will take administrative notice of reliable job information available from various governmental and other publications

Does the O*NET meet that test?  I submit that it does because it is reliable job information cross-linked to the OOH. 

 See Anders v. ColvinAnders is wrong.

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