Tuesday, May 29, 2018

Why Every Representative Must Own the Resource Used by Vocational Experts

Vocational experts typically state that they use the Bureau of Labor Statistics, Job Browser Pro, and the Occupational Employment Quarterly.  The BLS data is available on the internet.  Job Browser Pro is available from SkillTran.  The Occupational Employment Quarterly is available from US Publishing

Every representative should own or have access to these data sources.  Vocational experts rely on them.  Any effective cross-examination on job numbers must start with a comparison of what the data sources say and testimony of the vocational expert.  Take the recent district court decision in Beamesderfer v. Berryhill.  From the court decision:
The ALJ then proposed several hypotheticals to the VE. (AR 51-55). As relevant to this matter, the VE testified that a person with Plaintiff's RFC could perform the following jobs: 
Sweeper/cleaner, DOT code 389.683-10 (sic), a medium, unskilled (SVP 2) occupation, with 96,500 positions in the national economy.
Floor waxer, DOT code 381.687-034, a medium, unskilled (SVP 2) occupation, with 97,000 positions in the national economy.
Laundry worker I, DOT 361.684-014, a medium, unskilled (SVP 2) occupation, with 38,500 positions in the national economy.
Mary Jesko testified that she "relies on a computer program known as SkillTRAN." 
First, don't you mean Job Browser Pro?  
The company that published the program is SkillTran.  The companies other products do not estimate job numbers for a DOT code except in the incidence of a single DOT code comprising the entire know content of the SOC group.   
  • Job Browser Pro reports 16,881 jobs as a sweeper-cleaner industrial.  Why is JBP off by a factor of six?
  • Job Browser Pro reports 22,784 jobs as a floor waxer.  Why is JBP off by a factor of four?
  • Job Browser Pro reports 5,346 jobs as a laundry worker I?  Why is JBP off by a factor of seven? 
The witness should explain why she departs from that on which she relies.  We are still in harmless error territory so we have to keep going.  But the jab sets up the power punch. 

  • Do you agree with JBP as to the SOC code assignments?
  • Do you agree with JBP as to the industries?
  • Do you agree with JBP as to the presence of other DOT codes within that SOC code and the specified industries?

Floor waxer and sweeper cleaner are in the same SOC.  So keep going:  

  • Janitors and cleaners, except maids and housekeeping cleaners has 15 DOT codes and five of them are semi-skilled.  Do they have the same incidence in the industries in which more than one DOT code works?
  • Laundry and dry-cleaning workers has 23 DOT codes and 15 are skilled or semi-skilled.  Do they have the same incidence in the industries in which more than one DOT code works?

Jesko and others like her think that you are too cheap to invest in the program and look over their shoulders.  If you don't have the program, you can't learn it on the fly and many ALJs will not let you look at their screens (except in the Seventh Circuit). 

As the representatives, we just have access to everything that the vocational experts cite and rely upon.  So go get your copy of Job Browser Pro and buy an annual copy of the OEQ.  OccuCollect collected relevant data from the Dictionary of Occupational Titles; Selected Characteristics of Occupations; O*NET OnLine; Occupational Requirements Survey; and Occupational Outlook Handbook.

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