Tuesday, December 11, 2018

Comments on the SCOTUS Blog - Biestek v. Berryill

The SCOTUS Blog - Biestek v. Berryill summarizes from a non-Social Security perspective the oral argument. The underlying theme of the blog is to emphasize the lack of publicly available data to put any kind of reliability on job numbers in the national economy. That, my friends, is based on an ignorant understanding of the evolving data.

Having read the relevant part of the transcript in Biestek, it is clear to me that the vocational expert had no discernible recognized methodology. It is a gross rounding down of aggregate job numbers for large occupational groups. It is wholly unreliable.

The vocational expert identified nut sorter (DOT 521.687-086) representing 120,000 jobs. The vocational expert had already identified a light inspector job representing 450,000 jobs in the nation. The entire occupational group represented 489,750 jobs in the nation as of May 2014. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment Statistics, Occupational Employment and Wages, May 2014, 51-9061 Inspectors, Testers, Sorters, Samplers, and Weighers.

The vocational expert identified final assembler (DOT 713.687-018) representing 240,000 jobs. Production Workers had an estimated 217,500 jobs in every exertional and skill level. Bureau of Labor Statistics, U.S. Department of Labor, Occupational Employment Statistics, Occupational Employment and Wages, May 2014, 51-9199 Production Workers, All Other.

Putting together the testimony relied upon by the ALJ and the other testimony rendered irrelevant by the change in the residual functional capacity assessment, it is clear that the vocational expert in Biestek was at least reckless about the truth an no one called her on it. Use the O*NET Crosswalk to check the DOT to SOC correlation and the number of occupations in the two groups containing mostly jobs that are not sedentary and jobs that are not unskilled (1,590 occupations in production workers and 782 occupations in inspectors, testers, sorters, samplers, and weighers).

The equal distribution method (Occupational Employment Quarterly) does not support the absurd testimony by the vocational expert in Biestek. The occupational density model (Job Browser Pro) does not support that testimony. The results of research in the Occupational Requirements Survey would not support the testimony.

Calculating the density by occupation and industry beats equal distribution for job numbers. Using the ORS beats them both. The available data ruins the testimony given in Biestek and the court should rest assured that the testimony in this case was not reliable, period.


  1. You wrote NOSSCR's amicus brief in the case -- why did you not make the point you are making here in that brief?

  2. Writing my committee is not the same as writing alone. If you read the oral argument, you will see that one of the concerns is that counsel did not explore other avenues of cross. Another theme is that there is no methodology. Well there is but claimants are not helped by showing that the case presentation was not superb.