What You Need to Effectively Cross-Examine Vocational Experts

We talked about Biestek v. Berryhill, 139 S. Ct. 1148 (2019) last week.  The question is how to create conflict.  It starts with basic curiosity.  "How do you know that?"  "How does that work?"  Once the curiosity takes root, we begin to use the data sources available to disassemble the vocational expert's testimony; we begin to understand.  Here's is what a representative handling Social Security disability cases needs to be minimally ready to follow along with the vocational expert's testimony on cross-examination:

1. Access to the Dictionary of Occupational Titles;
2. Access to the Selected Characteristics of Occupations; 
3. Access to the electronic files of the DOT/SCO;
4. Access to the Revised Handbook for Analyzing Jobs:
5. Access to the O*NET OnLine;
6. Access to the O*NET Resource Center;
7. Access to the Occupational Outlook Handbook; 
8. Access to the Employment Projections;
9. Access to the Occupational Employment Statistics;
10. Access to the County Business Patterns; and 
11. Access to the Occupational Requirements Survey.  

Those 11 sources form the foundation of the statistics that most vocational experts do not grasp.  They cite to the Bureau of Labor Statistics without understanding or knowing that a difference exists between the OES and the EP.  But we have to know the differences exist and the significance of those differences.  Vocational experts cite to the DOT/SCO, act as if it is controlling, and then deviate unknowingly.  We have to know when they deviate and when that deviation matters. 

For items 1-3, the U.S. Publishing provides the data in the Specific Occupation Selector.  USP uses current population surveys for job numbers.  USP uses equal distribution to estimate job numbers for occupational groups, SOC codes. 

For items 1-4, WestLaw provides the data in a single page report by DOT code.  WestLaw does not provide job numbers or access to job numbers, correlation with the O*NET, OOH, OES, EP, CBP, or the ORS. 

For items 1-4 and 9, Job Browser Pro provides access to the data.  JBP integrates the OES with industry designations found in the EP and the CBP.  JBP hyperlinks to the O*NET.  JBP lists data from out-of-date versions of the OOH.  JBP uses an intersection of occupational group and industry to estimate job numbers at the intersection and then equal distribution within that intersection of SOC and NAICS codes. 

For items 1-8 and 11, OccuCollect provides the data.  OccuCollect does not provide data for the OES (coming later this year) or integrate CBP.  The focus is on the incidence of work across the occupational group using a DOT code as an example.  OccuCollect estimates job numbers based on a cascaded approach to characteristics within an occupational group across (or ignoring) industry designations. 

We need to have access to all the data.  We need the data to ask whether occupations exist and if occupations exist, how many jobs exist.  Those are the two Biestek questions.  If we don't create a conflict, the vocational expert testimony will stand.  Create the conflict.