A Case Study -- ALJ Finds the Vocational Expert Not Reliable and Schedules a Supplemental Hearing

The first hypothetical question to the vocational expert had no exertional limitations; no ladders, ropes, scaffolds, heights, proximity to moving machinery, hazards, or commercial driving; and limited to simple routine tasks.  Vocational expert identifies bagger (920.687-014) with 136,000 jobs in the nation. 

ALJ interrupts and adds light exertion to the residual functional capacity.  Vocational expert identifies cashier (211.462-010) with 682,000 jobs in the nation and garment sorter (222.687-014) with 72,000 jobs in the nation. 

ALJ adds no work with small objects, no printed circuit boards.  The vocational expert states the prior testimony still applies.  The ALJ asks about coins.  Vocational expert stands her ground.  ALJ asks for another occupation anyway.  The vocational expert identifies housekeeper (323.687-014) with 377,000 jobs in the nation.

The case is about a mental impairment.  The ALJ asks the vocational expert to assume occasional interaction with the public, coworkers, and supervisors.  The vocational expert eliminates cashier and bagger.  The vocational expert offers an alternate occupation -- office helper (239.567-010) with 62,000 jobs in the nation.  The vocational expert describes office helper as more or less filing, working more with office machinery than people and certainly not dangerous. 

ALJ: Any questions, counsel?
ATTY:  Yes.

We have office helper, housekeeper, and garment sorter to address.  I first focus on office helper.  I ask the vocational expert to read the DOT narrative into the record.  She doesn't have it in front of her, so I read it to her. Office helpers:

Performs any combination of following duties in business office of commercial or industrial establishment:
Furnishes workers with clerical supplies.
Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail.
Delivers oral or written messages.
Collects and distributes paperwork, such as records or timecards, from one department to another.
Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine.

That sounds different than what you described.  The vocational expert concedes. 

Q: What is the occupational group in which office helper is classified by Labor?
A: SOC 43-5021.
Q: What is the name for that group.
A: Couriers and messengers.
Q: Is it your testimony that couriers and messengers have occasional contact with other people?
A: I rely on my experience.
Q: If I represent to you that the Department of Labor classifies this occupation as having frequent or constant contact with other is 99% of jobs, do you have a statistical basis for rebutting that classification?
A: No.

The occupation might be out but only if the residual jobs do not add up to 62,000 jobs. 

Q: Do you agree with the estimate from Labor that this group represents 95,000 jobs?
A: That sounds right.  

At this point, the ALJ continued the hearing to that afternoon.  When we come back, the ALJ states that she reviewed her notes and the vocational expert in this case was just not reliable.  Knocked out the witness. 

The next item on the cross list was housekeeping cleaners.  That kind of work requires more than occasional contact with others in 95% of jobs.  Maids and housekeeping cleaners work with a group or team in 99% of jobs.  Maids and housekeeping cleaners work work part-time in 60% of jobs. 

The last occupation on the list is garment sorter.  This occupation belongs to the ubiquitous group of production workers, all other (SOC 51-9199).  Production workers are not addressed in the O*NET.  The 2018 data set of the ORS describes the occupational group as 53% unskilled and not more than 36.1% light exertion.  The 2018 data set does not have the cognitive data, so I would have flipped back to the 2017 data set.  Contact with regular contacts is continuous in 24% of jobs and more than once per hours in 43.8 % of jobs.  The 2016 data collection that lead to the 2017 data release had four categories for contact with regular contacts and contact with other contacts:

(A) Constantly, every few minutes.
(B) More than once per hour, but not constantly.
(C) More than once per day, but not more than once per hour.
(D) No more than once per day; includes never.

(A) = constant; (B) = frequent; (C) = occasional; and (D) = seldom or never.  

BLS did not collect cognitive data for the 2018 data set but tells me that it will in the 2019 data set.  The 2018 Occupational Requirements Survey (ORS) Collection Manual, Version 4.0 lists the same hierarchy.  

The data exists and the vocational experts cannot rebut the statistical data from Labor.  They can differentiate occupations based on variance within the economy but when the variance is addressed by the data, then the vocational expert is there as a guide and not much more.  

To have all of this data ready on the fly, I use www.occucollect.com.  When the vocational expert relies on Job Browser Pro, I use the program post hearing.  When the vocational expert relies on the Occupational Employment Quarterly, I address the equal distribution method as unreliable.