Wednesday, September 25, 2019

Establishing the Vocational Expert's Methodology Requires Verification

The objective of cross-examination of the vocational expert must hone in one establishing that the vocational expert testimony is feeble or contradicted.  Biestek v. Berryhill instructs:
And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.
The Ninth Circuit decision in Buck v. Berryhill establishes the same proposition:
"An ALJ may take administrative notice of any reliable job information, including information provided by a VE." Bayliss, 427 F.3d at 1218. "A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id.
Buck erroneously reads the above language from Bayliss to require that the ALJ independently assess the reliability of VE testimony. However, as is clear from the language of Bayliss, at least in the absence of any contrary evidence, a VE's testimony is one type of job information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its reliability.
The representative must present contrary evidence and show that the vocational expert is not reliable. 

In a hearing yesterday out of Evanston, Illinois, with the claimant appearing in Rockford by video conference and me on phone from sunny Santa Fe Springs, the vocational expert testified that the claimant's medical vocational profile permitted such a person to perform work as a mail clerk (DOT 209.687-026) as representing 10,400 jobs in the nation and office helper (DOT 239.567-010) representing 55,000 jobs in the nation.  After dancing around claiming to use the Occupational Employment Statistics and disavowing knowledge or use of the NAICS industry codes, the VE  distilled her methodology for estimating job numbers as relying on Job Browser Pro published by SkillTran.

Rebutting JBP is tough business.  Rebutting JBP requires reverse engineering and understanding the limits of the program as well as its use of equal distribution at the occupation-industry intersection.  But we don't have to go there.  We need to compare the VE testimony to the content of JBP. 

JBP describes mail clerk as representing 2,130 jobs as of 2018.  That is a far cry from 10,400 jobs and marks substantial progress in showing conflict and feebleness of the VE testimony. 

JBP describes office helper as representing 3,711 jobs as of 2018.  The drop from 55,000 jobs to 3,711 jobs is a change from clearly significant to insignificant. 

Here is the probable explanation:  VEs do not go back and check their data.  Establishing conflict is as simple as owning a copy of JBP and running the numbers.  I take screen shots of the DOT estimate page to capture all of the statements of the aggregate number of jobs at the SOC-OES/NAICS intersection, the number of DOT codes, and the estimate applicable to the specific DOT code.  I then print the formal report that restates the DOT narrative (sans the industry designation), the number of DOT codes in the group, the incidence of full-time versus part-time, and then the SOC-OES/NAICS intersection without the statement of the number of DOT codes in that intersection. 

In this case, the vocational expert has not offered testimony that is reliable.  In her own stated methodology, the number of jobs is wrong.  The testimony is feeble and contradicted.  The ALJ now has to deal with that conflict in the evidence. 

4 comments:

  1. This is great stuff. I am curious. On running the numbers yourself. Do you go in with a few jobs already pre-run, do you run it live at the hearing (!), or do you do it all post hearing and then submit. It looks like you do it post hearing?

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  2. So when do we get hands on training?

    ReplyDelete