Vocational Experts at Every Hearing -- Almost

If we are in competition and you know my weaknesses, you will exploit my weaknesses.  It doesn't matter if the competition is athletic, game, or litigation.  The game theory applies.  A Stanford article describes game theory:

Game theory is the study of the ways in which interacting choices of economic agents produce outcomes with respect to the preferences (or utilities) of those agents, where the outcomes in question might have been intended by none of the agents.

 What does this have to do with Social Security hearings?  The answer to that question rests in a different question:  is the agency ambivalent to the outcome of disability claims or is the agency subtly intent on maintaining allowance rates at certain levels to placate the public and policy makers?  Whether this perception applies in the macro or the micro (case-by-case), it is palpable.

Our fellow travelers tell me that their Achilles Heel is the cross-examination of vocational experts.  With that self-deprecating confession in the context of game theory, we can now examine the rate at which ALJs call vocational experts at disability hearings;

Expert                                   Year       Rate

Vocational Expert            1990       36%

Vocational Expert            1991       38%

Vocational Expert            1992       44%

Vocational Expert            1993       44%

Vocational Expert            1994       42%

Vocational Expert            1995       43%

Vocational Expert            1996       42%

Vocational Expert            1997       45%

Vocational Expert            1998       45%

Vocational Expert            1999       47%

Vocational Expert            2000       50%

Vocational Expert            2001       51%

Vocational Expert            2002       55%

Vocational Expert            2003       57%

Vocational Expert            2004       59%

Vocational Expert            2005       59%

Vocational Expert            2006       68%

Vocational Expert            2007       70%

Vocational Expert            2008       72%

Vocational Expert            2009       73%

Vocational Expert            2010       76%

Vocational Expert            2011       83%

Vocational Expert            2012       87%

Vocational Expert            2013       89%

Vocational Expert            2014       92%

The chart is easier to read.  

Cross-examination of vocational experts has grown in importance.  We had the VE in half the cases in 2000 and now we have a VE in almost every case.  This observation heightens the importance of the VE at the hearing, transferring more of the decision outcome to the expert and the need to present conflicting evidence to the ALJ.  

That conflicting evidence must focus on the inability of the vocational expert to extrapolate the local experience to the national economy through a reliable method.  But when the nation data conflicts with the stated extrapolation, the published national data should always win.  The DOT/SCO is out-of-date.  The charts observes:

The use of vocational experts by ALJs has increased greatly since 1980, and they are now used in over three-fourths of all ALJ hearings, even though they rely on an outdated Dictionary of Occupational Titles to support their testimony.

We must submit rebuttal evidence in disability hearings to the ALJ.  Must must establish the lack of reliable method for extrapolating local experience to the national economy.  Or we will lose benefits for people that do not have the ability to engage in substantial gainful activity ... the social contract framed by the Social Security Act falls into breach. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Vocational Experts at Every Hearing -- Almost, California Social Security Attorney (November 23, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/vocational-experts-at-every-hearing.html

Furniture-Rental Consultant Does Not Belong in or Alone in NAICS 523000 or NAICS 532100

This is part 4 of the series on furniture-rental consultant.  In part 1, we addressed Job Browser Pro and its listing of the occupational group SOC 41-2021 and industry designations of NAICS 532000 and 5320A1.  In part 2, we looked at those occupation-industry designations through the Occupational Employment Statistics and the Employment Projections.  In part 3, we examined the number of counter and rental clerks in NAICS 532289 and 532420, industries that the Census Bureau classifies as renting furniture.

In this final installment, we want to put to rest the idea that NAICS 532000 as both duplicating NAICS 5320A1 and including NAICS 532100 is improper because JBP already allocates the latter designation to other DOT codes.  We already know from the NAICS structure that NAICS 532100 plus 5320A1 equals 532000.  The question is whether we should count NAICS 5321000 at all.  Here is that portion of the NAICS structure:

532 Rental and Leasing Services

5321 Automotive Equipment Rental and Leasing

53211 Passenger Car Rental and Leasing

532111 Passenger Car Rental

532112 Passenger Car Leasing

53212 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

532120 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

It is patent that furniture-rental consultant does not work in the automotive equipment rental and leasing industry group or the sectors that fall into that group.  Furniture-rental consultant does not belong in NAICS 523000 or NAICS 532100. 

Nor is listing furniture-rental consultant necessary to cover the industry with some form of counter and rental clerks.  Job Browser Pro has an "advanced searches" on the home screen, below the job title search bar, three rows down, it is green.  "Choose a code system to search," select "OES/SOC 2010/O*NET."  The major SOC groups are listed, select 41.  Now double-click on 41-2021, counter and rental clerks.  Clicking on industry sort allows us to see the third and fourth entries for automobile rental clerk and trailer-rental clerk, both in the automotive service industry.  Double-click on automobile rental clerk and then proceed to employment numbers and the DOT estimate.

There it is.  NAICS 532100 listing 32,950 jobs as a counter clerk, three DOT codes, and 10,983 attributed to automobile rental clerk.  The three occupations within the occupation-industry intersection are trailer-rental clerk, automobile rental clerk, and tool-and-equipment-rental clerk.   Furniture-rental consultant does not belong alone in NAICS 523000 or NAICS 532100, if it belongs in either designation at all.  Job Browser Pro has counted all the counter and rental clerk jobs twice in using NAICS 532000 and failed to reduce the number of jobs for the other DOT codes that exist in NAICS 532100 and 5320A1.

Using JBP's own methodology and taking care to avoid counting jobs for one occupation that the system has already counted, it is clear that furniture-rental consultant does not belong in much less alone in NAICS 523000 or NAICS 532100,

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SUGGESTED CITATION:

Lawrence Rohlfing, Furniture-Rental Consultant Does Not Belong in or Alone in NAICS 523000 or NAICS 532100, California Social Security Attorney (December 13, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/furniture-rental-consultant-does-not.html

Furniture Rental Consultant and County Business Patterns

We finish this study of furniture-rental consultant by going into County Business Patterns.  The Commissioner will take administrative notice of CBP.  Furniture-rental consultant works in the retail trade industry per the DOT but more to the point, the job rents furniture and accessories to customers.  The SCO describes the occupation as requiring occasional reaching, handling, and fingering.

The Occupational Employment Statistics lists rental and leasing services as an employer of counter and rental clerks (SOC 41-2021).  Counter and rental clerks have 44,540 jobs in the three industry groups.  The OES industry page for NAICS 5320A1 makes clear what we discussed before, the three industry groups are part of NAICS 532000, the industry sub-sector.

And that is the problem, the OES does not "drill down" to the specific industries that deal with furniture.  NAICS 5320A1 is as specific as the OES gets.  The Employment Projections also drill down from NAICS 532000 to NAICS 532100 (the automobile rental group) and 5320A1 (the other three groups).  The NAICS structure is a whole lot more specific:

532 Rental and Leasing Services

5321 Automotive Equipment Rental and Leasing

53211 Passenger Car Rental and Leasing

532111 Passenger Car Rental

532112 Passenger Car Leasing

53212 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

532120 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

5322 Consumer Goods Rental

53221 Consumer Electronics and Appliances Rental

532210 Consumer Electronics and Appliances Rental

53228 Other Consumer Goods Rental

532281 Formal Wear and Costume Rental

532282 Video Tape and Disc Rental

532283 Home Health Equipment Rental

532284 Recreational Goods Rental

532289 All Other Consumer Goods Rental

5323 General Rental Centers

53231 General Rental Centers

532310 General Rental Centers

5324 Commercial and Industrial Machinery and Equipment Rental and Leasing

53241 Construction, Transportation, Mining, and Forestry Machinery and Equipment Rental and Leasing

532411 Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing

532412 Construction, Mining, and Forestry Machinery and Equipment Rental and Leasing

53242 Office Machinery and Equipment Rental and Leasing

532420 Office Machinery and Equipment Rental and Leasing

53249 Other Commercial and Industrial Machinery and Equipment Rental and Leasing

532490 Other Commercial and Industrial Machinery and Equipment Rental and Leasing

We explore the NAICS manual and find the rental industry that addresses furniture:

532289 All Other Consumer Goods Rental

This U.S. industry comprises establishments primarily engaged in renting consumer goods and products (except consumer electronics and appliances; formal wear and costumes; prerecorded video tapes and discs for home electronic equipment; home health furniture and equipment; and recreational goods). Included in this industry are furniture rental centers and party rental supply centers.

532420 Office Machinery and Equipment Rental and Leasing

This industry comprises establishments primarily engaged in renting or leasing office machinery and equipment, such as computers, office furniture, duplicating machines (i.e., copiers), or facsimile machines.

532490 Other Commercial and Industrial Machinery and Equipment Rental and Leasing

This industry comprises establishments primarily engaged in renting or leasing nonconsumer-type machinery and equipment (except heavy construction, transportation, mining, and forestry machinery and equipment without operators; and office machinery and equipment). Establishments in this industry rent or lease products, such as manufacturing equipment; metalworking, telecommunications, motion picture, theatrical machinery and equipment, or service industry machinery; institutional (i.e., public building) furniture, such as furniture for schools, theaters, or buildings; or agricultural equipment without operators

County Business Patters report for these three (highlighted) industries:

Geographic area name	2012 NAICS code	Meaning of 2012 NAICS code	Year	Paid employees for pay period including March 12 (number)
United States	532	Rental and leasing services	2016	512,405
United States	5322	Consumer goods rental	2016	146,179
United States	532299	All other consumer goods rental	2016	44,168
United States	5324	Commercial and industrial machinery and equipment rental and leasing	2016	179,528
United States	532420	Office machinery and equipment rental and leasing	2016	7,135
United States	532490	Other commercial and industrial machinery and equipment rental and leasing	2016	109,705

The Employment Projections report 13% of industry employment work as counter and rental clerks.  The Occupational Employment Statistics report 13.2% of industry employment work as counter and rental clerks.  The total employment in the three industries is 161,008.  Employment as a counter and rental clerk, not just furniture-rental consultant, is 20,963 jobs.  When we reduce that number for counter and rental clerks that engage in sedentary, medium, or heavy exertion as well as those that engage in semi-skilled or skilled work, the potential number of jobs drops precipitously. 

This method of analyzing the number furniture-rental consultant jobs buttresses the conclusion reached that JBP erred in assigning jobs within NAICS 532000 and its report of jobs within NAICS 5320A1 is reasonable with the reduction for other occupations.  This study lends credibility to our use of NAICS 5320A1 as applied to the EP and OES job estimate is reasonable with the reduction for other occupations. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Furniture Rental Consultant and County Business Patterns, California Social Security Attorney (November 8, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/furniture-rental-consultant-and-county.html

Furniture-Rental Consultant Through the OES and EP

We looked at furniture-rental consultant focusing on a flaw in Job Browser Pro 1.7 list of industries earlier today.  The good news is that we have two ways to check JBP every time a vocational expert cites it as a resource.  As between JBP and either the Occupational Employment Statistics or the Employment Projections, the governmental data should prevail.

First a recap - furniture-rental consultant belongs to counter and rental clerks.  Counter and rental clerks represents 426,700 jobs per the 2018 Occupational Employment Statistics. Counter and rental clerks represents 436,100 jobs per the 2018 Occupational Outlook Handbook.  The almost 10,000 job difference is statistically insignificant for our purposes.

OES Data Breakdown

The OES permits us to determine the number of jobs, or other data, at the intersection of an occupational group(s) and the industry(ies).  The Create Customized Tables permits us one plural, either more than one occupation in an industry or more than one industry for an occupation.  We can do not have to use the customized table for this occupation because the relevant industries are listed on the OES page for counter and rental clerks.

Industry	Employment (1)	Percent of industry employment	Hourly mean wage	Annual mean wage (2)
Real Estate	112,470	6.95	$15.08	$31,360
Automotive Equipment Rental and Leasing	59,250	27.68	$14.52	$30,190
Rental and Leasing Services (5322, 5323, and 5324 only)	44,540	13.02	$14.35	$29,850
Automobile Dealers	35,940	2.78	$20.60	$42,840
Drycleaning and Laundry Services	35,930	12.18	$11.86	$24,660

Automobile equipment rental and leasing is NAICS 532100.  Rental and leasing services covers NAICS 532200, 532300, and 532400.  Resorting to the Create Customized Tables permits us to verify that insight:

Occupation: Counter and Rental Clerks(SOC code 412021) Period: May 2018 Occupation (SOC code)	Employment(1)
Rental and Leasing Services(532000)	103780
Rental and Leasing Services (5322, 5323, and 5324 only)(5320A1)	44540
Automotive Equipment Rental and Leasing(532100)	59250
Footnotes: (1) Estimates for detailed occupations do not sum to the totals because the totals include occupations not shown separately. Estimates do not include self-employed workers.
SOC code: Standard Occupational Classification code -- see http://www.bls.gov/soc/home.htm Data extracted on November 06, 2019

This data confirms that NAICS 532000 is the combination of NAICS 532100 and 5320A1.  NAICS 5320A1 is comprised of NAICS 532200, 532300, and 532400.  

Assuming JBP's eight counter and rental clerk occupations in NAICS 5320A1 industry groups and using JBP's equal distribution methodology  at that intersection, the result if 5,568 jobs.  

EP Data Breakdown

The EP Tables provide a list of industries within each occupational group.  The table for counter and rental clerks provides those industries.  Extracting the total employment line and the rental and leasing services lines, we find:

41-2021 Counter and rental clerks
Employment by industry, occupation, and percent distribution, 2018 and projected 2028.

Employment in thousands.
Industries with fewer than 50 jobs, confidential data, or poor-quality data are not displayed.

Industry Title	Industry Code	Industry Type	2018 Employment	2018 Percent of Industry
Total employment	TE1000	Summary	436.1	0.3
Rental and leasing services	532000	Summary	106.5	18.7
Automotive equipment rental and leasing	532100	Line Item	60.9	27.7
Rental and leasing services (5322,3,4)	5320A1	Line Item	45.7	13.0

Assuming JBP's eight counter and rental clerk occupations in NAICS 5320A1 industry groups and using JBP's equal distribution methodology  at that intersection, the result if 5,712.  

We can drill down further to explore the scope of the occupational base.  What is clear is that the number of furniture-rental consultants is not significant outside of the Sixth Circuit.  

Furniture-Rental Consultant -- An Update Through JBP 1.7

It has been almost three years since we addressed furniture-rental consultant. But it is time in light of Job Browser Pro 1.7 to put the numbers of jobs to rest.

To recap, JBP uses an occupation-industry matrix to narrow the range of jobs available within an occupational group and then uses an equal distribution methodology to distribute the jobs between the DOT codes at each intersection. JBP is the methodology most frequently used by vocational experts. If you don't have it, buy it.

Furniture-rental consultant, DOT 295.357-018, is an unskilled, light occupation, that requires occasional reaching, handling, and fingering. It is the go to occupation for vocational experts when the question assumes occasional use of the hands/arms.

JBP properly lists furniture-rental consultant in the occupational group of counter and rental clerks (SOC 41-2021). The occupational group is huge, 426,700 jobs on the 2018 Occupational Employment Statistics.  The Occupational Outlook Handbook states that counter and rental clerks represent 436,100 jobs.  But the DOT designates occupational titles as belonging to specific industries in which that occupation occurs.  The DOT designates "retail trade."  The narrative description states that furniture-rental consultants "[r]ents furniture and accessories to customers."

JBP puts furniture-rental consultant in two industries: rental and leasing services (NAICS 532000) and rental and leasing services (NAICS 5320A1 (5322,3,4)). NAICS 532000 is the industry sub-sector. NAICS 532200, 532300, and 532400 are industry groups. NAICS 532000 includes 532100, 532200, 532300, and 532400. JBP has double counted three industry groups. Counter clerks represent 57,310 jobs in NAICS 532000; counter clerks represent 24,572 jobs in NAICS 5320A1, according to JBP. One of those two sets of numbers does not apply.

JBP lists furniture-rental consultant as the sole DOT occupation of the intersections of SOC 41-2021 and NAICS 532000 but as one of eight occupations at the intersection of the SOC and NAICS 5320A1. If seven other DOT codes make up some part of the jobs in NAICS 5320A1, then those seven DOT codes make up part of the jobs in NAICS 532000. JBP attributes to furniture-rental consultant 57,310 jobs within NAICS 532000; and 3,071 jobs within NAICS 5320A1. Using JBP’s documented methodology, we either divide 57,310 by 8 and exclude 3,071, or we exclude 57,310 jobs completely.

Now we can dig down into the NAICS structure. NAICS 532000 includes four industry groups. We covered this previously, but it bears repeating: NAICS 532000 includes 532100, 532200, 532300, and 532400. Here is the NAICS structure for rental and leasing services:

532 Rental and Leasing Services

5321 Automotive Equipment Rental and Leasing

53211 Passenger Car Rental and Leasing

532111 Passenger Car Rental

532112 Passenger Car Leasing

53212 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

532120 Truck, Utility Trailer, and RV (Recreational Vehicle) Rental and Leasing

5322 Consumer Goods Rental

53221 Consumer Electronics and Appliances Rental

532210 Consumer Electronics and Appliances Rental

53228 Other Consumer Goods Rental

532281 Formal Wear and Costume Rental

532282 Video Tape and Disc Rental

532283 Home Health Equipment Rental

532284 Recreational Goods Rental

532289 All Other Consumer Goods Rental

5323 General Rental Centers

53231 General Rental Centers

532310 General Rental Centers

5324 Commercial and Industrial Machinery and Equipment Rental and Leasing

53241 Construction, Transportation, Mining, and Forestry Machinery and Equipment Rental and Leasing

532411 Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing

532412 Construction, Mining, and Forestry Machinery and Equipment Rental and Leasing

53242 Office Machinery and Equipment Rental and Leasing

532420 Office Machinery and Equipment Rental and Leasing

53249 Other Commercial and Industrial Machinery and Equipment Rental and Leasing

532490 Other Commercial and Industrial Machinery and Equipment Rental and Leasing

What we learn from the NAICS structure for the rental and leasing services sub-sector is that the entire sub-sector does not apply to the occupation of furniture-rental consultant. Automobile equipment and rental and leasing (NAICS 532100) does not employ furniture-rental consultants. That means that the industry designation of NAICS 532000 is overbroad and that NAICS 5320A1, excluding NAICS 532100, is the better designation of the two provided.

Consumer good rental (NAICS 532200) consists of consumer electronics and appliance rental; formal wear and costume rental; video tape and disc rental; home health equipment rental; recreational goods rental; and all other consumer goods rental. Only that last designation includes furniture rental centers and also includes party rental supply centers (NAICS 532289).

General rental centers (NAICS 532300) rent consumer, commercial, and industrial equipment such as audio visual equipment, contractors' and builders' tools and equipment, home repair tools, lawn and garden equipment, moving equipment and supplies, and party and banquet equipment and supplies. None of the examples hint at the scope of furniture-rental consultant job functions.

Commercial and industrial machinery and equipment rental and leasing (NAICS 532400) focus on leasing commercial-type and industrial-type machinery and equipment. This industry does not rent consumer and commercial furniture.

This study of JBP ver. 1.7 discloses that the estimate of 50,382 jobs as a furniture-rental consultant is not reliable. It double counts industry groups and includes another industry group that is clearly not applicable. The use of NAICS 2320A1 is defensible only insofar as it groups DOT codes that cover those three groups together. But NAICS 532100 for automobile rental, that industry is covered by other DOT codes. The number of jobs as a furniture-rental consultant is less than 3,071.