Thursday, July 30, 2020

Postmortem on Goode v. Commissioner -- the Court Got Half the Story

The Eleventh Circuit reversed in a huge win for claimants on the reliability of vocational expert testimony. Goode v. Commissioner of Soc. Sec. The court called out the vocational expert and ALJ (but neither by name). Goode v. Berryhill. The decisions are a good read and available to everyone to read for themselves. Today we pull back the curtain to disccover that the vocational expert was reckless, tried to cover his tracks, and I think I know why. 

We start with the district court decision:
Plaintiff notes that the VE testified that he got these job numbers from the Occupational Employment Quarterly ("OES), which does not provide job numbers by Dictionary of Occupational Title numbers, but by Specific Occupational Code (SOC) group. (Doc. 22 p. 8).
We continue with the circuit court decision: 
the vocational expert must look to other sources like the Occupational Employment Quarterly (OEQ), which is compiled by a private organization called U.S. Publishing, to find employment statistics. See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Brault v. Soc. Sec. Adm., 683 F.3d 443, 446 (2d Cir. 2012). The OEQ database, however, does not compile data by DOT codes, but rather through the Standard Occupational Classification (SOC) system. See Brault, 683 F.3d at 446; Occupational Employment Statistics, Bureau of Labor Statistics, https://www.bls.gov/oes/ (last visited April 30, 2020).
Both courts reference the OEQ.  Neither quotes the VE referencing the OEQ.  

Assuming that the VE did rely on the OEQ to identify bakery worker (bakery worker, conveyor line) as belonging to SOC 51-3099, there is a huge problem for the veracity of the VE.  In no publication of OEQ has US Publishing ever listed food processing workers, all other (SOC 51-3099) as an occupational group.  Why would the OEQ omit SOC 51-3099?  As Goode argued successfully to the circuit court, the Department of Labor does not assign any DOT codes to SOC 51-3099, none.  

The question has to turn to the VE's source for the idea that bakery workers belong in SOC 51-3099.  That honor belongs exclusively to Job Browser Pro.  JBP does list bakery worker, conveyor line (DOT 524.687-022) as belonging to SOC 51-3099.  JBP did so in 2014 and does so today.  Why not confess to use of JBP as the source for the job numbers?  As the circuit court found, the VE aggregated the occupational group identifying all the jobs in the group, not just bakery worker.  JBP states now and in 2014 that bakery worker, conveyor line represents fewer than 500 jobs.

Goode argued and the circuit court found that bakery worker belongs to production workers, all other (SOC 51-9199).  For the 2010 SOC, that is true.  Bakery worker is one of 1,590 DOT codes and one of 405 light unskilled DOT codes that belong to production workers, all other.  None of those occupations represent 43,000 jobs in the nation.  

One final point for the day is warranted.  Labor lists the titles of occupations that belong to food processing workers, all other (SOC 51-3099).  They are:
  1. Olive Pitter
  2. Pasta Press Operator
  3. Poultry Hnager
  4. Yeast Maker
The VE did not honestly identify the source for his testimony.  If the VE did, it would have been easy to check the job numbers against the source to prove them wrong.  But the VE corps needs to please the ALJ to remain on the rotation.  Not identifying significant numbers of jobs will lead to removal from the rotation.  The VE and ALJ got slammed in this case but their deceit rests just below the surface.  

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Suggested Citation:

Lawrence Rohlfing, Post Mortem on Goode v. Commissioner -- the Court Got Half the Story, California Social Security Attorney (July 30,  2020) 

Monday, July 13, 2020

ALJ Relies on Occu Collect Data to Find VE Unpersuasive

Counsel for the claimant submitted the Occupational Requirements Survey data about standing and walking showing that waiters and waitresses stand/walk more than six hours in an eight hour day.  Vocational expert says nay nay, waiters and waitresses sit down to fold napkins and fill salt shakers.  Here is what the ALJ said about the conflict in the evidence:

At the June 2020, the vocational expert testified that the claimant had transferable skills from her previous work as a Cocktail Waitress that would transfer to work as an Informal Waitress, DOT 311.477-030, which is also considered light, semi-skilled work with an SVP of 3 and of which there are 7,500 full-time jobs in the national economy. According to the vocational expert, individuals performing this work often work split shifts and do not stand and/or walk for more than six hours in an eight-hour workday. However, the claimant's representative challenged the accuracy of this testimony, as it appeared inconsistent with accepted vocational resources (Ex. B22E; Hearing Testimony). In weight and evaluating the vocational expert's testimony, the undersigned finds the vocational expert's testimony that the claimant could perform work as an Informal Waitress but not her very similar past relevant work as a Cocktail Waitress inconsistent.  
According to the vocational expert's own testimony, an Informal Waitress must perform set up such as folding napkins and filling condiments that could be performed seated, but there is insufficient evidence that this would occupy a sufficient amount of time to accommodate the claimant's exertional limitations. The vocational expert's testimony did not adequately satisfy the requirements of SSR 00-4p to resolve these inconsistencies. Accordingly, the undersigned finds the claimant does not have any transferable skills within the residual functional capacity defined above.
Relying on statistical evidence to rebut VE folly wins again.

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Suggested Citation:

Lawrence Rohlfing, ALJ Relies on Occu Collect Data to Find VE Unpersuasive, California Social Security Attorney (July 13, 2020)