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.

_______________________________________________________

Suggested Citation:

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

https://californiasocialsecurityattorney.blogspot.com/2020/07/alj-relies-on-occu-collect-data-to-find.html