Dissecting the VE Testimony in Brace v. (Berryhill) Saul

 Earlier, we discussed applying and differentiating the Seventh Circuit decision in Brace v. Saul from the Supreme Court decision in Biestek v. Berryhill and the Ninth Circuit decision in Ford v. Saul.  To get a better handle on the depravity of the vocational expert testimony, we examine the District Court decision in Brace v. Berryhill.  The court summarized the residual functional capacity:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b), as follows: lift, carry, push, and pull 20 pounds occasionally and ten pounds frequently; sit, stand, and walk, each, for six hours in an eight-hour workday; can remain in one position for at least 30 minutes, but would need to change positions occasionally throughout the day; no reaching overhead; no foot pedals; occasional fingering, handling, and feeling with the nondominant hand, but no restrictions with the dominant hand; no ramps or stairs; no slippery or uneven surfaces; no dangerous machinery or unprotected heights; and no operating a motor vehicle as a condition of employment.

The critical limitations are light work, stand/walk six hours; changing positions every 30 minutes; occasional manipulation with the nondominant hand.  The other limitations will rarely impact light and sedentary work.  

The VE identified call out operator (DOT 237.367-014), semi-conductor bonder (DOT 726.685-066), and counter clerk (DOT 249.366-010).  The Court of Appeals adds registration clerk and the District Court refers to the four examples as representing 140,000 jobs.  

Call-Out Operator

Call-out operator is a sedentary, unskilled occupation requiring reasoning level 3.  It does require occasional handling and fingering.  Call-out operator belongs to Credit Authorizers, Checkers, and Clerks (SOC 43-4041).  Credit authorizers represent 30,300 jobs and are typically semi-skilled or skilled per the 2018 OOH.  The O*NET suggests that 25% of those jobs qualify as unskilled within the sub-group of Credit Checkers (O*NET 43-4041.02).  Job Browser Pro estimates fewer than 3,000 jobs.  

Semi-Conductor Bonder

Semi-conductor bonder is a sedentary, unskilled occupation requiring reasoning level 2.  It requires frequent handling and fingering.  Semi-conductor bonder has an apparent conflict with the SCO.  

Semi-conductor bonder belongs to Metal Workers and Plastic Workers, All Other (SOC  51-4199).  Metal and plastic workers represent 25,900 jobs in the nation and are typically semi-skilled or skilled per the 2018 OOH.  Neither the O*NET nor the ORS address this very small occupational group.  Job Browser Pro estimates less than 20 jobs.  

Counter Clerk

Counter clerk is a light, unskilled occupation requiring reasoning level 2.  It requires occasional handling and fingering.  Counter clerk belongs to the occupational group of Counter and Rental Clerks (SOC 41-2021).  Counter and rental clerks represent 436,100 jobs and are typically unskilled per the 2018 OOH.  

The O*NET says that 40% of the jobs are part-time.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET says that almost 14% of these jobs are unskilled.  

The ORS disagrees with the O*NET about skills level:  almost 69% are unskilled.  Counter and rental clerks use both hands for gross manipulation in 76.5% (frequently in 57.2%) of jobs and fine manipulation in 65.6% of jobs.  As a separate description involving fingering, counter and rental clerks keyboard in almost all jobs and occasionally in 67.3% of jobs.  Counter and rental clerks stand 100% of the day at the 75th and 90th percentiles.  Counter clerks sit 95% of the day at the 90th percentile.  

Job Browser Pro estimates fewer than 1,800 jobs.  

Registration Clerk

The DOT lists two registration clerks.  One is SVP 5 and skilled.  The second is SVP 3 and semi-skilled.  The ALJ did not find transferable skills.  This occupation has an apparent conflict with the DOT and the absence of transferable skills.  

Registration clerk (DOT 205.367-042) is a sedentary, semi-skilled occupation requiring reasoning level 3.  It requires frequent handling. Registration clerk has an apparent conflict with the handling limitations in the RFC.  

Registration clerk belongs to Interviewers, Except Eligibility and Loan (SOC 43-4111).  Interviewers represent 204,600 jobs and are typically unskilled per the 2018 OOH.  

The O*NET states that interviewers work part-time in 55% of jobs.  Part-time work does not satisfy the step five burden on the Commissioner.  The O*NET states that almost 76% of jobs are unskilled.  

The ORS states that 42.1% of interviewer jobs are unskilled.  Interviewers engage in sedentary work in 86.3% of jobs.  Interviewers sit 87.5% of the day at the median.  Interviewers can arrange their workday to sit or stand/walk at will in about half the jobs.  Interviewers engage in fine manipulation occasionally in 88.4% of jobs and keyboard in 97.9% of jobs.  

Job Browser Pro estimates the number of registration clerk jobs at less than 1,500.  

Observations

A full-court press is mixed.  The DOT/SCO knocks out two of the four occupations.  Submitting the JBP data shows the absence of a significant number of jobs, except in the Sixth Circuit.  The ORS requires careful analysis and familiarity with the data by the vocational expert for unskilled counter clerks and interviewers.  Every occupation represents a different problem amplified by the peculiarities of the specific residual functional capacity finding.  The Employment Projections, Occupational Employment Statistics, O*NET OnLine, Occupational Requirements Survey and private resources such as Job Browser Pro and OccuCollect.com provide greater insight into the mostly opaque testimony of a vocational expert.  

_______________________________________________________

Suggested Citation:

Lawrence Rohlfing, Dissecting the VE Testimony in Brace v. (Berryhill) Saul, California Social Security Attorney (August 25, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/dissecting-ve-testimony-in-brace-v.html