Thursday, March 11, 2021

Vocational Experts are Trained by SSA to Give Bogus Testimony

 On the Social Security Hearings and Appeals, Becoming a Vocational Expert web page, SSA has an orientation package for the cadre of vocational experts.  The content of the Vocational Expert Orientation is as illuminating as it is shocking.  

Page 13 defines exertion levels of sedentary, light, and medium exertion.  SSA tells vocational experts that sedentary work requires sitting six hours and standing/walking two hours; light and medium work require standing/walking six hours.  Those are not the definitions of sedentary, light, and medium work out of the DOT or the regulations.  Sedentary work does not have a maximum sitting nor do light or medium work have a maximum of standing/walking.  To state otherwise is wrong, just plain factually wrong not just based on the DOT and regulations but based on Department of Labor definitions and of course the Occupational Requirements Survey.  

Pages 22 and 23 present a hypothetical questions and occupation/job samples.  The hypothetical describes a younger individual with a high school education limited to light work, four hours of standing/walking, using a cane to ambulate more than a block, capable of occasional public contact, no strict production requirements, limited to simple instructions, no more than occasional pulmonary irritants, and no dangerous work environments.  The sample occupations and job numbers caused outrage:

  • Inspector/hand packager; Dictionary of Occupational Titles (DOT) # 559.687-074; Specific Vocational Preparation (SVP) level 2 and light; 82,150 jobs nationally and 1,362 jobs regionally 
  • Assembler, small parts; DOT # 076-684-022; SVP 2 and light; 229,240 jobs nationally and 1,550 jobs regionally 
  • Mailroom clerk; DOT # 209.687-036; SVP 2 and light; 119,960 jobs nationally and 2,120 jobs regionally

Let's take the occupations in reverse order, just for fun.  Mailroom clerk has a main title of mail clerk but does travel under the alternate title of mailroom clerk.  The DOT number is actually 209.687-026.  So much for accuracy.  There is no 209.687-036 occupation in the DOT.  Sloppy.  Mail clerk requires reasoning level 3.  It is not simple.  The 14 DOT codes in Mail Clerks and Mail Machine Operators, except Postal Service (SOC 41-9051) contains six light, unskilled codes.  Those 14 DOT codes currently make up 88,400 jobs per the OOH.  Those 14 DOT codes make up 83,580 jobs per the OES.  In 2010, the OES reported 119,960 jobs for Mail Clerks.  Not only did SSA use 10-year-old data, SSA endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Small parts assembler is not better.  Small products assembler I carries the DOT code 706.684-022.  There is no 076.684-022 DOT code.  Again, sloppy.  The DOT describes small products assembler as performing repetitive tasks on an assembly line.  There is clearly a strict production requirement on the assembly line.  The 1,590 DOT codes in Production Workers, All Other (SOC 51-9199) contains 405 light, unskilled codes.  Those 1,590 DOT codes currently make up 238,600 jobs per the OOH.   Those 1,590 DOT codes currently make up  222,230 jobs per the OES.  In 2010, the OES reported 229,240 jobs for Production Workers.  SSA again used 10-year-old data and endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Inspector/hand packager does have the correct DOT code reported.  The 782 DOT codes in Inspectors, Testers, Sorters, Samplers, and Weighers contains 135 light, unskilled codes.  Those 782 DOT codes currently make up 590,100 jobs per the OOH.  Those 782 DOT codes make up 576,950 jobs per the OES.  In 2010, the OES reported 410,750 jobs for Inspectors.  SSA did not report the entire occupational group of jobs for this occupation.

Mail clerks require short-term on-the-job training.  Production workers and inspectors, testers require moderate-term on-the-job training.  Those jobs are typically skilled or semi-skilled (more than 30 days and up to one year of education, training, and experience).  The ORS does not provide a basis for any of the occupations in production workers and inspectors, testers as standing four hours or less in a day; less than half of mail clerks limit standing/walking to four hours.  These occupations are absurd examples for the sample hypothetical.  

It does get worse.  The orientation repeats the incorrect characterization of the DOT as listing the maximum requirements of occupations as generally performed on page 27.  That comes out of SSR 00-4p.  It is also wrong.  The DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.

I do not know what maximum of generally performed means.  It is nonsense.  The most typical characteristics describes either an average, median, or plurality of the jobs.  The maximum of the work as generally performed is an oxymoron and wrong.  

I have wondered on occasional where SSA hid the Kool-Aid that the VEs had consumed.  Here it is as an orientation for inaccuracy, statistical foolery, and just plain nonsense.  SSA should take this ridiculous orientation down and replace it with statements and examples that encourage reliable testimony.  On its way, SSA should rescind SSR 00-4p and replace it with a direction that requires the ALJ to adduce the foundation for VE testimony.  The courts are to blame for that current state of affairs.  

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Suggested Citation:

Lawrence Rohlfing, Vocational Experts are Trained by SSA to Give Bogus Testimony, California Social Security Attorney (March 11, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/03/vocational-experts-are-trained-by-ssa.html 

3 comments:

  1. Thank you for this eye-opening discussion of the Administration's delinquency in this extremely important area of claim determination. (Thanks also for the self-sacrifice that spared the rest of us from having to read the orientation materials :-) I look forward to reading more of your posts.

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  2. I agree with you point on your point that the DOT doesn't specify standing and walking required at sedentary or light duty, but the reason the sit 6 0f 8 hours or stand 6 of 8 hours is utilized is the provide consistency in testimony of VE's. If that wasn't utilized the variation in testimony of VE's would be greater than it already is. In the big picture, I see this as a benefit to the claimants.

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    1. It is false that most sedentary occupations require not more than 6 hours of sitting and equally false that most light occupations require not more than 6 hours of standing/walking. Of course, hiding behind anonymity means that no one knows the foundation for your conclusion or how you get to "this as a a benefit to claimants." That is the same kind of black box mentality that allows VEs to fabricate and ALJs to accept bogus testimony.

      I don't mind losing a case base on reliable evidence. VE testimony is, IMHO, not reliable most of the time.

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