Monday, April 19, 2021

Applegate v. Saul -- Bottling Line Attendant

 Applegate v. Saul, yet another unpublished Ninth Circuit memorandum that illustrates the need for a full-throated attack of vocational expert prevarication.  Because of the brevity  of unpublished memoranda, we start with the District Court's discussion of step five, the findings of other work.  

However, the third identified job, bottling line attendant, has a Reasoning Level of 1. The vocational expert testified that there were 45,000 such jobs available in California and more than 300,000 such jobs in the United States. AT 29, 86. Because at least one viable job existed in sufficient numbers, any error as to the reasoning levels of the other two jobs was harmless. See 20 C.F.R. § 404.1566(b) (providing that "[w]ork exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet") (emphasis added). See also Thomas v. Comm'r, 480 F3d. Appx. 462, 464 (9th Cir. 2012) (affirming ALJ even though claimant could not perform two identified jobs because she could perform the remaining job of housekeeper, which existed in significant numbers in the national economy).

Bottling line attendant represents 45,000 jobs in California and 300,000 jobs in the United States.  That is untrue and unbelievable.  It is at least a disregard for the truth.  I cry "foul."

Bottling line attendant is a packer and packager, hand (SOC 53-7064) occupation.  The group represents 640,800 jobs in the nation per the OOH.  The 2019 OES estimated 633.640 jobs as a packer and packager.  The 2020 OEWS estimates 599,270 jobs.  

We are concerned with the limitations found by the ALJ:

must avoid concentrated exposure to hazards such as dangerous machinery, unprotected heights, and uneven surfaces; and can perform simple tasks in a setting with few workplace changes and no more than occasional interaction with the general public and coworkers.

 The O*NET says that about 10% of the packer and packager jobs have occasional contact with others.  The ORS says that 30% of packer and packager jobs have exposure to moving mechanical parts, most of those constantly.  The ORS classifies 32% of the jobs has requiring light exertion.  The ORS states that 17.5% of packers and packagers have SVP 1 characteristic of bottling line attendant.  

Packers and packagers has 59 DOT codes.  The idea that half of the jobs work as a bottling line attendant is a little hard to grasp.  Because of that lingering doubt, we must check the industry employment for packers and packagers.  The DOT defines bottling line attendant as occurring in the beverage manufacturing industry.  That is where we will look.  

The 2020 OEWS states that the beverage manufacturing industry employed 640 packers and packagers.  The 2019 OES states that the beverage manufacturing industry employed 580 packers and packagers.  The 2019 EP states that the beverage manufacturing industry employed 600 packers and packagers.  The 2019 CBP states that the entire beverage manufacturing industry employed 226,462 people in every occupation within the industry.  Over half the jobs work in breweries, wineries, and distilleries.  Less than 80,000 people work in soft drink, bottled water, and ice manufacturing -- in the nation in every job in the industry.  

The odds of bottling line attendant representing 45,000 jobs in California and 300,000 jobs in the nation rests between zero and none.  That testimony is false.  It is not reliable.  The vocational expert pulled it out of the hat.  

How do we beat bogus testimony?  We rely on the Occupational Outlook Handbook, v.  We must submit that evidence to the ALJ and force the ALJ to state why the agency chooses conclusory evidence from a witness over the statistical publications of the Department of Labor.  We demand administrative notice under the regulations.  

The Ninth Circuit did not regurgitate the numbers.  It would prove embarrassing to the Court to recite those kinds of numbers with a straight face.  Bottling line attendants represent 300,000 jobs in the nation.  Absurd.


Suggested Citation:

Lawrence Rohlfing, Applegate v. Saul -- Bottling Line Attendant, California Social Security Attorney (April 19, 2021)

No comments:

Post a Comment