Sunday, June 27, 2021

Reliability of the Occupational Requirements Survey

Biestek v. Berryhill contains the essence of vocational expert testimony and cross-examination.
Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant's lawyer. And nothing in the rest of the record conflicts with anything she says.

Nestled inside of the body of this statement is the long sentence describing the vocational expert explaining (1) a survey of a range of representative employers; (2) amassing information about labor needs of employers; and (3) extrapolating that data by a well-accepted methodology to the national economy.  The question is whether the vocational expert is reliable.   

To confirm the reliability of the Occupational Requirements Survey. the Bureau of Labor Statistics provides measures for assisting users of the data:

  1. Standard errors provide users with a measure of the precision of an estimate to ensure that it is within an acceptable range for their intended purpose.  These include sampling and non-sampling errors.  
  2. The ORS program uses a variety of quality assurance programs to mitigate collection and processing errors by using data collection re-interviews, observed interviews, computer edits of the data, and systematic professional review of the data.

The description of standard errors as including sampling errors describes the reliance on the anecdotal experience of a single vocational expert that does not use a well-accepted methodology to extrapolate local experience to the national economy.  

Sampling errors occur because the sample makes up only a part of the population it represents. The sample used for the survey is one of a number of possible samples that could have been selected under the sample design, each producing its own estimate. A measure of the variation among sample estimates is the standard error.

Because the ORS uses measures of standard error to mitigate sampling and non-sampling errors and uses quality assurance through re-interview, auditing, editing, and review of data, the ORS is reliable.  The vocational expert does not use standard error or quality assurance at any level.  That observation confirms what Justice Gorsuch suspected in dissent in Biestek:

And thanks to its conclusory nature, for all anyone can tell it may have come out of a hat—and, thus, may wind up being clearly mistaken, fake, or speculative evidence too.

Don't let vocational experts pull your client's case out of the win column and into the lose column by pulling job numbers out of any source. 


Suggested Citation:

Lawrence Rohlfing, Reliability of the Occupational Requirements Survey, California Social Security Attorney (June 27, 2021)  h