Kilpatrick v. Kijakazi is precedent in the Ninth Circuit. It is important for what it says and what it does not say. This is not a dissection of the case but instead a dissection of the vocational witness.
We start with Sarahrose K. v. Saul. The hearing took place in July 2018. From the District Court decision, we learn:
The VE noted he did not do a "typical labor market survey" but instead
I use a software program that will allow me to manipulate the data such that I can exclude certain industries and . . . isolate to the best degree that I can the DOT numbers, and then it also allows me to isolate just the full-time jobs based on another set of data. And then I am able to estimate, sort out, just the DOT numbers for that one job out of the OES numbers that I have.
There is one software program that estimated job numbers, allowed manipulation of industries, and allowed inclusion or exclusion of part-time jobs -- Job Browser Pro. And that is the problem. SkillTRAN released Job Browser Pro version 1.6 in 2015. That version allowed manipulation of industries and inclusion or exclusion of part-time jobs. The last version of 1.6 was active in July 2018.
The VW identified usher and children's attendant totaling 114,000 jobs. The 2017 dataset for the Occupational Employment Statistics was the version available to May -- July 2018. At that time, OES estimated 124,710 jobs in the Ushers, Lobby Attendants, and Ticket Takers occupational group (SOC/OES 39-3031). The OES released in May 2018 estimated 133,970 jobs.
JBP currently reports 16% of Ushers, Lobby Attendants, and Ticket Takers working full-time. And there's the rub. How many Ushers, Lobby Attendants, and Ticket Takers including usher and children's attendant did the VW think worked full-time. Even if it was half, the VW overshot the number of ushers and children's attendants by double the possible amount. The only way to make the numbers work is to count sector 71; subsectors 711, 712, and 713; in industry groups 7111, 7112, 7113, 7114, 7115, 7121, 7131, 7132, and 7139. Only then could someone force JBP 1.6.x to report 64,000 full-time ushers and 50,000 children's attendants. The VW cheated the program and used it dishonestly.
The same is true of sandwich-board carrier. The 2018 OES reports 81,250 jobs in the group. JB P reports 24% work full-time. The VW double counted industries or added industries that don't belong. The VW used JBP dishonestly. Kilpatrick did not know it, flailing with even worse data and failing to ask the right questions.
1. What version of JBP are you using?
2. What is the aggregate size of the OES group according to JBP?
3. What percentage of workers in that occupational group work full-time according to JBP?
4. What (NAICS codes) industries does JBP assign to this DOT code?
5. What (NAICS codes) industries did you add?
6. Have you avoided double counting NAICS industries, groups, subsectors, and sectors?
7. Do you know what that means?
8. And finally, submit the JBP reports for the then-current addition to show the number of jobs actually reported.
The system let the VW get away with it. The economy did not change significantly from 2012 to 2018. The data was stale as reported by the Ninth Circuit but stale as in day-old bread, still edible and still nourishing. The stale evidence should have informed the record but Kilpatrick did not explain why it was still probative or identify the source of the non-DOT estimate data from the 2012 JBP. Lesson, keep the up-to-date version of JBP and use it. Otherwise, we let the VW prevaricate and the courts will look the other way.
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Suggested Citation:
Lawrence Rohlfing, Stacy S. v. Kijakazi and the Occupational Requirements Survey, California Social Security Attorney (August 4, 2022) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers for since 2009.
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