At a hearing, the vocational witness testifies to the existence of 90,000 small product assembler II jobs and 199,915 electronics worker jobs. Complete and utter nonsense. There are not 90,000 small product assembler jobs and/or 199,915 electronics worker jobs in the nation. To accept that testimony is an embarrassment to the agency; to affirm reliance on that testimony is an embarrassment to the courts; to have that series of events undermines the public confidence in the largest adjudicative body in the world, SSA.
We start witxh Tamara L. v. Comm'r, Soc. Sec. Admin. We get the job numbers cited by the vocational witness there. The district court relied on the VW use of the Occupational Employment Quarterly and Lanham's use of Job Browser Pro. We know from the record that the ALJ did not exhibit or address Lanham's evidence. This is not a circumstance where the ALJ decided one source was more reliable than the other. The need to articulate reasons for selecting evidence is key to the administrative process.
We net turn to oral argument in Lanham. Counsel for Lanham disavows knowledge of how Job Browser Pro works its magic. It is simple. Job Browser Pro takes the OEWS job numbers (or the OES numbers for the 2018 data set) and selects the industries (NAICS code) appropriate for that occupation within that occupational group (SOC or OEWS code). Job Browser Pro then counts the number of DOT codes in that occupation-industry intersection and divides by the number of DOT codes. Job Browser Pro repeats that process for each occupation-industry intersection and totals them up. That is the number of jobs estimated for that DOT code.
Counsel for the Commissioner argued that we don't know what parameters Lanham inputted into the Job Browser Pro system to extract the data. There are two problems with this argument. First, any version of Job Browser Pro 1.7.x locks users out of changing the industries because SkillTRAN wanted to stop the misuse of Job Browser Pro. When counsel for the Commissioner made this argument, he knew or should have known that he was asking the court to assume a false assumption. Second, the only parameter that could be changed in versions 1.6.x and before was the industry selection. Any change to the industry selection would appear in teh "NAICS Industries where this DOT Code is likely to be employed." In versions before 1.7, a user could manipulate other DOT codes to pro rata reduce the number reported. That "problem" is a clear accusation by OGC of fabricating evidence before the agency and furthering false evidence to the court. No disability claim is worth your integrity or your bar card. If OGC thinks that we cheated, OGC should bring disciplinary charges. They won't because they know when the submission is accurate.
Judge Bea wanted to know why Lanham did not question the VW at the hearing about the job number conflict. Counsel properly responded that Lanham did not get to voir dire the witness relying on Shaibi v. Berryhill. Right response and right citation. There is no F.R.Civ.P. Rule 26(2) duty to disclose expert testimony in administrative proceedings. Please, we want the paragraph (B) disclosures:
(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.
We want that before the hearing, not at the hearing.
Judge Rawlinson is even more hostile to the claimants' bar. But she has been for an exceedingly long time. Why can't the representative do more? Because the ALJ won't give use the rest of the day to finish the 9 a.m. hearing. We have to assume Judge Rawlinson on every case and inquire vigorously.
Finally, the VW used the Occupational Employment Quarterly. That is, in my not-so-humble opinion, a piece of statistical trash. We have to use the decision in Kilpatrick v. Kijakazi to attack the equal distribution method of calculating job numbers and cite the host of cases from the Seventh Circuit labelling the methodology of the OEQ as preposterous. A methodology is not a bibliography but a mathematical exercise -- it is a calculation. As of now, the courts are willing to let VW and ALJs get away with a WAG as the methodology of choice. The job numbers do indeed come out of a hat.
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Suggested Citation:
Lawrence Rohlfing, Lanham v. Kijakazi -- OMG , California Social Security Attorney (May 4, 2023) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
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