Social Security Ruling 24-3p -- Reliable Sources of Rebuttal Evidence

I am reminded of Game of Thrones, "winter is coming." And so is SSR 24-3p. We discussed the ruling in the Zoom meeting on December 17, 2024. If you did not get a chance to participate (we had over 170 attendees at different points), it is available. The question is how to prepare for the winter that is coming, what are the reliable data sources that we can use and request administrative notice? 

    1. Occupational Requirements Survey (ORS) 

We addressed the ORS in May 2022. The hyperlink to the Handbook of Methods now opens the version last modified on January 29, 2024. That is the beauty of links to pages that change without changing their address. The ORS responds to the question of reliability of its calculations. 

The ORS provides occupation information at the SOC code 

    2. Occupational Information Network (O*NET)

SSA has long eschewed use of the O*NET because it does not fit the Appendix 2 guidelines. That does not mean that the O*NET is not useful for non-exertional limitations and assessing the incidence of full-time work. It is reliable and used by rehabilitation professionals. The O*NET provides occupation information at the SOC code plus two more digits (typically .00), making the SOC code an O*NET code. 

On November 14, 2024, OMB approved a three-year extension of the O*NET Data Collection effort. In 2023, the O*NET project sought OMB approval for this extension. As part of the clearance process, public comments were sought on the data collection. A Federal Register Notice, published on July 31, 2023, announced the availability to the public of the O*NET "Information Collection Request" (ICR). A second Federal Register Notice, published on January 17, 2024, announced an additional comment period which concluded on February 16, 2024.

The 2024 OMB Clearance Package is available on the O*NET. 

    3. Occupational Employment and Wage Statistics (OEWS)

SSR 24-3p specifically mentions the OEWS. The OEWS provides job numbers at the occupation-industry intersection (SOC-NAICS) in a searchable format not easily accessed. 

    4. Occupational Outlook Handbook (OOH)

The administrative notice regulation identifies the OOH as an example of reliable published government data. 20 CFR 404.1566(d)(5). It is updated about every two years.

    5. Employment Projections (EP)

The OOH reports and links to the EP for its current job numbers and 10-year projections. It is updated about every two years. The EP tables linked in the OOH provide job numbers at the occupation-industry intersection (SOC-NAICS). 

    6. County Business Patterns (CBP)

The administrative notice regulation identifies the CBP as an example of reliable published government data. 20 CFR 404.1566(d)(2). It is updated every two years. The data is not easily accessed. CBP reports job numbers by industry (NAICS). 

    7. Dictionary of Occupational Titles (DOT) 

The DOT continues to as a reliable source for SSA adjudication despite its age (10,000 DOT codes have a DLU of 1977 and 3,000 DOT codes have a DLU after 1977 but before 1991). 20 CFR 404.1566(d)(1).

    8. Selected Characteristics of Occupations (SCO)

The SCO is the DOT companion publication. It is part of the DOT dataset. Additional parts of the data set not included in the DOT and SCO are work fields; materials, products, subject matter, and services (MPSMS) codes; temperaments; and aptitudes. SSA applies WF and MPSMS as part of the transferability of skills analysis. 

    9. North American Industry Classification System (NAICS Manual 2022)

 The NAICS Manual explains the two-digit sectors, three-digit subsectors, four-digit industry groups, and five- and six-digit specific industries used by SkillTRAN, OEWS, EP, and CBP. Download it as it is amended. The last sequence was 2017 and 2022. 

    10. Revised Handbook for Analyzing Jobs (RHAJ)

The RHAJ explains the information contained in the complete DOT data set including the DOT, SOC, and the unselected characteristics including the WF and the MPSMS codes. Download it once. 

            Use of the data sources is not complicated but it is cumbersome the first ten times. It gets easier. A witness identifies a DOT code. Each DOT code is assigned to one or more SOC codes. SOC codes correspond directly to OEWS and O*NET codes. 

            If the case calls for discerning job numbers, those numbers appear first in the SOC codes found in the EP and OEWS. DOT codes exist in one or more industries. SkillTRAN products identify those industries. Some of those industry selections have an apparent conflict with the DOT industry designation or the job functions described. The SOC group job number is never applicable to a DOT code. 

            If the witness relies on generic SOC code assignments, the industry may not matter. It is incumbent to ask which industries the witness observed the occupation working. Both with DOT and SOC based identification, the ORS and O*NET must be used to erode the occupational base. The factors come from the residual functional capacity:

                1. Skill level

                2. Full-time vs. part-time

                3. Exertional demands

                     a. Strength

                     b. Sitting limitations

                     c. Standing (including walking) limitations

                     d. Other parts of strength not included in the sedentary-light-medium classification

                4. Non-exertional demands

                     a. Contact with others (face-to-face, telephone, or otherwise)

                     b. Interaction with the public

                     c. Teamwork limitations

                     d. Pace limitations

                     e. Postural limitations

                     f. Manipulative limitations

This list is illustrative and not exhaustive. A case might require more or less investigation. 

I recommend www.occucollect.com. We have the data accessible and presentable. 

Bon voyage. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Social Security Ruling 24-3p -- Reliable Sources of Rebuttal Evidence , California Social Security Attorney (December 23, 2024) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Social Security Ruling 24-3p -- The Demise of 00-4p

The Social Security Administration published SSR 24-3p on December 6, 2024. By administrative proclamation (without notice and comment), SSA announces new rules for steps four and five of the sequential evaluation process. SSR 24-3p:

1. Rescinds SSR 00-4p (referred to twice as SSR 00-04p). 

2. Explains a new standard for evaluating whether vocational evidence is sufficient to support a decision. 

SSR 00-4p resulted from the Tenth Circuit decision in Haddock v. Apfel. SSA initially responded to Haddock with AR 00-3(10) to cabin the the duty to inquire into the consistency with the Dictionary of Occupational Titles (DOT) to the Tenth Circuit. SSA explained:

According to our procedures, an ALJ must resolve conflicts in the evidence. This includes conflicts in opinion evidence from a VE and job information contained in the DOT. When such conflicts are evident, the expert should be asked to explain the basis for his or her opinion and the reason it differs with the DOT. The ALJ is responsible for resolving the conflict and must explain in the determination or decision how the conflict was resolved. Unlike the court's holding, our procedures do not place an affirmative responsibility on the ALJ to ask the expert about the possibility of a conflict between the evidence that he or she provides and the information in the DOT.

...

We intend to clarify the regulations at issue in this case, 20 CFR 404.1566 and 416.966, through publication of an SSR and we may rescind this Ruling when the clarification is made. 

 SSA made the affirmative responsibility on the ALJ about consistency with the DOT national policy when it published SSR 00-4p. SSR B24-3p restates the explanation of agency policy in AR  00-3(10):

Adjudicator Responsibilities 

Our adjudicators are responsible for evaluating the VS or VE evidence within the context of the overall evidence in the claim. If the VS or VE does not provide the expected information and explanation outlined above, the adjudicator will usually need to develop the record with sufficient evidence to make a supported finding at step four or step five of the sequential evaluation process.16

16Our determinations and decisions are based on the preponderance of the evidence standard. See 20 CFR 404.902, 404.920, 404.953, 416.1402, 416.1420, and 416.1453.

The phrase "expected information and explanation" does not appear elsewhere in the ruling nor does the word "expected."  SSA confirms in the purpose statement that the agency would obtain a reasonable explanation and resolve conflicts between testimony and the DOT/SCO and explain that resolution. SSA affirms the validity and reliability of the DOT as a source for occupational information. SSA observes that federal statistical data is not reported in the Standard Occupational Classification (SOC) system. 

 NEWS FLASH - The DOT has never reported job numbers -- see footnote 12. 

 In the last last clause of the last sentence in the penultimate paragraph of the statement of policy, SSA nails why we need this ruling:

and the requirements of SSR 00–4p might discourage VSs and VEs from using occupational data in sources other than the DOT.

The new policy interpretation confirms that SSA continues to take administrative notice of the DOT. SSA clings to the notion that the DOT described the maximum requirements of work as generally performed. This awkward language is in SSR 00-4p. It is wrong and continues to be wrong. First, maximum and generally set up an oxymoron. As the work is generally performed, this is the maximum. That does not make sense. Furthermore, the DOT Appendix D states that it sets forth the requirements of work as typically performed in the national economy. 

 SSA now allows vocational witnesses to rely on the Occupational Employment and Wage Statistics (OEWS) and the Occupational Requirements Survey (ORS). It is not clear why SSA has not pointed to the Occupational Outlook Handbook and its source Employment Projections as a source for job numbers. The regulations do identify the OOH as an example of administrative notice. The OOH explicitly relies on the EP. For the numbers of jobs within a SOC-industry classification (NAICS), the EP is much easier to use than the OEWS. OccuCollect.com makes them equally accessible to ascertain occupation- industry job numbers. 

And there we have it. The door is wide open to use the Bureau of Labor Statistics data to prove the requirements for work and the number of jobs in occupations courtesy of SSR 24-3p. Now use them. The valuable resources to establish job numbers in a DOT code:

1. Employment Projections (SOC job numbers and industry specific job numbers)
2. Occupational Employment and Wage Statistics (SOC job numbers and industry specific job numbers)
3. Occupational Requirements Survey (for the requirement of work)
4. Occupational Information Network (O*NET) (for the requirements of work)

5. County Business Patterns (for job numbers in specific five and six digit industry codes not captured by the EP and OEWS)

SkillTRAN products are useful for identifying industries applicable to an occupation and to identify co-existing DOT codes at that SOC-NAICS intersections. SkillTRAN does not parse data using the ORS or O*NET but instead uses equal distribution at the SOC-NAICS intersections. Some of SkillTRAN's industry selections are also subject to attack.  

And now the bad news -- raise it or forfeit it. Footnote 10 cites to 20 CFR 404.1740, 416.1540 and states:

Raising relevant questions about or challenges to the VE’s testimony at the time of the hearing, when the VE is ready and available to answer them, furthers the efficient, fair, and orderly conduct of the administrative decision-making process.

SSA provides an example estimating 1.3 million fast food workers in the national economy, representing a plurality of the jobs in SOC 35–3023 Fast Food and Counter Workers. The O*NET states that 79% of fast food workers do not work 40 hours per week. A mere 21% work full-time. Before starting with the exertional and non-exertional limitations for a claimant, we reduce the 3.3 million jobs to 268,950 under SSR 96-8p (full-time at step five). The ORS reports that 60.2% of jobs require light exertion. Now we are down to 420,353. The ORS states that 94% of jobs are unskilled, causing an additional 6% reduction. We are looking for the coups de grace and jump to standing/walking. The ORS reports that fast food workers stand 95% of the day at the 10th percentile. If the claimant has a limitation to standing/walking about six hours in a workday, this occupation does not meet that limitation. 

We are not robbed of our commonsense when we appear in a hearing. We know that fast food workers are part-time, that some of them require skills, and we know that the cooks and cashiers do not get to sit down on the job. Cross examination? Yes, please. 

Q. What percentage of fast food workers in SOC 35-3023 engage in full as opposed to part-time work?

Q. What percentage of fast food workers in SOC 35-3023 engage in unskilled work?

Q. What percentage of fast food workers in SOC 35-3023 engage light work?

Q. What percentage of fast food workers in SOC 35-3023 have a requirement to stand/walk more than six hours in a full-time workday?

Q. Is your testimony consistent with the Occupational Requirements Survey?

Q. Is your testimony consistent with the O*NET OnLine?

 Whatever limitations the ALJ frames, that is the starting point for examination. Study and become familiar with the ORS, O*NET, OEWS, EP, CBP, and all SkillTRAN products. 

And then eviscerate the witness.

___________________________

Suggested Citation:

Lawrence Rohlfing, Social Security Ruling 24-3p -- The Demise of 00-4p, California Social Security Attorney (December 6, 2024) https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.