The Training Video and Why the O*NET Remains Important

An Introduction to New Social Security Ruling 24-3p for Vocational Experts is a must watch. Deputy Associate Chief ALJ David Pang is your host. Administrative Appeals Judge Patrick McGuire lends an assist. Neither judge expresses any accurate knowledge about the O*NET. But they carry the agency's water. Here is what SSA says about the O*NET:

O*NET is not generally usable per EM-21065-REV because the information has been grouped in a way that is not generally usable in the agency's adjudication process. 

 Tr. 40:44.  EM-21065-REV actually says:  

Occupational Information Network (O*NET) Information: O*NET does not define physical exertion requirements in a way that is consistent with SSA regulations (20 CFR 404.1567 and 416.967). O*NET instead groups lifting with activities that SSA rules define as non-exertional (e.g., climbing, stooping, and handling). Accordingly, the information in O*NET is not generally usable in our adjudication process.

Fair enough, the O*NET does not break down occupational groups by defining physical exertion requirements consistent with the sedentary, light, and medium paradigm. If a witness, claimant, or ALJ wants to determine the exertional levels of work in the national economy, the O*NET does not work. The O*NET does not group lifting activities with non-exertional activities such as climbing, stooping, and handling anymore than the Selected Characteristics of Occupations (SCO) does, it lists them separately. Under the broad heading of physical requirements, the O*NET has two categories: postural and exertional. Postural includes cramped work space; bending or twisting; climbing ladders scaffolds, or poles; keeping or regaining balance; kneeling, crouching, stooping, or crawling; and time making repetitive motions. Exertional includes sitting, standing, using the hands, and walking or running. None of those categories permit classification of strength. All of them give insight into the requirements of work. 

The question is beyond the exertion question, does the O*NET provide useful information to adjudicate claims for disability? Again, the answer there is "yes." Cognitive and mental demands includes, among other data points, contact with others, dealing with external customers, work with a group or team, duration of the work week, and work schedules (regular, irregular, and seasonal). 

The video contains a mock hearing with a hypothetical question that assumes "light work as defined in the regulations." That is light work as defined in 20 CFR 404.1567 416.697 -- not SSR 83-10. The hypothetical continues to limit the person to occasionally climbing ramps and stairs. No one can frequently climb ramps and stairs up to two-thirds of the day, not even a college athlete. Going up and down the stairs for 5.5 hours is a mountain climber, not a worker. The hypothetical limits the person to simple instructions. More about this later. Finally, the question describes a limitation to occasionally interact with supervisors and coworkers. That's our focus for O*NET purposes.

Does the DOT describe interaction with supervisors and coworkers? No. Some witnesses will look at talking and hearing. Interacting with coworkers is not part of talking and hearing. Read the SCO Appendix C. Does the Occupational Requirements Survey use seldom, occasional, frequent, and constant to address workplace interactions? No. The ORS uses:

1. Constantly, every few minutes
2. Not constantly but more than once per hour
3. Not more than once per hour but more than once per day
4. At least once per day
5. Once per day or less often
6. At least once per week
7. Less than once per week including never

Contrast that with the O*NET description of contact with others. First, contact with others is defined:

How much does this job require the worker to be in contact with others (face-to-face, by telephone, or otherwise) in order to perform it?

Contact with others is synonymous with interaction. It is not working in proximity and rubbing shoulders. The O*NET separately describes physical proximity, "to what extent does this job require job tasks in close physical proximity to other people?" The categories for contact with others are:

1. Constant contact with others
2. Contact with others most of the time
3. Contact with others about half the time
4. Occasional contact with others
5. No contact with others

Those categories speak directly to the hypothetical question of "occasionally interact with supervisors and coworkers." Do you trust the local vocational witness with local experience or the national data gathering over that last 30 years of the Employment Training Administration, Department of Labor to inform this file and this limitation how many jobs require occasional or less contact (interaction) with others? The concept of administrative notice says what Labor says about the O*NET, 

Thus, if you are looking for current occupational information you should use the O*Net.

The O*NET also classifies work based on the importance of work with a work group or team. The data point provides greater insight into this question of interaction with supervisors and coworkers. 

The vocational witness identifies document preparer, cutter-and-paster, and cleaner housekeeper. Document preparer (249.587-018) and cutter-and-paster (249.587-014) are both resident in office clerks, general (SOC 43-9061). 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
622,545	81.1%	504,884
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
504,884	2%	10,098

This snippet from an OccuCollect report combines 2.5 million jobs from the OEWS, reduces for 74% full-time work from the O*NET, looks at SVP 2 work from the 2023 ORS dataset, and uses the 2% contact with others from the O*NET. 

Are there 30,000 general office clerk jobs in all sedentary unskilled work with occasional contact (interaction) with others? Not according to Labor's data. How about light work? 

43-9061 - Office Clerks, General

Job Number Calculations
# of Jobs (OEWS 2023)	% Full-Time (O*NET 29.1)	# Full-Time
2,496,370	74%	1,847,314
# of Jobs	% SVP 2 (ORS 2023)	# SVP 2
1,847,314	33.7%	622,545
# of Jobs	% Light (ORS 2023)	# Light
622,545	14.9%	92,759
# of Jobs	% Occasional Contact with Others (O*NET 29.1)	# Occasional Contact with Others
92,759	2%	1,855

 We are still shy of 12,000 jobs total. Turns out that office work requires working with others. The 2% that do not have more than occasional contact with others are probably in the two-thirds of jobs are that skilled or semi-skilled. 

The O*NET informs the process and answers the question by  administrative notice. The sample examination is illustrative of just how ad hoc VW testimony really is. 

Back to housekeeping cleaner. Just 18% of maids and housekeeping cleaners have occasional contact with others resulting in 18,683 jobs. But that is not the killer. Standing and walking eliminates the light work as generally understood by the agency and witnesses -- six hours of a workday:

37-2012 - Maids and Housekeeping Cleaners
Percent of Day Standing

% of Day Standing	Percentile	# of Jobs
Total Jobs (OEWS 2023)	100%	836,230
87.5%	10%	83,623
95.0%	25%	209,058
100.0%	50%	418,115
100.0%	75%	627,173
100.0%	90%	752,607

No measured number of maid jobs stand/walk not more than six hours in an eight-hour workday.

I hope against reality that the Social Security Administration would set forth examples that are real, verifiable, and unquestionably reliable. But the examples the agency puts forward in this training video are exhibits 1, 2, and 3 of VW nonsense. The agency does not expect reliable testimony, it expects testimony that it can lean on to decide claims. Unrebutted garbage is substantial evidence.   

Saddened that we are faced with more nonsense. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Training Video and Why the O*NET Remains Important, California Social Security Attorney (January 28, 2025) https://californiasocialsecurityattorney.blogspot.com

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

Biestek vs. SSR 24-3p

I have seen this occupation in my vast experience as a vocational rehabilitation provider and based on my education, training, and experience, a person that could stand/walk four hours could perform this occupation with a sit-stand option at will in 50% of those jobs. 

We have been there and been exposed to this kind of nonsense for decades. Let's assume that the vocational witness (VW) has 30 years of experience and seen 100 of of the 3,000 unskilled jobs 10 times. Based on a random sample of 10 viewings, the VW extrapolates that experience to estimate the existence of 30,000 jobs.

Slow the roll and take some time to let that sink in. Using the CheckMarket Sample Size calculator, a population size for any unit requires a sample size of a specific number to have statistical validity to a 95% reliability:

                            Population Size            Required Sample Size
                            

                            2,000                              1,092

                            20,000                            2,144

                            200,000                          2,373

We have common knowledge understanding that polls have 3% margin of error and are often more than 3% difference between some polls. Bias in the sample selection matters. Who do rehabilitation specialists visit? Employers that are known to provide accommodations as a routine such that they cease to be accommodations, just they way the job is done at that facility. 

Let us assume the truly large Standard Occupational Codes (SOC): maids, janitors, and stockers (markers). Maids and housekeeping cleaners represent over 830,000 jobs on the 2023 OEWS report. Janitors and cleaners represent over 2.1 million jobs on that same report. Stockers and order fillers represent over 2.8 million jobs. The CheckMarket sample sizes:

                            Occupation                 Population Size            Required Sample Size
                            

                            Maids                          830,000                         2,394

                            Janitors                       2.1 million                     2,399

                            Stockers                      2.8 million                     2,399

In order to comment in any meaningful manner about the distribution of job requirements in a SOC group, the VW should have a random sample of over 2,300 jobs per occupation. No VW has the experience to gather 2,300 job viewing for 100 DOT occupations that the witness holds on their belt. I have never heard a VW say the minimum of 1,000 viewings for the smallest of sample sizes. Once the population size gets to 12,000, the random sample is over 2,000. 

Why does this matter? Because the Supreme Court says so. Biestek v. Berryhill holds:

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.

The COSS binds the agency as a matter of law to the proposition that she "will take administrative notice" of reliable published data from governmental and other resources about the requirements and numbers of jobs. 20 CFR § 404.1566(d). 

Who publishes data that uses a well-accepted methodology for describing the requirements of work and the number of jobs? The Department of Labor does. DOL tells us:

if you are looking for current occupational information you should use the O*Net.

The Occupational Requirements Survey abides by OMB statistical standards. The OEWS and the Employment Projections comply with OMB standards. What standards to VW comply with? The seat of their pants, wet finger in the wind, I ate too much for breakfast. They have not manner of extrapolating their local experience to the national economy by means of a well-accepted methodology. No VW has the ability to gather and synthesize data anything close to the prowess of the Bureau of Labor Statistics. 

VW are not qualified to override the statistical experience of reporting the requirements and numbers of jobs in the national economy. Not by education, training, or experience. They lack the time to gather that much data, to synthesize that data, and to report on that data. Observing an occupation five, ten, or more times is statistically insignificant. 

Biestek is the answer to the question posed by general description of methodology. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Biestek vs. SSR 24-3p, California Social Security Attorney (January 27, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

The Social Security Adjudicators Will Abuse SSR 24-3p

We are now over a month since the publication and three weeks post effective date of SSR 24-3p. As we discussed last month, SSR 24-3p rescinded SSR 00-4p which rescinded AR 00-3(10).  SSR 00-4p held the agency to resolving apparent conflicts with the Dictionary of Occupational Titles (DOT) and companion Selected Characteristics of Occupations (SCO). 

SSR 00-4p had the salutary benefit of allowing claimants to compare vocational evidence to the content of the DOT/SCO seeking reversal of decisions by the Appeals Council, District Court, or Court of Appeals. SSR 24-3p clearly states that the agency will no longer require adjudicators to resolve conflicts or apparent conflicts with the DOT/SCO and vocational testimony. 

Does an agency adjudicator have a responsibility to resolve conflicts in the record? That is the million dollar question. It is clear that it is the responsibility of the claimant representative to bring up conflicts during the hearing process. Raising apparent or arguable conflict later is too late. The record must raise the issue before the process is complete.

Some ALJs will rule that the record is closed and deny a post-hearing submission. The ruling says:

At the hearing level, when the claimant is represented, we expect the representative to raise any relevant questions or challenges about the VE's testimony at the time of the hearing and to assist in developing the record through appropriate questions to the VE.

 At a recent hearing the vocational witness identified in response to a sedentary, simple repetitive, and six hours of sitting hypothetical for a younger individual with a limited education but semi-skilled past work:

1. Order clerk, food and beverage – 209.567-014 – 19,516
2. Patcher – 723.687-010– 26,420
3. Circuit board assembler 726.684-110 – 22,919

The witness claimed that he consulted but his testimony was inconsistent with the Job Browser Pro, OASYS, OEWS, ORS, ONET, and DOT. He derived his testimony from the Occupational Employment Quarterly after which he considered the industries in which the occupation existed. The ALJ ruled that this satisfied the "general" description of the methodology employed. 

But the methodology is bankrupt. The primary complaint about JBP/OASYS was, "those are estimates." The OEWS and ORS did not describe sedentary work. Only the OEQ matched exertion and skill to the DOT codes. Absolutely moronic. 

1. Order Clerk (DOT 209.567-014)

Order clerk, food and beverage requires reasoning level 3. It is not simple. 

OASYS estimates 923 jobs out of 1,529 jobs at the SCO/NAICS (occupation/industry) intersections. 

JBP estimates 922 jobs.

The OEWS estimates 1,590 jobs at the SOC/NAICS intersections. 

The Employment Projections estimate 1,700 jobs at the SOC/NAICS intersections. 

More importantly, US Publishing estimates unskilled sedentary work. The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that order clerk, food and beverage represents 1,620 jobs in the nation. SOEUQ, page 3 line 209.567-014. Not even US Publishing believes the number of jobs derived from equal distribution.

2. Patcher (DOT 723.687-010)

OASYS determined that 5,518 production workers work in those three industry groups and 86 of those jobs belong to patcher. 

Job Browser Pro estimates 85 jobs. 

OEWS and EP estimate 8,000 jobs at the SOC/NAICS intersections compared to 5,518 by OASYS. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 76 jobs in the nation. SOEUQ, page 11 line 723.687-010. Not even US Publishing believes the number of jobs derived from equal distribution.

3. Circuit board assembler (DOT 726.684-110)

OASYS estimates that circuit board assembler represents 1,182 jobs in the nation. 

Job Browser Pro estimates 1,179 jobs. 

The Specific Occupational Employment Unskilled Quarterly (1st quarter 2023) states that patcher represents 3,312 jobs in the nation. SOEUQ, page 6 line 726.684-119. Not even US Publishing believes the number of jobs derived from equal distribution.

The estimate of 67,000 jobs in the three DOT codes is fabricated, it is wrong. I have wrestled recently whether it is worse to encounter a vocational witness that (1) knowingly lies, or (2) lacks the awareness that they don't know. It is clear that a prevaricating moron is the worst. But as between someone willing to make up numbers that they know are specious and someone that just repeats numbers fed to them by other witnesses or blind ignorance, that is a toss up. 

Pick 'em. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The Social Security Adjudicators Will Abuse SSR 24-3p, California Social Security Attorney (January 23, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

The O*NET -- SSA Says Do Not Use It -- But You Should

The Commissioner re-issued EM-21065 REV 2 effective January 6, 2025. EM-21065 follows the effective date of SSR 24-3p, removed references to SSR 00-4p, and made editorial changes. EM-21065 describes the Occupational Information Network (O*NET) as different from the regulatory terms and definitions. The EM says:

Occupational Information Network (O*NET) Information: O*NET does not define physical exertion requirements in a way that is consistent with SSA regulations (20 CFR 404.1567 and 416.967). O*NET instead groups lifting with activities that SSA rules define as non-exertional (e.g., climbing, stooping, and handling). Accordingly, the information in O*NET is not generally usable in our adjudication process.

First, the criticism of the O*NET addresses the question of exertion citing the definitions of sedentary, light, and medium work in the regulations. The statement by the EM is untrue. The O*NET does not address exertion in terms of lifting, carrying, pushing, and pulling at all. The O*NET collects data and reports sitting, standing, and walking or running. (I am boldfacing the data points that I see as most common in the disability practice that matter). The O*NET collects data and reports in work context pertaining to physical work conditions:

1. Bending or twisting

2. Climbing ladders, scaffolds, or poles

3. Keeping or regaining balance

4. Kneeling, crouching, or crawling

5. Repetitive motions

6. Using the hands for handle, control, or feel

The O*NET does not label these activities as exertional. SSA puts that label on them. What is clear is the proposition that the nine categories of physical work conditions are important components of a residual functional capacity assessment. The observation that the O*NET does not classify exertion does not make the data about other work requirements inapplicable to the process. 

The O*NET collects data and reports for environmental conditions:

1. Cramped work space and awkward positions

2. Exposure to contaminants

3. Exposure to whole body vibration

4. Extremely bright or inadequate lighting

5. Sounds and noise levels 

6. Very hot and cold temperatures

This data answers questions about the requirements of work that actually exist in the national economy. The O*NET collects data and reports on the question of job hazards:

1. Disease or infection

2. Hazardous conditions

3. Hazardous equipment

4. High places

5. Minor burns, cuts, bites, or stings

6. Radiation

The O*NET collects data and reports data on work attire:

1. Protective safety equipment

2. Breathing apparatus, safety harness, full protection suits, or radiation protection

The O*NET collects data and reports on work settings:

1. Enclosed vehicle or equipment

2. Open vehicle or equipment

3. Indoors, environmentally controlled

4. Indoors, not environmentally controlled

5. Outdoors, exposed to weather

6. Outdoors, under cover

7. Physical proximity to other people

The O*NET collects data and reports structural job characteristics:

1. Level of competition

2. Consequence of error

3. Freedom to make decisions

4. Impact of decisions

5. Duration of typical work week

6. Pace determined by speed of equipment

7. Time pressure

8. Work schedules

9. Degree of automation

10. Importance of being exact or accurate

11. Importance of repeating same tasks

12. Structure versus unstructured work

The O*NET collects data and reports interpersonal relationships:

1. Electronic mail

2. Face-to-face discussions

3. Letters and memos

4. Public speaking

5. Telephone

6. Contact with others

7. Deal with physically aggressive people

8. Deal with unpleasant or angry people

9. Frequency of conflict situations

10. Responsibility for outcome or results

11. Responsibility for others' health and safety

12. Coordinate or lead others

13. Deal with external customers

14. Work with a group or team

These data do not speak to the issue of exertion and use of the medical-vocational guidelines. These data do address the requirements of work at step five of the sequential evaluation process where some of the components of the residual functional capacity require answers that the O*NET addresses. 

The O*NET resolves the question of part-time versus full-time work. The O*NET addresses the frequency of contact with others, responsibility for outcome of work, contact with the public, and teamwork. The O*NET addresses change in work schedule. These data points meet the administrative notice criteria of 20 CFR §§ 404.1566(d), 416.966(d). The Department of Labor describes the scope of data in its publication of the Dictionary of Occupational Titles:

The O*Net is now the primary source of occupational information. It is sponsored by ETA through a grant to the North Carolina Department of Commerce. Thus, if you are looking for current occupational information you should use the O*Net.

You should use the O*NET. 

___________________________

Suggested Citation:

Lawrence Rohlfing, The O*NET --  SSA Says Do Not Use It -- But You Should, California Social Security Attorney (January 9, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

Aptitudes and Work Situations (Temperaments) -- SSA Says Do Not Consider Them

The Commissioner re-issued EM-21065 REV 2 effective January 6, 2025. EM-21065 follows the effective date of SSR 24-3p, removed references to SSR 00-4p, and made editorial changes. EM-21065 describes the SkillTRAN products (OccuBrowse, Job Browser Pro, and OASYS) as useful but does not replace policy, judgment, or decision-making. EM-21065 emphasizes that the SkillTRAN reports of aptitudes and work situations (temperaments) are not consistent with agency policy:

These ratings do not represent functional requirements for work because they reflect the personal interests, natural abilities, and personality characteristics of job incumbents rather than occupational requirements that adjudicators must consider when assessing the vocational impact of limitations or restrictions resulting from a medically determinable impairment(s), as is required for SSA’s disability programs.

SSA misapprehends the origin of aptitudes and temperaments. These data categories are not part of SkillTRAN products but are instead part of the DOT dataset. Every major reporter of the Dictionary of Occupational Titles (DOT) dataset report aptitudes and temperaments. The Selected Characteristics of Occupations (SCO) is just that, a statement of selected characteristics. The selected characteristics implies that the dataset contains other characteristics that the Department of Labor did not select. The "unselected" characteristics include not only aptitudes and temperaments but also work fields and materials, products, subject matter, and services codes (necessary for transferable skills analysis). 

The Revised Handbook for Analyzing Jobs (DOL 1991) (RHAJ) explains all data fields used in the DOT, SCO, and the unselected characteristics. The RHAJ defines aptitudes in chapter 9. The RHAJ explains:

Every aptitude factor must be considered independently in the rating process for each job. The analyst estimates the level of each aptitude required of the worker for average, satisfactory performance based on a careful evaluation of the work activities of the job and the specific worker abilities which can be identified in terms of the aptitudes.

The RHAJ defines the 11 aptitudes:

General Learning Ability -- the ability to "catch on" or understand instructions and underlying principles. 

Verbal Aptitude -- the ability to understand the meaning of words and to use them effectively. 

Numerical Aptitude -- the ability to perform arithmetic operations quickly and accurately. 

Spatial Aptitude -- the ability to think visually of geometric forms and to comprehend two-dimensional representation of three-dimensional objects. 

Form Perception -- the ability to perceive pertinent detail in objects or in pictorial or graphic material. 

Clerical Perception -- the ability to perceive pertinent detail in verbal or tabular material.

Motor Coordination -- the ability to coordinate eyes and hands or fingers rapidly and accurately in making precise movements with speed. 

Finger Dexterity -- the ability to move the fingers and manipulate small objects with the fingers rapidly and accurately. 

Manual Dexterity -- the ability to move the hands easily and skillfully. 

Eye-Hand-Foot Coordination -- the ability to move the hand and foot coordinately with each other in accordance with visual stimuli. 

Color Discrimination -- The ability to match or discriminate between colors in terms of hue, saturation, and brilliance.

Each of these abilities pertain to specific work functions required of the ability to perform work activity. General learning ability relates to the ability to meet the bona fide occupational qualifications (BFOQ) of work, to become proficient within prescribed training periods. Coordination and dexterity relate to the ability to perform work tasks according to employer expectations. The 11 categories of aptitudes represent functional abilities whether naturally occurring or diminished by medically determinable impairments. 

Semi-skilled can require coordination and dexterity. 20 CFR § 404.1568(b). The ability to perform light work includes sedentary work unless the person has a loss of dexterity or inability to sit for long periods. 20 CFR § 404.1567(b). The aptitudes address the reasonable expectations of employers related to the BFOQ. 

The RHAJ explains temperaments in chapter 10:

Temperaments, a component of Worker Characteristics, are the adaptability requirements made on the worker by specific types of jobs. 

The category Temperaments is one of the components of job analysis because different job situations call for different personality traits on the part of the worker. Experience in placing individuals in jobs indicates that the degree to which the worker can adapt to work situations is often a determining factor for success. A person's dissatisfaction or failure to perform adequately can sometimes be attributed to an inability to adapt to a work situation rather than to an inability to learn and carry out job duties.

EM-21065 focuses on personality traits ignoring the concept of the ability to adapt. The inability to adapt to work or vocational adaptability is grounded in the medical-vocational guidelines (the grids). Appendix 2 § 201.00(c) holds:

Vocational adjustment to sedentary work may be expected where the individual has special skills or experience relevant to sedentary work or where age and basic educational competences provide sufficient occupational mobility to adapt to the major segment of unskilled sedentary work. Inability to engage in substantial gainful activity would be indicated where an individual who is restricted to sedentary work because of a severe medically determinable impairment lacks special skills or experience relevant to sedentary work, lacks educational qualifications relevant to most sedentary work (e.g., has a limited education or less) and the individual's age, though not necessarily advanced, is a factor which significantly limits vocational adaptability.

Subsection (g) states that people closely approaching advanced age have limited vocational adaptability. See also §  202.00(c), (d). Vocational adjustment represents the correct inquiry in §§  201.00(c), (f), (g), (h), 202.00(b), (c), (f), 203(c). Vocational adjustment and adaptability is an important part of the step five analysis of the ability to successfully perform other work on a sustained basis. SSR 96-8p, 83-10 (the issue of work adjustment), 85-15, 83-11. The RHAJ definition of temperaments as related to the ability to adapt as including the concept of adjustment puts this category of the nature of work as compliant with the policy articulated by the regulations. 

Aptitudes and temperaments represent functional requirements and relate to the question of vocational adjustment and adaptability. These data points within the DOT dataset correlate with questions that arise in the sequential evaluation process and warrant pointed inquiry in appropriate cases. EM-21065 does not identify an ambiguity in the regulations and is inconsistent with the requirement that adjudicators take administrative notice of the requirements of unskilled work in the national economy. 

This is what happens when an agency chooses to legislate outside of formal or informal rulemaking processes. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Aptitudes and Work Situations (Temperaments) -- SSA Says Do Not Consider Them, California Social Security Attorney (January 9, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

Helpers--Production Workers Require Medium Exertion

 Helpers-Production Workers (SOC 51-9198) is a large group of occupations. The O*NET Crosswalk beaks down:

553 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report
12 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Sedentary
      2 are SVP 1      10 are SVP 2
176 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Light
      31 are SVP 1      126 are SVP 2
221 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Medium
      16 are SVP 1      156 are SVP 2
137 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Heavy
      12 are SVP 1      93 are SVP 2
7 DOT title(s) in this DOT-SOC O*NET-SOC Crosswalk Report are Very Heavy
      1 are SVP 1      5 are SVP 2

Users should consult the O*Net Alternate Titles Report for a more comprehensive list of occupations within this group.

 With 553 DOT codes contains 452 SVP 1 and 2 occupations. The 2023 EP X OEWS Job Numbers Crosswalk Report 

51-9198 - Helpers--production workers
Sector & Sub Sector - 2 & 3 Digit NAICS

NAICS	INDUSTRY	EP 2023 #'s	OEWS 2023 #'s
TE1000	Total employment	183,500	181,810
TE1000	Self-employed workers	1,700	No Data
TE1000	Total wage and salary employment	181,800	No Data

The Employment Projections (EP) "total employment" includes self-employed people. The Occupational Employment and Wage Statistics (OEWS) does not include self-employed people. The two BLS data sources agree that Helpers--Production Workers represent 181,800 jobs. The ORS 2018/2023/2024 report for physical requirements states:

51-9198 - Helpers--production workers

Physical Demands (values are Percentages, Pounds, or Hours)

Occupational Requirements – strength, exertion	2018	2023	2024
strength required is sedentary	-	<5	<0.5
strength required is light work	-	12.9	4.9
strength required is medium work	49.2	76.5	91.8
strength required is heavy work	-	10	3.4

While the 2023 data set suggests 12.9% of jobs represent light work, the 2024 data set reports 4.9%  represent light work. We also know that the ORS defines light work as occasional lifting/carrying up to 25 pounds. We next examine the specific vocational preparation (SVP) for helpers--production workers. 

51-9198 - Helpers--production workers

Education, Training, And Experience (values are Percentages or Days)

Occupational Requirements – specific vocational preparation	2018	2023	2024
specific vocational preparation is short demonstration only	-	5.7	-
specific vocational preparation is beyond short demonstration through 1 month	68.3	88.4	71.1

Most helpers--production workers engage in unskilled work. The OccuCollect Calculator puts the data together for 2023:

51-9198 - Helpers--Production Workers

Job Number Calculations
# of OEWS Jobs	% Full-Time	# Full-Time
181,810	94%	170,901
# of Jobs	% Unskilled	# Unskilled
170,901	94.1%	160,818
# of Jobs	% Light	# Light
160,818	12.9%	20,746

and for 2024:

51-9198 - Helpers--Production Workers

Job Number Calculations
# of OEWS Jobs	% Full-Time	# Full-Time
181,810	94%	170,901
# of Jobs	% Unskilled	# Unskilled
170,901	71.1%	121,511
# of Jobs	% Light	# Light
121,511	4.9%	5,954

Whether the witness uses the 2023 data set claiming 20,000 jobs or the 2024 data set claiming 6,000 jobs, that identification covers 157 DOT codes. The number of jobs must be reduced to reflect the greater lifting requirements in the modern definition of light work and eroded again for any additional exertional and non-exertional limitations. 

A sample of the light unskilled DOT codes from the 2019 O*NET-SOC to DOT Crosswalk Report:

Reporting O*NET Dataset 29.1

51-9198.00-Helpers--Production Workers

DOT Code	DOT Title	SVP	Strength
230.687-010	Advertising-Material Distributor	2	L
369.687-018	Folder	2	L
520.687-046	Mexican Food Maker, Hand	2	L
520.687-066	Blending-Tank Tender Helper	2	L
529.687-010	Basket Filler	1	L

These occupations individually represent a rare incidence of work in the national economy.

Don't let vocational witnesses identify codes within SOC 51-9198 without submitting the rebuttal evidence from the ORS and O*NET applied to the EP or OEWS. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Helpers--Production Workers Require Medium Exertion, California Social Security Attorney (January 7, 2025) https://californiasocialsecurityattorney.blogspot.com

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