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:
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.
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.
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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.
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