What's Wrong with the OEQ -- Attacking Its Foundation and Methodology

Ah, the Occupational Employment Quarterly (OEQ), it used to be the only game in town. Ridiculed by David Traver so many years ago, superseded by Job Browser Pro (JBP), and obsoleted by the Occupational Requirements Survey (ORS) joined by the Occupational Employment and Wage Statistics (OEWS). I have labeled the OEQ statistical trash, mostly because it is. But the OEQ does have a cadre of devotees that cling to it like a plank of balsa wood adrift in a sea storm. What's wrong with the OEQ? I am so glad that you asked. 

The OEQ is well-known for its use of the equal distribution method of calculating job numbers. The Seventh Circuit labels that methodology as preposterous. Alaura v. Colvin. As Kevin Liebkemann points out in Job Incidence Numbers in Social Security Disability Claims: ACase Study and Analysis, even SkillTRAN publicly derides the OEQ as using a preposterous equal distribution methodology in its SkillTRAN Process for Estimating Employment Numbers (citing the later decision in Hill v. Colvin). 

In Woods v. Bisignano, the Ninth Circuit affirmed the vocational witness's patent use of the OEQ using the equal distribution method. Judge Nelson concurring states that a categorical rule excluding testimony based on the equal distribution method runs afoul of Biestek v. Berryhill. Woods is wrong and so is Judge Nelson. Job numbers in Standard Occupational Classification (SOC) groups with very few DOT codes leads to results that are absurd. Consider telemarketers -- one sedentary semi-skilled DOT code. The Occupational Outlook Handbook disagrees. Telemarketers typically have short-term on-the-job training. The 2018 ORS dataset describes telemarketers as having up to 1 month of training in 50.3% of jobs. Equal distribution should require an explanation -- every single time it is used. The Seventh Circuit is right.

But let us assume that Judge Nelson is right, the equal distribution method is not so inherently flawed that there do exist some circumstances where it might be reasonable to use it. Let's play along. Ask the witness this question:

What is the data source that US Publishing uses to estimate job numbers stated in the OEQ?

The first page of the OEQ II  3.2 states that column 4 sets out the "current employment for this occupation." The last page of the OEQ 3.2 states that  

- All data are estimates from government sources including the U.S. Department of Labor, Division of Occupational Employment Statistics and of the Local Area Unemployment Statistics.

The US Publishing web site invokes the 2010 decennial census. Clearly US Publishing has not updated its page or claim to use the 2020 decennial census. Nowhere does US Publishing claim to use the Current Population Survey or any other data source. Nor the US Publishing recognize that the OES is now the OEWS. A rose by any other name is still a rose and the OEWS and the OEWS data is found at www.bls.gov/oes/. 

Since we know the US Publishing relied on OES/OEWS data from the OEQ and from the web page, we can compare and contrast the gross job number cited by the OEQ to the OEWS. A sample:

Occupation	OEQ total employment 4th Qtr. 2024	OEWS total employment  2024
Credit Authorizers, Checkers, and Clerks SOC 43-4041	63,662	11,960
Order Clerks  43-4151	216,280	83,420
Couriers and Messengers SOC 43-5021	232,941	71,920
Word Processors and Typists  SOC 43-9022	258,841	36,020
Office Clerks, General SOC 43-9061	2,351,948	2,510,550
Electrical and Electronic Equipment Assemblers SOC 51-2022	179,597	261,140 SOC 51-2028 (includes SOC 51-2022 and SOC 51-2023)
Inspectors, Testers, Sorters, Samplers, and Weigher SOC 51-9061	727,005	591,180
Helpers—Production Workers SOC 51-9198	273,294	167,490
Production Workers, All Other SOC 51-9199	813,370	277,060
Cleaners of Vehicles and Equipment SOC 53-7061	395,474	373,960
Packers and Packagers, Hand SOC 53-7064	676,479	601,440
Stock Clerks and Order Fillers SOC 43-5081	2,009,370	2,779,530 Stockers and Order Fillers SOC 53-7065

 The numbers are not reconcilable. Most of the occupations selected off the top of my head are so far off that they are clearly unreliable. 

That is strike two against the OEQ. US Publishing uses equal distribution based on the number of exertion-skill DOT codes resident in the SOC code. US Publishing's stated source for job numbers does not support the job numbers stated. Of the 867 codes in the 2018 SOC, 485 have at least some change from the 2010 SOC. US Publishing and its OEQ have not kept up nor paid attention to the combination of two SOC detailed groups into a single reported group (51-2028) in the current dataset. 

The OEQ as it is currently constituted needs to die.

___________________________



Suggested Citation:

Lawrence Rohlfing, What's Wrong with the OEQ -- Attacking Its Foundation and Methodology, California Social Security Attorney (August 27, 2025) https://californiasocialsecurityattorney.blogspot.com


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

Briefing Forfeiture in the District Court -- Address Every Discernible Articulation

The decisions are Nadon v. Saul and Nadon v. Bisignano. Same administrative case, twice to the District of Montana and twice to the Ninth Circuit Court of Appeals. To avoid confusion, I refer to Saul and Bisignano to make it clear which decision we are discussing. Saul is unpublished memorandum disposition; Bisignano is a published binding precedent.

Saul finds error in three aspects with the ALJ decision, the district court proceedings, and the Commissioner's briefing. First, the three points of demarcation combined Nadon's depression and posttraumatic stress disorder in the decision. The COSS must address the impairments separately citing Ghanim v. Colvin, 763 F.3d 1154, 1160, 1164 (9th Cir. 2014). Second, the treating physician's opinions after the relevant date can relate back in time citing Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). Nadon could prove a continuous disability with a retrospective diagnosis and opinion citing Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1461 (9th Cir. 1995); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999); Lester v. Chater, 81 F.3d 821, 832 & n.10 (9th Cir. 1995). Saul vacates and remand to consider PTSD, the treatment notes, and to address the PTSD as a distinct impairment from the coexisting depression. Saul is a solid win on a technical basis. Where the record establishes a different impairment than that assumed by the examining or non-examining physicians, the COSS must address those opinions separately.

Nadon's claim goes back to another administrative proceeding, and she loses again before the ALJ. Nadon bypassed the AC and went straight back to federal court. Nadon v. O'Malley. I would and generally advise attorneys to bypass the AC for the second court action.

The district court rejected Nadon's claim of error. Nadon files her second appeal to the Ninth Circuit. Judge Ronald Gould is drawn on the panel, a repeat from Saul. The court assigns Richard Tallman and Morgan Christen to the case. Judge Christen writes for the panel in the published opinion.

We understand the scope of the ALJ decision from Bisignano. The ALJ found that Nadon could perform her past relevant work as a personal care attendant and in the alternative could perform other work as a housekeeper, marker, and small products assembler. Missing the RFC assessment, we jump to the district court decision in Nadon v. O'Malley. Nadon can perform light work; stand/walk six hours; frequently reach overhead; occasionally climb; frequently posture except occasionally crawl; limited to occasional interaction with coworkers, supervisors, and the public but able to tolerate one-on-one patient interactions; and able to tolerate usual work situations and changes in routine work settings.

It is clear that the work activity in 2020-2021 is not past relevant work as to a claim of disability in 2015. It may be past relevant work in 2020 or later and as Bisignano holds and it may be relevant to 2015 without evidence of improvement in the intervening five years, but it is not past relevant work for the insured period. Bisignano focuses on the issue raised, that the earnings were insufficient to cross the substantial gainful activity (sga) threshold. Because the ALJ made a step five other work determination, any error in past relevant work is harmless.

When a claimant returns to work, it is incumbent on the hearing representative to make a record of why. Nadon is entitled to a trial work period. Nadon may have gotten better to permit non-sga work. Nadon may have a special circumstance caring for an elderly person. The facts as recited by the district court and Bisignano fail to fill in the missing facts and considerations.

And the work activity problem takes center stage. Nadon argues that the ALJ rejected the treating physician opinion from 2016 and Nadon's own testimony solely because of the non-sga work activity five or more years after the relevant period, the date last insured.

Bisignano identifies the licensed clinical social worker and nurse practitioner as not accepted medical sources in this 2015 application for benefits. Bisignano recounts that the ALJ found the opinions of a treating physicians inconsistent with the treatment record in addition to inconsistent with post-onset work activity. The core holding and the reason the court published Bisignano:

the Commissioner was correct to assert that Nadon forfeited the argument that the ALJ did not provide sufficient reasons for discounting the opinions of the healthcare professionals. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (refusing to address an ALJ's reasons for rejecting a claimant's assertions when the claimant "failed to argue th[e] issue with any specificity in his briefing").

The case was lost at the district court. Failure to pull out every reason that the ALJ hinted at in the decision. And that is the hard part of appellate work. The courts are willing to read into an ALJ decision reasons that might have the slightest grain of origination. The reasonably discerned doctrine in found in Alaska Dep't of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.2014); and Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). The reasonably discerned doctrine has its counter point, that the courts consider the reasons actually stated by the ALJ. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.2001); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.2003).

Nadon suffered a tough loss. Whether the meager work performed five years after the date last insured was central or critical to the finding of not disabled in 2015 is unclear. In the old days, knocking out the core or several reasons could win a remand on the theory that the court could not be reasonably confident that the ALJ would have made the same decision without that reason(s). Today, the claimant must show the failure of every reason stated and every reason that a court might discern from the ALJ decision in order to win.

Rough job.

___________________________

Suggested Citation:

Lawrence Rohlfing, Briefing Forfeiture in the District Court -- Address Every Discernible Articulation, California Social Security Attorney (August 14, 2025) https://californiasocialsecurityattorney.blogspot.com

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

 

Forfeiture of Step Five Vocational Issues -- Don't

Today, we examine Cain v. Bisignano, a published opinion by the Seventh Circuit Court of Appeals. Cain has a residual functional capacity for sedentary work with no public interaction. We can assume that Cain is a younger individual with more than a marginal education. Thomas Dunleavy testifies that such a person can work as a “sorter (18,000 jobs), assembler (20,000 jobs), and visual inspector (21,000 jobs).” The hearing representative did nothing. The representative requested review and did nothing. The representative in court attacked the job numbers as insubstantial. Cain found the issue forfeit. Cain is correct.

The five step sequential evaluation process is well- and long-established. 20 CFR § 404.1520. A reasonable representative is prepared to address:

1.   Earnings during the relevant period of alleged disability.

2.   The existence of medically impairments.        

a.     Are they determinable by accepted clinical and laboratory diagnostic techniques?

b.     Are the impairments severe – do they cause a significant impact of the ability to perform basic work functions?

3.   Do the impairments:

a.     Meet a listed impairment in Appendix 1?

b.     Equal a listed impairment in Appendix 1?

c.     What is the residual functional capacity that the person retains?

4.   Can the claimant perform past relevant work?

a.     Does the claimant have past relevant work?

i.            In the five years before the decision and/or before the date last insured?

ii.    That the claimant performed long enough to learn how to do it?

iii.   That the claimant performed as substantial gainful:

1.     Based on earnings?

2.     Based on value of the services where the person is not a bona fide employee?

b.     Does the past relevant work require more than the residual functional capacity?

5.   Can the person perform other work:

a.     Considering age;

b.     Considering education;

c.     Considering work experience (transferable skills);

d.     Does the work exist in significant numbers?

Some representatives fail to do their job at steps 4.a and 5. Those issues involve numbers and representatives are math phobic. According to the Dictionary of Occupational Titles, working as a lawyer (and any representative doing legal work should be held to that standard) requires mathematics level 4. The DICOT defines math level 4:

ALGEBRA: Deal with system of real numbers; linear, quadratic, rational, exponential, logarithmic, angle and circular functions, and inverse functions: related algebraic solution of equations and inequalities: limits and continuity and probability and statistical inference. GEOMETRY: Deductive axiomatic geometry, plane and solid, and rectangular coordinates. SHOP MATH: Practical application of fractions, percentages, ratio and proportion, measurement, logarithms, practical algebra, geometric constructions, and essentials of trigonometry.

SkillTRAN states that math level 4 requires basic algebra. In the modern era, representative must understand and use statistics. That ability is embedded in math level 4 and more clearly required by math level 5. Representatives have at least a masters’ level education. Representatives have the education to do math levels 4 and 5.

A representative must cross-examine the vocational expert and challenge job numbers and methodology. Doing nothing is probably below the standard of care. Let’s look at the job numbers:

 

Occupation	JBP	ORS	OEWS	EP	SOEUQ
Sorter 521.687-086	2,370	<<3,639 <<3,666	8,210 SOC-NAICS	8,500 SOC-NAICS	5,481
Dowel Inspector 669.687-014	193		6,290 SOC-NAICS	6,500 SOC-NAICS	238
Film Touch Up Insp. 726.684-050	1,067		35,230 SOC-NAICS	33,900 SOC-NAICS	2,800
Final Assembler 713.687-018	71	<350 <366	3,790 SOC-NAICS	4,800 SOC-NAICS	74

 

We quickly discover that sorter and inspector in reside in the same SOC, inspectors, testers, sorters, samplers, and weighers 51-9061. Final assembler is a production workers, all other (SOC 51-9199) occupation. Neither JBP nor the SOEUQ identify many jobs, certainly not the number offered by Dunleavy. My guess is that Dunleavy used an old version of the OEQ and was completely oblivious to the fact that he identified 51-9061 occupations twice with the second unclear if it was dowel or film touch up inspector.

What does a representative need?

1.   Job Browser Pro or OASYS from SkillTRAN.

2.   OccuCollect to get an ORS based number using the Employment Projections (OOH) or OEWS job numbers.

3.   OEQ and SOEUQ.

Why? Because vocational experts use SkillTRAN, the ORS with the OOH or OEWS gross job numbers, and/or the OEQ/SOEUQ from US Publishing. If we don’t have ready access to SkillTRAN, OccuCollect, AND US Publishing data to cross-examine the witness on the fly, right there, right now, we will let the vocational witness steal from the client and rob the representative of fees.

Disjointed complaining is not sufficient.

1.   What is your methodology?

2.   Is your testimony consistent with:

a.   Job Browser Pro/OASYS?

b.   ORS using OEWS/EP?

c.    OEQ and for sedentary occupations SOEUQ?

3.   Is your testimony an accepted methodology in the community of vocational experts?

a.   Is your methodology unique to you?

While we ask those six questions, we pull up the source identified in question 1 or the three subparts of question 2. Then we read the data to the judge. We submit the data to the judge after the hearing. We used to drive back to the office. Now we use commute time to submit rebuttal briefs. Dunleavy’s testimony is typical of lazy witnesses that give the ALJ what the witness thinks the ALJ wants to hear. We must expose the lack of rational foundation for that testimony.

Don’t let Cain be the bane or your experience.

  ___________________________

Suggested Citation:

Lawrence Rohlfing, Forfeiture of Step Five Vocational Issues -- Don't, California Social Security Attorney (August 11, 2025, revised August 15, 2025) 

https://californiasocialsecurityattorney.blogspot.com

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

 

 

Past Relevant Work -- Obrien v. Bisignano

 The Ninth Circuit published its opinion in Obrien v. Bisignano on July 1, 2025. This is a step four past relevant work claim. Obrien arose under the 15-year paradigm. Obrien has continued relevance under the 5-year rules for what is and is not relevant in comparing residual functional capacity (RFC) to past work. 20 CFR 404.1560, 404.1565 (2024). 

Obrien filed a claim for benefits and wound his way through the administrative process. Obrien's representative at the hearing and before the Appeals Council did not much. The court decision does not suggest the presence of a pre-hearing brief of a merits brief to the Appeals Council. The Commissioner smells blood and cries forfeiture on the question whether past work was relevant. 

The Commissioner did capitulate to error in finding sales representative outside of the RFC assessed. As to Obrien's past work as a telemarketer, the Commissioner argued that whether the work was performed within 15 years of the relevant date (date of decision for SSI or date last insured for DIB) or whether the earnings exceeded the threshold amount for substantial gainful activity was forfeited. 

The Commissioner raised the issue in the opposition portion of the joint submission to the district court. Obrien's attorney responded on the merits but not directly to the forfeiture argument. On appeal, the Commissioner argued that Obrien forfeited the forfeiture issue. Five times in the decision Obrien characterizes the reply portion of the joint submission as optional. Nor did the district court treat Obrien's submissions as forfeiting the issue. Obrien further noted that the supplemental rules classify a reply as optional. No forfeiture of the forfeiture issue occurred. This holding has broad civil procedure applications on whether an issue is preserved on appeal. Where the reply is optional, a party does not have an obligation to respond to every argument made by the opposing party -- but clearly the party with the burden of proof or persuasion should address all issues. We will discuss that in a future blog post. 

The merits question asks whether Obrien forfeited the issue of the ALJ's classification of past work as relevant. The Court relies on Sims v. Apfel for the judicially created administrative issue exhaustion requirement. Sims rejected the holding of several circuits that an issue not raised to the Appeals Council was waived under judicial review. Shaibi v. Berryhill addressed and applied forfeiture of step five findings, challenges to vocational testimony must be raised to the ALJ or Appeals Council. Obrien further addressed Carr v. Saul for the non-forfeiture of appointments clause challenges. 

Applying Sims, Shaibi, and Carr, the court observed that the issue of the existence of past relevant work and the ability to perform past relevant work were squarely raised in the notice of hearing. The ALJ found the existence and ability to perform past relevant work but did not explain those findings. Those issues exist essentially or permanently in the step four requirements for past work, relevance, and the ability to perform described in the regulations. Obrien's contentions that one occupation exceeded his RFC and the others were either too long ago or not substantial gainful activity did not rest on any new evidence but on the record before the ALJ. Obrien then cautions that raising issues is still required where new evidence is submitted as in Shaibi and Meanel v Apfel. 

On the merits, Obrien considers whether work performed outside of the 15-year period. Obrien rejects the district court unadvocated position that 15 years is measured from the initial determination. The ALJ did not invoke the discretionary portion that generally 15 years is the measure. Therefore, any work performed outside of 15 years prior to the date last insured cannot meet the recency test of past relevant work. 

Obrien advocated that he worked from January to April 2009 and that his posted earnings should be averaged over four months. The Commissioner argued that because Obrien had called January to April 2009 three months, his earnings should be averaged over three months. The court noted that SSR 83-35 suggested averaging over calendar months worked. The court further observed that neither party relied on POMS DI 10505.015 suggesting that averaging must account for partial months of work activity. POMS states that months and earnings in partial months should not be used in calculating average earnings. The court found no basis in the record to allocate the earnings. The court further noted that it would not resolve the issue because even if Obrien worked 3.25 months, his earnings would fall below substantial gainful activity. The problem with the court's journey down the un-briefed rabbit hole is that POMS does not count fractions, it either includes the month and the earnings or it excludes both.  

Obrien ends the analysis with the duty to develop the record. Substantial evidence does not support the ALJ decision triggering the duty to develop. This holding represents a protentional restriction on the duty to develop theory. The duty to develop theory typically rests on a record that was underdeveloped but in that state supports a denial of benefits. 

As the coup de grace, footnote 8 ends the litigation over the application of five-year rule for past relevant work as applied to cases final before June 22, 2024. Obrien cites 89 Fed. Reg. 48138 (June 5, 2024). In none of the unpublished cases preceding Obrien did either the Commissioner or the Court cite the clear statement in that de facto amendment of the final rule amending 20 CFR secs. 404.1560, 404.1565). 

Obrien represents a win for claimants seeking review on the increasingly frequent resort to forfeiture, the civil procedure question of the role of the reply brief in transcript litigation, the duties of the ALJ to make findings in the five-step sequential evaluation process, and the need for articulated findings even when the issue is typically without controversy at the past relevant work issue at step four. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Past Relevant Work -- Obrien v. Bisignano, California Social Security Attorney (August 8, 2025) https://californiasocialsecurityattorney.blogspot.com

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