Why the Equal Distribution Method of Estimating Job Numbers Conflicts with the DOT

We discussed the equal distribution method of calculating job numbers in the past in the Production Workers, All Other, and the Occupational Employment Quarterly.  The OEQ uses an equal distribution of jobs within an occupational group to calculate jobs numbers. 

There are two competing methodologies for the estimation of job numbers:  occupational density; and equal distribution.  Chavez v. Berryhill, ___ F.3d ___ (7th Cir. July 18, 2018).  The equal distribution method rests on the proposition that all occupations (DOT codes) within an occupational group represent the same number of jobs.  The Occupational Employment Quarterly uses the equal distribution method.  Chavez surveys the cases expressing concerns within the Seventh Circuit with the equal distribution method.  Id. (citing Alaura v. Colvin, 797 F.3d503, 507–08 (7th Cir. 2015); Voigt v. Colvin, 781 F.3d 871, 879 (7th Cir. 2015); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014); Herrmann v. Colvin, 772 F.3d 1110,1112–14 (7th Cir. 2014)).

The occupational density model determines the industries in which occupations listed in the DOT exist and uses the BLS reported intersection of occupation and industry as the starting point to determine job numbers.  Job Browser Pro uses the occupational density method.  At the intersection of occupation and industry, Job Browser Pro uses the equal distribution method at that significantly more granular level. 

The question is whether the equal distribution method violates agency policy by containing an unidentified and apparent conflict with the DOT.  20 CFR § 404.1566; SSR 00-4p.  Every DOT code contains a parenthetical industry designation.  DICOT, Parts of the Occupational Definition.  The DOT provides:

3) Industry DesignationThe industry designation is in parentheses immediately following the occupational base title. It often differentiates between two or more occupations with identical titles but different duties. Because of this, it is an integral and inseparable part of any occupational title. An industry designation often tells one or more things about an occupation such as:

• location of the occupation (hotel & rest.; machine shop)

• types of duties associated with the occupation (education; forging)

• products manufactured (optical goods; textile)

• processes used (electroplating; petrol. refin.)

• raw materials used (nonfer. metal; stonework)

While a definition usually receives the designation of the industry or industries in which it occurs, certain occupations occur in a large number of industries. When this happens, the industry assigned is a cross-industry designation. For example, clerical occupations are found in almost every industry. To show the broad, cross-industry nature of clerical occupations, "clerical" is an industry designation in itself. Among other cross-industry designations are: "profess. & kin.", "machine shop", and "woodworking".
Occupations which characteristically occur in nearly all industries, or which occur in a number of industries, but not in most industries and which are not considered to have any particular industrial attachment, are assigned the designation of "any industry." The job title in the example is assigned this designation. It should always be identified as CLOTH PRINTER (any industry) 652.382-010.
In compiling information for the DOT, analysts were not able to study each occupation in all industries where it occurs. The industry designation, therefore, shows in what industries the occupation was studied but does not mean that it may not be found in others. Therefore, industry designations are to be regarded as indicative of industrial location, but not necessarily restrictive.

The equal distribution method ignores the restriction that occupations exist within industries.  It necessarily conflicts with the specification of industry by the DOT.  This becomes more complicated when the DOT uses the designation of "any industry."   The DOT defines this classification.  DICOT, Occupational Titles Arranged by Industry Designation.  The DOT states:

any industry--ANY INDUSTRY: This designation includes occupations that are not allocated to other classifications. The principal groups of jobs included under this designation are: (1) occupations
that characteristically occur in practically all industries; (2) occupations that occur in a number of industries (which number is not exactly determinable) but that do not characteristically occur
in most industries; and (3) occupations that are not considered to have any particular industrial attachment. The occupations included under this designation are considered to be essentially the same
wherever they occur, in that they involve the same fundamental functions, and are performed for the same general purpose wherever they exist. Familiarity with a given job in one industry, however,
may not permit a worker to transfer to the same job in another industry without some training period to acquaint the worker with the processes, terminology, hazards, or other factors in the
industry to which he or she is being transferred that would affect the occupation in question in that industry. Many occupations that occur in various industries, and could logically fall within this
group as defined above, are allocated to such classifications as CLERICAL AND KINDRED OCCUPATIONS (clerical); FOUNDRY (foundry); [M]ACHINE SHOP (machine shop); PROFESSIONAL AND KINDRED OCCUPATIONS (profess. & kin.); and WOODWORKING (woodworking); all of which embrace occupations that cut across industry lines.

The three primary bases for putting a DOT code with a designation of "any industry" requires the vocational expert to tell SSA which one applies.  Assembler occupations exist in may industries, but all within the manufacturing sector of the economy.  Consider:

ASSEMBLER, PRODUCTION 706.687-010
ASSEMBLER, SMALL PRODUCTS I 706.684-022
ASSEMBLER, SMALL PRODUCTS II 739.687-030
ASSEMBLY-PRESS OPERATOR 690.685-014

All carry the "any industry" designation; none of them would logically work outside of manufacturing; and none of them would work in the food manufacturing subsector.  

Using the equal distribution method always ignores the industry designations.  That requires that we ask the simple question after the ALJ asks about conformity with the DOT:

Q:  Does your testimony take into account the industry designation contained in the DOT?

That leaves open the next line of inquiry into how the equal distribution method accounts for industry designation at all.  

Social Security Ruling 00-4p Warrants No Deference

Social Security Ruling 00-4p warrants no deference concerning the content of the Dictionary of Occupational Titles (DOT).  The ruling states in relevant part that:

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational information may be able to provide more specific information about jobs or occupations than the DOT.

It all started in 1995 with the Eighth Circuit decision in Jones v. Chater. The court said:

In other words, in our view, the reference book gives the approximate maximum requirements for each position, rather than their range.

Several courts (in about 30 cases) cite to Jones for that proposition.   The Commissioner published SSR 00-4p with the statement we looked at above.  The question is whether the DOT lists the maximum requirements or something else.  Examining the DOT answers that question:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.

See DOT Appendix D.   Typical does not imply maximum.  Typical implies the average.  Don't take my word for it, use the dictionary.  Merriam Webster defines typical:

1. a :  combining or exhibiting the essential characteristics of a group typical suburban housesb :  conforming to a type a specimen typical of the species

By defining the DOT descriptions as typical and using the English language to do so, the Department of Labor set forth the naked proposition that the DOT characteristics set forth the essential characteristics of the work set forth in the DOT itself.

When the Commissioner or a court says that the DOT describes the maximum requirements of the occupations defined, put on the brakes and cite to the DOT Appendix D.  The DOT does not belong to SSA and the SSA does not get to construe the DOT contrary to the construction provided by Labor.  The ruling gets no deference in defining the content of the DOT.  The ruling defines the concept of administrative notice.  On that latter point, the Commissioner gets deference.  

Is the Attorney Representative All that AND a Bag of Potato Chips?

So here are some questions to ask:

1.        Does the attorney know the file better than the medical expert in every case?  That requires hours of case review per file and some files exceed 5,000 pages.  Did the attorney read and annotate the file before the hearing … every time?

2.       Does the attorney act like the potted plant at the hearing?

a.       Was there meaningful cross of the medical expert about unfavorable and unsupported parts of the ME testimony?

b.       Was there meaningful cross of the vocational expert?

3.       Does the attorney have a theory of the case that pertains to the facts of the case?

a.       Does the claimant fit inside of a favorable grid rule?

b.       Does the claimant have a non-exertional impairment that wipes out work at an or several exertional levels?

c.       Does the attorney ask questions tailored to the theory of the case?

                                                               i.      Do you have good use of your hands?

                                                             ii.      If no, tell the judge what you mean by “no.”

                                                           iii.      Can you open jars with ease?  Explain.

                                                           iv.      Can you manipulate a zipper with ease?  Explain.

                                                             v.      Can you type?  How fast?  How many errors?  For how long? 

                                                           vi.      Can you use a mouse?  Which hand?  For how long?

                                                          vii.      Cooking, scissors, etc. 

d.       Does the attorney have record citations that back up the theory of the case?

4.       Does the attorney permit the vocational expert to go unchecked – the potted plant syndrome?

a.       Can the attorney cross the VE on the provisions of the DOT and its companion publications including temperaments, aptitudes, environmental requirements, physical requirements?  Does the attorney know the DOT better than the VE?

b.       Can the attorney cross the VE based on the rulings?  See POMS DI 25025.030 for a list of the rulings about the significance of impairments on the exertional bases. 

c.       Can the attorney cross the VE based on mental limitations.  See POMS DI 25020.010 for a list of the critical and strictly enforced requirements of unskilled work. 

                                                               i.      Is a 10% reduction in productivity meaningless but a 15% reduction preclusive of all work?

                                                             ii.      Is superficial contact with supervisors a limitation that permits a wide swath of work? 

                                                           iii.      Is working in relative isolation OK?

                                                           iv.      What does SSR 00-4p say about testimony inconsistent with agency policy?

                                                             v.      What does SSR 13-2p include in the statements of agency policy?

d.       Does the attorney have a working knowledge of the scope of administrative notice?  See 404.1566(d) and 416.966(d). 

                                                               i.      Can the attorney challenge the VE on jobs within a specific industry?  See County Business Patterns. 

                                                             ii.      Can the attorney challenge the VE on the educational requirements for work as described in the OOH and the O*NET?

                                                           iii.      Does the attorney know the difference between Current Population Survey and Occupational Employment Statistics?

                                                           iv.      Does the attorney know the difference between SOC, OES, O*NET, and Census code reporting of job numbers?  The first three are the same for our purposes, the last one isn’t?

                                                             v.      Does the attorney know how to use the BLS employment projections?

                                                           vi.      Does the attorney know how to cross on a transferability of skills issue?  See POMS DI 25015.017 TSA. 

1.       GOE codes

2.       MPSMS codes

3.       Work Fields

4.       Occupational Group

5.       Industry Designation