Establishing the Vocational Expert's Methodology Requires Verification

The objective of cross-examination of the vocational expert must hone in one establishing that the vocational expert testimony is feeble or contradicted.  Biestek v. Berryhill instructs:

And of course, a different (maybe less qualified) expert failing to produce such data might offer testimony that is so feeble, or contradicted, that it would fail to clear the substantial-evidence bar.

The Ninth Circuit decision in Buck v. Berryhill establishes the same proposition:

"An ALJ may take administrative notice of any reliable job information, including information provided by a VE." Bayliss, 427 F.3d at 1218. "A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id.

Buck erroneously reads the above language from Bayliss to require that the ALJ independently assess the reliability of VE testimony. However, as is clear from the language of Bayliss, at least in the absence of any contrary evidence, a VE's testimony is one type of job information that is regarded as inherently reliable; thus, there is no need for an ALJ to assess its reliability.

The representative must present contrary evidence and show that the vocational expert is not reliable.

In a hearing yesterday out of Evanston, Illinois, with the claimant appearing in Rockford by video conference and me on phone from sunny Santa Fe Springs, the vocational expert testified that the claimant's medical vocational profile permitted such a person to perform work as a mail clerk (DOT 209.687-026) as representing 10,400 jobs in the nation and office helper (DOT 239.567-010) representing 55,000 jobs in the nation.  After dancing around claiming to use the Occupational Employment Statistics and disavowing knowledge or use of the NAICS industry codes, the VE  distilled her methodology for estimating job numbers as relying on Job Browser Pro published by SkillTran.

Rebutting JBP is tough business.  Rebutting JBP requires reverse engineering and understanding the limits of the program as well as its use of equal distribution at the occupation-industry intersection.  But we don't have to go there.  We need to compare the VE testimony to the content of JBP.

JBP describes mail clerk as representing 2,130 jobs as of 2018.  That is a far cry from 10,400 jobs and marks substantial progress in showing conflict and feebleness of the VE testimony.

JBP describes office helper as representing 3,711 jobs as of 2018.  The drop from 55,000 jobs to 3,711 jobs is a change from clearly significant to insignificant.

Here is the probable explanation:  VEs do not go back and check their data.  Establishing conflict is as simple as owning a copy of JBP and running the numbers.  I take screen shots of the DOT estimate page to capture all of the statements of the aggregate number of jobs at the SOC-OES/NAICS intersection, the number of DOT codes, and the estimate applicable to the specific DOT code.  I then print the formal report that restates the DOT narrative (sans the industry designation), the number of DOT codes in the group, the incidence of full-time versus part-time, and then the SOC-OES/NAICS intersection without the statement of the number of DOT codes in that intersection.

In this case, the vocational expert has not offered testimony that is reliable.  In her own stated methodology, the number of jobs is wrong.  The testimony is feeble and contradicted.  The ALJ now has to deal with that conflict in the evidence.

Declaring Victory in the Numbers Game

 Some have asked me, "do you win at the numbers game?"  The answer in the past has been, "sometimes."  I announce today that we are well on our way to winning the numbers game.

The Social Security Administration issued a Vocational Expert Handbook effective August 2017.  In that Handbook, the Commissioner tells the vocational experts that testified that they “should be prepared to cite, explain, and furnish any sources” that the vocational expert relies on to support “testimony.”  Handbook, p. 3.  The Handbook directs the vocational expert to use, know how to use, and be able to use the DOT, County Business Patterns, and the Occupational Outlook Handbook.  Handbook, pages 8-9.  The Handbook states that the vocational expert should “be prepared to cite, explain, and furnish any sources upon which” the vocational expert relies for the testimony.”  Handbook, p. 19.  The Handbook emphasizes with an “again” statement directing the vocational expert to “be prepared to cite, explain, and furnish any sources” relied upon in support of the testimony given.  Handbook, page 20.  The Handbook reiterates with the “as noted above” statement that the vocational expert should be “prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 28.  In the discussion of work experience, the vocational expert must “be prepared to cite, explain, and furnish any sources” relied upon in the testimony given.  Handbook, p. 31.

 The Handbook permits the vocational expert to include data not found in the DOT.  Handbook, pages 38.  When the vocational expert relies upon data outside of the DOT, the vocational expert must “be prepared to explain why [the] sources are reliable.”  Id.  The Commissioner continues, noting that the vocational expert should “maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources.”  Handbook, page 38.  Bayliss v. Barnhart is contrary to agency policy.

 In opposing certiorari before the Supreme Court in Biestekv. Berryhill, the Solicitor General writes:

           

SSA has recently issued updated policy guidance expressing the agency’s expectation that vocational experts testifying at ALJ hearings should be prepared to identify and describe the factual bases for their testimony.  In 2017, SSA updated its Vocational Expert Handbook, which sets forth the agency’s expectations as to how vocational experts should prepare for ALJ conducted disability hearings. SSA, Vocational Expert Handbook (Aug. 2017), [https://www.ssa.gov/appeals/public_experts/Vocational_ Experts_(VE)_Handbook-508.pdf] (Handbook). The Handbook instructs vocational experts that they “should be prepared to provide a complete explanation for [their] answers to hypothetical questions”; that they “should have available, at the hearing, any vocational resource materials [on which they] are likely to rely”; and that they “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.” Id. at 37. The Handbook further advises vocational experts that “[i]n some cases, the ALJ may ask [them] to provide relevant portions of materials [they] rely upon.” Ibid.

The revised Handbook, which had not yet been issued at the time of petitioner’s ALJ hearing, will help guide the agency’s handling of vocational expert testimony in future cases, so that any disagreement among the courts of appeals may be of limited prospective importance. At a minimum, the Handbook and the regulations cited above (see pp. 8-9, supra) underscore that Social Security disability claimants are already able under current law to challenge the reliability of vocational expert testimony. Petitioner cannot show that imposing the novel mandatory rule he urges, which is not grounded in the statutory or regulatory text, is necessary to provide such an opportunity.

The Solicitor General speaks for the United States, including the Social Security Administration.  The ALJ cannot rely on Bayliss to the exclusion of the requirements of the Handbook because the SG imposes that obligation on the VE and the ALJ.  

The pregnant question implicit in the SG brief  is one of deference.  Does the Handbook warrant deference as a constructions of the administrative notice and vocational expert regulations.  If the Handbook warrants respect deference under Skidmore, then the obligation to turn over the foundational data applies.  If the Handbook gets no deference, then the courts' interpretations that vocational expert testimony needs no foundation would remain the law of the law. 

This is the merger of my two favorite legal topics -- vocational expert testimony and the concept of deference to sub-regulatory pronouncements of the Commissioner.  On the latter, the philosophy is plain -- don't print it and make it available if it isn't true, don't lie to the public.