What's Wrong with SSR 24-3p?

 SSR 24-3p introduces a new interpretation of the stable administrative notice regulation, 20 CFR 404.1566(d). The Commissioner has long held as a matter of law to the proposition that when it comes to unskilled sedentary, light, and medium work, the Commissioner will take administrative notice of reliable governmental and other (private) published data for the requirements and numbers of jobs. SSR 00-4p responded to a growing number of cases -- and a split in the circuits -- that the ALJ must address conflicts between vocational testimony and the Dictionary of Occupational Titles (DOT). 20 CFR 404.1566(d)(1). The Commissioner conceded to the fact that the Selected Characteristics of Occupations (SCO) was part of the single data set. SSR 00-4p imposed on the ALJ the duty to investigate the existence of a conflict or apparent conflict and to resolve that conflict based on evidence. 

But the DOT and its dataset never stated job numbers, never. Job numbers are now and in 1978 stated in the Occupational Outlook Handbook (OOH) and County Business Patterns (CBP). 20 CFR 404.1566(d)(2), (5).Now, the Bureau of Labor Statistics publishes online the Employment Projections (EP) and the Occupational Employment and Wage Statistics (OEWS, formerly the OES). 

Labor abandoned the DOT and its data set never updating the DOT fourth edition, revised published in 1991 or the SCO published in 1993. Labor transferred responsibility of the Employment Training Administration from the DOT to the Occupational Information Network (ONET). Recognizing the problem that 10,000 of the 13,000 DOT codes had a date last updated of 1977, the Commissioner was forced to collaborate with Labor to develop a new data set -- the Occupational Requirements Survey (ORS). 

Private sources published data as well. United Stat Publishing published and publishes what is now known as the Occupational Employment Quarterly (OEQ) in various formats for national, state, and local data. That publication uses the equal distribution method of estimating job numbers -- each DOT code within a Standard Occupational Classification (SOC) represents the same number of jobs. The OEQ publishes the job numbers sorted by exertion/skill combinations. United Stat Publishing also publishes the Specific Occupational Employment - Unskilled Quarterly (SOEUQ). The SOEUQ estimates sedentary occupations by industry. The SOEUQ does not state its methodology. 

SkillTRAN publishes OccuBrowse, Job Browser Pro, and OASYS. The latter two estimate job numbers by DOT code. SkillTRAN uses a SOC/OEWS code intersection with selected industries (NAICS codes) and uses equal distribution to estimate the number of jobs per DOT code at those SOC-NAICS intersections. SkillTRAN uses a proprietary and unpublished methodology and does not use the data from the EP or OEWS that publish SOC-NAICS data. SkillTRAN uses the CBP to modify the data. The SkillTRAN SOC-NAICS data resembles but does not duplicate either the EP or OEWS SOC-NAICS data. 

That is the basic lay of the data. Job requirements are still found in the DOT and the Commissioner clings to that data set. Job requirements are found with current data in the ONET and the ORS. Job numbers are still found in the OOH and CBP -- they are up to date -- as well as the EP and OEWS. Three data sets for requirements and four data sets for job numbers. No one should use the OEQ for any purpose. JBP and OASYS continue to have utility for stating the SOC-NAICS intersection job numbers but does not parse that data based on occupational classifications nor erode for any impairment. JPB and OASYS are starting points. 

Here is the problem. The vocational witness claims to have considered the broad range of data along with their vast (local and anecdotal) experience to derive a job numbers based on no discernible methodology. Some will default to JBP/OASYS. That is at least a defensible starting point. Some will claim that the OEQ remains in the mix. That is bogus. 

And the ALJ corps blindly accepts testimony that is incoherent and meaningless. The witnesses are not consistent across time. They are not consistent with each other according to the cases. Because the claimants have privacy of their medical data, we never get to see the testimony that the witnesses give in different cases or to compare different witnesses in same and similar cases. The system lacks accountability and reliability. The system invoked by SSR 24-3p creates vocational witness lottery. That is not a system of administrative justice; it is legalized gambling with people's lives and the social safety net. 

But I never get passionate about these issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, What's Wrong with SSR 24-3p?, California Social Security Attorney (February 26, 2025)  https://californiasocialsecurityattorney.blogspot.com

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

A Vocational Expert Responds -- and I Reply

 I wrote about the Reliability of the Occupational Requirements Survey in May 2022. This week, a vocational witness left this reply:

GilkisonMay 15, 2024 at 7:28 PM

Here is where I am, as a Vocational Expert. Since the ORS groups things by SOC code and not a specific DOT code, it is impossible to break down all the variables to a point that it is reliable. You can have a SOC with, let's say, 20 DOT codes. We can not assume that each job would match the ORS information. And, as an expert, I have to use all the ORS data, even down to "ramps and stairs" and "ladders ropes and scaffolds". Pretty much made up my mind to walk away until they fix this mess which we all know might never happen.

This is a really good response. How does anyone break down the SOC groups to apply to individual DOT codes? Fair comment. If a VW cannot break down the data in the ORS to the individual DOT codes, how does a VW break down the one variable from the Employment Projections (the foundation of the OOH) or the Occupational Employment and Wage Statistics (OEWS, used by SkillTRAN) -- job numbers -- to any individual DOT code? 

Whatever methodology a statistician uses to break down job numbers, that statistician would use the same techniques for breaking down the physical, cognitive, environmental, or experiential requirements of work described in the ORS. SkillTRAN uses an occupational density model (an opaque phrase). That method uses the industry designation or the job duty descriptions to pick industries appropriate for that DOT code. SkillTRAN engages that process for all DOT codes. Using OEWS and County Business Patterns data, SkillTRAN accumulates the job numbers for that SOC/OEWS code at those industry (NAICS) intersections, and then divides by the number of DOT codes. Adding up the job numbers in each SOC-NAICS intersection results in a job number estimate. SkillTRAN uses the suspect equal distribution method for calculating job numbers at the SOC-NAICS intersection. 

The ORS is a blunt knife. With the data that is now available, the question asks whether it is possible for the job number suggested by SkillTRAN or the VW to be reliable. Vague discussions don't help. Examples crystalize the problem. 

There are 1,590 DOT codes aggregated in production workers, all other including 52 of the 137 sedentary unskilled DOT codes. The 2022 EP estimates that 275,300 jobs exist for this broad occupational group. The OEWS estimates 243,500 jobs. The ORS reports a null estimate for sedentary jobs regardless of skill level. SkillTRAN reports less than 0.5%. Any estimate over 1,376 jobs for all sedentary occupations (skilled, semi-skilled, and unskilled) does not conform to the ORS. 

Production workers, all other contains 405 light unskilled DOT codes. The ORS reports 11.1% of the jobs represent light work. Let's round off and call it 30,000 light jobs. Any testimony that there are 30,000 light unskilled jobs in a single light unskilled DOT code conflicts with the ORS. Accounting for the 26.4% of unskilled work and engaging the assumption that skill levels distribute across the exertional levels permits less than 3,000 light unskilled production workers in 405 DOT codes. 

This application of the ORS does not try to tease out the job numbers for a DOT code. This application of the ORS extracts the job numbers for the set of jobs that have the overarching characteristic. It is more difficult when the question layers the claimant with multiple limitations -- e.g., social, manipulative, pace. But if we know that light production workers, all other represent 30,000 jobs and unskilled workers at all exertional levels in that group represent fewer than 75,000 jobs, we know that no single light unskilled DOT code could ever represent more jobs. We know that the 52 sedentary DOT codes represent less than 1,400 jobs. 

The ORS, like the EP and the OEWS, does not lend itself to DOT job numbers. That troika of sources does establish the number of jobs within an occupation-industry intersection and the aggregate number of jobs with the critical characteristics at issue. Inside of those boxes, the VW can exercise experience. But they can never reliably estimate job numbers outside of the boxes erected by the data sources. 

Using the ORS is not easy. I agree with Gilkison. The difficulty is why the agency calls the VW an expert. You are called upon to engage in statistical analysis that is not part of the general requirements to be a VW. So when the ALJ asks for a sedentary unskilled reasoning level 1 occupation, tell the ALJ that lens inserter does not exist in any significant number. You can back up that testimony with the EP, the OEWS, the ORS, and County Business Patterns. 

Use the data.

___________________________

Suggested Citation:

Lawrence Rohlfing, A Vocational Expert Responds -- and I Reply, California Social Security Attorney (May 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

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

 

 

SkillTRAN's Analysis of Sedentary and Light Occupations

Our friends at SkillTRAN publish an Analysis of the Unskilled DOT Occupations (SVP < 3). Representatives should commit it to memory or keep a copy on their desk/in their briefcase. 

The page provides cumulative totals for a residual functional capacity for not present, occasional, frequent, and constant action. Constant represents no limitation and always represents 100% of jobs. The cumulative totals work across the exertion spectrum with the medium column including light and sedentary jobs. 

The categories are clear except DE:

1. 1. RE = reaching
2. 2. HA = handling
3. 3. FI = fingering
4. 4. DE = not clear
5. 5. ST = stooping

I will request that Jeff Truthan clarify the DE designation. It is not a Selected Characteristic of Occupations designation. 

This compilation of SCO data exposes problems with the Social Security Rulings. SSR 96-9p states that the inability to engage in stooping significantly impacts the sedentary occupational base. The SOC states that 95.6% of sedentary occupations require no stooping. SSR 85-15 states that the inability to engage in frequent stooping significantly impacts the medium range of work. The SCO classifies 329 occupations as requiring frequent stooping and 5 occupations as requiring constant stooping. 

SSR 96-9p states that sedentary work requires good use of the hands. The SCO identifies 92 occupations that require frequent reaching and handling as well as 75 that require frequent fingering. The SCO identifies 3 sedentary occupations that require occasional or no handling and 38 occupations that require occasional or no fingering. 

As to agency policy, the rulings are not true in all circumstances. SkillTRAN identifies occupations where the rulings suggest few jobs. Notice the difference in nomenclature. Occupations do not necessarily imply the existence of a "significant number of jobs." 

This information is foundational information. Without the foundation, representatives will get lost chasing non-issues. 

___________________________

Suggested Citation:

Lawrence Rohlfing, SkillTRAN's Analysis of Sedentary and Light Occupations, California Social Security Attorney (November 13, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

Why Doesn't the Social Security Administration Use the O*NET?

The Department of Labor replaced the Dictionary of Occupational Titles with the Occupational Information Network (O*NET) with a preliminary version in 1997. Labor now publishes version 28 of the O*NET. The Department of Labor continues to host the DOT with a front-page statement:

Status of the Dictionary of Occupational Titles; use in Social Security disability adjudications

The Dictionary of Occupational Titles (DOT) was created under the sponsorship by the Employment and Training Administration (ETA), and was last updated in 1991. The DOT was replaced by the O*Net, and ETA no longer supports the DOT.

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.

In the decade-long journey toward and Occupational Information System, SSA explains in the first frequently asked question:

Why are you developing a new occupational information system (OIS)? Why can’t the Department of Labor (DOL) update the Dictionary of Occupational Tiles (DOT), or why can’t you use the Occupational Information Network (O*NET)?

The Department of Labor (DOL) developed the DOT in the late 1930s to match jobseekers to jobs. For almost 50 years, the DOT has been our primary source for occupational information. The DOL discontinued updating the DOT in 1991, and replaced it in 1998 with another job placement tool, the Occupational Information Network (O*NET). We studied whether O*NET could take the DOT’s place in our disability adjudication process but found it does not describe the physical requirements of occupations at the level of detail needed for claims adjudication.

The OIDAP observed that the O*NET differed in the assessment of work requirements:

RFC/O*NET Comparison 

• RFC: Lifting, standing, sitting, pushing; postural limitations on balancing, crouching, crawling 
• O*NET Work Context: Time spent sitting, standing, climbing, walking, etc. 
• Anchors differ: RFC specific time ranges vs. O*NET relative time 

If the only measure of work that matters is full-time work, the O*NET focus on relative time is truly irrelevant. More importantly, the DOT does not discuss the amount of sitting, standing, or walking in any exertional domain except for sedentary work. 

The OIDAP described the measures of RFC to the measure of environmental conditions in the O*NET. Like the environmental demands in the SCO, the O*NET describes exposure on a range. While RFC is defined by tolerance, Labor has always framed the issue as expected exposure. The same comparison of tolerances in RFC to the demands in the DOT and SCO compared to the O*NET applies. The later statement in the FAQ and the OIDAP observation about skill level remain the two issues that prevent application of the O*NET as the foundation of SSA's adjudication of disability. 

That the O*NET does not provide an adequate basis for assessing skill and exertion does not translate to the conclusion that the O*NET does not provide useful data for understanding current occupational information framed in the Work Context reports. 

Representatives should not use SVP estimates because those estimates apply to a wide range of work. Representatives should not use the standing, walking, and running estimates to gauge the difference between light, medium, and heavy work. 

Representatives should use the O*NET to assess the required need for contact or interaction with other people, dealing with the public, and teamwork. Representatives should use the O*NET to separate out part-time versus full-time work. Representatives can use the O*NET to narrow the range of sedentary work. It is clear (to me) that the O*NET meets the definition of reliable government publications subject to administrative notice under 20 CFR 404.1566(d). 

The DOT contains almost 13,000 codes. The DOT has a date last updated of 1977 for 10,000 codes. The use of 46-year-old data is not reliable and does not satisfy the reasonable mind test. Recognizing the limitations of the O*NET does not justify reverting back to the DOT and pretending that it covers the data points not contemplated in 1977. 

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

___________________________

Suggested Citation:

Lawrence Rohlfing, Why Doesn't the Social Security Administration Use the O*NET?, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

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

Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?

The March 2023 version of the Social Security Vocational Expert Handbook is out. Vocational Expert Handbook (SSA Mar. 2023). A video, not found on the SSA channel on YouTube.com, explains the Handbook. The mock hearing in the middle of it all provides an example of good testimony that shocks the conscience.  

ALJ: Assume a hypothetical individual with the claimant's age, education, and past work experience is able to perform light work as defined in the regulations, except they can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; and can never climb ladders, ropes, or scaffolds; must avoid unprotected heights, moving mechanical parts, and operating a motor vehicle; can perform simple routine tasks; can make simple work-related decisions; and can occasionally interact with supervisors and coworkers, and never interact with the public. Could the hypothetical individual perform any work, and, if so, could you provide me with a few examples?

VE: Yes, jobs such as cleaner, housekeeping (DOT code 323.687-014). That is light, SVP 2, with 200,000 jobs nationally. Routing clerk (DOT code 222.687-022). That is light, SVP 2, with 40,000 jobs nationally. And marker (DOT code 209.587-034). That is light, SVP 2, with 200,000 jobs nationally.

Under SSR 83-10, the agency and the vocational experts are directed to assume that a limitation to light work includes a limitation to standing/walking six hours in an eight-hour workday. The vocational witness has stated that a housekeeping cleaner has a maximum stand/walk requirement of six hours. That is palpably false based on the DOT narrative, O*NET OnLine, and Occupational Requirements Survey. The vocational witness has claimed that the inherently clerical functions of a routing clerk have occasional or less contact with others. The witness lays claim that warehouse work has occasional or less contact with others, 

Housekeeping cleaner has the Lead Statement (after the number, title, industry, and alternate titles): "Cleans rooms and halls in commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories" The Task Element Statements (how the Lead Statement gets accomplished) states: "Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes supplies, such as drinking glasses and writing supplies. Checks wraps and renders personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets. Performs other duties as described under CLEANER (any industry) I Master Title." Find two hours of sitting in the expected or essential work duties, every day without fail. 

The O*NET describes housekeeping cleaner under the broad heading of maids and housekeeping cleaners as having occasional or no contact with others in 18% of jobs. Maids have no important contact with the public is 8% of jobs. Maids do not work with a group or team as at least a fairly important job function in 4% of jobs. Maids never sit in 72% of jobs, less than half the time in 25% of jobs, and about half the time in 3% of jobs. 

The ORS describes maids as interacting with the general public in 76.3% of jobs. Maids require basic people skills in 97.1% of jobs. Maids stand (including walk) 87.5% of the day at the 10th percentile, 95% of the day at the 25% percentile, and 100% of the day at the median, 75th, and 90th percentiles. Maids engage in light exertion in 69.3% of jobs. 

 Routing clerk has the Lead Statement "Sorts bundles, boxes, or lots of articles for delivery." The Task Element Statements states: "Reads delivery or route numbers marked on articles or delivery slips, or determines locations of addresses indicated on delivery slips, using charts. Places or stacks articles in bins designated according to route, driver, or type. ay be designated according to workstation as Conveyor Belt Package Sorter (retail trade)." Sounds an awful lot like mail clerk, an R3 occupation. The DOT classifies routing clerk as R2. Routing clerk does have significant data functions of comparing: judging the readily observable functional, structural, or compositional characteristics (whether similar to or divergent from obvious standards) of data, people, or things.

The O*NET describes routing clerk under the broad heading of shipping, receiving, and inventory clerk as having occasional or no contact with others in 0% of jobs. Shipping clerks have no important contact with the public is 4% of jobs. Shipping clerks do not work with a group or team as at least a fairly important job function in 1% of jobs. 

The ORS describes Shipping clerks as interacting with the general public in 63.6% of jobs. Shipping clerks require basic people skills in 69.2% of jobs and more than basic people skills in 30.8% of jobs. Shipping clerks stand (including walk) 25% of the day at the 10th percentile, 50% of the day at the 25% percentile, 80% of the day at the median, 95% of the day at the 75th percentile, and 100% of the day at the 90th percentiles. Shipping clerks engage in light exertion in 21.5% of jobs and unskilled work in 46.3% of jobs. 

Marker has the Lead Statement "Marks and attaches price tickets to articles of merchandise to record price and identifying information." The Task Element Statements states: "Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article. Presses lever or plunger of mechanism that pins, pastes, ties, or staples ticket to article. ay record number and types of articles marked and pack them in boxes." The DOT classifies marker as R2. Marker does have significant data functions of copying: Transcribing, entering, or posting data.

The O*NET describes markers under the broad heading of stockers and order fillers as having occasional or no contact with others in 4% of jobs. Stockers have no important contact with the public is 6% of jobs. Stockers do not work with a group or team as at least a fairly important job function in 4% of jobs. 

The ORS describes stockers as interacting with the public in 73.6% of jobs. Stockers require basic people skills in 95% of jobs and more than basic people skills in 5% of jobs. Stocker stand (including walk) 80% of the day at the 10th percentile, 90% of the day at the 25% percentile, 95% of the day at the median, and 100% of the day at the 75th and 90th percentiles. Stockers lift up to 25 pounds at the 10th percentile, 50 pounds at the 25th percentile and median, 60 pounds at hte 75th percentile, and 75 pounds at the 90th percentile. 

The witness goes on to describe the 30 years' experience, but no experience related to these three occupations. The sample of cross-examination does not ask about other sources of job information or where the vocational witness obtained the idea that these occupations do not require prolonged standing/walking, interaction with the public, or more than occasional interaction with others. 

The agency needs to stop giving examples to strive to become that are facially unsupported. The fact that many vocational experts would give this kind of testimony does not make it reliable. It makes it ubiquitously wrong. 

Talk me off the cliff.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational Expert Handbook Video Presentation -- Light Work ID'd -- OMG, Are You Kidding Me?, California Social Security Attorney (August 28, 2023) https://californiasocialsecurityattorney.blogspot.com

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

EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2

We pick up from the discussion of DPT and Temperaments earlier this week.  EM-21065 says more disturbing and misguided things about GED and aptitudes:

SSA does not use General Education Development (GED), Aptitudes, and frequency counts or percentages in adjudication.

Later, EM-21065 says: 

Only use SVP to determine the demands of work. SSA does not consider GED or Aptitudes to identify the demands of work for disability adjudication in SSA’s disability programs.

Continuing:   

SSA does not consider the descriptors of GED, Aptitudes, Work Situations (Temperaments), or Work Functions (DPT) when searching for a person’s past work or when limiting work demand requirements for a search of occupations for a TSA or occupations to cite for a framework determination or decision. We should not use these features since our policy does not use these descriptors to identify the demands of work for disability adjudication in SSA’s disability programs.

And finally: 

1. SSA does not consider the following information:

General Education Development (GED) ratings. These ratings do not correspond with SSA’s regulatory definitions of unskilled, semiskilled, and skilled work.

Aptitudes and Work Situations (Temperaments). 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 limitations or restrictions resulting from a medically determinable impairment(s), as is required for SSA’s disability programs.

We start with GED, general educational development.  This is a specification of reasoning, mathematics, and language in the DOT trailer with a three digit code.  Appendix C of the DOT describes the category:

General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study.

GED describes the educational level required for satisfactory job performance.  These are bona fide occupational qualifications for the integral, essential, and expected job functions.  The statute commands the Commissioner to consider education.  Many unskilled jobs do require a high school education or equivalent.  It is true that GED does not correlate 1:1 to skill level.  

There are 16 DOT codes classified as semi-skilled that require reasoning level 1.  There are 1,887 DOT codes classified as semi-skilled and skilled that require reasoning level 2.  The regulations include in semi-skilled that is not academically challenging:  

A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.

Those are the exceptions.  Of the approximately 10,000 skilled and semi-skilled occupations, the majority require reasoning level 4 or higher.  Nor does correlation have to be 1:1 to be informative about the requirements of work.  

Aptitudes represents a different challenge.  As with temperaments, the aptitudes were not "selected" for inclusion in the SCO.  Aptitudes are part of the DOT dataset defined in the Revised Handbook for Analyzing Jobs.  The RHAJ defines:

Aptitudes: Capacities or abilities required of an individual in order to facilitate the learning of some task or job duty. The II Aptitudes included in this component are defined and discussed in Chapter 9.

There is that pesky description, again: required.  In Chapter 9, the RHAJ expands on the definition:

Aptitudes, a component of Worker Characteristics, are the capacities or specific abilities which an individual must have in order to learn to perform a given work activity. There are II Aptitudes used by USES for job analysis. Nine Aptitudes are measured by the United States Employment Service's General Aptitude Test Battery (GATB). Two others, Eye-Hand-Foot Coordination and Color Discrimination, have been added to these for job analysis because they are considered to be occupationally significant. Measurements for these Aptitudes have not been developed for the GATB. 

These are not nice to have, aptitudes are the ability that "an individual must have in order to learn to perform a given work activity."  Employers require aptitudes that a person must have to learn how to perform the BFOQ or essential functions of a job.  Absent those aptitudes, a person is not expected to learn how to do the job.  Aptitudes represent an educational component of work.  

SSA is not the expert agency about the requirements of work.  The Department of Labor is the expert agency about the requirements of work.  When we need information about what is and is not required in the workplace, DOL is the source of that information.  EM-21065 warrants no deference and no respect under controlling court precedent.  

_______________________

Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider GED or Aptitudes -- Oh Really, Part 2, California Social Security Attorney (June 29, 2022) https://californiasocialsecurityattorney.blogspot.com

EM-21065 -- SSA Does Not Consider DPT or Temperaments -- Oh Really, Part 1

SSA published an emergency message in October 2021 covering OccuBrowse and occupational information in electronic tools. It is my understanding that OccuBrowse is a transferable skills analysis tool that does not estimate job numbers by DOT code. We are concerned primarily with unskilled work and the job numbers associated with those DOT codes.

EM-21065 covers OccuBrowse, Job Browser Pro (JBP), and OASYS in the background information (paragraph B). The EM addresses JBP:2. Job Browser Pro: Users can access this program in the SSA Digital Library. Once you make the selection for Job Browser Pro, the Citrix StoreFront brings up a page of Apps from which you can select Job Browser Pro. Users can search by job title, DOT code or keyword(s) within the title, and task description. After selecting an occupation and clicking “Details”, users can find all DOT/SCO information on the “Quick View – Codes” button. The advanced search, which is found on the opening page with the Job Title and Description Keyword, also allows searches by a variety of other lists, such as GOE or occupational group. All these searches can be useful when performing a TSA.

2. Job Browser Pro: Users can access this program in the SSA Digital Library. Once you make the selection for Job Browser Pro, the Citrix StoreFront brings up a page of Apps from which you can select Job Browser Pro. Users can search by job title, DOT code or keyword(s) within the title, and task description. After selecting an occupation and clicking “Details”, users can find all DOT/SCO information on the “Quick View – Codes” button. The advanced search, which is found on the opening page with the Job Title and Description Keyword, also allows searches by a variety of other lists, such as GOE or occupational group. All these searches can be useful when performing a TSA.

 SSA does not endorse JBP.  SSA permits ALJs to use JBP and to follow along with the vocational witnesses.  

In describing the changes to OccuBrowse, the EM discusses four broad categories: (1) physical and environmental; (2) mental-cognitive; (3) skills and abilities; and (4) transferable skills.  Para. C.2.  The EM tells users to "use" the physical and environmental codes.  These come from the physical and environmental parts of the Selected Characteristics of Occupations (SCO).  

Mental-cognitive covers the data for work situations (temperaments) and work functions (data-people-things).  The EM says:

Do not use any of the functions under Mental-Cognitive. We do not use Temperaments (what the software tool manufacturer calls work situations or situations) or DPT (what the software manufacturer calls work functions) to determine the demands of work.

Let's address the easy one first, data-people-things.  It does not matter what SkillTRAN says about DPT in OccuBrowse or JBP.  What matters is what the Department of Labor says about DPT.  We look to the DOT, Appendix B:

Much of the information in this publication is based on the premise that every job requires a worker to function, to some degree, in relation to Data, People, and Things. These relationships are identified and explained below. They appear in the form of three listings arranged in each instance from the relatively simple to the complex in such a manner that each successive relationship includes those that are simpler and excludes the more complex. (As each of the relationships to People represents a wide range of complexity, resulting in considerable overlap among occupations, their arrangement is somewhat arbitrary and can be considered a hierarchy only in the most general sense.) The identifications attached to these relationships are referred to as Worker Functions, and provide standard terminology for use in summarizing how a worker functions on the job.

The fourth, fifth, and sixth digits of the occupational code reflect relationships to Data, People, and Things, respectively. These digits express a job's relationship to Data, People, and Things by identifying the highest appropriate function in each listing ...

 After listing the seven data functions, eight people functions, and six things functions, Appendix B provides "Definitions of Worker Functions."  When OccuBrowse or JBP label the DPT codes as worker functions, they do so by parroting what the DOT says in Appendix B.  The Commissioner takes administrative notice of the DOT in regulation and calls it the primary source of occupational information in SSR 00-4p.  The EM is incompetent to erode the unambiguous language of the regulation and the mandatory language of the binding ruling.  

Now we address the harder subject, the temperaments.  The DOT does not list the temperaments.  The SCO does not list the temperaments; that aspect of work was not "selected" for inclusion in the SCO.  But the temperaments are part of the broad dataset that resulted in the DOT and SCO.  We know that because the glossary for the DOT and SCO says so, the Revised Handbook for Analyzing Jobs.  The  RHAJ describes temperaments first in chapter 2, concepts and principles of job analysis:

Adaptability requirements made on the worker by the job-worker situation.

 The second word in the description is critical -- requirements.  In chapter 10, the RHAJ makes the same point:

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

There it is again -- requirements.   After listing the 11 different temperaments, the RHAJ explains:

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.

The EM focuses on personality traits.  We know that personality traits give rise to maladaptive behaviors.  SSA calls those personality disorders.  Personality traits are by definition non-severe.  But that does not relieve the Commissioner of considering non-severe impairments in assessing the ability to perform other work under the statute and regulations.  

The description of temperaments addresses adaptability and the characteristic that the presence or absence of adaptability will often determine success -- will this person sustain work.  Getting along with other people, a limitation to repetitive work, being precise, tolerating stress, or limiting to rote duties without change are regular parts of a residual functional capacity assessment for the mental requirements of work caused by a severe impairment.  The only question is whether we ignore the data accumulated by the DOL.  The Commissioner is not the expert on the requirements of work, the Secretary of Labor is that expert.  What the DOL says about work is worthy of administrative notice and reliable under the regulations.  

The EM says that SSA adjudicators should not consider OccuBrowse and JBP data about DPT and temperaments because of what SkillTRAN says about those data fields.  Ignore SkillTRAN.  But pay attention to what the Department of Labor says about the data and what the data means.  

 ___________________________

Suggested Citation:

Lawrence Rohlfing, EM-21065 -- SSA Does Not Consider DPT or Temperaments -- Oh Really, Part 1, California Social Security Attorney (June 24, 2022)  https://californiasocialsecurityattorney.blogspot.com 

Commonly Cited DOT Codes by SOC

 Here is a list of the top 59 DOT codes cited by vocational experts in Social Security hearings.  This list links to the 2010 SOC.  

DOT Title	DOT Code	2010 SOC
CHARGE-ACCOUNT CLERK	205.367-014	43-4111
Interviewers, Except Eligibility and Loan
PHOTOCOPYING-MACHINE OPERATOR	207.685-014	43-9071
Office Machine Operators, Except Computer
COLLATOR OPERATOR	208.685-010	43-9199
Office and Administrative Support Workers, All Other
ORDER CLERK, FOOD AND BEVERAGE	209.567-014	43-4151
Order Clerks
ADDRESSER	209.587-010	43-9022
Word Processors and Typists
MARKER	209.587-034	43-5081
Stock Clerks and Order Fillers
MAIL CLERK	209.687-026	43-9051
Mail Clerks and Mail Machine Operators, Except Postal Service
CASHIER II	211.462-010	41-2011
TICKET SELLER	211.467-030	41-2011
Cashiers
ROUTER	222.587-038	43-9061
Office Clerks, General
GARMENT SORTER	222.687-014	51-9199
Production Workers, All Other ‡
ROUTING CLERK	222.687-022	43-5071
Shipping, Receiving, and Traffic Clerks
CALL-OUT OPERATOR	237.367-014	43-4041
Credit Authorizers, Checkers, and Clerks
INFORMATION CLERK	237.367-018	43-4171
TELEPHONE QUOTATION CLERK	237.367-046	43-4171
Receptionists and Information Clerks
OFFICE HELPER	239.567-010	43-5021
TUBE OPERATOR	239.687-014	43-5021
Couriers and Messengers
COUNTER CLERK	249.366-010	41-2021
Counter and Rental Clerks
CUTTER-AND-PASTER, PRESS CLIPPINGS	249.587-014	43-9061
DOCUMENT PREPARER, MICROFILMING	249.587-018	43-9061
Office Clerks, General
FURNITURE-RENTAL CONSULTANT	295.357-018	41-2021
Counter and Rental Clerks
FAST-FOODS WORKER	311.472-010	35-3021
Combined Food Preparation and Serving Workers, Including Fast Food
CAFETERIA ATTENDANT	311.677-010	35-9011
Dining Room and Cafeteria Attendants and Bartender Helpers
KITCHEN HELPER	318.687-010	35-9021
Dishwashers
CLEANER, HOUSEKEEPING	323.687-014	37-2012
Maids and Housekeeping Cleaners
TICKET TAKER	344.667-010	39-3031
USHER	344.677-014	39-3031
Ushers, Lobby Attendants, and Ticket Takers
HOST/HOSTESS, HEAD	349.667-014	39-9099
Personal Care and Service Workers, All Other
FOLDER	369.687-018	51-9198
Helpers--Production Workers
MARKER	369.687-026	51-9061
Inspectors, Testers, Sorters, Samplers, and Weighers
FLAGGER	372.667-022	33-9091
Crossing Guards and Flaggers
SURVEILLANCE-SYSTEM MONITOR †	379.367-010	33-9031
Gaming Surveillance Officers and Gaming Investigators
SURVEILLANCE-SYSTEM MONITOR	379.367-010	33-9099
Protective Service Workers, All Other
CLEANER, INDUSTRIAL	381.687-018	37-2011
Janitors and Cleaners, Except Maids and Housekeeping Cleaners
CLEANER, LABORATORY EQUIPMENT	381.687-022	37-2011
Janitors and Cleaners, Except Maids and Housekeeping Cleaners
BAKERY WORKER, CONVEYOR LINE *	524.687-022	51-3099
Food Processing Workers, All Other
BAKERY WORKER, CONVEYOR LINE	524.687-022	51-9199
Production Workers, All Other ‡
CAN-FILLING-AND-CLOSING-MACHINE TENDER	529.685-282	51-9111
Packaging and Filling Machine Operators and Tenders
BASKET FILLER	529.687-010	51-9198
Helpers--Production Workers
AMPOULE SEALER	559.687-014	53-7064
Packers and Packagers, Hand
EGG PROCESSOR	559.687-034	51-9199
Production Workers, All Other ‡
INSPECTOR AND HAND PACKAGER	559.687-074	51-9061
SORTER I	569.687-022	51-9061
Inspectors, Testers, Sorters, Samplers, and Weighers
FOLDER	686.685-030	51-9199
ASSEMBLER, SMALL PRODUCTS I	706.684-022	51-9199
Production Workers, All Other ‡
POLISHER, EYEGLASS FRAMES	713.684-038	51-4033
Grinding, Lapping, Polishing, and Buffing Machine Tool Setters, Operators, and Tenders
FINAL ASSEMBLER	713.687-018	51-9199
Production Workers, All Other ‡
LENS-BLOCK GAUGER	716.687-030	51-9061
TOUCH-UP SCREENER	726.684-110	51-9061
Inspectors, Testers, Sorters, Samplers, and Weighers
MAGNETIC-TAPE WINDER	726.685-010	51-9199
ELECTRONICS WORKER	726.687-010	51-9199
Production Workers, All Other ‡
ASSEMBLER, ELECTRICAL ACCESSORIES I	729.687-010	51-2022
Electrical and Electronic Equipment Assemblers
ASSEMBLER, SMALL PRODUCTS II	739.687-030	51-9199
Production Workers, All Other ‡
TABLE WORKER	739.687-182	51-9061
Inspectors, Testers, Sorters, Samplers, and Weighers
MARKER	781.687-042	51-9199
Production Workers, All Other ‡
TABLE WORKER	783.687-030	51-9198
Helpers--Production Workers
TABLE WORKER	788.687-142	51-9199
Production Workers, All Other ‡
FINAL ASSEMBLER	789.687-046	51-9198
FOLDER	789.687-058	51-9198
Helpers--Production Workers
PACKAGER, HAND	920.587-018	53-7064
Packers and Packagers, Hand
LABORER, STORES	922.687-058	51-9198
Helpers--Production Workers

* JBP places bakery worker conveyor line in food processing workers, all other. Labor does not.

† Labor placed surveillance systems monitor in two SOC codes, 33-9031 and 33-9099. The 2018 SOC now uses 33-9098 replacing 33-9099.

‡ The 2018 SOC puts all 1,590 (including one duplicate) in 51-9161 (computer numerically controlled tool operators), 51-9062 (computer numerically controlled tool programmers), and 51-9199 (production workers, all other). Use other codes according to expert analysis.        

___________________________

Suggested Citation:

Lawrence Rohlfing, Commonly Cited DOT Codes by SOC, California Social Security Attorney (November 10, 2021)  https://californiasocialsecurityattorney.blogspot.com