Postmortem on Goode v. Commissioner -- the Court Got Half the Story

The Eleventh Circuit reversed in a huge win for claimants on the reliability of vocational expert testimony. Goode v. Commissioner of Soc. Sec. The court called out the vocational expert and ALJ (but neither by name). Goode v. Berryhill. The decisions are a good read and available to everyone to read for themselves. Today we pull back the curtain to disccover that the vocational expert was reckless, tried to cover his tracks, and I think I know why. 

We start with the district court decision:

Plaintiff notes that the VE testified that he got these job numbers from the Occupational Employment Quarterly ("OES), which does not provide job numbers by Dictionary of Occupational Title numbers, but by Specific Occupational Code (SOC) group. (Doc. 22 p. 8).

We continue with the circuit court decision: 

the vocational expert must look to other sources like the Occupational Employment Quarterly (OEQ), which is compiled by a private organization called U.S. Publishing, to find employment statistics. See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Brault v. Soc. Sec. Adm., 683 F.3d 443, 446 (2d Cir. 2012). The OEQ database, however, does not compile data by DOT codes, but rather through the Standard Occupational Classification (SOC) system. See Brault, 683 F.3d at 446; Occupational Employment Statistics, Bureau of Labor Statistics, https://www.bls.gov/oes/ (last visited April 30, 2020).

Both courts reference the OEQ.  Neither quotes the VE referencing the OEQ.  

Assuming that the VE did rely on the OEQ to identify bakery worker (bakery worker, conveyor line) as belonging to SOC 51-3099, there is a huge problem for the veracity of the VE.  In no publication of OEQ has US Publishing ever listed food processing workers, all other (SOC 51-3099) as an occupational group.  Why would the OEQ omit SOC 51-3099?  As Goode argued successfully to the circuit court, the Department of Labor does not assign any DOT codes to SOC 51-3099, none.  

The question has to turn to the VE's source for the idea that bakery workers belong in SOC 51-3099.  That honor belongs exclusively to Job Browser Pro.  JBP does list bakery worker, conveyor line (DOT 524.687-022) as belonging to SOC 51-3099.  JBP did so in 2014 and does so today.  Why not confess to use of JBP as the source for the job numbers?  As the circuit court found, the VE aggregated the occupational group identifying all the jobs in the group, not just bakery worker.  JBP states now and in 2014 that bakery worker, conveyor line represents fewer than 500 jobs.

Goode argued and the circuit court found that bakery worker belongs to production workers, all other (SOC 51-9199).  For the 2010 SOC, that is true.  Bakery worker is one of 1,590 DOT codes and one of 405 light unskilled DOT codes that belong to production workers, all other.  None of those occupations represent 43,000 jobs in the nation.  

One final point for the day is warranted.  Labor lists the titles of occupations that belong to food processing workers, all other (SOC 51-3099).  They are:

1. Olive Pitter
2. Pasta Press Operator
3. Poultry Hanger
4. Yeast Maker

The VE did not honestly identify the source for his testimony.  If the VE did, it would have been easy to check the job numbers against the source to prove them wrong.  But the VE corps needs to please the ALJ to remain on the rotation.  Not identifying significant numbers of jobs will lead to removal from the rotation.  The VE and ALJ got slammed in this case but their deceit rests just below the surface.  

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Suggested Citation:

Lawrence Rohlfing, Post Mortem on Goode v. Commissioner -- the Court Got Half the Story, California Social Security Attorney (July 30,  2020) edited (Aug. 18, 2020)

https://californiasocialsecurityattorney.blogspot.com/2020/07/the-eleventh-circuit-reversed-in-huge.html

Why is Job Browser Pro Wrong in Moving DOT Codes to Food Processing Workers, All Other?

Food processing workers, all other, is a 2010 SOC addition to the SOC family.  Our friends a Job Browser Pro put 61 DOT codes in the group, for example 524.687-022 Bakery Worker, Conveyor Line,  The question is whether the movement of the DOT codes is appropriate; does it yield reliable job data?

First, the O*NET OnLine publishes the crosswalk and does not move the 61 DOT codes to food processing workers, all other.  The list of DOT codes for production workers, all other contains the 61 food-related codes.  Food processing workers, all other lists no constituent DOT codes.  The O*NET OnLine does not place any of the 61 DOT codes within food processing workers, all other.  Any placement of a DOT code within that group should be carefully considered and justified.

The O*NET Resource Center provides alternate titles to each SOC/O*NET code.  Food processing workers, all other has four alternate titles:

Olive Pitter
Pasta Press Operator
Poultry Hanger
Yeast Maker

Each of those designations has the source code of 04.  That designation means that the occupations come from the SOC.  Code 08 means the DOT or some other related designation.  

Compare that data and source to 40 alternate titles for recycling and reclamation workers (O*NET 51-9199.01), the detailed subset of production workers, all other (SOC 51-9199).  Of those 40 alternate titles, 10 come from the DOT or related source.  The other 30 alternate titles from form incumbent data and employer job postings.  

Production workers, all other (SOC 51-9199) has 2,749 alternate titles.  This includes 1,413 titles that are lifted in whole or in part from the DOT and related sources.  That balance come from the SOC, the Census Bureau, the Department of Labor, and employer job postings.  

Within that list are olive pitter, pasta press operator, poultry hanger, and yeast maker.  Those move over to food processing workers.  The other food-related production worker occupations -- those stay right there.  Bakery worker, conveyor line and its ilk are production worker, not food processing worker occupations. 

See When to Use Occu Collect.

Rethinking Food Processing Workers, All Other - SOC 51-3099

As part of the 2010 revisions of the Standard Occupational Classification system, the Department of Labor moved some occupations out of production workers, all other (SOC 51-9199) and created food processing workers, all other (SOC 51-3099).  2010 SOC User Guide, vii, x, 4-5  (BLS, Feb. 2010); Crosswalk from the 2000 SOC to the 2010 SOC.  The SOC defines food processing workers, all other as:

All food processing workers not listed separately
Illustrative examples: Olive Pitter , Poultry Hanger , Yeast Maker

Job Browser Pro responded by moving the 61 DOT codes related to food products from production workers, all other to food processing workers, all other.  But Labor continues to count food-production-related jobs in its count of production workers, all other.  With three exceptions, all DOT codes moved over have the first two DOT digits of 52 OCCUPATIONS IN PROCESSING OF FOOD, TOBACCO, AND RELATED PRODUCTS.  The question is whether those 61 occupations belong in food processing workers, all other -- or just the ones exemplified by the three examples provided in the SOC:  olive pitter, poultry hanger, and yeast maker. 

The O*NET OnLine, Alternate Titles provides one additional example:  pasta press operator.  That same list of alternate titles continues to list the 61 DOT codes found on the JBP list as in production workers, all other.  And we know that Labor placed 1,590 DOT codes inside of production workers, all other as part of the 2000 SOC revision.  The Alternate Titles list does not count 1,590 job titles as within the group.  It counts 2,788 alternate titles. 

The economy has changed.  The proposition that food processing workers, all other contains four specific occupations as exemplars that were not contained in the 1991 DOT and that production workers, all other contains an additional 1,200 occupations not envisioned in the DOT provides the best and most reasonable explanation for the data provided in the employment projections for not only food production but the rest of the economy.