I Object to the Vocational Expert's Testimony -- Overruled

The vocational expert responds to a hypothetical question that assumes a limited education, unskilled work experience, limited to sedentary work with occasional superficial contact with coworkers and supervisors.  The vocational expert trots out the usual suspects of occupations aggregating to a million jobs because if you don't want to have to think, well 300,000 here, 200,000 there, and 500,000 in the last one just makes it easy and what the hell, the ALJ doesn't care and 95% of the representatives out there don't know enough to make a peep.  A million jobs  The 48-year old claimant loses.  But you happen to be in the 5%.

1.  Objection, the vocational expert doesn't have training in numbers of jobs.

That objection belongs before the vocational expert testified, not after.  And the truth of the matter is that vocational experts perform labor market surveys and look at employment numbers.  They know more than the public about work.  Their opinion is probative even under the inapplicable strict standards of evidence in court.  Objection overruled.

2.  Objection, the vocational expert testimony lacks foundation, has no support, is unreliable, and pulled out of thin air.

None of those are objections to the admissibility of evidence.  Those are arguments as to weight.  If the vocational expert's testimony is a feather and no evidence exists to counter the vocational expert testimony, the feather outweighs the vacuum by a factor of infinite progression.  That doesn't mean that the ALJ will accept uncontradicted evidence from an agency selected expert.   But the ALJ probably will.  Objection overruled.

3.  Objection, the vocational expert's testimony identifies work that is no longer unskilled or no longer exists.

This is a variation of objection #2.  It does not go to admissibility, it goes to weight.  Present some evidence that weighs more.

4.  Objection, the vocational expert's testimony assumes an accommodation with a sit-stand option.

Now that is an objection because agency policy does not permit consideration of an accommodation in making the assessment at step five of the sequential evaluation process.  SSR 00-1c.  The truth of the matter is that some work permits a sit-stand option as the work exists in the national economy.  Security guards is an example:

Series ID: ORUP1000000000000139

Not seasonally adjusted

Series Title: % of all workers; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: all workers

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2017	Annual	37.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000000000000139

But the ORS does not list any discernible group that contains unskilled work as having that sitting versus standing/walking at will data field.  The absence of data should be read as not allowed not license to make things up.  SSA recognizes that unskilled work requires maintaining body posture to maintain productivity.  SSR 83-12. 

These examples make clear that there is generally not an objection to the vocational expert testimony.  Admissibility is a low bar.  Weight is the correct focus.  Arguing weight requires that the claimant present additional evidence.  Setting that stage requires a set of preliminary questions:

1.  Is your testimony with the data published by the Department of Labor?

a. The Occupational Outlook Handbook
b. The Occupational Information Network
c. The employment projections
d. The occupational employment statistics
e. The current population survey 

2.  Is your testimony consistent with the the data published by the Census Bureau?

a. County Business Patterns

3.  Is your testimony consistent with the DOT industry designations?

4.  Is your testimony consistent with the data fields not contained in the printed SCO but published in the electronic versions of the DOT/SCO (Job Browser Pro, West Law, etc.)?

The response from the ALJ or the vocational expert that the witness relies on experience is this:

5.  How does your experience as a rehabilitation consultant compare to the data gathering capacity and reporting of the Department of Labor or the Census Bureau?

The best tactic is to avoid the use of the "objection."  It is not the right procedure.  The only procedure that has a chance of winning is the introduction of new evidence and then the demand tha that the ALJ resolve the conflict in the evidence.  See question 5:  how does the VE's local and anecdotal experience compare to the statistical prowess of the Department of Labor and the Bureau of Labor Statistics?  They are not in the same league. 

It Really is Time to Object to Vocational Experts Giving Numbers Testimony -- Always

This is the body of a letter sent to the Administrative Law Judge objecting to the intent to ask a vocational expert questions about job numbers.  I use it in all cases where the notice of hearing from the Office of Disability Adjudication and Review states that a vocational expert will appear.  Copy it and paste it into your word processing program, then use it as you professionally see fit.

 

The notice of hearing in this matter provides for the presence of a vocational expert.  This letter serves to set forth the objection to the vocational expert’s identification of job numbers in the national economy, as defined by statute, without providing a basis for administrative notice. 

The current practice of adducing numbers of jobs evidence constitutes a request for a statement of the numbers of jobs.  The current prevailing practice violates the regulations.  The Commissioner takes administrative notice of the number of jobs from reliable governmental and non-governmental sources.  20 C.F.R. §§ 404.1566(d); 416.966(d).  Those subsections provide:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;

(2) County Business Patterns, published by the Bureau of the Census;

(3) Census Reports, also published by the Bureau of the Census;

(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and

(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

Completely absent from this list the “vocational experts.”  Subsection (e) provides for the use of vocational experts to identify specific occupations, transferable skills, and similarly complex issues.  The existence of a number of jobs in the regional economy or several regions of the country is a matter of statistical fact that does not vary by the name of the person called.  The public interest in the uniform application of a complex administrative scheme of adjudication requires that the Commissioner fulfill the legal promise articulated in the regulations.  The agency must take administrative notice of job numbers data, not the unsupported word of someone with no statistical analysis background. 

The proper methodology described by the regulations requires administrative notice.  How an occupation gets performed falls within the ambit of the vocational expert’s knowledge.  HALLEX II-1-9-28.  All of the provisions regarding administrative notice of job data permit the agency to start with notice and deviate for persuasive reasons.  HALLEX II-1-4-23,  HALLEX II-1-6-23, HALLEX II-1-8-26, and HALLEX II-1-10-24.  This principle is found in a binding pronouncement.  See Social Security Ruling 00-4p (regarding the DOT, listed in 20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1)). 

 Two published sources of job numbers data form the cornerstone of the subject of administrative notice for the numbers of jobs.  Those are the County Business Patterns (CBP) and Bureau of Labor Statistics (BLS).  CBP publishes job numbers data by industry using North American Industry Classification System (NAICS) codes.  See http://www.census.gov/econ/cbp/overview.htm.  The Bureau of Labor Statistics (BLS) provides job numbers data by occupational category using the Standard Occupational Classification (SOC) system.  See http://www.bls.gov/soc/.  The label SOC or OES are interchangeable and refer to the same data sets.  See http://www.bls.gov/oes/current/_stru.htm. 

Because the Commissioner takes administrative notice of the numbers of jobs information from both the County Business Patterns and the Bureau of Labor Statistics, the proper methodology requires cross-indexing that job numbers information.  It is not hard to do.  The BLS Occupational Employment Statistics and the OES Query System provide the data.  The vocational expert need only provide:

1.       The statement of the SOC group for a particular DOT code;

2.      The identification of the NAICS codes for the industries in which that occupation exists;

3.      A statement of the number of other DOT codes that co-exist at that intersection; and

4.      How the existence of those other DOT codes at the intersection of the SOC group and the NAICS code affect the calculation of the numbers of jobs. 

An example helps.  Assume the vocational expert identifies an occupation classified as a production worker, all other.  Assume a plastic roller, DOT code 690.685-498.  This occupation falls into production worker, all other, SOC group 51-9199, along with over 1,500 other DOT codes.  If the vocational expert stated that the occupation existed in the Plastic Product Manufacturing industry, that would mean NAICS code 326100.  According to the BLS, the intersection of the SOC group and the NAICS code represents 5,200 jobs in the nation as of May 2012. 

The BLS states that production workers represent 1.02% of the workers within that industry.  CBP states that the industry 32600 and its subparts represented 559,991 jobs in the nation as of March 2011.  Applying the BLS percent of total employment to the CBP statement of the job size of the industry leads to an estimate of 5,712 jobs.  That industry employed 46,105 people in California as of March 12, 2012.  Total employment of production workers in California in the plastic product manufacturing industry represented 471 jobs total at all exertional and skill levels. 

Under the HALLEX provisions and using Social Security Ruling 00-4p by analogy, a vocational expert can deviate upward or downward from the BLS or CBP estimates of the numbers of jobs for a persuasive basis.  That would necessarily include a statement of the other codes within that intersection.  Aggregation would require a downward estimate of the number of jobs. 
 
If and when a vocational expert states that there are 218,740 jobs in a single occupation as a production worker, that witness gives testimony that is wholly unreliable.  There are too many DOT codes within SOC group 51-9199 for that to be entertainable much less true.  Of the 1,526 DOT codes in SOC group 51-9199, fully 869 are skilled or semi-skilled occupations.  Thirty-nine that are unskilled require very heavy or heavy exertion.  One hundred seventy six unskilled production worker occupations are classified as requiring medium exertion.  Almost a quarter of the unskilled light occupational base exist within this classification, i.e. 390 occupations.  The sedentary unskilled occupational base finds 52 of its members in SOC group 51-9199. 

The Social Security Administration should demand the basis for administrative notice of jobs numbers data.  That basis for administrative notice includes the SOC group, the NAICS code(s), and a statement of the number of DOT codes within that intersection.  The vocational expert should explain how he/she accounted for the other DOT codes in making the final estimate of the number of jobs.  The fundamental basis of judicial notice requires that the Court receive the necessary information so that the fact can be accurately and readily ascertained.  See generally FRE Rule 201(b) and (c). 

Administrative notice allows the Social Security Administration to establish the existence of facts without resorting to formal methods of proof.  See 2 KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.6, at 150 (3rd ed. 1994); 4JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 25.01, at 2 (1993). “A court or an agency can make a finding of fact without evidentiary support by taking judicial or official notice, respectively, of that fact.” 2 id.; see MCCORMICK ON EVIDENCE § 359, at 1028-33 (Edward W. Cleary ed., 3rd ed. 1984). With administrative notice, an administrative law judge “bypasses the normal process of proof and relies upon facts and opinions not supported by evidence ‘on the record.’” Id. at 1028.