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.

 

 

Applegate v. Saul -- Bottling Line Attendant

 Applegate v. Saul, yet another unpublished Ninth Circuit memorandum that illustrates the need for a full-throated attack of vocational expert prevarication.  Because of the brevity  of unpublished memoranda, we start with the District Court's discussion of step five, the findings of other work.  

However, the third identified job, bottling line attendant, has a Reasoning Level of 1. The vocational expert testified that there were 45,000 such jobs available in California and more than 300,000 such jobs in the United States. AT 29, 86. Because at least one viable job existed in sufficient numbers, any error as to the reasoning levels of the other two jobs was harmless. See 20 C.F.R. § 404.1566(b) (providing that "[w]ork exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet") (emphasis added). See also Thomas v. Comm'r, 480 F3d. Appx. 462, 464 (9th Cir. 2012) (affirming ALJ even though claimant could not perform two identified jobs because she could perform the remaining job of housekeeper, which existed in significant numbers in the national economy).

Bottling line attendant represents 45,000 jobs in California and 300,000 jobs in the United States.  That is untrue and unbelievable.  It is at least a disregard for the truth.  I cry "foul."

Bottling line attendant is a packer and packager, hand (SOC 53-7064) occupation.  The group represents 640,800 jobs in the nation per the OOH.  The 2019 OES estimated 633.640 jobs as a packer and packager.  The 2020 OEWS estimates 599,270 jobs.  

We are concerned with the limitations found by the ALJ:

must avoid concentrated exposure to hazards such as dangerous machinery, unprotected heights, and uneven surfaces; and can perform simple tasks in a setting with few workplace changes and no more than occasional interaction with the general public and coworkers.

 The O*NET says that about 10% of the packer and packager jobs have occasional contact with others.  The ORS says that 30% of packer and packager jobs have exposure to moving mechanical parts, most of those constantly.  The ORS classifies 32% of the jobs has requiring light exertion.  The ORS states that 17.5% of packers and packagers have SVP 1 characteristic of bottling line attendant.  

Packers and packagers has 59 DOT codes.  The idea that half of the jobs work as a bottling line attendant is a little hard to grasp.  Because of that lingering doubt, we must check the industry employment for packers and packagers.  The DOT defines bottling line attendant as occurring in the beverage manufacturing industry.  That is where we will look.  

The 2020 OEWS states that the beverage manufacturing industry employed 640 packers and packagers.  The 2019 OES states that the beverage manufacturing industry employed 580 packers and packagers.  The 2019 EP states that the beverage manufacturing industry employed 600 packers and packagers.  The 2019 CBP states that the entire beverage manufacturing industry employed 226,462 people in every occupation within the industry.  Over half the jobs work in breweries, wineries, and distilleries.  Less than 80,000 people work in soft drink, bottled water, and ice manufacturing -- in the nation in every job in the industry.  

The odds of bottling line attendant representing 45,000 jobs in California and 300,000 jobs in the nation rests between zero and none.  That testimony is false.  It is not reliable.  The vocational expert pulled it out of the hat.  

How do we beat bogus testimony?  We rely on the Occupational Outlook Handbook, v.  We must submit that evidence to the ALJ and force the ALJ to state why the agency chooses conclusory evidence from a witness over the statistical publications of the Department of Labor.  We demand administrative notice under the regulations.  

The Ninth Circuit did not regurgitate the numbers.  It would prove embarrassing to the Court to recite those kinds of numbers with a straight face.  Bottling line attendants represent 300,000 jobs in the nation.  Absurd.

___________________________

Suggested Citation:

Lawrence Rohlfing, Applegate v. Saul -- Bottling Line Attendant, California Social Security Attorney (April 19, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/applegate-v-saul.html

Surveillance Systems Monitor -- In Transition

Surveillance-system monitor remains a popular occupation among locational experts in response to a residual functional capacity for sedentary work involving occasional use of the hands for reaching, handling, and fingering.  In the 2010 SOC, labor placed surveillance-system monitor in the group of protective service workers, all other (33- 9099.00).  The O*NET still does.   The O*NET also places surveillance- system monitor in the occupational group of school bus monitors (33- 9094.00).   The O*NET reports 145,600 employees in both occupational groups.

The Occupational Outlook Handbook reports a combination of school bus monitors and protective service workers, all other as an OEWS hybrid with a 2019 employment estimate. 

School bus monitors and protective service workers, all other

This is an OEWS hybrid and the OEWS definition can be found by following the OEWS link below

· 2019 employment: 145,600

· May 2020 median annual wage: $31,960

·       Wages come from the Occupational Employment and Wage Statistics (OEWS) program, click here for more OEWS data on this occupation

· Projected employment change, 2019–29:

·       Number of new jobs: 6,200

·       Growth rate: 4 percent (As fast as average)

·       Click here for additional projections detail

· Education and training:

·       Typical entry-level education: High school diploma or equivalent

·       Work experience in a related occupation: None

·       Typical on-the-job training: Short-term on-the-job training

· O*NET links:

·       33-9094.00 - School Bus Monitors

·       33-9099.00 - Protective Service Workers, All Other

·       33-9099.02 - Retail Loss Prevention Specialists

 

The Occupational Employment and Wage Statistics (OEWS) (as the successor data base to the OES) defines the hybrid group:

This occupation includes the 2018 SOC occupations 33-9094 School Bus Monitors and 33-9099 Protective Service Workers, All Other and the 2010 SOC occupation 33-9099 Protective Service Workers, All Other.

The OEWS reports employment:

Employment (1)	Employment RSE (3)	Mean hourly wage	Mean annual wage (2)	Wage RSE (3)
144,310	2.1 %	$ 17.38	$ 36,140	0.6 %

 

The OOH and OEWS make clear that the O*NET reports of occupations for both school bus monitors and protective service workers, all other, represents a duplication of a group of occupations and jobs in transition due to a change in the definitions and assignments of the SOC codes.  The 2018 SOC defines school bus monitors as:

Maintain order among students on a school bus. Duties include helping students safely board and exit and communicating behavioral problems. May perform pre trip and post trip inspections and prepare for and assist in emergency situations.

Illustrative examples: Bus Monitor

The 2018 SOC defines protective service workers, all other as:

All protective service workers not listed separately.

Illustrative examples: Warrant Server

Labor will break out the job numbers for school bus monitors from protective service workers, all other.  Hopefully, we will see that breakdown in the next data set.  Surveillance-system monitor does not fit the definition of the occupational group of bus monitors. It does fit the all other classification. Expect to see the number of jobs as a surveillance-system monitor continued to erode in the ability of people without statistical expertise to conflate job numbers either by equal distribution within an occupational group , equal distribution at the occupation-industry intersection, or some other methodology that does not take into account the existence of unskilled sedentary work as opposed to semi- skilled, skilled, light, medium, or heavy work. Heavy work is Deputy United States Marshall, classified by the DOT as requiring medium exertion.

If a vocational expert identifies surveillance-system monitor as an occupation in response to a sedentary exertional capacity with manipulative limitations but no limitation to simple or repetitive types of work, the representative must inquire diligently into the methodology used by the vocational expert to tease out the number of jobs. Experience is not enough. The vocational expert did not go around the nation with a clicker counting jobs. There is a statistical basis for estimating job numbers and the representative must demand that information.

___________________________

Suggested Citation:

Lawrence Rohlfing, Surveillance Systems Monitor -- In Transition , California Social Security Attorney (April 19, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/04/surveillance-systems-monitor-in.html