Why We Should Not Ask Leading Questions

 Lawyers take evidence.  It is a required class and every state tests evidence as part of the bar exam.  FRE 611(c) sets out the general lay of the leading question problem:

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

In general, we should avoid asking our clients leading questions except as necessary to develop the witness's testimony but not allow that exception to swallow the rule.  In addition to allowing the client to tell his/her own story instead of having the attorney tell the story and ask for affirmation as a more powerful presentation, we discuss a problem with leading questions that is fraught with danger.  

The medical evidence shows vision problems for the claimant.  The medical expert testifies to difficulty with small objects.  The Selected Characteristics rates near acuity (clarity of vision at 20 inches or less) as a requirement of work.  The ALJ seeks to lock down and out certain aspects of near acuity and asks the claimant:

So you have problems with small print?

The claimant affirms that leading question. The representative cross-examines the vocational expert about near vision (should have used the vocational term of near acuity). The ALJ interrupts, "where did you get that from?"  Aside from acting as an interruption, the claimant is allowed to explore the underpinnings of the witness's testimony.  In this case, the medical expert testified to difficulty with small objects.  The occupations identified all require at least occasional near acuity per the SCO.  In this case, the representative had a clear and reasonable factual basis for the question.  

The ALJ denies the case.  The ALJ writes that the claimant did not identify small objects, just small print, as a potential problem with work.  That's a problem with leading questions.  

 The ALJ asked about small print.  Small print is a subset of small objects.  If a person has difficulty in seeing small objects as a class and the ALJ asks if that person has difficulty with small print, the only truthful answer is "yes."  But it is clear in the nature of how people communicate that affirming an example does not exclude the broader class of the subject.  

Let's imagine a witness says that a crowd gathered.  On cross-examination, the defense attorney asks if the witness saw women. The witness affirms that statement.  The testimony on cross-examination does not exclude men because no one asked that question.  The closing argument that the male defendant was not there as shown by the statement that there were women is frivolous. The ALJ in our case asking about small print and then concluding that the claimant excluded threading a needle fails to present a logical and rational basis for decision-making.  

If the representative asked that leading question about small print, that creates a different problem.  The claimant has the burden of proof and the case in chief is now suggesting small print as the scope of limitation without taking into account the medical opinion evidence.  The diligent examination goes something like this:

 Q.  Can you describe for the ALJ your ability to see clearly at 20 inches or less, near acuity?

A. I don't see things close up very well.  I really struggle to read. 

Q.  Do you have any other examples of difficulty seeing things close up?

A.  I can't see small objects ...

By allowing the client to list reading and then clarifying that this is an example, we avoid the box that the ALJ put around this case.  Suggesting answers implies lists, not examples.  My personal favorite method of asking yes/no questions seeks a "no" so that the claimant can disabuse me of the wrong idea.  

Q.  Do you seek small objects clearly?

A.  No.  

Q.  Can you describe examples of that for the ALJ?

A.  [let the claimant give some examples].  

We don't need to ask leading questions except in very limited circumstances.  Leading questions dampen the persuasive value of the claimant's testimony.  Leading questions on direct or re-direct (since the ALJ asked questions first) has dangers of turning examples into lists.  Reject the Nike slogan on leading questions.  Don't do it.  

___________________________

Suggested Citation:

Lawrence Rohlfing, Why We Should Not Ask Leading Questions, California Social Security Attorney (October 30, 2021)  https://californiasocialsecurityattorney.blogspot.com

Vague Hypothetical Questions - Defining Temperature and Hazards

ALJs ask questions that contain vague terms and do not always define them.  There are circumstances where the vagueness does not present a material question.  In other circumstances, resolving vagueness will mean the difference between a favorable and an unfavorable decision.  

No exposure to temperature extremes is one of the limitations that arises.  The Selected Characteristics of Occupations defines exposure to extreme cold and extreme heat in Appendix D:

2. EXTREME COLD
Exposure to nonweather-related cold temperatures. In Part A, the rating for the Extreme Cold component appears second in the Environmental Conditions column under the vertical heading Co.

3. EXTREME HEAT
Exposure to non weather-related hot temperatures. In Part A, the rating for the Extreme Heat component appears third in the Environmental Conditions column under the vertical heading Ho.  

What are the measurements for extreme?  These are vocational factors that should not be left to silent definition by the vocational witness.  The Occupational Requirements Survey Collection Manual (found in the downloads section of www.occucollect.com) defines extreme cold (non-weather only) as:

40 degrees or below when exposed 2/3 or more of the time, or
32 degrees or below when exposed up to 2/3 of the time

Collection Manual, page 134.  Examples that meet one of those criteria are a meat cutter working in a 40 degree cooler more that 3/4 of the day or a freeze tunnel operator that wears protective clothing and enters that tunnel for short periods in -34 degree temperature.   Page 137.  Not included is the worker that shovels snow in the winter because it is weather related, a forklift operator that works in a non-temperature controlled warehouse as weather related, or the restaurant waiter that retrieves supplies from the freezer for the cook or food preparation staff when those workers are busy as incidental  

We defined our terms but now have other ambiguities.  The question asked about exposure to temperature extremes and the vocational witness relied on the SCO to identify jobs.  But the question did not permit exposure to weather related cold/heat.  Nor did the question permit incidental exposure to temperature extremes for the food server.  If the ALJ used the phrase temperature extremes, or the longer equivalent expression, the representative should question the witness when it matters.  

We find the same ambiguity in exposure to hazards, such as moving mechanical parts and unprotected heights.  We resort back to the SCO, App. D for the starting point definition:

8. PROXIMITY TO MOVING MECHANICAL PARTS
Exposure to possible bodily injury from moving mechanical parts of equipment, tools, or machinery. In Part A, the rating for the Proximity to Moving Mechanical Parts component appears eighth in the Environmental Conditions column under the vertical heading MP

The phrase such as typically precedes the examples.  The Collection Manual defines what Labor means by proximity to moving mechanical parts and high, exposed places:  the exposure must present a risk of bodily injury.  Collection Manual, page 134.  The presence of an environment where momentary loss of attention could result in bodily injury from the machine or falling, for example, represents a broader range of workplace prohibitions.  The Collection Manual provides examples of moving mechanical parts that could result in bodily injury:

• A deli worker operates a slicer to cut meats and cheeses. Even with required safety guards in place, injury is possible.
• A landscaper uses a chipper/shredder to mulch branches and tree debris.
• A worker who removes products from a machine or conveyor belt works close and could be injured while off-loading when machine is in motion.
• Mechanics working on running engines and moving vehicle parts while performing repairs.

An accountant using a crosscut shredder, use of a knife, the conveyor belt at the grocery store, using hand tools, or operating a taxi cab do not meet the threshold of a dangerous work environment.  Clearly the lethal weapon of a motor vehicle that could result in injury or death from a loss of concentration or focus but the ORS is more concerned with moving mechanical parts inside the vehicle.  

When addressing environmental limitations, the important part of cross-examination may turn to defining the terms.  One way to uncover the ambiguity of a hypothetical question is to object on vagueness.  The more subtle approach is the ask the vocational expert to state his/her understanding of the key terms.  

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Vague Hypothetical Questions - Defining Temperature and Hazards, California Social Security Attorney (May 30, 2020) 
https://californiasocialsecurityattorney.blogspot.com/2020/05/vague-hypothetical-questions-defining.html

Preschool Teacher -- An Illustration of the Outdated DOT

Preschool teacher (DOT 092.227-018) is a fairly common occupation representing 523,600 jobs in the national economy.  OOH (2018) 25-2011 -- Preschool teachers, except special education.  Preschool teacher is the only DOT code in the group.  The DOT classifies preschool teacher as a light skilled occupation, SVP 7.

The O*NET Resource Center states that preschool teachers require one month of training or less in 30.43% of jobs.  Preschool teachers require related work experience of 30 days or less in 19% of jobs.   Preschool teachers require a high school diploma or equivalent in 28.75% of jobs.  From these three data points, 19% of preschool teachers could represent unskilled work.  A small minority of jobs require either on-the-job training or related work experience in excess of two years.  Less than 38% require more than an associate's degree.  O*NET OnLine Resource Center (2019) 25-2011.00 -- Preschool teachers, except special education.  The SVP of Preschool teachers appears overstated.

The Occupational Requirements Survey estimates that preschool teachers represent SVP 7 work in 37.5% of jobs and SVP 6 work in 26.3% of jobs.  The ORS does not describe the remaining 36% of jobs in terms of skill level.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require SVP 2-5 or 8-10, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The Occupational Requirements Survey estimates that preschool teachers require light exertion in 24.3% of jobs and medium exertion in 54.3% of jobs.  The ORS does not describe the remaining 25% of jobs in terms of exertion.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  Those undescribed jobs could require sedentary or heavy exertion, as well as represent a percentage of responses that were not clear enough for reporting purposes.

The SCO describes preschool teacher as requiring frequent reaching and handling with occasional fingering.  DOT 092.227-018.  The aptitudes, as part of the DOT dataset not in the SCO or DOT, describes preschool teacher as requiring below average motor coordination and finger dexterity but requiring average manual dexterity.

The O*NET OnLine states that preschool teachers use their hands to handle, control, or feel objects continually or almost continually in 17% of jobs, more than half the time in 37% of jobs, about half the time in 5 percent of jobs, less than half the time in 8% of jobs ,and never in 33% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers require fine manipulation in all jobs.  Preschool teachers engage in fine manipulation occasionally in 75.8% of jobs and frequently in 19.2% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.  In addition to fine manipulation, preschool teacher must keyboard in 67.7% of jobs occasionally in 33.1% of jobs.  Id.

The Occupational Requirements Survey states that preschool teachers require gross manipulation in all jobs.  Preschool teachers engage in gross manipulation occasionally in 52.8% of jobs and frequently in 36.3% of jobs. Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey states that preschool teachers reach at or below shoulder level in 88.8% of jobs.  Preschool teachers reach at or below shoulder level occasionally in 45.7% of jobs. Preschool teachers reach overhead in 40.6% of jobs, using both hands in 36% of jobs.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The Occupational Requirements Survey describes preschool teachers as standing/walking 75% of day at the mean, half the day at the 25% percentile, and 90% of the day at the 90th percentile.  Occupational Requirements Survey (2018) 25-2011.00 -- Preschool teachers, except special education.

The O*NET OnLine reports that preschool teachers work less than 40 hours per week in 52.1% of jobs.  Preschool teachers work full-time or more in 47.8% of jobs.  O*NET OnLine (2019) 25-2011.00 -- Preschool teachers, except special education.

For a step four analysis of ability to perform past relevant work, it is important to first classify the nature of the work as actually performed.  Did the work require SVP 7 skill level while engage in light work?  Did the claimant work full-time or part-time?  What were the standing/walking requirements of the job as actually performed.

Once the claimant establishes an inability to perform preschool teacher as actually performed, the attention must turn to the occupation as generally performed.  If the claimant worked part-time as past relevant work, then the existence of part-time work counts as generally performed.  Careful attention must be given to the question of as generally performed in terms of staying at or below the claimant's skill level, excluding jobs that require too much exertion, or have requirements that the claimant does not or no longer possesses.

The as generally performed analysis begs the question:  what does generally mean?  If generally means typical, then preschool teacher typically requires medium exertion.  If generally performed means something other than typically performed, then the claimant has a much more difficult burden to establish the inability to perform past relevant work as generally performed.  Because the DOT presents occupations as typically found in the national economy (DICOT App. D), typicality represents the best approximation of as generally performed.  Whether that range falls around the median, a plurality, or an average will turn to a case-dependent fact.

What is clear is that DOT as to preschool teacher no longer describes work that exists in the national economy.  The DOT does not describe typical skill, exertion, or manipulative requirements.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Preschool Teacher -- An Illustration of the Outdated DOT, California Social Security Attorney (May 14, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/05/preschool-teacher-illustration-of.html

SSR 00-4p Describing the DOT as Primary and as Setting Out Maximum Requirements Does Not Survive Kisor

Kisor v. Wilkie retools the deference doctrine found in Auer v. Robbins.  To recap the Auer deference doctrine, the courts typically defer to an agency’s reasonable interpretation of its own ambiguous regulation so long as the interpretation was not either plainly erroneous or inconsistent with the statute or regulation.  Social Security Rulings are frequent recipients of deference.  The rulings bind all components of the agency.  Under Kisor, that automatic deference in most circuits is now up for reconsideration.  Today, we examine deference owed to Social Security Ruling 00-4p in its description of the Dictionary of Occupational Titles and its companion Selected Characteristics of Occupations is the primary reference for information about the requirements of work in the national economy. 

We start with the text of the administrative notice regulation:

(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.

The Commissioner takes administrative notice of reliable nob information from various governmental and other publications.  Social Security Ruling 00-4p makes two statements about the DOT that warrant examination:

In making disability determinations, we rely primarily on the DOT (including its companion publication, the SCO) for information about the requirements of work in the national economy. We use these publications at steps 4 and 5 of the sequential evaluation process.

And

The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings.

The regulation does not impose or even suggest a hierarchy, that the DOT is more important than other reliable job information or more important that County Business Patterns, Census Reports, Occupational Analysis, or the Occupational Outlook Handbook.  Nor do the Appendix 2 Medical-Vocational Guidelines impose or suggest a hierarchy:

The existence of jobs in the national economy is reflected in the “Decisions” shown in the rules; i.e., in promulgating the rules, administrative notice has been taken of the numbers of unskilled jobs that exist throughout the national economy at the various functional levels (sedentary, light, medium, heavy, and very heavy) as supported by the “Dictionary of Occupational Titles” and the “Occupational Outlook Handbook,” published by the Department of Labor; the “County Business Patterns” and “Census Surveys” published by the Bureau of the Census; and occupational surveys of light and sedentary jobs prepared for the Social Security Administration by various State employment agencies.

The first Kisor question returns to the Chevron watershed:  is the regulation ambiguous?  If the regulation is not ambiguous, then the ruling gets no deference. It might be entitled to respect to the extent that it is persuasive under Skidmore, but it does not get deference.  There is nothing ambiguous about “we will take administrative notice of reliable job information” and here are five examples.  Nor is there anything ambiguous about, “administrative notice has been taken” from the DOT, OOH, CBP, Census Surveys, and occupational analyses.  Because the regulations are not ambiguous, the ruling gets no deference. 

The second Kisor question is whether the interpretation of the ambiguous regulation is reasonable – is it within the zone of ambiguity?  Assuming that either the administrative notice regulation or the description of the bases for the “grids” were ambiguous, any identifiable ambiguity is not hierarchical in nature or about the tendency of the DOT to identify the maximum requirements of work generally performed.  Because the presence of a hierarchy and because the reporting characteristics of the DOT are not within the zone of ambiguity, the ruling gets no deference. 

If the regulations are ambiguous and the interpretation of the regulation falls within the zone of ambiguity, the court must find that the ruling is the authoritative position of the Commissioner.  That is the third Kisor question.  There is no doubt that Social Security Ruling 00-4p represents the Commissioner’s binding agency policy. 

The fourth Kisor question asks whether the ruling falls within the substantive expertise of the Commissioner as opposed to interpreting a matter within the expertise of another agency.  Whether the DOT is a reliable source of current information about the national labor market is not within the Commissioner of Social Security’s expertise.  That expertise belongs to the Secretary of Labor.  Labor publishes the DOT because some agencies continue to use it, e.g. the Social Security Administration.  But here is what Labor says about the subject:

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.

We are concerned about reliable job information in the adjudication of over 2 million disability claims annually according to Biestek v. Berryhill.  The DOT lists about 10,409 occupations with a date last updated in 1977, another 2,581 jobs scattered between 1978 and 1990, and 79 codes added after the revised fourth edition was published.  The O*NET is updated every year.  Most of the DOT is over 40 years out-of-date.  When Labor says that the source for current information is the O*NET, the Commissioner’s reliance on the DOT as primary and reliable ceases under Biestek.  With respect to the question of whether the DOT reflects the maximum job requirements of occupations as they are generally performed, the Commissioner is just flat wrong. Appendix D of the DOT says:

Occupational definitions in the DOT are written to reflect the most typical characteristics of a job as it occurs in the American economy.

The final Kisor element is the “fair and considered judgment” of the agency. In 2000, the DOT was a mere eight years old; the SCO published in 1993 was seven years old. The O*NET was published but gestational. The mature data within data set 23.3 (as of July 2018) reflects iterations and data accumulation to posit the question: just because the Commissioner was reasonable in 2000 does not make the death grip on the DOT reasonable or reliable today.

The administrative notice regulation contains no hierarchy or primacy as between different sources of administrative notice. The creation of a primary source would require a new regulation, not a grafting procedure. Whether the DOT represents reliable job information in 2019 is a question best answered by the agency that collects and assembles job data – the Department of Labor. And, Social Security Ruling 00-4p is wrong even if the Commissioner had quarter to construe the DOT.

Using the ruling to force ALJs to seek a basis for resolving conflict between out-of-date DOT data and anecdotal vocational expert testimony resolves the ambiguity between what to do with administrative notice and expert testimony. Beyond that observation, which applies with equal force to other enumerated sources of administrative notice, the provisions of Social Security Ruling 00-4p are not persuasive much less entitled to deference.

Kosher Inspector -- Unskilled and No Use of the Hands

Kosher Inspector as a light, unskilled occupation is reported to still be identified by vocational experts in response to questions posed by an ALJ that include a significant limitation to either occasional or not use of the hands.  We first take a quick look at that the DOT/SCO summary available just for signing up at Occu Collect.

Summary Report

529.687-126 KOSHER INSPECTOR

Industry: (dairy products)                              Reasoning:       3
Strength: L                                                        Mathematics:   1
SVP:       2                                                          Language:        1
GOE:      06.03.02                                            Data:                6 - Significant
DLU:      77                                                        People:             8 - Not Significant
                                                                            Things:             7 - Not Significant

PHYSICAL DEMANDS:

CL

BA

ST

KN

CO

CW

RE

HA

FI

FE

TA

HE

TS

NA

FA

DP

AC

CV

FV

N

N

N

N

N

N

N

N

N

N

N

N

O

F

N

N

N

F

N

SOC: 51-9061.00 Inspectors, Testers, Sorters, Samplers, and Weighers

We start with the observation of no reaching, handling, or fingering; reasoning level 3; occasional tasting; and frequent near acuity and color vision.  Kosher inspector exists in the dairy products industry.  The next step requires examination of the occupation in the Standard Occupation Classification group of inspectors, testers, sorters, samplers, and weighers (SOC 51-9061.00).  The equally free DOT TO 2010 O*NET-SOC Crosswalk Report (new free report on Occu Collect) lists 782 DOT codes within 51-9061.  The subscription alternate titles reports puts the number of occupations found within 51-9061 at 1,145 occupations.

But we are talking about jobs, not occupations.  For jobs, we start with the Occupational Outlook Handbook:

51-9061 - Inspectors, testers, sorters, samplers, and weighers

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Moderate-term on-the-job training
2016 Employment	520,700

Source:
Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, Quality Control Inspectors, on the Internet at https://www.bls.gov/ooh/production/quality-control-inspectors.htm 

A half million jobs is a lot of jobs.  So we turn to the Occupational Requirements Survey to break the group down, since we abhor the equal distribution method.  We are concerned with light work, unskilled work, and the manipulative requirements of the work.  Those are the reports that we cull from the list.

Series ID: ORUV1000005A00000065

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; svp is beyond short demonstration, up to & including 1 month

Requirement: Education, Training, And Experience

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: svp is beyond short demonstration, up to & including 1 month

Year	Period	Estimate
2018	Annual	21.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUV1000005A00000065

Series ID: ORUP1000005A00000662

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; strength is light work

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: strength is light work

Year	Period	Estimate
2018	Annual	21.5

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000662

Series ID: ORUP1000005A00000332

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; gross manipulation is required, occasionally

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: gross manipulation is required, occasionally

Year	Period	Estimate
2018	Annual	16.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000332

Series ID: ORUP1000005A00000333

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; gross manipulation is required, frequently

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: gross manipulation is required, frequently

Year	Period	Estimate
2018	Annual	29.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000333

Series ID: ORUP1000005A00000334

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; gross manipulation is required, constantly

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: gross manipulation is required, constantly

Year	Period	Estimate
2018	Annual	46.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000334

Series ID: ORUP1000005A00000771

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; gross manipulation is required

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: gross manipulation is required

Year	Period	Estimate
2018	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000771

Series ID: ORUP1000005A00000345

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; gross manipulation is required, both hands

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: gross manipulation is required, both hands

Year	Period	Estimate
2018	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000345

Series ID: ORUP1000005A00000349

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required, occasionally

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required, occasionally

Year	Period	Estimate
2018	Annual	54.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000349

Series ID: ORUP1000005A00000350

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required, frequently

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required, frequently

Year	Period	Estimate
2018	Annual	18.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000350

Series ID: ORUP1000005A00000351

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required, constantly

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required, constantly

Year	Period	Estimate
2018	Annual	19.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000351

Series ID: ORUP1000005A00000769

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required

Year	Period	Estimate
2018	Annual	95.1

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000769

Series ID: ORUP1000005A00000361

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required, one hand

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required, one hand

Year	Period	Estimate
2018	Annual	36.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000361

Series ID: ORUP1000005A00000362

Not seasonally adjusted

Series Title: % of inspectors, testers, sorters, samplers, and weighers; fine manipulation is required, both hands

Requirement: Physical Demands

Occupation: Inspectors, Testers, Sorters, Samplers, and Weighers

Estimate: fine manipulation is required, both hands

Year	Period	Estimate
2018	Annual	58.9

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000005A00000362

The Occu Collect Calculator brings the full-time (O*NET OnLine), SVP (1, 2, or both), and exertion (where reported, not all occupations studied have the conclusion) to discover:

51-9061.00 - Inspectors, Testers, Sorters, Samplers, and Weighers

Job Number Calculations
# of Jobs	% Full-Time	# Full-Time
520,700	93%	484,251
# Full-Time	% SVP 2	# SVP 2
484,251	21%	101,693
# SVP 2	% Light	# Light
101,693	22%	22,372

Using Kosher Inspector as a simple example of unskilled light work as an inspector, tester, the number of jobs is 22,372 in every single light unskilled DOT or alternate title.  The gross manipulation data requires the inference that all jobs require use of the hands, 91.9% occasionally or more.  That leaves 8.1% as the unreported seldom range.  Inspectors, testers engage in no fine manipulation in 4.9% of jobs and one-handed fine manipulation in 36.3% of jobs.  Another 3.1% engage in what is most likely seldom fine manipulation. 

How many inspectors, testers engage in no manipulation?  The answer to that question is zero based on the gross manipulation statistics.  Fewer than 1,800 engage in seldom gross manipulation.  Fewer than 1,200 engage in no fine manipulation bilaterally but over 8,100 do not engage in fine manipulation with one hand.   

As described by the DOT/SCO, it is safe to conclude that no Kosher Inspector jobs exist as described.  Accounting for seldom use of the hands bilaterally, the number of jobs could reach 1,800 but is likely far less.  The assumption of 1,800 jobs assumes that the same jobs that do not require more than seldom gross also require seldom or no fine manipulation.  That is a statistical inference that is without foundation and probably not true.  

If you (or the ALJ) are still not satisfied, pull out the employment projections.  The EP informs us that the dairy product manufacturing industry group (NAICS 311500) employed approximately 3,300 inspectors, testers in the national economy as of 2016.  The always cumbersome Occupational Employment Statistics Query System puts the number of inspectors, testers in the dairy industry at 4,020.  Those two numbers exist at all exertion and skill levels, absent additional statistical data.

See When to Use Occu Collect.