Counter Clerks -- DOT 249.366-010

Over the weekend, We discussed furniture rental consultants for the proposition that 34% require standing about half the time; that the SVP range is below; that the occupation is one of 24 in the O*NET classification of counter and rental clerks; and that the occupational group consists of 442,100 jobs in the national economy as of 2014. 

I know the next question.  What about counter clerk, photofinishing?  This occupation belongs to the same SOC group and the same comments, but a different industry. The DOT describes the occupation as occurring in the photofinishing industry.  That one is not listed in the excel spreadsheet that forms the Employment Projections from the Occupational Outlook Handbook, for  SOC group 41-2021.   So we have to use a different tool, the NAICS search.

NAICS stands for North American Industry Classification System.  We search by using the NAICS search.  Using photofinishing as the search term we get:


NAICS Title

	NAICS Code	Common Keywords
Photographic Equipment and Supplies Merchant Wholesalers	423410	Photofinishing equipment merchant wholesalers
Photofinishing Laboratories (except One-Hour)	812921	Film developing and printing (except motion picture, one-hour)
One-Hour Photofinishing	812922	One-hour photofinishing services

Counter clerks would not work in merchant wholesale so commonsense eliminates NAICS code 423410, Photographic Equipment and Supplies Merchant Wholesalers.  That leaves the two photofinishing six-digit codes.  County Business Patterns provides industry employment data: 

	81292	Photofinishing	7,658	142,926	483,525	724
	812921	Photofinishing Laboratories (except One-Hour)	6,884	138,479	463,615	536
	812922	One-Hour Photofinishing	774	4,447	19,910	188

The five-digit code is the parent, the two six-digit codes are the children.  Photofinishing Laboratories (except One-Hour) plus One-Hour Photofinishing(6,884 + 774) comprise photofinishing (7,758).

Wait, wait, now just wait one darn minute.  County Business Patterns says that total industry employment -- not just counter clerks -- amounts to 7,658 jobs?  We don't get to make up the numbers but we do get to read.  Let's check the employment projections but we will have to go up in specificity of the NAICS code because these two are too small. 

812900

Other personal services

0.7

0.2

Counter clerks cannot make up more than 700 jobs on the employment projections in the four-digit code for NAICS code 812900 Other Personal Services.  They represent 0.2% of industry employment.  In the photofinishing industry, counter clerks make up 15 jobs (0.002 * 7,658 = 15.3). 

How many counter clerk jobs exist in the national economy?  Taking administrative notice of the OOH along with the employment projections and the CBP using the NAICS search tool results in a total of 15 jobs in the nation.  The occupation does not exist in significant numbers.        

The Nail in the Coffin - Surveillance Systems Monitor

A recurring question that comes up in Social Security disability hearings -- are there any sedentary unskilled jobs with occasional use of the hands?  I have heard the question and litigated the number of jobs -- several times.  The vocational experts have identified surveillance-systems monitor.  See Meanel v. Apfel and Beltran v. Astrue.  In Meanel, the vocational expert testified to 1,000 to 1,500 jobs in the Los Angeles region  as an SSM, which the court affirmed over statistical objection that the number was patently false.  In Beltran, the vocational expert testified to 1,680 jobs in the nation as an SSM, which the court found insignificant.  Not may case, but Golowach v. Colvin reports vocational expert testimony of 34,000 jobs -- a 2016 USDC decision out of New York.

Vocational experts give widely different numbers for what should be nothing more than a statistically knowable fact.  Opinions can vary an estimate but the numbers do not vary as the witnesses would have the agency and the courts believe.  The fact of the matter is that the occupation represents very few jobs, if any. 

The SSM is a low-level security job.  It is unskilled but carries a reasoning level of 3.  It isn't simple but it is unskilled.  The Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles confirms the selected characteristics, including reaching, handling, and fingering.  But that doesn't give job numbers.  The DOT and SCO inform the world that the occupation existed in the wild at some point in time -- but how many?

The O*NET replaced the DOT.  The DOT was last updated in 1991.  The O*NET was last updated in 2010.  Pick your data source. 

The O*NET places the SSM occupation in two different SOC codes:

Surveillance-System Monitor. 379.367-010 33-9031.00 Gaming Surveillance Officers and Gaming Investigators 33-9099.00 Protective Service Workers, All Other

The O*NET describes protective service workers, all other as representing 114,000 jobs.  It consists of 5 different DOT codes.  Aggregating and pretending that all the occupations represent roughly the same number of jobs, we get 22,800.  Golowach looks reasonable, if aggregation is the game. 

Protective service workers, all other includes the sub-group:

33-9099.02    Retail Loss Prevention Specialists

That code represents a single DOT code -- 376.137-010    Manager, Internal Security.  The O*NET says that this occupational group represents 114,000 jobs.  Following the aggregation model, we now divide by six.  Golowach is losing ground. 

The gaming surveillance officers doesn't add to the unskilled SSM total.  The O*NET reports that this occupational group represents work with a specific vocational preparation of 4 to < 6 -- the work is semi-skilled to skilled.  That excludes the unskilled SSM. 

Back to the DOT description, the DOT industry designation is government service.  Four of the occupations in the 33-9099 list share that industry designation -- government service.  The national employment matrix states that all levels of government employ 30,800 protective service workers, all other.  The federal government employs about 4,800 workers in 33-9099. 

The feds employ over 3,750 deputy marshals and criminal investigators.  That leaves a possible 1,000 SSM jobs at the federal level and only if there are no polygraph examiners in federal employment.  Whether states would employ SSMs in public transportation terminals is a reasonable question.  But states employ 7,300 workers in 33-9099.  Local government employs 18,700 workers in 33-9099 but that includes school bus monitors, community service patrol officers, and polygraph examiners. 

While it makes sense that transportation centers have eyes watching in this age of terrorism, the prospect that these are unskilled workers not trained in detecting suspicious behavior falls outside the pale of reasonable.  I have encountered vocational experts that refuse to identify this occupation because it does not exist as an unskilled occupation in significant numbers.  Until that trend becomes a universal truth, representatives will have the obligation to cross the errant, misinformed, or deceitful vocational experts to show their work statistically, not viscerally. 

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.

Beltran v. Astrue

On May 2, 2012, the Ninth Circuit decided Beltran v. Astrue.  Attorneys that handle Social Security disability cases consider the issue of signficant number of jobs (SNOJ) in the economy to constitute the Holy Grail.  Pursued and promised but never quite attained.  This case is a baby step closer to that Holy Grail. 

As the third attorney on the case, I had some reluctance to pursue the SNOJ issue.  This nuanced issue typically requires finesse and a perfect record.  The record had some traps but overall a tip in favor of pursuit.  The ALJ in the case denied Beltran disability insurance benefits as of her date last insured.  The ALJ reasoned that the ability to perform 135 jobs in a single sedentary occupation represented a large enough occupational base to expect the vocational adjustment.  The ALJ granted Beltran SSI benefits ... beginning 6 days after the expiration of her date last insured for SSDIB benefits. 

SSI carries with it a benefit tied to financial status of income and resources and grants the beneficiary Medi-Cal coverage.  Medi-Cal grants access to emergency rooms and public clinics and hospitals.  The private medical providers do not treat Medi-Cal recipients. 

SSDIB carries with it a benefit that does not depend on household income and resources and grants the beneficiary Medicare coverage after 2 years of pay status.  Medicare grants access to doctors and hospitials.  The private medical providers do treat Medicare recipients.  For Beltran, pursuing the case had real importance to her in terms of monthly benefit and access to medical care. 

The case did have a couple of problems.  Had I represented Beltran at the District Court level, I would have included a borderline age situation.  Lockwood v. Astrue had not been decided and that decision would have mired the presentation of Beltran to a crawl.  Serendipity saved me from pressing an issue that probably would have won at the District Court level but provided Beltran with no additional past due benefits.  What I perceived as an error turned out to bring good fortune to the case. 

And the real reason to blog about this case ... the strident dissent from Judge Ikuta.  In April, the Ninth Circuit issued a decision in Molina v. Astrue.  That decision broadened the use of the harmless error doctrine.  The author of that opinion, Judge Ikuta.  The majority opinion in Molina and the dissent in Beltran paints Judge Ikuta into the corner of apologist for bad decisions from the Social Security Administration.  Harmless error means that the ALJ decision contains error.  Excusing error as harmless and expanding the use of that doctrine means that the adadge "close enough for government work" continues to have vitality. 

Judge Ikuta complains that the Court usurps the perogative of the agency to make fact findings based on the slimmest of evidence.  Healthcare Employees Union v. NLRB rejected the "rational basis" test that the NLRB sought in review of agency decisions.  The Ninth Circuit, like all courts, reviews decisions of agencies on the record as a whole.  During the expansion of agency power in the last 80 years, the courts have never abdicated the role of making sure that any agency decision make sense.  In other words, the fact that there exists a rational discernable basis for a decision has never and should never rescue the decision from the probing eye of the court. 

In footnote 1 of the dissent, Judge Ikuta complains that alcohol abuse caused some of the problems and limitations found by the ALJ to afflict Beltran.  Judge Ikuta states that problems caused by a history of alcohol abuse don't count in the disability analysis.  First, the ALJ already backed out ethanol from the equation in finding Beltran eligible for benefits 6 days later.  Second, the statute and the regulations remove benefit eligibility if the disabling limitations would evaporate with abstinence.  The footnote represents a misstatement of law and fact. 

The statute requires that Beltran and other claimants for benefits have the capacity to perform a signficant number of jobs in the region in which they live or several regions of the country in light of the residucal capacity for work and in consideration of age, education, and work experience.  While it is true that employment practices and openings don't count, that truism pales when the statute requires consideration of age.  The Commissioner's regulations call this the ability to adjust to other work.  For someone aged 50 or over, the ability to perform every single unskilled sedentary job in the nation does not provide a significant enough occupational base.  For a person aged 55 or over, the ability to perform every single unskilled sedentary and light job in the nation does not provide a significant enough occupational base.  Beltran was 49 years, 11 months, and 3 weeks old at the time that her insured status expired.  The ALJ granted SSI benefits a week later and found that 1 occupation representing at most 135 jobs represented a signficant number.  That kind of sophist analysis deserves the searching scrutiny of the court to second guess the decisions of an ALJ.

Public confidence in a system of administrative adjudication demands better and the majority got it right in holding SSA's feet to the fire.