Reliability of the Occupational Requirements Survey

Biestek v. Berryhill contains the essence of vocational expert testimony and cross-examination.

Now say that she testifies about the approximate number of various sedentary jobs an applicant for benefits could perform. She explains that she arrived at her figures by surveying a range of representative employers; amassing specific information about their labor needs and employment of people with disabilities; and extrapolating those findings to the national economy by means of a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the ALJ and the applicant's lawyer. And nothing in the rest of the record conflicts with anything she says.

Nestled inside of the body of this statement is the long sentence describing the vocational expert explaining (1) a survey of a range of representative employers; (2) amassing information about labor needs of employers; and (3) extrapolating that data by a well-accepted methodology to the national economy.  The question is whether the vocational expert is reliable.   

To confirm the reliability of the Occupational Requirements Survey. the Bureau of Labor Statistics provides measures for assisting users of the data:

1. Standard errors provide users with a measure of the precision of an estimate to ensure that it is within an acceptable range for their intended purpose.  These include sampling and non-sampling errors.  
2. The ORS program uses a variety of quality assurance programs to mitigate collection and processing errors by using data collection re-interviews, observed interviews, computer edits of the data, and systematic professional review of the data.

The description of standard errors as including sampling errors describes the reliance on the anecdotal experience of a single vocational expert that does not use a well-accepted methodology to extrapolate local experience to the national economy.  

Sampling errors occur because the sample makes up only a part of the population it represents. The sample used for the survey is one of a number of possible samples that could have been selected under the sample design, each producing its own estimate. A measure of the variation among sample estimates is the standard error.

Because the ORS uses measures of standard error to mitigate sampling and non-sampling errors and uses quality assurance through re-interview, auditing, editing, and review of data, the ORS is reliable.  The vocational expert does not use standard error or quality assurance at any level.  That observation confirms what Justice Gorsuch suspected in dissent in Biestek:

And thanks to its conclusory nature, for all anyone can tell it may have come out of a hat—and, thus, may wind up being clearly mistaken, fake, or speculative evidence too.

Don't let vocational experts pull your client's case out of the win column and into the lose column by pulling job numbers out of any source. 

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Suggested Citation:

Lawrence Rohlfing, Reliability of the Occupational Requirements Survey, California Social Security Attorney (June 27, 2021)  hhttps://californiasocialsecurityattorney.blogspot.com/2021/06/reliability-of-occupational.html

Vocational Experts are Trained by SSA to Give Bogus Testimony

 On the Social Security Hearings and Appeals, Becoming a Vocational Expert web page, SSA has an orientation package for the cadre of vocational experts.  The content of the Vocational Expert Orientation is as illuminating as it is shocking.  

Page 13 defines exertion levels of sedentary, light, and medium exertion.  SSA tells vocational experts that sedentary work requires sitting six hours and standing/walking two hours; light and medium work require standing/walking six hours.  Those are not the definitions of sedentary, light, and medium work out of the DOT or the regulations.  Sedentary work does not have a maximum sitting nor do light or medium work have a maximum of standing/walking.  To state otherwise is wrong, just plain factually wrong not just based on the DOT and regulations but based on Department of Labor definitions and of course the Occupational Requirements Survey.  

Pages 22 and 23 present a hypothetical questions and occupation/job samples.  The hypothetical describes a younger individual with a high school education limited to light work, four hours of standing/walking, using a cane to ambulate more than a block, capable of occasional public contact, no strict production requirements, limited to simple instructions, no more than occasional pulmonary irritants, and no dangerous work environments.  The sample occupations and job numbers caused outrage:

• Inspector/hand packager; Dictionary of Occupational Titles (DOT) # 559.687-074; Specific Vocational Preparation (SVP) level 2 and light; 82,150 jobs nationally and 1,362 jobs regionally 
• Assembler, small parts; DOT # 076-684-022; SVP 2 and light; 229,240 jobs nationally and 1,550 jobs regionally 
• Mailroom clerk; DOT # 209.687-036; SVP 2 and light; 119,960 jobs nationally and 2,120 jobs regionally

Let's take the occupations in reverse order, just for fun.  Mailroom clerk has a main title of mail clerk but does travel under the alternate title of mailroom clerk.  The DOT number is actually 209.687-026.  So much for accuracy.  There is no 209.687-036 occupation in the DOT.  Sloppy.  Mail clerk requires reasoning level 3.  It is not simple.  The 14 DOT codes in Mail Clerks and Mail Machine Operators, except Postal Service (SOC 41-9051) contains six light, unskilled codes.  Those 14 DOT codes currently make up 88,400 jobs per the OOH.  Those 14 DOT codes make up 83,580 jobs per the OES.  In 2010, the OES reported 119,960 jobs for Mail Clerks.  Not only did SSA use 10-year-old data, SSA endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Small parts assembler is not better.  Small products assembler I carries the DOT code 706.684-022.  There is no 076.684-022 DOT code.  Again, sloppy.  The DOT describes small products assembler as performing repetitive tasks on an assembly line.  There is clearly a strict production requirement on the assembly line.  The 1,590 DOT codes in Production Workers, All Other (SOC 51-9199) contains 405 light, unskilled codes.  Those 1,590 DOT codes currently make up 238,600 jobs per the OOH.   Those 1,590 DOT codes currently make up  222,230 jobs per the OES.  In 2010, the OES reported 229,240 jobs for Production Workers.  SSA again used 10-year-old data and endorsed the identification of the entire occupational group as representing jobs for the single occupation.  

Inspector/hand packager does have the correct DOT code reported.  The 782 DOT codes in Inspectors, Testers, Sorters, Samplers, and Weighers contains 135 light, unskilled codes.  Those 782 DOT codes currently make up 590,100 jobs per the OOH.  Those 782 DOT codes make up 576,950 jobs per the OES.  In 2010, the OES reported 410,750 jobs for Inspectors.  SSA did not report the entire occupational group of jobs for this occupation.

Mail clerks require short-term on-the-job training.  Production workers and inspectors, testers require moderate-term on-the-job training.  Those jobs are typically skilled or semi-skilled (more than 30 days and up to one year of education, training, and experience).  The ORS does not provide a basis for any of the occupations in production workers and inspectors, testers as standing four hours or less in a day; less than half of mail clerks limit standing/walking to four hours.  These occupations are absurd examples for the sample hypothetical.  

It does get worse.  The orientation repeats the incorrect characterization of the DOT as listing the maximum requirements of occupations as generally performed on page 27.  That comes out of SSR 00-4p.  It is also wrong.  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. Task element statements in the definitions may not always coincide with the way work is performed in particular establishments or localities.

I do not know what maximum of generally performed means.  It is nonsense.  The most typical characteristics describes either an average, median, or plurality of the jobs.  The maximum of the work as generally performed is an oxymoron and wrong.  

I have wondered on occasional where SSA hid the Kool-Aid that the VEs had consumed.  Here it is as an orientation for inaccuracy, statistical foolery, and just plain nonsense.  SSA should take this ridiculous orientation down and replace it with statements and examples that encourage reliable testimony.  On its way, SSA should rescind SSR 00-4p and replace it with a direction that requires the ALJ to adduce the foundation for VE testimony.  The courts are to blame for that current state of affairs.  

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Suggested Citation:

Lawrence Rohlfing, Vocational Experts are Trained by SSA to Give Bogus Testimony, California Social Security Attorney (March 11, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/03/vocational-experts-are-trained-by-ssa.html 

What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?

 I continue to encourage the submission of rebuttal evidence to the ALJ.  That is best practice.  Here is what the Appeals Council said about the submission of post hearing evidence to the ALJ:

The claimant's representative submitted a brief with additional vocational evidence attached (Exhibits 27E, 28E). Although the brief and vocational evidence were exhibited in the electronic record, they were not discussed in the decision or incorporated in the exhibit list attached to the decision. The Administrative Law Judge is not required to discuss every document in the record, however, material evidence should be exhibited with the decision and the arguments raised by the representative should be considered.

AC Order remanding case to ALJ.  

Here is what a court said in a truly unpublished opinion about vigorous cross-examination of a vocational expert at the hearing:

But “[b]ecause the DOT provides only job descriptions and specifications, and not the actual hard numbers regarding the national and regional availability of the same,” VEs must —as the one here did—“utilize additional secondary sources to ascertain the numbers of positions that exist for each of the DOT codes.” Kennedy v. Colvin, 2014 WL 3695466, at *20 (S.D. Cal. July 22, 2014). Here, the VE relied on a combination of the U.S. Publishing figures—which uses numbers from the Department of Labor’s Bureau of Labor Statistics (“BLS”) and the U.S. Census—and the software program Job Browser Pro. (AR 1956, 1986). Based on those secondary sources, she explained that 50,000 toy assembler, 25,000 assembler of plastic hospital products, and 18,000 inspector/hand packager jobs existed in the national economy. (AR 1949-50).

If the facts just described were the complete state of the record, the ALJ’s reliance on the VE’s testimony to find that Mr. Buchanan was not disabled at step five (AR 44-47) would have been supported by substantial evidence. That is because “in the absence of any contrary evidence, a [VE’s] testimony is one type of job information that is regarded as inherently reliable.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). But if, on the other hand, the VE’s testimony is challenged by contrary evidence—as it was here—the conflict can sometimes trigger the ALJ’s legal duty to further develop the record. See id. at 1047, 1052. In this case, the VE testified that she obtained her numbers from two different resources, U.S. Publishing magazine and the Job Browser Pro software program. Yet when the ALJ asked her to pull up toy assembler on Job Browser Pro to confirm her numbers for that job, the VE was unable to find any job numbers for that occupation on the site. The ALJ responded that “this begs the question” where the VE obtained her numbers from. The VE replied that she “didn’t bring [her] stack of U.S. Publishing” with her. (AR 1972). But Plaintiff’s evidence presented at the hearing indicated that U.S. Publishing would not support the VE’s numbers either. Plaintiff provided conflicting job numbers from the BLS on which U.S. Publishing relies in part for its published figures. (AR 1969, 1986). Under these specific circumstances, the ALJ had a duty to develop the record further.

Contrary to Defendant’s view that the ALJ gave detailed reasons to accept the VE’s testimony, none of those reasons addressed or reconciled the core conflict between the claimant’s job numbers and the VE’s. In fact, the ALJ even incorrectly observed that the VE and claimant were relying on different sources. To the contrary, as noted above, Plaintiff’s numbers came from the BLS, and the VE’s sources—U.S. Publishing and Job Browser Pro—rely in part on the BLS. (AR 1956, 1986-87). And while a VE is generally entitled to rely on her professional judgment, nothing in the record shows that the VE did that here. The VE testified only as to two sources for her numbers, but when faced with conflicting evidence, she said nothing to reconcile the discrepancy between her numbers and claimant’s proffered numbers—whether in her professional judgment or otherwise. Thus, as a result of the unexplained and unreconciled variances in the VE’s testimony in the face of conflicting evidence and the lack of a cogent explanation from the VE on how she arrived at her numbers, the ALJ’s finding that Mr. Buchanan could perform other work available nationally in sufficient numbers was unsupported by substantial evidence. See, e.g., Buck, 869 F.3d at 1052 (reversing and remanded where “the vast discrepancy between the VE’s job numbers and those tendered by [the claimant], presumably from the same source, [was] simply too striking to be ignored”); Daniels v. Colvin, 2014 WL 794498, at *5 (C.D. Cal. Feb. 26, 2014) (remand required where VE conducted “insufficient” analysis of number of jobs allocating job numbers from broad Standard Occupational Classification category to narrowed DOT category without further explanation).

Brown v. Saul, 5:06-cv-00367-SK (C.D. Cal. Jan. 14, 2021).  

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Suggested Citation:

Lawrence Rohlfing, What Happens When the Representative Submits Evidence During and Post Hearing to the ALJ?, California Social Security Attorney (January 28, 2021) https://californiasocialsecurityattorney.blogspot.com/2021/01/what-happens-when-representative.html

Douglas Prutting, Vocational Expert and Probable Prevaricator

Vocational experts are not used to being challenged.  We need to make the challenge ordinary.  The time investment up front is extraordinary but the dividends in the long run will more than compensate for the initial investment.  Douglas Prutting, Colorado Springs, Colorado, is the example of the day.

We get to a light residual functional capacity, simple repetitive tasks, minimal educational requirements, and limited to standing/walking four hours in a workday.  Prutting identifies small products assembler I (DOT 706.684-022).  Prutting uses Job Browser Pro.

Which version?
 The latest version that came out in July 2019.  

Houston, we have a problem.  The latest version of JBP did not come out in July 2019.  Version 1.7 came out in October 2019.

How many jobs does JBP state there are for small product assembler?
218,000.

Is that for the entire SOC group (51-9199) and not the for the DOT code?
Yes.  

How many jobs does JBP estimate exists for small product assembler?
I don't know how to get that number.  

JBP uses the OES job numbers.  JBP is plain about that.  The current OES job number for production workers, all other is 230,760.  I do not have to check JBP, I know that Prutting is not looking at a 2019 release of JBP, either the last installment of ver. 1.6 or ver. 1.7.  He is not truthful.

The May 2014 OES data, released by BLS in May 2015, estimates the number of production workers, all other (SOC 51-9199) at 217,500.  No other year comes close.  Data for years after 2014 are too high.  Data for 2013 reports 206,600 jobs.  Prutting is using the JBP release from 2015 and has either never bothered to check current data or never updated JBP, another misstatement.

Douglas Prutting is a prevaricator.  It is just that plain.  He got caught using old data and resorted to the natural human instinct of self-defense by speaking falsely.  Prutting probably is not used to anyone challenging him or caring that he lies.  But I do.  I care.  And so should the agency.  The ALJ has access to JBP at their desk on the fly and can check witness testimony that relies on JBP.  But they don't care.  Neither does the agency.  Public confidence in the system demands that we expose false testimony and demand that Prutting and his ilk speak truthfully and accurately.  The quality of life of disabled people depends on it.  In an age of budget retraction, we have to prove disability when the person cannot work.

_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Douglas Prutting, Vocational Expert and Probable Prevaricator, California Social Security Attorney (March 4, 2020)
https://californiasocialsecurityattorney.blogspot.com/2020/03/douglas-prutting-vocational-expert-and.html

Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives

I argued Keifer v. Saul to the Ninth Circuit on December 2, 2019.  The issue is simple, the vocational expert identified the number of production jobs, twice, and claimed that the entire OES group applied, twice, to both sedentary 1-2 step occupations.  The VE did the same with a filling machine operator occupation and an inspector occupation.  The non-attorney representative did not present the conflict to the ALJ.  The case was a prior remand from the District Court.  The case bypassed the Appeals Council.

Keifer asked the USDC to take notice of the Occupational Employment Statistics showing the exact number of jobs identified by the VE in all four occupations and the Occupational Outlook Handbook to show that the occupations required moderate-term on-the-job training -- semi-skilled or skilled as typically performed.  The USDC found waiver applied to the non-attorney representative, extending Meanel v. Apfel and Shaibi v. Berryhill.

Judge Callahan suggested that the court treat pro pers from administrative proceedings in the same way that they do in federal court proceedings -- no slack.  Judge Bade wondered how the differential treatment crept into the law.  Visiting Judge Lucero did not appear too concerned about the origin of the concept.

My prediction is simple.  The court will extend issue waiver before the ALJ to non-attorney representatives.  The duty to present evidence to the ALJ will extend from "at least where represented by counsel" to "where represented by any professional representatives."  The issue of pro per claimants is is not before the court.

Te court will drive the fulcrum between McLeod v. Astrue, permitting the claimant to submit VA evidence to the court, and Chaudhry v. Astrue, because here we have a representative that is registered and qualified for direct payment -- a professional representative.

There is a discussion about the ramifications of waiver -- legal or professional malpractice.  Where the case is clearly on the cusp, failure to develop the conflicting evidence will likely fall below the standard of reasonable care.  Sedentary 1-2 step work does not exist, at least not  in significant numbers based on a reliable method for extrapolating local experience to the national economy.  Ask the vocational expert:

1. What is your source
2. What is your methodology
3. Replicate the source and methodology
4. Submit that evidence to the ALJ
5. Force the ALJ to resolve the conflict in the evidence
6. Seek review by the Appeals Council
7. Seek review by the District Court

Expect a decision early next year in Keifer.  This is another step where the courts demand that if we believe the VE testimony is insubstantial, we must prove it ... to the ALJ.
_______________________________________________________

SUGGESTED CITATION:

Lawrence Rohlfing, Oral Argument in Keifer v. Saul -- Extension of Full Waiver Rules to Non-Attorney Representatives, California Social Security Attorney (December 4, 2019),
http://californiasocialsecurityattorney.blogspot.com/2019/12/oral-argument-in-keifer-v-saul.html

Vocational Experts at Every Hearing -- Almost

If we are in competition and you know my weaknesses, you will exploit my weaknesses.  It doesn't matter if the competition is athletic, game, or litigation.  The game theory applies.  A Stanford article describes game theory:

Game theory is the study of the ways in which interacting choices of economic agents produce outcomes with respect to the preferences (or utilities) of those agents, where the outcomes in question might have been intended by none of the agents.

 What does this have to do with Social Security hearings?  The answer to that question rests in a different question:  is the agency ambivalent to the outcome of disability claims or is the agency subtly intent on maintaining allowance rates at certain levels to placate the public and policy makers?  Whether this perception applies in the macro or the micro (case-by-case), it is palpable.

Our fellow travelers tell me that their Achilles Heel is the cross-examination of vocational experts.  With that self-deprecating confession in the context of game theory, we can now examine the rate at which ALJs call vocational experts at disability hearings;

Expert                                   Year       Rate

Vocational Expert            1990       36%

Vocational Expert            1991       38%

Vocational Expert            1992       44%

Vocational Expert            1993       44%

Vocational Expert            1994       42%

Vocational Expert            1995       43%

Vocational Expert            1996       42%

Vocational Expert            1997       45%

Vocational Expert            1998       45%

Vocational Expert            1999       47%

Vocational Expert            2000       50%

Vocational Expert            2001       51%

Vocational Expert            2002       55%

Vocational Expert            2003       57%

Vocational Expert            2004       59%

Vocational Expert            2005       59%

Vocational Expert            2006       68%

Vocational Expert            2007       70%

Vocational Expert            2008       72%

Vocational Expert            2009       73%

Vocational Expert            2010       76%

Vocational Expert            2011       83%

Vocational Expert            2012       87%

Vocational Expert            2013       89%

Vocational Expert            2014       92%

The chart is easier to read.  

Cross-examination of vocational experts has grown in importance.  We had the VE in half the cases in 2000 and now we have a VE in almost every case.  This observation heightens the importance of the VE at the hearing, transferring more of the decision outcome to the expert and the need to present conflicting evidence to the ALJ.  

That conflicting evidence must focus on the inability of the vocational expert to extrapolate the local experience to the national economy through a reliable method.  But when the nation data conflicts with the stated extrapolation, the published national data should always win.  The DOT/SCO is out-of-date.  The charts observes:

The use of vocational experts by ALJs has increased greatly since 1980, and they are now used in over three-fourths of all ALJ hearings, even though they rely on an outdated Dictionary of Occupational Titles to support their testimony.

We must submit rebuttal evidence in disability hearings to the ALJ.  Must must establish the lack of reliable method for extrapolating local experience to the national economy.  Or we will lose benefits for people that do not have the ability to engage in substantial gainful activity ... the social contract framed by the Social Security Act falls into breach. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Vocational Experts at Every Hearing -- Almost, California Social Security Attorney (November 23, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/vocational-experts-at-every-hearing.html

What You Need to Effectively Cross-Examine Vocational Experts

We talked about Biestek v. Berryhill, 139 S. Ct. 1148 (2019) last week.  The question is how to create conflict.  It starts with basic curiosity.  "How do you know that?"  "How does that work?"  Once the curiosity takes root, we begin to use the data sources available to disassemble the vocational expert's testimony; we begin to understand.  Here's is what a representative handling Social Security disability cases needs to be minimally ready to follow along with the vocational expert's testimony on cross-examination:

1. Access to the Dictionary of Occupational Titles;
2. Access to the Selected Characteristics of Occupations; 
3. Access to the electronic files of the DOT/SCO;
4. Access to the Revised Handbook for Analyzing Jobs:
5. Access to the O*NET OnLine;
6. Access to the O*NET Resource Center;
7. Access to the Occupational Outlook Handbook; 
8. Access to the Employment Projections;
9. Access to the Occupational Employment Statistics;
10. Access to the County Business Patterns; and 
11. Access to the Occupational Requirements Survey.  

Those 11 sources form the foundation of the statistics that most vocational experts do not grasp.  They cite to the Bureau of Labor Statistics without understanding or knowing that a difference exists between the OES and the EP.  But we have to know the differences exist and the significance of those differences.  Vocational experts cite to the DOT/SCO, act as if it is controlling, and then deviate unknowingly.  We have to know when they deviate and when that deviation matters. 

For items 1-3, the U.S. Publishing provides the data in the Specific Occupation Selector.  USP uses current population surveys for job numbers.  USP uses equal distribution to estimate job numbers for occupational groups, SOC codes. 

For items 1-4, WestLaw provides the data in a single page report by DOT code.  WestLaw does not provide job numbers or access to job numbers, correlation with the O*NET, OOH, OES, EP, CBP, or the ORS. 

For items 1-4 and 9, Job Browser Pro provides access to the data.  JBP integrates the OES with industry designations found in the EP and the CBP.  JBP hyperlinks to the O*NET.  JBP lists data from out-of-date versions of the OOH.  JBP uses an intersection of occupational group and industry to estimate job numbers at the intersection and then equal distribution within that intersection of SOC and NAICS codes. 

For items 1-8 and 11, OccuCollect provides the data.  OccuCollect does not provide data for the OES (coming later this year) or integrate CBP.  The focus is on the incidence of work across the occupational group using a DOT code as an example.  OccuCollect estimates job numbers based on a cascaded approach to characteristics within an occupational group across (or ignoring) industry designations. 

We need to have access to all the data.  We need the data to ask whether occupations exist and if occupations exist, how many jobs exist.  Those are the two Biestek questions.  If we don't create a conflict, the vocational expert testimony will stand.  Create the conflict. 

How Does the Department of Labor Define the Sit-Stand Option?

The sit-stand option is a common thread in the adjudication of Social Security disability cases.  The ability to sit or stand at will of the worker to address the presence of pain or other physical discomfort arises with regularity.

Some ALJs describe the sit-stand option as changing positions with the loss of productivity or efficiency.  That assumption -- that a person can change positions at will without the loss of productivity or efficiency -- lacks the support of substantial evidence.  Getting up requires diverting the hands and arms while using the feet or legs for balance with the added concept of core strength that necessarily distracts from the productivity or efficiency of the job functions, unless the person has a job that is not physical.  These jobs have "not significant" codes for data and things at the fourth and sixth digits of the DOT codes.  See DICOT Appendix B and the free DOC/SCO/SCO summary report for all 13,000 DOT codes on OccuCollect.  (You must register to get free reports, that is all).

The observation starts the inquiry with the premise that SSA adjudicators do not know what a sit-stand option means.  It starts with the training and extends with adjudicatory bias.  The analysis starts with the Department of Labor nomenclature: "sitting vs. standing/walking at will."

Sitting or standing at will - workers can alternate between sitting and standing. Sitting or standing at will is present when the following conditions exist:

• Workers typically have the flexibility to choose between sitting and standing throughout the workday. Riding a bicycle includes pushing or pulling with feet and legs; while mowing may include gross manipulation or pulling and pulling with the hands and arms.

• There is no assigned time during the day to sit or stand.

• No external factors determine whether an employee must sit or stand.

While there may be tasks that require workers to be sitting or standing, if workers can determine when to perform that specific critical tasks, then they may still have the ability to sit or stand at will. For example, 95.4 percent of computer systems analysts can choose between sitting, standing, or walking at will while 97.7 percent of workers in food preparation and serving related occupations cannot choose between these physical demands.

 The three elements that make up the sitting vs standing/walking at will are flexibility, the absence of an assigned time to sit or stand, and the absence of external factors that require the worker to sit or stand.  The first sentence of the explanation synthesizes the three elements: when a job requires sitting or standing to perform job duties, the sitting vs standing/walking at will exists when the worker can choose "when" to perform those critical tasks.

The 2016 and 2017 data sets had very limited estimates for sitting vs standing/walking at will.  The 2018 data set, released April 25, 2019, has a more expansive list of occupations that permit the sitting vs standing/walking at will.  These include the ubiquitous production workers, all other, (SOC 51-9199).

Don't let the inclusion of a sitting vs standing/walking at will get too overwhelming -- the number of jobs that permit sitting vs standing/walking at will is 23.6%.  That does not change 53% of jobs that do not require skills (SVP 2),  the 63.9% that require medium exertion, or that production workers stand/walk 87.5% of the day at the 25th percentile.  Sitting vs standing/walking at will does not represent an elimination of whether the worker must sit or stand, it changes the when the worker will sit or stand.

Labor will continue to describe work as it is actually performed in the national economy and SSA will likely continue to listen to its own institutional bias and uninformed vocational experts.  Labor does not have a dog in the fight and is therefore inherently more trustworthy.  SSA must abide by its promise to take administrative notice.

Responding to the Five-Day Rule When the ALJ Refuses Post-Hearing Development

The vocational expert coughs up testimony that is frankly not true.  We ask for post-hearing development.  The ALJ says "no, the five-day rule gives me discretion to refuse, and I do."  The question is whether the ALJ has a regulatory leg to stand on.  Secs. 404.935 and 416.1435 provide in relevant part:

(a) When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 [§ 416.912] or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512 [§ 416.912], no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence, unless the circumstances described in paragraph (b) of this section apply.

 Secs. 404.1512 and 416.912 describe the evidence that claimant must submit or inform the agency no later than five business days before the hearing:

(a) Your responsibility—(1) General. In general, you have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you are blind or disabled (see § 404.1513 [§ 416.913]). This duty is ongoing and requires you to disclose any additional related evidence about which you become aware. This duty applies at each level of the administrative review process, including the Appeals Council level if the evidence relates to the period on or before the date of the administrative law judge hearing decision. We will consider only impairment(s) you say you have or about which we receive evidence. When you submit evidence received from another source, you must submit that evidence in its entirety, unless you previously submitted the same evidence to us or we instruct you otherwise. If we ask you, you must inform us about:

(i) Your medical source(s);

(ii) Your age;

(iii) Your education and training;

(iv) Your work experience;

(v) Your daily activities both before and after the date you say that you became disabled;

(vi) Your efforts to work; and

(vii) Any other factors showing how your impairment(s) affects your ability to work, or, if you are a child, your functioning. In §§ 404.1560 through 404.1569 [§§ 416.960 through 416.969], we discuss in more detail the evidence we need when we consider vocational factors.

 Evidence about other work in the national economy or how work is typically performed in the national economy are absent from the list.  Rebutting vocational expert testimony is not subject to the five-day rule.

The content of vocational expert testimony is always a surprise.  Sometimes it is a good surprise and sometimes not.  But surprise adverse testimony provides a basis for requesting a supplemental hearing under HALLEX I-2-6-80:

Circumstances may require an ALJ to adjourn a hearing in progress and continue it at a later date, conduct a supplemental hearing, or reopen the record to receive additional evidence. If testimony at a hearing leaves unanswered questions, the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence.

A continuance or supplemental hearing is appropriate when:

• certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence that the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond;

[...] 

If the ALJ decides during the course of a hearing to continue the hearing and hold a supplemental hearing at a later date, the ALJ may set the date for the supplemental hearing at that time or state that he or she will notify the claimant later of the date of the supplemental hearing. The rules governing the conduct of the initial hearing apply to the continued or supplemental hearing. If an ALJ decides to conduct a supplemental hearing, he or she must reopen the record.

Unless the claimant or representative had ex parte communication with the vocational expert before the hearing or the ALJ proffered responses to written interrogatories before the hearing, the vocational expert testimony is always a surprise.  If it is adverse, post hearing development is appropriate if not a full supplemental hearing.

Linda Ferra Agrees that Medium Work Requires More than Six Hours of Combined Standing and Walking

Linda Ferra is a vocational expert with a bulk provider agreement (BPA) with the Social Security Administration. 

The ALJ asks Ferra to assume a person of advanced age that can perform medium exertion.  Ferra identifies

laundry worker II, DOT 361.685-018 representing 40,000 jobs
laborer, stores, DOT 922.687-058 representing 50,000 jobs
industrial cleaner, DOT 381.687-018 representing 50,000 jobs

The medical evidence says six hours in an eight-hour day or about six hours in an eight-hour day.  That is the first step in cross-examination. 

If the person is limited to a combined six hours of standing and walking in an eight-hour day, can that person perform these three medium occupations?

 No.  

Ferra's testimony conforms to the DOT, the regulatory definition of medium work, the O*NET OnLine, and the Occupational Requirements Survey.  The fly in the ointment is SSR 83-10.  The ruling is inconsistent with the regulation, inconsistent with the document produced by the Department of Labor, subject to rebuttal, and is wrong.  Start with Appendix C of the DOT:

Medium Work - Exerting 20 to 50 pounds of force occasionally, or 10 to 25 pounds of force frequently, or greater than negligible up to 10 pounds of force constantly to move objects. Physical demand requirements are in excess of those for Light Work.

Not a word in the definition of medium work that even implies a six hour standing/walking upper limit for any medium occupation.  The regulation:

Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

Nothing here to imply much less require a six hour upper limit of standing/walking for any medium occupation.  I ran a sit-stand-walk report from Occu Collect that puts the data for the occupation in one report.  Extracting from that report, I find:

51-6011.00 - Laundry and Dry-Cleaning Workers

Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	0	Continually or almost continually
	9	More than half the time
	0	About half the time
	12	Less than half the time
	79	Never
	%
Spend Time Standing — How much does this job require standing?	80	Continually or almost continually
	11	More than half the time
	0	About half the time
	9	Less than half the time
	0	Never
	%
Spend Time Walking and Running — How much does this job require walking and running?	35	Continually or almost continually
	28	More than half the time
	11	About half the time
	21	Less than half the time
	5	Never

Never is pretty clear -- it means never.  Less than half the time for sitting ranges from seldom to the occasional range.  More than half the time straddles the upper end of the frequent range to the lower half of the constant range.  

51-6011.00 - Laundry and Dry-Cleaning Workers

Series ID: ORUP1000096000001004

Not seasonally adjusted

Series Title: laundry and dry-cleaning workers; % of day standing/walking is required (10th percentile)

Requirement: Physical Demands

Occupation: laundry and dry-cleaning workers

Estimate: % of day standing/walking is required (10th percentile)

Year	Period	Estimate
2017	Annual	81.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000096000001004

Series ID: ORUP1000096000001005

Not seasonally adjusted

Series Title: laundry and dry-cleaning workers; % of day standing/walking is required (25th percentile)

Requirement: Physical Demands

Occupation: laundry and dry-cleaning workers

Estimate: % of day standing/walking is required (25th percentile)

Year	Period	Estimate
2017	Annual	87.5

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000096000001005

Series ID: ORUP1000096000001006

Not seasonally adjusted

Series Title: laundry and dry-cleaning workers; % of day standing/walking is required (50th percentile - median)

Requirement: Physical Demands

Occupation: laundry and dry-cleaning workers

Estimate: % of day standing/walking is required (50th percentile - median)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000096000001006

Series ID: ORUP1000096000001007

Not seasonally adjusted

Series Title: laundry and dry-cleaning workers; % of day standing/walking is required (75th percentile)

Requirement: Physical Demands

Occupation: laundry and dry-cleaning workers

Estimate: % of day standing/walking is required (75th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000096000001007

Series ID: ORUP1000096000001008

Not seasonally adjusted

Series Title: laundry and dry-cleaning workers; % of day standing/walking is required (90th percentile)

Requirement: Physical Demands

Occupation: laundry and dry-cleaning workers

Estimate: % of day standing/walking is required (90th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000096000001008

Standing/walking 81.3% of the day for laundry workers 

Store Laborers is part of helpers-production workers (SOC 51-9198).  The Department of Labor says:

51-9198.00 - Helpers--Production Workers

Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	8	Continually or almost continually
	8	More than half the time
	11	About half the time
	24	Less than half the time
	49	Never
	%
Spend Time Standing — How much does this job require standing?	49	Continually or almost continually
	9	More than half the time
	18	About half the time
	19	Less than half the time
	6	Never
	%
Spend Time Walking and Running — How much does this job require walking and running?	19	Continually or almost continually
	27	More than half the time
	21	About half the time
	17	Less than half the time
	15	Never

This is a very broad range of work that contains sedentary and light work.  It takes the vocational expert to place the occupation in the 49% that never sit.  

51-9198.00 - Helpers--Production Workers

Series ID: ORUP1000030A00001004

Not seasonally adjusted

Series Title: helpers--production workers; % of day standing/walking is required (10th percentile)

Requirement: Physical Demands

Occupation: helpers--production workers

Estimate: % of day standing/walking is required (10th percentile)

Year	Period	Estimate
2017	Annual	75

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001004

Series ID: ORUP1000030A00001005

Not seasonally adjusted

Series Title: helpers--production workers; % of day standing/walking is required (25th percentile)

Requirement: Physical Demands

Occupation: helpers--production workers

Estimate: % of day standing/walking is required (25th percentile)

Year	Period	Estimate
2017	Annual	83.3

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001005

Series ID: ORUP1000030A00001006

Not seasonally adjusted

Series Title: helpers--production workers; % of day standing/walking is required (50th percentile - median)

Requirement: Physical Demands

Occupation: helpers--production workers

Estimate: % of day standing/walking is required (50th percentile - median)

Year	Period	Estimate
2017	Annual	95

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001006

Series ID: ORUP1000030A00001007

Not seasonally adjusted

Series Title: helpers--production workers; % of day standing/walking is required (75th percentile)

Requirement: Physical Demands

Occupation: helpers--production workers

Estimate: % of day standing/walking is required (75th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001007

Series ID: ORUP1000030A00001008

Not seasonally adjusted

Series Title: helpers--production workers; % of day standing/walking is required (90th percentile)

Requirement: Physical Demands

Occupation: helpers--production workers

Estimate: % of day standing/walking is required (90th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000030A00001008

The ORS suggests that the sedentary occupations do not exist and that somewhere between the 10th and 25th percentiles, all the occupations require standing/walking more than six hours in an eight-hour day.  

The ALJ is resisting Ferra's testimony so we need to lock down that industrial cleaner occupation.  

37-2011.00 - Janitors and Cleaners, Except Maids and Housekeeping Cleaners

Exertional	%	Response
Spend Time Sitting — How much does this job require sitting?	0	Continually or almost continually
	0	More than half the time
	0	About half the time
	39	Less than half the time
	61	Never
	%
Spend Time Standing — How much does this job require standing?	82	Continually or almost continually
	17	More than half the time
	0	About half the time
	0	Less than half the time
	0	Never
	%
Spend Time Walking and Running — How much does this job require walking and running?	43	Continually or almost continually
	31	More than half the time
	10	About half the time
	16	Less than half the time
	0	Never

At most 17% of janitors and cleaners might fall in that six hours out of eight range but more than half the time is not the range of frequent, it is the upper part of frequent and into the bottom portion of constant.  

37-2011.00 - Janitors and Cleaners, Except Maids and Housekeeping Cleaners

Series ID: ORUP1000062200001004

Not seasonally adjusted

Series Title: janitors and cleaners, except maids and housekeeping cleaners; % of day standing/walking is required (10th percentile)

Requirement: Physical Demands

Occupation: janitors and cleaners, except maids and housekeeping cleaners

Estimate: % of day standing/walking is required (10th percentile)

Year	Period	Estimate
2017	Annual	85

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000062200001004

Series ID: ORUP1000062200001005

Not seasonally adjusted

Series Title: janitors and cleaners, except maids and housekeeping cleaners; % of day standing/walking is required (25th percentile)

Requirement: Physical Demands

Occupation: janitors and cleaners, except maids and housekeeping cleaners

Estimate: % of day standing/walking is required (25th percentile)

Year	Period	Estimate
2017	Annual	90

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000062200001005

Series ID: ORUP1000062200001006

Not seasonally adjusted

Series Title: janitors and cleaners, except maids and housekeeping cleaners; % of day standing/walking is required (50th percentile - median)

Requirement: Physical Demands

Occupation: janitors and cleaners, except maids and housekeeping cleaners

Estimate: % of day standing/walking is required (50th percentile - median)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000062200001006

Series ID: ORUP1000062200001007

Not seasonally adjusted

Series Title: janitors and cleaners, except maids and housekeeping cleaners; % of day standing/walking is required (75th percentile)

Requirement: Physical Demands

Occupation: janitors and cleaners, except maids and housekeeping cleaners

Estimate: % of day standing/walking is required (75th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000062200001007

Series ID: ORUP1000062200001008

Not seasonally adjusted

Series Title: janitors and cleaners, except maids and housekeeping cleaners; % of day standing/walking is required (90th percentile)

Requirement: Physical Demands

Occupation: janitors and cleaners, except maids and housekeeping cleaners

Estimate: % of day standing/walking is required (90th percentile)

Year	Period	Estimate
2017	Annual	100

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000062200001008

The ORS nails the question down.  At the 10th percentile, employers expect janitors and cleaners to be on their feet 85% of the day.  

Looking back at SSR 83-10:

The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.

The phrase "approximately 6 hours in an 8-hour workday" is inconsistent with the DOT and the regulation.  That phrase is inconsistent with data collected from work incumbents (O*NET OnLine) and with employer requirements (ORS).  SSR 83-10 needs to be rescinded and re-issued with definitions that fit Labor's observations, measurements, and the reality of work.