Furniture Rental Consultants part II

Last year, we addressed the furniture rental consultant.  More like last week.  Mr. Olinsky suggested that furniture rental stores are everywhere in the red states.  Let's look at the occupation-industry matrix from BLS, sorted by industry.  

The reports available for the retail trade sector:

				Retail trade, except motor vehicle and parts dealers, food and beverage stores, and general merchandise stores 4445R0 Summary 442000-4000, 446000-8000, 451000, 453000-4000 (XLSX) Furniture and home furnishings stores 442000 Summary 442000 (XLSX) Furniture stores 442100 Line item 442100 (XLSX) Home furnishings stores 442200 Line item 442200 (XLSX) Electronics and appliance stores 443000 Line item 443000 (XLSX) Building material and garden equipment and supplies dealers 444000 Summary 444000 (XLSX) Building material and supplies dealers 444100 Line item 444100 (XLSX)
				When we look at furniture and home furnishing stores, BLS reports total employment of 454,600 jobs.  Not a small industry by any stretch.  Here is how BLS breaks down the employment of retail sales workers: 41-2000 Retail sales workers 230.1 41-2010 Cashiers 15.4 41-2011 Cashiers 15.4 41-2020 Counter and rental clerks and parts salespersons 0.6 41-2021 Counter and rental clerks 0.6 41-2031 Retail salespersons 214.0
				The retail salespersons (41-2031) make up the largest group of employees under the umbrella of retail sales workers (41-2000).  Retail salesperson includes:
				270.357-030    Salesperson, Furniture
				That is a semi-skilled occupation and largely irrelevant for disability purposes absent transferable skills.

The industry matrix gives the data by industry to permit looking at the allegation of widespread employment in the furniture rental industry.  Salespersons, whether selling or renting, is a semi-skilled position and represents almost half of total industry employment -- 454,600 jobs.  BLS again confirms that the unskilled occupation nestled inside of 41-2021 does not exist in significant numbers.

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.        

Furniture Rental Consultants 295-357-018

Another -- you have got to be kidding me, right?  We are not allowed to ask a question like that during a Social Security administrative hearing.  But we want to ask, because the identification of the furniture rental consultant as representing 40,000 jobs in the nation doesn't make sense.  The reason that it doesn't make sense is that our commonsense is correct. 

Look at the occupation as it exists in the Dictionary of Occupational Titles.  We can find the information on the web.  Here.  The occupation exists in the retail trade industry and it rents furniture and accessories. 

I rent cars on a regular basis -- several a year if not more.  If I wanted to fly or float, I would rent a plane or a boat, or just buy a ticket.  But I haven't rented furniture except when in college and don't know many people that do.  It isn't a big industry from a lay perspective.  But that is the beauty of taking judicial or administrative notice; we don't have to be experts to look stuff up.  Let's keep looking stuff up. 

Counter and rental clerks form a group of occupations because of their similar job duties under the O*NET as the Labor replacement to the DOT.  We can look at a detailed description of the occupation on the O*NET OnLine.  The work requires standing:

Spend Time Standing — How much does this job require standing?

15    Continually or almost continually 32    More than half the time 34    About half the time 13    Less than half the time

 
The work is semi-skilled or less. 

"SVP Range

(Below 4.0)"

So for those sit-stand, light, and unskilled jobs, this remains a candidate.  But honestly, how many are there? 

The O*NET reports 442,000 counter and rental clerk jobs, in 24 different occupations.  One of the 24 is the furniture rental consultant.  The Occupational Outlook Handbook reports 442,100. 

The OOH and the O*NET rely on the Bureau of Labor Statistics.  The occupation-industry matrix lists all the Standard Occupational Classification groups.  The line for counter and rental clerks, SOC group 41-2021 generates an excel spreadsheet that breaks down the occupational group by industry.

The employment projections for 41-2021 agree -- the occupational group has 442,100 jobs.  Almost half are in the real estate and rental and leasing industry sector (NAICS 53000).  The employment projections state that the retail trade sector (NAICS 44-450000) has 87,900 jobs.  That is the industry group specified by the DOT, so let's stick with that. 

Within the retail trade sector, 46,500 jobs exist in the motor vehicle and parts dealers industry group (NAICS 441000).  The furniture and home furnishing stores employ 600.  (NAICS 442000).  Within the industry group, counter and rental clerks make up 0.1% to 0.2% of industry employment. 

Code

Title

Employment

Percent of industry

TE1000

Total employment

442.1

0.3

44-450	Retail trade	87.9	0.6
441000	Motor vehicle and parts dealers	46.5	2.5

442000	Furniture and home furnishings stores	0.6	0.1
442100	Furniture stores	0.5	0.2

County Business Patterns provides industry employment data.  Sector 44 for retail trade (turn off LFO and noise flags) counts nationwide employment for the industry:

Compare Areas	NAICS code	NAICS code description	Paid employees for pay period including March 12 (number)	First-quarter payroll ($1,000)	Annual payroll ($1,000)	Total establishments

	442	Furniture and Home Furnishings Stores	429,073	3,026,406	12,836,584	50,595
	4421	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	44211	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	442110	Furniture Stores	198,220	1,668,073	7,037,786	23,567
	4422	Home Furnishings Stores	230,853	1,358,333	5,798,798	27,028
	44221	Floor Covering Stores	63,011	570,982	2,513,664	10,763
	442210	Floor Covering Stores	63,011	570,982	2,513,664	10,763
	44229	Other Home Furnishings Stores	167,842	787,351	3,285,134	16,265

Applying the employment projections percentage of employment yields 429 jobs as a furniture rental clerk; 386 of them in the furniture stores. 

That's it.  There are not and cannot be 40,000 or even 10,000 furniture rental clerks in the national economy.  There are less than 500. 


 

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. 

Obsolete Occupations

From time-to-time, vocational experts will assert the absurd.  I know, you already know that I believe that vocational experts say the absurd because the ALJ corps expects if not demands the absurd. 

OIDAP describes five occupations as obsolete.  From the report:

INITIAL-LEVEL REVIEW RESULTS
Limitations in Job Data – Step 5
Occupational and Medical-Vocational Claims Review Study

For claims denied at step 5, the adjudicator cites jobs that are
examples of the type of work a clamant can do. Our study
found a substantial number of cases where DDSs cited jobs
that might be obsolete. Examples of such jobs cited at step 5
in our study cases include:

•    Addresser (cited in 9.5% of step 5 denial cases)
•    Tube Operator (1.1%)
•    Cutter-and-Paster, Press Clippings (0.9%)
•     Host/Hostess, Head (0.8%)
•    Magnetic-Tape Winder (0.7%)

It is doubtful that these jobs, as described in the DOT, currently exist in
significant numbers in our economy.

If you have a vocational expert identify addresser; tube operator; cutter-and-paster of press clippings; host/hostess, head; or magnetic-tape winder, cross-examination must explore the existence of that work in the national economy and a post-hearing submission should include a copy of the OIDAP report. 

Film Touch-Up Inspector, DOT 726.684-050, Occasional Decision-Making - You Can't Be Serious

Sometimes I just want to ask -- are you serious?  This comes from the files of the absolutely ridiculous.

ALJ asks and finds that the claimant has a mental impairment that leaves a youthful claimant with a residual functional capacity to engage in work activity that involves occasional decision-making.  The kind of RFC is relatively common in Social Security decisions.  Depending on the presence of other limitations, this kind of limitation can prove fatal to the ability to perform a significant number of jobs in the national economy. 

The vocational expert in this case identified two occupations that make no sense.  The vocational expert stated that the claimant could perform the occupation of a film touch-up inspector, DOT code 726.684-050.  The occupation title tells us that there is a problem -- inspector.  The DOT narrative describes the work functions as:

Inspects and repairs circuitry image on photoresist film (separate film or film laminated to fiberglass boards) used in manufacture of printed circuit boards (PCB's): Inspects film under magnifying glass for holes, breaks, and bridges (connections) in photoresist circuit image. Removes excess photoresist, using knife. Touches up holes and breaks in photoresist circuitry image, using photoresist ink pen. Removes and stacks finished boards for transfer to next work station. Maintains production reports. May place lint free paper between dry film sheets to avoid scratching circuit images on film.

The vocational expert stated that the claimant could perform the occupation of a touch-up screener, circuit board assembly, DOT code 726.684-110.  For this occupation, the title does not reveal the problem unless screener means that the work function includes screening product.    The DOT describes the work functions as:

Inspects printed circuit board (PCB) assemblies for defects, such as missing or damaged components, loose connections, or defective solder: Examines PCB's under magnification lamp and compares boards to sample board to detect defects. Labels defects requiring extensive repairs, such as missing or misaligned parts, damaged components, and loose connections, and routes boards to repairer. Performs minor repairs, such as cleaning boards with freon to remove solder flux; trimming long leads, using wire cutter; removing excess solder from solder points (connections), using suction bulb or solder wick and soldering iron; or resoldering connections on PCB's where solder is insufficient. Maintains record of defects and repairs to indicate recurring production problems. May reposition and solder misaligned components. May measure clearances between board and connectors, using gauges.

Inspectors inspect for conformance to standards.  Inspectors decide whether the product in front of him/her meet the employer's standards for sale or whether the product needs repair and to decide the nature and extent of those repairs.  The worker decides as the essential job function. 

Both occupations belong to the same Standard Occupation Classification (SOC) group, 51-9061 for inspectors, testers, sorters, samplers, and weighers.  There are 782 different DOT codes within the group.   The O*NET confirms that the most important core function of this occupational group involves inspecting, testing, and measuring.  The O*NET informs that the typical work in this group covers specific vocational preparation (SVP) code of 4 to <6.  Ignoring that this occupational group has few if any unskilled work, these workers decide.  While the unskilled variety of inspectors may not make repair decisions, the inspectors decide that the manufacturing process produced a defective or deficient product, or that the product meets the standards. 

So why would a vocational expert offer inspector occupations to respond to a hypothetical question involving occasional decision-making?  These are sedentary occupations and the existence of unskilled sedentary work is increasingly rare.  The DOT lists these two technical-related occupations that are likely to survive out-sourcing and automation.  Inspectors check the automated process.  The knee-jerk reaction to identify some work is just wrong.  When the ALJ asks the vocational expert whether the testimony conforms to the DOT, the answer "yes" is at best irresponsible.  Vocational experts must offer the honest testimony that either the occupation is not appropriate or offer a reasonable explanation how and why inspectors don't have the clear job function of making a decision throughout the workday. 

How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

I addressed the issue of superficial contact with supervisors and coworkers earlier this year.  A transcript from a real case pending in federal court provides context and illustrates the methodology.

BY THE ADMINISTRATIVE LAW JUDGE:

Q So what he would be limited to would be a light level of work. Occasional posturals, and avoiding hazards which would be working at heights, or operating dangerous, moving machinery. And visually would be according to doctor, he has -- his vision is corrected by glasses but he certainly would have distance problems if he did not wear his glasses. So he has a visual limitation but again, correctable by glasses.

In terms of his non-exertional limitations, he suffers from a disorder that would limit him to simple, routine instructions, and also would limit him to brief and superficial contact with the public, the supervisors and the co-workers. Now with those limitations, [vocational expert], can you identify some jobs that would exist, if there are any jobs that would exist, that exist in the national environment?

[colloquy and clarification of the exertional limitations]

A Okay. All right. Well, thank you, Your Honor. At the sedentary level, sedentary, unskilled, SVP 2 work, would be hand sorter of small fruits and vegetables, nuts, food products. The DOT is 521.687-086, approximately 3,000 jobs nationally.

[colloquy about the nut sorter jobs]

A Okay. And then, Your Honor, the other would be assembler, hand assembler and that would be 726.684-050, sedentary, unskilled. It's touch up assembler, excuse me. And also approximately 3,000 jobs nationally.

Q Okay.

A And then, Your Honor, another would be production bear with me. You said superficial contact with others?

Q Yes.

A Okay. I would leave it there, Your Honor.

BY THE ATTORNEY:

Q [...] in terms of brief and superficial contact with supervisors, that would also include criticism, work instructions, training. Are all of those brief and superficial?

A That's a very good question. It depends upon the level -- you're describing a situation that's going to vary also according to the level of work performance which would elicit
greater or lesser interaction with supervisors regarding instruction and supervision.

Q Do you consider the ability to accept and respond appropriately to criticism from supervisors to be critical to performing unskilled work?

A Yes, yeah.

Q Okay. So if the person can only tolerate brief and superficial contact, and the ability to accept instructions and respond appropriately to criticism from supervisors is critical to performing unskilled work, how can those two marry?

A Excuse me. You lost me on -- you're jumping from one to the other, so --

Q Okay.

A -- my understanding of your question was is it critical being able to accept criticism, and -- okay, I see what you're saying. Repeat the hypothetical again, please?

Q Well, it's not a hypothetical, it's an observation. If the person can only tolerate brief and superficial contact with supervisors, and we agree that the ability to accept instruction and respond appropriately to criticism from supervisors is critical to performing unskilled work, how could such a person that can only tolerate brief and superficial contact also tolerate and accept criticism from supervisors?

A All right. You -- correct. There would be a conflict there. I don't believe it would be possible.

Q So would you agree that a person can tolerate only brief and superficial contact from supervisors could not engage in competitive employment?

A As presented right now, yes.

The ALJ went on to reject the testimony on cross-examination as somehow changing the hypothetical question.  The court will get to review that assessment.  But this is an example of the "how" of cross-examining a vocational expert on superficial contact with others.