There is a good article in the January 2024 issue of The Forum (NOSSCR’s monthly newsletter to its members) by North Carolina disability lawyer George Piemonte regarding cross-examination of the vocational expert at hearing regarding obselete jobs listed in the Dictionary of Occupational Titles (DOT). It is reprinted below:
Many times, the VE will list jobs at Step 5 that are obsolete. No doubt you have had VEs say addresser, or tube operator, or cutter and paster, for example, not only exist but exist in the thousands. It is doubtful these jobs, and several others, exist in the current economy as described in the DOT.
The Commissioner chartered the Occupational Information Development Advisory Panel (OIDAP) (See OIDAP commissioned the Occupational and Medical-Vocational Claims Review Study in 2011.) In that more than a decade old study, on slide seven, SSA presenters indicated, “[i]t is doubtful that [addresser, tube operator, and cutter and paster], as described in the DOT, currently exist in significant number in our economy.” And while SSA has not taken administrative notice of this study, it has never publicly refuted the findings or questioned the validity of them. Courts throughout the country have found jobs identified by the OIDAP study to be obsolete. The Supreme Court in Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) said substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Emphasis added)
It is not unreasonable to believe the jobs listed in the OIDAP study and many others, document preparer comes to mind, are obsolete as they described in the DOT.
So, how do you deal with the VE giving obsolete jobs?
- Ask the VE when the DOT description was last updated for that job.
- Read the DOT description to them and ask where and when was the last time they saw the job performed as in the DOT.
- For example, ask them to tell you when and where they saw a person working eight hours per day, five days per week addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.”
- Get them to agree the job(s) is/are materially different in the current labor market than as set forth in the DOT.
- Get them to agree that the DOT description is obsolete.
- Get them to agree that the Occupational Outlook Handbook has more current information about jobs than the DOT. (SSA has taken administrative notice of The Occupational Outlook Handbook. See 20 C.F.R. § 404.1566(d)(5).)
- Get them to admit that the O*Net and various other government and published sources have reliable job information more current about job than the DOT. (See 20 C.F.R. § 404.1566(d).)
- Get a vocational opinion that the job(s) is/are obsolete and submit it as rebuttal evidence.
Too many people are being denied their rightful benefits based on jobs that no longer exist. Your job is to make it clear that they do not exist in the current economy as described in the DOT.