Information For Important Work Decisions
All NEW - Web-Based PRODUCT RELEASES!!! ... Read More ... REMEMBERING ED SMITH ...

Recent Court Decisions

During the last few years, the courts are awakening to the problem of improper citation of government job numbers. There are three methods by which job numbers are quoted. Increasingly, the courts reject the whole number and the equal distribution methods. This page summarizes various decisions and provides some SkillTRAN perspective on each decision. SkillTRAN offers no legal guidance in these perspectives.

1960 Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916
        Case Synopsis / Summary:  Detailed explanation of how the "Kerner Criteria" evolved from this case at https://www.ssa.gov/history/ssa/lbjoper5.html 
        SkillTRAN Perspective: This case set the ground work for creation of better processes for vocational evidence in SSA hearings, ultimately requiring that an impartial Vocational Expert be involved at the appeals level of Social Security hearings. With ensuing studies, SSA added "Vocational Specialists" as resources to its internal processing of initial and reconsideration of claims. In SSA's history, it is interesting that testimony by a VE might also be helpful to the claimant to understand vocational opportunities or community resources that might be available to the claimant post-hearing.

1971 Richardson v. Perales, 402 U.S. 389
        Case Synopsis / Summary: Strict rules of evidence do not necessarily apply in SSA hearings, and the hearings examiner shall receive a variety of medical and non-medical documents and testimony that are relevant to the claim to assure a fair hearing, including the introduction of informal evidence. Claimant's attorney failed to cross-examine the medical experts, some of whom did not personally evaluate the claimant. An examiner must develop the facts of the case as "substantial evidence", not act as counsel.
        SkillTRAN Perspective: This case was remanded for further proceedings. Some boundaries were drawn around procedures and evidence to be allowed in hearings. 

1983 Heckler v. Campbell, 461 U.S. 458
        Case Synopsis / Summary:  

        SkillTRAN Perspective: 

1999 Kumho Tire Co. v. Carmichael, 526 U.S. 137
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2002 Barnhart v. Thomas, 540 U.S. 20
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2002 Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002)
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2003 McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2003)
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2005 Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005)
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2008 Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008)
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2012 Brault v. Social Security Administration, Commissioner, 683 F.3d 443 (2d Cir. 2012)
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2013 Britton v. Astrue

        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2016 Al Khuzaie v. Commissioner of Social Security

        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2017 Buck v. Berryhill, 869 F.3d 1040 (9th Cir. 2017)

        Case Synopsis / Summary:  GED-R=3, Available Job Numbers

        SkillTRAN Perspective:

2017 Shaibi v Berryhill

        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2018 Chavez v. Berryhill
        Case Synopsis / Summary:  

        SkillTRAN Perspective:

2018 Purdy v. Berryhill - 887 F.3d 7 (1st Cir. 2018)
        Case Synopsis / Summary:  A VE must rely on more than just the equal distribution method.

        SkillTRAN Perspective:

2019 Biestek v. Berryhill
        Case Synopsis / Summary:  In this Supreme Court case, Biestek was an attempt to require Vocational Experts to produce all source documents upon which their opinion about Job Numbers was founded. This would include private surveys conducted as part of other work products produced by the VE in different venues. The majority opinion of the court was that the VE is not required to produce all such evidence to meet the criteria of "substantial evidence", such as are defined under the Federal Rules of Evidence or Daubert criteria, which do not apply in Social Security Disability hearings. 
        SkillTRAN PerspectiveWhile perceived as a victory for vocational experts, the dissenting opinions expressed by 3 judges, particularly Justice Sotomayor, keeps the door open for additional questioning of the VE about the data collected and its methodology used by the VE. So while a dedicated 4-drawer file cabinet of data does not have to be wheeled into the hearing room, the claims representative can (and perhaps should) ask good methodology questions, such as such as the sample size, sample selection method, sampling process, results, geographic distribution, and ability to generalize likely local results to the national labor market. This is particularly important if the VE's opinion relies more heavily on these surveys than on published government data sources.

2019 Kenealy v. Saul
        Case Synopsis / Summary:  

        SkillTRAN Perspective: 

2020 Chad, S v Saul

        Case Synopsis / Summary:  

        SkillTRAN Perspective: 

2020 Chad, B v. Saul
        Case Synopsis / Summary:  Absence of a VE

        SkillTRAN Perspective:

2020 Goode v. Commissioner Social Security
        Case Synopsis / Summary:  The Vocational Expert (VE) cited an SOC group 51-3099 Food Processing Workers, All Other for employment estimates for Bakery Worker (Dictionary of Occupational Titles (DOT) Code 524.687-022). The VE then cited the total employment of 43,000 workers for the entire group (which contains more than 60 different DOT occupations) as the employment for the one Bakery Worker occupation. The court, after documenting various cases and challenges associated with linking the DOT to labor market data, used a government DOT crosswalk search linking the DOT to SOC (https://www.onetonline.org/crosswalk/DOT) to look up the SOC code associated with the cited DOT code, finding that the "correct" SOC code should be 51-9199. The VE cited the entire group number, not accounting for employment of the other DOT occupations not cited as possible to be done by the claimant. The decision touches upon the equal distribution and occupational density method used by SkillTRAN. The case was remanded for further consideration.
        SkillTRAN Perspective: There are several troubling aspects to this case. First, and most troubling is that the court itself, presumably acting as a psuedo VE itself, visited the O*NET crosswalk and relied on it to disparage the testimony of the VE. SkillTRAN recently added a web page documenting the 2012 O*NET Rejection of SkillTRAN Suggestions for the SOC 2010. In Goode, the court elaborates about the difficulty of linking Bureau of Labor Statistics (BLS) labor market data to the DOT, yet fails to understand that BLS failed to even bother to maintain a decent cross-reference to the SOC coding system in 2010. The Bakery Helper DOT occupation is among the 1,500+ DOT occupations linked to this single SOC group. The then new SOC 2010 broke out Food Processing Workers, all other into the new SOC group 51-3099. If you use the O*NET Crosswalk tool for this new SOC 2010 group, there are NO DOT occupations in this group at all.... yet the OES program DOES collect employer data specifically in this new industry. BLS has chosen to simply ignore any further coding updates between the DOT and current resources. But they did "bless" developers to "develop their own crosswalks using other processes". Which is what SkillTRAN did for this Bakery Worker occupation ... 60 or so other DOT occupations in the 51-9199 group that deal with processing of food. This 51-3099 code is correct, and the VE should not have been directed to use the wrong SOC code on remand. Second, the court introduced this new evidence, which has the appearance of violating the intent of the Kerner Criteria, which 60 years ago cemented the necessity of VE testimony. Thirdly, the VE did make an error by quoting the 43,000 number for the whole 51-3099 SOC group, rather than further differentiate how many might be employed in the specific DOT occupation. The net result was a remand for reconsideration, which is a benefit to the claimant, but the rationale behind parts of the court's decision was flawed.

2020 Westendorf v. Saul
        Case Synopsis / Summary:  The vocational expert (VE) used Job Browser Pro by SkillTRAN and SkillTRAN's 2008 explanation for its industry context methodology. The VE was judged to have inadequately explained how the methodology works. The court ruled that the 2008 document was "out of date" and did not adequately explain the methodology. The methodology was also ruled "opaque" and like a "black box" because it could not be understood by the ALJ and therefore was not deemed a reliable method, with a decision made on substantial evidence.
        SkillTRAN Perspective:  It was a real shocker to learn that our 2008 methodology document is now considered "too old".  So exactly how is it then that SSA can use the 1991 DOT, 80% of which has not been updated since 1977? 
The user of our Job Browser Pro software and industry context method really does need to be able to adequately explain the method and how it is applied. SkillTRAN is always willing to spend as much time as it takes for customers to understand the what, why, and how of what we do, the way we do it. Our customer support is one of our most important services. Our extensive and ongoing research to best connect aging DOT occupations to current labor market data and changing government occupational coding systems picks up where the government has utterly failed to accomplish. But we are fully committed to this effort to enable our customers to more easily make some sense of what government data is available to help determine job numbers for the clearly aging DOT. And we have extensively (and recently) updated our older 2008 methodology documentation, expanding it to 10 pages, with graphics, screen shots, and more detail on our recent and continuing research efforts. We are fully committed to helping all parties better understand what we do and why we do it what we do the way we do it. With multiple private reviews by several existing customers, we believe that our 2020 Industry Context Method document will better inform all interested parties in various aspects of hearing processes. 

Add your comments here