Tom Krause, NOSSCR Litigation Director

On August 19, NOSSCR filed a complaint with SSA’s Office of Inspector General (OIG), complaining of fraud or similar fault related to the testimony of vocational expert (VE) Jenifer Larue and other VEs. NOSSCR requested an audit of vocational expert testimony generally, and an investigation into the testimony of vocational experts generally, based on the information and allegations in the complaint letter.

In the Complaint, we relied on the extremely low bar for establishing Fraud or Similar Fault (FSF). Under the statute, it is enough to show “reason to believe” that fraud or similar fault was involved in the claim. See 42 U.S.C. § 405(u)(1). “Reason to believe” means reasonable grounds to suspect that fraud or similar fault was involved in providing evidence. Further, Similar Fault includes “an incorrect or incomplete statement” or material “information. . . knowingly concealed.” 42 U.S.C. § 405(u)(2); see Social Security Ruling (SSR) 22-1p. Given this definition of FSF, NOSSCR alleged there is “reason to believe” that the VE provided incomplete, incorrect, and misleading testimony and that the VE’s testimony constituted FSF.

NOSSCR alleged that the DOT is obsolete. NOSSCR also noted the data from the Department of Labor (DOL) and the DOL’s Bureau of Labor Statistics (BLS) are all reported by Standard Occupational Classification (SOC) group,[1] not DOT title. NOSSCR asserted that the Occupational Requirements Survey (ORS) is the most updated and reliable source of information on job descriptions and job numbers. We also charged the VE with misrepresentation when the VE failed to adjust her numbers to account for two important differences between the way Social Security defines work and BLS defines work (the definition of “full-time” work and the definition of “sedentary” work). When questioned regarding her methodology – when asked four times – the VE failed to give a straight answer. The VE never mentioned any of these highly relevant facts and so concealed material information.

We believe the VE misrepresented and concealed evidence regarding the statistical basis of her testimony and the data available to support her opinions. Among other things, the VE testified that there are 10,000 Addressers and 5,000 Document Preparers. The most recent and reliable data from the Department of Labor’s Bureau of Labor Statistics indicates there are no more than 6,509 unskilled sedentary jobs in the SOC group for Addressers and no more than 1,125 for the group including document preparers. As discussed below, even those numbers are too high.

The VE’s testimony regarding the Final Assembler (optical goods) position was grossly inaccurate and misleading. The VE testified there are 5,000 jobs nationally as Final Assembler, DOT 713-687.018. The VE provides no further justification for this number. The DOT describes this job as:

FINAL ASSEMBLER (optical goods)

Attaches nose pads and temple pieces to optical frames, using handtools: Positions parts in fixture to align screw holes. Inserts and tightens screws, using screwdriver.^[2]

The VE, then, testified that there are 5,000 people in the U.S. whose full-time duties are to attach nose pads and temple pieces to eyeglass frames.

BLS data shows this testimony is inaccurate. The SOC for Final Assembler is 51-9199, encompassing 1,589 DOT titles. BLS OEWS data indicates there are 224,867 jobs in that SOC group. ORS data indicate that less than 0.5% of these jobs are sedentary. Doing the math, 0.5% of 224,867 jobs means there are only 1,125 sedentary jobs in that entire SOC.^[3] If all 1,125 sedentary jobs in that SOC group are Final Assembler jobs, there are 0 sedentary jobs in the other 1,588 DOT titles in that group. This is statistically unlikely, to say the least. Of those 1,125 sedentary jobs, some are 35-39 hours/week, skilled or semi-skilled, or require sitting more than 6 hours.

In short, that 1,125 number is not reliable. Per the VE, there are 5,000 sedentary Final Assembler jobs. At a minimum, the VE concealed important information, portraying the data as definitive when it was not. This is Fraud or Similar Fault.

Similarly, the VE testified there are 10,000 jobs nationally as Addresser, DOT 209.587-010. Despite questioning, there is no further discussion of the source for this number. The data strongly contradicts her testimony.

The DOT describes the job as addressing “by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing.”^[4] SSA has known since 2011 that the job is obsolete. The Courts have long recognized the position as obsolete. See, e.g., Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015) (https://casetext.com/case/alaura-v-colvin-1). Recently, the Commissioner conceded the job is obsolete as described in the DOT.^[5]

At best, the VE concealed the true nature of the duties associated with Addresser. The VE testified that the job has “evolved” and now, the individual places preprinted labels on envelopes; “overall”, those jobs have the “same functional abilities”. Though using computers, the VE asserted the job is still unskilled. The VE failed to note additional duties now commonly associated with the position, such as barcoding, pre-sorting, list management, variable data laser printing, folding, inserting, tabbing, warehousing, and shipping.^[6] The VE failed to justify her conclusions.

The Addresser job is in the SOC for Word Processors and Typists. OEWS data indicates the entire SOC contains only 26,034 jobs spread across 8 DOT titles. About 75% of the jobs included in the SOC involve sitting more than 6 hours per day. Recall the ALJ limited the claimant to sitting 6 hours a day. The claimant, then, can perform no more than 6,509 (26,034 x .25) Word Processors and Typists jobs. But the number of Addresser jobs available to the claimant is less than 6,509. As noted, there are 8 DOT titles in that SOC. There are 6,509 jobs spread over 8 DOT titles. It is not clear how many of those jobs are Addressers.^[7]

How did the VE come up with 10,000 jobs? The jobs most closely related to Addresser are, by definition, all in the same SOC group. But the claimant cannot perform any of the other jobs in that SOC as all 7 of the other DOT titles in this SOC are either semi-skilled or skilled:

The claimant cannot perform any of these 7 jobs as a matter of law. Id.^[8]

In short, there are no more than 6,509 jobs as Word Processors and Typists. An unknown number of these jobs are not Addressers. An unknown number of these jobs are semi-skilled or skilled. An unknown number of these jobs are 35-39 hours a week. But there are not 10,000 Addresser jobs. The VE concealed the necessary adjustments to her testimony. At best, the VE misrepresented or concealed important evidence; at worst, she fabricated data.^[9] Regardless, there is “reason to believe” the VE committed FSF.

Many thanks to NOSSCR Sustaining Member Kyle Sciolaro for providing the materials for this claim.

---

[1] See BLS, Standard Occupational Classification (https://www.bls.gov/soc/).

[2]  DOT 713-687.018 (https://occupationalinfo.org/71/713687018.html).

[3]  Job Browser Pro notes 68 Final Assembler jobs.

[4]   DOT 209.587-010 (https://occupationalinfo.org/20/209587010.html).

[5]  SSA Emergency Message (EM) 24026 (June 22, 2024) (https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM).

[6]  See Automated Mailing Systems, Inc., www.automailsys.com/; Alaura, supra, 797 F.3d at 503.

[7]   Job Browser Pro notes 1,976 Addresser jobs.

^[8]   The ALJ found the claimant did not have transferable skills. As a matter of law, he is not capable of performing semi-skilled or skilled jobs. See SSR 00-4p (https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html); SSR 82-41 (https://www.ssa.gov/OP_Home/rulings/di/02/SSR2000-04-di-02.html).

[9]  In response to a question about the Final Assembler position, the VE testified she used a combination of BLS data, Job Browser Pro, her “education”, and “18 years of work experience.” The VE refused to explain her methodology. Nothing in the VE’s testimony or resume suggests any expertise in statistics or data manipulation or any extended study of this SOC.