Tom Krause, Litigation Director

The December 2023 NOSSCR Forum included an Update on “Obsolete” Jobs. The Department of Labor last published the Dictionary of Occupational Titles (DOT) in 1991. SSA has been on notice since at least 2011 that some of the jobs identified in the DOT were or may be obsolete. More and more, the courts are finding jobs such as addresser, DOT Code 209.587-010; tube operator, DOT Code 239.687-014; cutter-and-paster, press clippings, DOT Code 249.587-014; document preparer, microfilming, DOT Code 249.587-018; host/hostess dance hall, DOT Code 349.667-010; and surveillance-system monitor, DOT Code 379.367-010 are obsolete. We believe that, in a September 2023 training for ALJs and OHO staff, SSA laid out a new and informal policy: before citing any of the above jobs in a decision, the ALJ must ask the vocational expert (VE) whether there has been any change in the way the job is now performed and whether there are a significant number of jobs as that occupational is now performed. The VE must also provide the basis for that opinion.[1]

Since then, we have seen more and more Appeals Council remands. The Appeals Council remand orders typically include a paragraph like this:

The hearing decision does not contain an evaluation of all apparent conflicts between the Dictionary of Occupational Titles (DOT) and the vocational expert evidence. When there is an apparent conflict between vocational expert evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the vocational expert evidence to support a determination or decision about whether the claimant is disabled (Social Security Ruling 00-4p). Specifically, the Administrative Law Judge found the claimant could perform the requirements of representative occupations such as telephone information clerk (DOT #237.367-046), surveillance system monitor (DOT #379.367-010), and addresser (DOT #209.587-010) (Decision, page X). According to the DOT, the addresser job requires addressing by hand or typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing. The surveillance system monitor job requires monitoring the premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifying authorities by telephone of need for corrective action. The record does not contain information regarding whether these occupations are performed with more modern tools or processes, and the hearing decision does not contain an evaluation of the apparent conflict. Furthermore, it is unclear if the remaining occupation cited exists in significant numbers. Therefore, further vocational expert evidence is warranted.

Of note, these remand orders are not always based on the attorneys’ cross-examination or rebuttal evidence. In those cases, it is not clear what the “apparent conflict” is between the DOT and the VE’s testimony.

Another interesting issue is at least one, but not all, of the jobs relied upon by the ALJ is “obsolete.” We don’t have the job numbers for most of these remands, but that may be the case. In one instance, 2 jobs cited by the ALJ are “obsolete” and one job – charge account clerk, DOT 205.367-014 – is not “obsolete.” According to the ALJ in that case, there are 6,000 charge account clerk jobs. The Appeals Council remanded as it was “unclear if the remaining occupation cited exists in significant numbers.” In another case, the ALJ cited addresser, document preparer, and ticket counter. It is not clear how many ticket counter jobs the ALJ found to exist, but the Appeals again remanded.

Practice Tip: If you have a case where the VE cited “obsolete” jobs without describing how the jobs are performed currently and without stating the number of jobs matching the updated description, you may want to contact the ALJ. Even if you just received the ALJ’s decision, you can request the ALJ reopen and revise the decision before requesting review. See Hallex I-2-9-5. Caution: requesting reopening does not extend your time to request review. If you have a case in federal court, even if fully briefed and awaiting a decision, you may want to send an email to opposing counsel about this issue.

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[1] In December 2023, NOSSCR requested a copy of the training video and written materials, but we have not yet received them.