Use of SOC for Job Numbers at Step 5

Constance Sarise Cantrell v. Commissioner of Social Security, No. 4:22-cv-00229-P (N.D. Tex. March 20, 2023); Magistrate Judge’s Report and Recommendation 02/28/23; ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE 03/20/23.

The ALJ found that the claimant, an individual of advanced age, was precluded from returning to her past relevant work due to nonexertional limitations. Based upon VE testimony, the ALJ found that other work exists, in significant numbers, which she could perform. 

But the VE acknowledged that jobs are no longer counted pursuant to Dictionary of Occupational Titles (DOT) codes, but are now counted by the Bureau of Labor Statistics using the Standard Occupational Classification (SOC) codes, which generally refer to a category of jobs, rather than any particular DOT occupation. She further acknowledged that there is no method to reduce the category of jobs down to an individual DOT code, to obtain job numbers for any particular job listed in the DOT.

“Cantrell’s counsel cross examined the VE on this hypothetical:

[Mr. Honig]: Okay. Isn’t it true that there’s no governmental agency that counts jobs by DOT codes anymore?

[VE]: That’s correct.

[Mr. Honig]: Okay. And isn’t it true that jobs are now counted by the Bureau of Labor Statistics using the Occupational Employment Statistics codes, which is the same thing as the Standardized Vocational Classification Code? Is that correct?

[VE]: That is my understanding. Yes.

[Mr. Honig]: Okay. I see that the total employment for kitchen helper as of May of 2020, which is the last number I have, is 395,660 for the entire group. And you have 427, 840 for the one job, kitchen helper. So I see a discrepancy there.

[VE]: Well, yes. And what I failed to mention, Mr. Honig, is … I also use the SkillTRAN compilation estimates, too, in my estimates.

[VE]: And perhaps I had not updated within the last probably year or so. But I don’t take exception to your number. And so, even if we go with 395,000 and how many jobs are in that group right now, you’re looking at –

[Mr. Honig]: Right, but that would be –

[VE]: –because – and it doesn’t matter, but –

[Mr. Honig]: – the entire group.

[VE]: The other issue, of course, is we don’t any longer, sadly, have any way to extrapolate from those groupings of jobs how many of those numbers exist in each of those jobs. So, I think we can agree that job numbers now are kind of sometimes in a gray area, if you will. Go ahead.

[Mr. Honig]: Okay, understood. So, are you telling me that your testimony was based upon the group? Is that correct? The numbers you –

[VE]: I believe, yes.”

The Court held that the Standard Occupational Classification (SOC) can be used to determine job numbers when the VE “further adjusts the number of jobs in the broader [] category to a number that reflects the number of jobs for the cited DOT occupation and provides a reasonable basis for having done so.” Boston, 2016 WL 721563 at *11; see also Vandermark, 2015 WL 1097391, at *16 (citing multiple cases that illustrate that, “despite the lack of specificity of the [incidence data, it is possible for a VE to make a reasonable adjustment to reflect DOT-specific job numbers by calling on other available sources as well as professional experience.”); Daniels v. Colvin, No. CV 13-654 MRW, 2014 WL 794498, at *4 (C.D. Cal. 26 Feb. 2014)” … but that it is “problematic when a VE fails to “reasonably adjust” or to “make any adjustments at all in the number of jobs reported [] for a Census code to reflect the number of jobs for a specific DOT job included within that Census code.” Boston, 2016 WL 721563 at *12. It is even more problematic when the other DOT jobs included in the Census code are not jobs that the particular plaintiff may perform with his assigned RFC.”

The Court held that the VE testimony did not provide substantial evidence of the number of jobs available to Cantrell in the national economy. The decision of the Commissioner was vacated and the case was remanded for further proceedings.

For a copy of the Magistrate Judge’s Report and Recommendation, please click here.

For a copy of the Order of the District Court accepting the Magistrate Judge’s Recommendation and remanding to the Commissioner, please click here.

This piece is a recurring guest column, provided by a NOSSCR member. Any views, opinions, or analysis presented in this column represent the views of the author alone.