Appeals Court Challenges Use of “Equal Distribution Method” in Disability Cases

 Posted on July 18, 2018 in Social Security Disability

Obtaining Social Security disability benefits is not simply a matter of proving you suffer from a physical or mental impairment. The Social Security Administration must also consider whether there are “suitable jobs” that you could theoretically perform in spite of your impairments, and whether such jobs “exist in significant numbers.” Here, the burden is on Social Security—not you as the applicant—to prove this is the case.

Woman Recovering from Brain Surgery Entitled to New Hearing

How you do quantify the amount of “suitable jobs” available? Social Security typically relies on the testimony of vocational experts (VEs) to estimate the number of jobs that might be available. Unfortunately, many VEs fail to properly explain their methodology, which makes their “expert” opinions little more than guesswork. A number of federal courts—including the U.S. Seventh Circuit Court of Appeals here in Chicago—have expressed frustration.

Indeed, the Seventh Circuit recently issued an opinion criticizing Social Security for “affording broad deference” to a VE's opinion that was not supported by any “affirmative explanation” for its reliability. The Court held the applicant in this case was entitled to a new disability hearing as a result of this deficiency.

The applicant is a woman in her early 30s. She previously required multiple surgeries to deal with a brain tumor. Her condition forced her to apply for Supplemental Security Income benefits, which rely on the same legal standards as Social Security Disability Insurance. During a hearing before an administrative law judge (ALJ), a VE testified that despite the applicant's complete lack of work history and medical impairments, she could still perform “unskilled work” at a “light level,” which included hypothetical positions as a “bench assembler,” “domestic laundry worker,” or a “hand packager.”

The VE next employed on what is known as the “equal distribution method” to estimate the number of available jobs in each of these three categories. As the Seventh Circuit explained in its opinion, this method “operates on the illogical assumption that all job titles within a particular job group exist in equal numbers in the national economy.” For example, the Court said the government's category for “cashiers and tellers” includes 28 subgroups, of which “six exist only in the racing industry.” So, according to the equal distribution method, roughly 20 percent of all cashier jobs today should exist at racetracks, which is almost certainly not the case.

The VE failed to offer any explanation as to why he considered the equitable distribution method reliable, except to say that he preferred it over a second method that utilizes a computer program. The ALJ ultimately accepted the VE's findings and denied the applicant's claim for benefits on the basis of the estimated number of jobs available to her.

The Seventh Circuit said that was not good enough. Again, the burden is on the government—not the applicant—to prove that sufficient jobs exist. While the Seventh Circuit did not categorically reject the equitable distribution method as a means of estimating the number of jobs, it “seriously doubt[ed]” its reliability, and said Social Security needs to “hold the VE to account for the reliability of his job-number estimates” in this and future cases.

Get Help from an Illinois Disability Lawyer

Dealing with the vocational expert's opinions—and their questionable methodology—is just one of many hurdles disability applicants must overcome. If you need assistance from a qualified Chicago Social Security attorney in dealing with these issues, contact Pearson Disability Law, LLC, today.

Source:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-18/C:17-2978:J:Scudder:aut:T:fnOp:N:2188695:S:0