Questioning the Value of “Vocational Experts” in Disability Cases

 Posted on December 22, 2015 in Social Security Disability Medical Conditions

When you apply for Social Security Disability insurance benefits, the official in charge of hearing your claim will solicit testimony from someone known as a “vocational expert” (VE). The VE's job is to advise Social Security if you are capable of performing any of the same jobs you held in the past, or in the alternative, if your skills can be transferred to a different vocation. In short, the VE is there to present any possible scenario, no matter how implausible, where you might return to full-time work.

In recent years many critics—including a growing number of federal judges—have questioned the value of VE testimony. One problem is vocational experts rely on a horribly outdated system for classifying and describing possible jobs. The system, known as the Dictionary of Occupational Titles (DOT), was last updated by government officials nearly 25 years ago in 1991. For example, in a recent disability appeal heard by the U.S. Seventh Circuit Court of Appeals in Chicago, the judges noted a VE claimed an applicant could work as a “counter clerk,” which the DOT defined as “processing film for subsequent photo printing.” This is not exactly an in-demand job in 2016.

Indeed, a second major problem with VE testimony is it tends to overestimate the actual number of potential jobs a disability applicant can find. In another Seventh Circuit case from earlier this year, the court noted a Social Security attorney “had no idea” how a VE estimated the number of available jobs. And in the case cited above, a judge dismissed the VE's figures as little more than arbitrary “numerology.”

Federal Judge Admonishes Social Security Disability Office to “Clean Up Its Act”

The “numerology” case referred to a claim filed by a 56-year-old former steelworker whose history of workplace-related impairments included “a total hip replacement, a recommended total shoulder replacement, carpal tunnel, a ruptured disc, cervical fusion, knee pain, a broken left hand, and tendinitis.” While the VE who testified at the applicant's hearing agreed she could no longer continue as a steelworker, he somehow declared she could find alternative work “such as a dealer account investigator, a furniture rental consultant, and a counter clerk.” (The latter, as explained above, includes working at a photo processing store.)

Social Security denied the applicant's claim, relying in large part on the VE's testimony. On appeal, a three-judge panel of the Seventh Circuit ordered the government to reconsider the case. The panel noted its “serious concerns with the vocational expert's testimony.” In a separate opinion, Judge Richard Posner, a longtime critic of Social Security, elaborated on these “concerns.” The judge said VE estimates are often based on “census data of broad categories, rather than data on the number of jobs … that the applicant for benefits could actually perform.”

Judge Posner also said the VE in this case failed to adequately explain his opinion the applicant could hold certain jobs despite having “only one fully functional limb.” But the DOT relied upon by vocational experts does not account for such thing, the judge said, leaving the VE to basically guess what jobs an applicant can actually do.

Finally, Judge Posner said the VE cited the wrong paragraph of the DOT when arguing the applicant could work as a “registration clerk.” The VE actually quoted the job description of an “elections clerk,” which the judge noted was only an “occasional” job. Taken as a whole, Judge Posner said the VE's testimony was “worthless” and concluded, “It is time the Social Security Disability Office cleaned up its act.”

Need Help With a Disability Claim?

Unfortunately, this is unlikely to be the last time Social Security relies on “worthless” vocational expert testimony to deny a claim. That is why if you or a family member is permanently disabled and unable to work, it is essential you work with an experienced Chicago Social Security Disability attorney. Contact Pearson Disability Law, LLC, if you would like to speak with an attorney today.

Source:

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2015/D12-03/C:15-1230:J:Williams:aut:T:fnOp:N:1666353:S:0