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Jan 6, 2010

Sixth Circuit Says The DOT May Not Be Enough To Justify Denial

From Cunningham v. Astrue:
The VE based his testimony on job descriptions contained in the Dictionary of Occupational Titles (“DOT”), a document published by the Department of Labor that was more than a decade old when the ALJ heard Cunningham’s claim. While the Social Security Commissioner does take administrative notice of this document when determining if jobs exist in the national economy, 20 C.F.R. § 404.1566(d)(1), common sense dictates that when such descriptions appear obsolete, a more recent source of information should be consulted. The two relevant descriptions here—document preparer and security camera monitor—strike us as potentially vulnerable for this reason. Without more, however, we cannot adequately review whether these job descriptions were up-to-date and, thus, whether the VE’s testimony was reliable. ...

In light of the fact that more current job descriptions were available at the time of the hearing before the ALJ—the Department of Labor replaced the DOT with the Occupational Information Network (O*NET), a database that is continually updated based on data collection efforts that began in 2001— and that the two descriptions relied on by the VE are not found in O*NET, we conclude that the VE’s dependence on the DOT listings alone does not warrant a presumption of reliability. E.g., O*NET Resource Center, http://www.onetcenter.org/dataCollection.html (last visited Jan. 4, 2010). As such, we remand to the Commissioner for consideration of whether the DOT listings, specifically the document preparer and security camera monitor descriptions, were reliable in light of the economy as it existed at the time of the hearing before the ALJ.
Social Security's plan to do something about the DOT sometime in the next ten years or so may not work. The agency should have started serious work on this at least ten years earlier. The only option now may be something quick and dirty.

Update: I have been asked to note that the Court did not recommend this opinion for publication which means that it is not precedential. Either party can ask the Court to change this to a published decision. I would be surprised if appellant's counsel failed to do so. In any case, once attorneys know this argument worked one time, it is likely to be used again. A Court can declare an opinion non-precedential but a Court cannot prevent attorneys representing other clients from being influenced by it.

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  • 3 Comments:

    Anonymous Anonymous said...

    Good for the Sixth Circuit!

    4:49 PM, January 07, 2010  
    Anonymous Anonymous said...

    It's about damn time someone said something about this.

    8:49 PM, January 07, 2010  
    Blogger Nancy Ortiz said...

    Interesting that a decision at that level shows signs of the court's actually looking at the evidence supporting the denial. They usually don't do that, do they, Mr. Charles? Anyhow, maybe there is hope the program can be made to work better.

    9:38 AM, January 08, 2010  

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