Apr 7, 2016

How Does SSA Still Get Away With Using Phony Vocational Evidence?

     The Indiana Lawyer has a nice article on the 7th Circuit Court of Appeals' refusal to accept the highly dubious vocational evidence that Social Security uses in deciding on disability claims. It makes you wonder why other circuits aren't following the 7th Circuit's lead.

28 comments:

Anonymous said...

The problem with VE testimony is that most simply rely on Skilltran or some similar software program for their information and have no independent knowledge of anything. Even Skilltran's President has admitted that the addresser position really no longer exists as described in the DOT yet the program still gives numbers for the job and VEs blindly keep on reciting it.

Sadly, most reps are too fearful of upsetting an ALJ to want to challenge a VE about their testimony.

Anonymous said...

Be careful what you wish for.
The advances in technology and the common use of basic technology such as phones means the number of low skill sedentary and light jobs are terribly underrepresented in the data used by vocational experts.

Getting the job information updated will result in more denials not fewer.

Anonymous said...

@1:54 - maybe so, but at least they would have a basis in reality.

Anonymous said...

@1:54PM Actually the advances in technology now means that there are less unskilled sed and light jobs, either eliminating the job all together or moving it into the semi-skilled range.

Anonymous said...

@3:09pm, that is what I'm saying (and what I would guess the 7th circuit would be fine with as well), the issue is not more or less awards or denials, it is the application of reasonably updated vocational data.

Tim said...

The real issue is that the ALJ and VE are both paid by the SSA and are subject to it. This makes it impossible for either to be truly independant. No one would accept any other "court" where the judge had the power to essentially decide someone's fate based upon "testimony" based upon the hypothetical questions used to lead the "witness," using a RFC form filled out by a "doctor" who has often never seen the claimant, using other doctors' notes, which are not written for the purpose of determining the patient's actual functional capacity!!!!

Anonymous said...

I hope that a friend will not mind my adding a horror story about VE reliability: At a North Carolina hearing just a few years ago, an attorney friend faced a VE who listed the job, "sealer," among other possible jobs and listed several thousand North Carolina and regional jobs for the occupation--for the RFC, it sounded like one of those unskilled industrial jobs. This colleague is one of the best reps in the state, but during the hearing, he wasn't able to directly access the information. Later at his office, he looked it up. The occupation is seasonal and is done by the people who club baby seals and skin them for their fur. Needless to say, we don't have those jobs in the Southeast.

Anonymous said...

They get away with it because it is their game.

Anonymous said...

Another issue is that meaningful VE testimony, especially anything that would require significant evidence from the Ve to support the data, would inherently involve far more time and testimony than is typical now. If ALJ's and VE's had to go into that depth, I doubt I could hear as many as half the number of cases I hear now. The already unacceptable wait time for hearing would explode even higher. I often joke with the reps from Citizens Disability that if a circuit court required us to do everything they set out in their standard VE objection letter, hearings would take 3-4 hours, I would be able to hear 2 cases a day, the wait time for hearing would be 5 years and every attorney practicing social security law would go out of business.

There is little doubt what we get from VE's is not acceptable and there has to be a better way, I just don't what that way I might and still make the process not come to a complete stop.

Dan Smith said...

Thank you 10:48 for finally bringing some common sense to the discussion. I actually wrote a blog post some time back about how obsession with vocational testimony is one way that reps themselves are contributing to the hearing backlog. (http://dansmithattorney.com/2014/12/11/fully-diagnosing-the-hearing-backlog-part-2/)

In my opinion, there are many cases where vocational testimony is completely unnecessary. I really only find it relevant in cases where step 4/the grids are dispositive (50+ cases) and a tiny fraction of under 50 cases where there are enough specific additional limitations to actually erode the sedentary base. aside from that, I find that for some reps, VE testimony is just a way to muddy the waters and pressure the ALJ into granting the case in order to avoid the trouble of the vocational testimony minefield. or to preserve completely pedantic grounds for appeal if not....

that said, clearly VE testimony is veryimportant at times. I agree that it's hard to come up with a solution that would be fair to the claimant and practical for the administration to implement. I remember hearing talk at one point of shifting the burden at step 5 to the claimant's rep. Could that be accomplished by requiring the claimant's rep to either identify ahead of time the hearings where vocational testimony is relevant or alternatively waive that issue? Then, if vocational testimony isn't waived, the rep would assume (or share) the cost of the VE?

I can already see the subsequent commenters jumping down my throat on this but it's just an idea. Is it statutorily defensible, practical, etc.?

Anonymous said...

@10:48 and Dan....Its so nice to see that you have your priorities in the right place....lets make sure cases move through the system, the actual evidence be damned. You both should be embarrassed that you but the Agency's desire for efficiency above the claimants' rights to a full and fair hearing and a decision based on substantial evidence. I hope there is a special place in the after life for the both of you.

Dan Smith said...

@1:05
Funny that you mention the afterlife. Apparently if things were up to you, that's the only point in time at which claimants would finally get their cases heard.

PS: overreaction much?

Anonymous said...

Wow, Dan, you always positioned yourself on this site as a defender of SSA but your above comments have to be the worst yet. You really would want to shift the burden to the claimant at step 5? Why not just do away with hearings altogether?

Do you share with your clients that you don't have their best interests in mind when you represent them in hearings, but you are there to help the ALJ meet his/her quota of cases? If you didn't have an actual website for your practice, I would assume you were just a troll out having fun on this site.

Not holding the ALJ to their burden by not cross examining the VE regarding their testimony is a little thing we like to call malpractice.

Dan Smith said...

I'll skip your first question as it's clearly rhetorical.

Secondly, is it that hard to fathom that someone can have general policy ideas in a broad sense without voluntarily executing them in their own individual cases? I guess I can understand that degree of myopia existing on this site, as all I tend to see around here is reps solely concerned with their own bottom lines.

Anonymous said...

If by bottom lines you mean placing our clients first, as is our duty, then I think that's the first correct thing you have written all day Dan.

Anonymous said...

Serving your client and addressing systemic agency problems are not necessarily mutually exclusive. That is Dan's point. Viewed the opposite way, you might be doing your clients, or at least future clients, a disservice by going about your business as usual.

TruthBtold said...

lots of folks appear to have been drinking the Agency Kool Aid lately.

Anonymous said...

As an agency "insider" I can tell you there is no kool aid being passed around at least not to me. But whenever anyone suggests the reps do things different I ama amazed at the kool aid on the rep side.

Anonymous said...

And before anyone says anything about PR fluff like CARES let me assure you that we roll our eyes at that stuff just like the reps do.

Anonymous said...

The representative's guiding principal should always be that of zealous advocacy. Within the bounds of ethics, if your client's interests demands doing something an adjudicator might not like you for then your course is clear. You have to do what is in your client's interests. Any rep who kow-tows to an adjudicators preference or whim at the expense of their client's interests should consider a new line of work.

That being said, justice delayed is often justice denied. Picking battles which are relevant to the outcome of your client's case is a vital skill for reps.

Anonymous said...

As a Judge, I am surprised that Reps don't bring their own VE's to the hearings. There is nothing stopping it other than the greed of the Rep.

Anonymous said...

One third to half our VE's aren't qualified to do the job. But as a judge I don't qualify the "expert" and don't get any say in the selection of the "expert" that I have to use in a day of hearings. The agency establishes qualification and mandates rotation of the VE'. Yet, the law pretty much requires the use of a VE in all cases with non-exertional limitations. Many a day, I'm stuck in the middle.

At the same time, I love the hand wringing by the representative community. The minute the agency starts talking about or studying a new DOT, the reps are the first to complain. They are just as invested in the current DOT or even moreso so than the agency. Throw in a potential modification of the grids, and the hypocrisy of the disability bar is on full display.

Tim said...

8:38 AM. Where would one go to get a "VE," what "qualifications" would they need and would any ALJ (other than, perhaps, you) really put any stock in what my "VE" said?

Anonymous said...

We could just get rid of VE's and then DDS folks will naturally take over the role. Oh yeah that's right, they already said our clients can do a million jobs... and have you looked recently at the example job they give?? Ridiculous stuff. 95+ percent of the time, the ALJ has already decided if they're going to pay someone BEFORE going to VE testimony.

Anonymous said...

I believe that you have to start with questioning what makes the VE an expert. The ones that have Masters or PhD. and are well certified appear to have the correct knowledge. Start by asking questions about the VE education and how they come to get the numbers they are providing.

It surprising how many of them have no proper education or experience. There needs to be a minimum standard for an expert.

Anonymous said...

Should be a minimum standard for a representative...

Unknown said...

You can go to REhabpro.org that is the IARPS page and search for those in the ssve section.

If you brought in a qualified ve even if the judge disregarded it it be grounds for an appeal

I have a couple attorneys that will call me to consult or do and evaluation on their cases.

If you have a case that hinges on IQ ability or the four mental demands you would definitely want a ve that can show why they are an expert on in that issue in thier CV e.g. Since I worked 10 with developmentally disabled and those with brain injury.

Bringas said...

What poppycock. If the record is complete and the case file has been reviewed by the ALJ, representative and experts there is no reason why MEs can respond to those interrogatories I have seen used post hearing. If they result in a step 3 grant, Great,OTR it. If instead it does not but a limited RFC results, interrogatories to the VE incorporating the limitations in the DDS RFCs and/or ME's opinion. If they result in steps 4 and 5 being satisfied, GREAT, OTR it. If that does not result in a favorable or partially favorable adjudication, the claimant can request what would in essence be a supplemental to take testimony from the claimant and witnesses the claimant may wish to present and to cross-examine the experts the ALJ or claimant disagree disagree with.