The Supreme Court has agreed to hear Biestek v. Berryhill, a Sixth Circuit Social Security case presenting the issue:
Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised.
What is it exactly that the Vocational Expert (VE) is supposed to reveal to me? As a general matter, VEs aren't researchers. They don't have research, either published or unpublished, that they have done that they can reveal to me. They're basing their testimony on the Dictionary of Occupational Titles (DOT) and generalized experience. One can ask questions like "Which factories did you visit to observe this job?" but I'm not sure where any answer to that question gets you.
More important, concentrating on the issue presented in Biestek is like focusing one's attention on a flea on the back of a buffalo -- while one is being trampled by the buffalo. The enormous issue is the use of the DOT itself. The data in it is more than 40 years old! Everyone knows it's way out of date and quite unreliable yet the Social Security Administration keeps using it as a foundation for disability determination. The DOT isn't the issue presented in Biestek but it's hard to see how the Supreme Court can fail to notice it.
18 comments:
In the underlying case, the VE testified her experience was based on her personal research conducting extensive job surveys and interviews with local employers and when Biestek's representative requested the data, she stated it was confidential and the ALJ did not comment on this. Biestek v. Comm'r of Soc. Sec., 880 F.3d 778, 792 (6th Cir. 2017). Whether this constitutes substantial evidence, under these circumstances, is the question presented.
When I first read this yesterday my first thought was “the Supreme Court has time to grant cert on THIS?l”
Even using the DOT, the VE's so frequently testify that they have witnessed places that allow for a stand/stand option though it's not in accordance with the DOT. Sometimes ALJ's object when you want to know where they have seen work places with unskilled jobs with sit/stand options. The ALJ's rely on this experience even though most of their 'experience' is helping the ALJ's deny claimants disability.
Cert. was granted just so Supreme Court could benchslap the Seventh Circuit that has held (contrary to all other Circuits to consider the issue) that VEs do not need to produce data underlying their testimony. No other Circuit has the guts to tell VEs that they cannot just make up numbers out of nothing because the numbers they come up with do not exist in reality.
@12:49
I think you meant the 7th circuit has held that VEs DO need to produce data underlying their testimony. As to whether the Supreme Court just wants to benchslap the 7th, maybe. Or they will recognize it is SSA's burden to prove alternative work exists, and find an expert's say-so is not sufficient to meet this burden.
I think this is very important because often VE's will offer testimony about job numbers, without being able to back up where those numbers come from, especially when they claim a "10% erosion" in job numbers because of some additional limitation the claimant has. How do they know it's only "10%" ? Also sometimes they may give the job numbers for an entire job category as the numbers of a specific job, because they don't have the specific numbers for a particular job. Other times they say that even though a job is light, a claimant limited to 10 pounds lifting can perform it because in his experience he's seen it usually performed that way. Also may say claimant can perform a job with a cane based upon his experience. All that is wonderful baloney that can be used to deny a claim based upon whatever the VE pulls out of his hat, especially if the VE (who is dependent upon these hearings for his living) senses that the ALJ is searching for some basis upon which to justify an unfair denial. VEs aren't some omnipotent creature that should be allowed to say anything they want regardless of whether or not they can back it up.
SSA won't accept the opinion of a doctor - no matter how well qualified, unless there are objective clinical findings to support it. As many (most) cases the ALJs hear are decided at Step 5, why don't we require VEs to back up their testimony with some verifiable data/studies etc.? Seems particularly crucial in light of the fact that the DOT is terribly outdated.
Certain reps have unrealistic expectations for how precise a VE's testimony (and the ALJ decision) needs to be. If nitpicking with the VE over the methodology of their numbers is your best argument and use of your time at the hearing, it probably means you've neglected your responsibility to develop medical evidence to back the claim (or that the claim is unmerited to begin with).
Wasn't it reps that forced SSA to provide VE's at every hearing in the first place? After prevailing on the federal courts that the Grids alone weren't detailed enough to constitute substantial evidence? Now the VE isn't good enough either? What's next, do you want half the agency cataloging every Monster, Indeed, and newspaper help-wanted entry on a daily basis?
Almost the entire disability process is guesswork anyway. We ask doctors to give their best guess at what a claimant is capable of doing in the future. We ask judges to make the same educated guess. Nobody knows with any real certainty what a claimant is capable of. Yet this plaintiff says VEs need absolute precision and an impeccable papertrail.
There's clearly a limit to the resources our society is willing to allocate to disability adjudication, and we've long since reached it. And the more pedantic (and progressively meaningless) requirements we start placing on that process, the slower it will get. When it comes to decision-making, there's certainly a balance to be drawn between "do you want it done fast or do you want it done right?". But i personally dont think VE testimony adds all that much to the overall quality of decisions anyway, let alone background discovery about the basis of that VE testimony. IMO, extensively challenging the VE is often just a tactic certain reps use in order to drag out the process and try to badger ALJs into granting the case just to get it off their desk.
Gee Dan Smith, exactly how do you prepare for a VE that says a cane will only erode a particular job's numbers by 10%, so that the VE's statistics will be inconsequential, especially after the ALJ decides to give no weight to the psych RFC or the physical RFC from the treating doctors, and is willing to accept the cane as the only work limitation?
@10:33
You find the VE providing the data she herself claimed to have on her computer at the time of the hearing would be a significant burden?
10:33 - Good points. The disability process is by its nature imprecise. Most pain and mental health complaints are subjective. Unless a claimant is wheelchair bound or missing a limb, there is no accurate method to determine how long that individual can walk or how much weight he can carry. Yet the jobs are classified according to very specific criteria like being able to be on your feet for 6 hours or sit for 6 hours or being able to lift 50/20/10 pounds. As if every individual and every job fits nicely into these molds.
People who make esoteric arguments based on VE data or GED codes and such may think that they're being good lawyers, but more likely than that, they have failed to address the big-picture arguments that generally win the case. Whether there are 100,000 hand packager jobs or exactly 837 is not as important as whether the claimant has the medical records establishing inability to perform work.
Those that don't see the big picture and argue the trivial details may one day prevail. But this administration has proven that it doesn't care about letting the house of cards collapse. And the ALJ hearing system has few friends in Baltimore. These and future court challenges may change the system, but don't expect them to change it for the better.
May I please have the Cite? Thanks!
VEs are a paid government witness. How can they be considered impartial? They know who butters their bread! If the burden of proof at step 5 is supposed to be on the government, why is there such a low standard of proof for the government? This is simply a convenient way for SSA to screw claimants!
Its not about the numbers. It never is.
The numbers are about keeping the case alive by showing that the VE testimony "relied" on by the ALJ is BS and cannot satisfy the burden of establishing the existence of alternative jobs. And questioning the basis at the hearing is the only way to do that. I have handled two many cases for other firms at AC and DC where the rep just sat there while listening to transparent nonsense. There really are not 1,000,000 lens inserters in the US.
Yes, better evidence and support are always good things, but for Judges that allow 10% of the cases, evidence will never be enough. You fight with the weapons you have and if challenging the VE on the basis of their testimony is your best weapon, then you need to use it. And, if in too many cases, the rep doesn't know how, then learn or get out of the way.
7:07,
Part of the problem is a lack of understanding about what the VE numbers actually represent. In the lens inserter example, the lens inserter is just a representative example of a job that fits within the broader category of assembly jobs.
The large numbers the VE provides aren't keyed to the specific number of lens inserter jobs in the country, but rather the total number of comparable assembly jobs. That type of rough approximation is necessary because there is no publication that provides job numbers to correspond with every DOT code.
It's an imperfect system, yes, but there is no other system that consistently and accurately measures the number of jobs actually available to a claimant with particular limitations. As Dan noted, pointing out the obvious imperfections in the current system is spitting into the wind. The endgame here isn't a flood of approved claims simply because the government can't pinpoint the exact number of lens inserter jobs that the claimant could do. Congress would not allow such an unintended consequence, and it would change the Social Security Act if necessary.
I agree with 11:57's last statement. I've often wondered what the end game is for the reps that are challenging the VE testimony regarding numbers. If a higher court rules that VE testimony is unreliable and that SSA has to find another way to meet the burden at Step 5, they'll either take administrative notice of a wider variety of factors to evaluate under 85-15p to allow for only rare use of vocational testimony when directly applying the grid rules or, quite possibly, reconfigure the Act, Regulations, and Rulings to essentially have a three-step analysis. If you're not engaged in SGA, have severe impairments, and meet or equal a listing, you're disabled. If not, best of luck to you.
In today's social and political climate, the system is not going to be changed to favor disability applicants.
What's the harm in allowing VEs to give false testimony or testimony based on junk science in hearings? I'm actually not being flippant in asking that. Consider:
-Taxpayers are paying for that testimony. Should we be offended as taxpayers that our money is buying junk science?
-Should ALJs who hear such testimony crack down on it? -Should the boards that license vocational rehabilitation professionals be concerned if VEs repeatedly give inaccurate information in ways that harm disability claimants?
-What happens to disability claimants who should have won their claim but who lost because of false or junk science vocational testimony? How many appeal and/or become serial claim filers? How many go bankrupt because they can't work and couldn't win their claim because of the bad VE testimony?
-What disincentives are there against VEs giving false or junk science testimony? Are those disincentives sufficient to discourage or prevent bad testimony?
2:30 - In your anecdote, use of a cane as a limitation will not preclude work, so why are you worried about the VE's testimony that it will cause a 10% reduction in job numbers? Would you be happier with a more precise 11%, or 37%? If the ALJ had believed the evidence supported the claimant's disability, the ALJ would have given more weight to the impairment questionnaires that you mentioned, presumably leading to a disability finding. Sounds like you're collaterally attacking the ALJ's findings through the VE's testimony.
Yes, VE testimony is imprecise. There is no way one VE sitting in some flyover city is going to know the job numbers better than the Labor Department, which seems to be the expectation of some people on this blog. Get over it. Invalidating VE testimony will not magically lead to the granting of disability benefits to everyone that applies. SSA will just tweak the system, and in this political climate, it will not be the claimant's benefit.
If you can't convince the ALJ your client is disabled, attacking the VE system as a whole is irrelevant, and if you ask me, foolish.
Post a Comment