SCOTUSblog has an excellent preview of the December 4 oral argument before the Supreme Court in Biestek v. Berryhill, a 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.
How will things be different if Biestek prevails? I don't know if the Social Security Administration or its vocational experts (VEs) are ready for the day after such a Supreme Court opinion. If VEs aren't able to provide the underlying data, and they won't, can a federal court affirm a Social Security decision denying the claimant on the basis of that VE testimony? How does Social Security respond to such a situation? Social Security has been delaying and delaying its new vocational information system. How does that fit into this?
VEs testify to one and a half issues. First, they testify to job numbers, second they testify to whether work is performable despite the claimant's impairments. I say one and a half, as exertional limitations are effectively controlled under the DOT. Technically a dispute can arise between VE testimony and the DOT, with either winning out, but largely their testimony conforms to the DOT (at least our local VEs largely do) and only non-exertional limitations are at issue.
ReplyDeleteProviding evidence for job numbers should be very straight forward, even easy. Providing evidence for non-exertional limitations, less so. Frankly, splitting the difference would at least be an improvement, requiring evidence for job numbers, but permitting a VE's general expertise as to how jobs are actually performed would be appropriate. Not sure either side would be happy with that outcome.
Just get Congress involved and end the sequential evaluation at Step 3. Claimants don't like VEs? Well, they're gonna wish for the old days when MEs effectively get the final say. Claimant's bar has fed at the trough of fat EAJA fees thanks to Posner and the gang mocking reliance on VEs. You'll be sad when they're gone.
ReplyDelete@7:59 As far as I can tell, the prevailing argument seems to be that it's impossible to figure out how many of any of the jobs listed in the DOT exist, so SSA should, I don't know, shrug its shoulders, close up shop and say "F*** it!" Or something to that effect. The other argument I've seen frequently, which seems just as laughable, is that VEs should be required to conduct "market surveys" to ascertain how many jobs exist, as if that's even possible, let alone likely to result in better evidence than DOL's surveys/publications. Obviously neither approach will be adopted, and I think you're quite right that the claimants' bar is really going to regret a "win" here.
ReplyDelete3:37 PM. not necessarily. It would depend upon what replaced it. The burden of proof is supposedly on SSA's side at step 5. The court could rule that thee VE testimony is not "substantial evidence," possibly opening the door to thousands of demands. Perhaps even outright rewards at Federal Court. Personally, I think the testimony of ANY paid witness is suspect. They know who pays them. It is virtually impossible for them to be impartial. Can ALJs be impartial?
ReplyDeleteIt is astounding to me that some folks seem to think that it is perfectly appropriate for VEs to simply make up testimony about the number of jobs that exist in the national economy. Step five requires that SSA show that a substantial number of such jobs exist in order to find that the claimant is not disabled. Surely those folks are not suggesting that VE testimony on that issue is irrebuttable. And to the extent that VE refuse to provide the basis for such conclusions, why would think it is acceptable for such testimony to be based upon secret evidence. Just trust me when I tell you that there are 100,00 such jobs in the economy makes a mockery of any requirement that a decision be supported by substantial evidence. What am I missing here. If the VE testifies that there are 100,000 jobs, he or she needs to provide EVIDENCE to support that testimony. Why is this complicated?
ReplyDelete@8:35
ReplyDeleteI do not believe you are missing much, although I do not believe the two sides are arguing over whether the VE's testimony is rebuttable, but rather whether a VE's expertise and training standing alone is sufficient for SSA to meet their burden. That actually leads into an exceptionally big issue. Submission of post-hearing evidence, until recently, could rebut a VE's testimony. Now, with the 5-day rule, that is a problem. I will be interested to see if that comes up.
@8:35
ReplyDeleteSheesh. Was Wal-Mart running a BOGO sale on straw men today?
It'll be interesting to see what happens when SSA's new vocational program comes out (assuming it does). Not only because it will supposedly provide more consistent numbers, but also because it may eliminate the need for VE testimony at all. If an ALJ can just plug in a set of limitations into the program and have jobs with job numbers spit out, every case becomes a child's case where no one outside of the ALJ will have any idea what will happen until they get the decision.
ReplyDeleteVEs might be the most impartial people at the hearing. They haven't read any medical records, they have little to no idea what the issues in the hearing are, and they almost always just respond to an ALJ's questions without concern for the result. Every VE I've ever had more than once has provided testimony that supported both favorable decisions and unfavorable decisions. Every one of them (those I have anyway) can provide a source for their numbers and will to any reps that ask for them. They have testified beyond the DOT or that the DOT is outdated for manipulative limitations or other areas that have resulted in favorable decisions.
Bad VEs/ALJs/MEs make for bad law. If the nature of VE testimony is altered or even eliminated altogether, my bet is that it won't be done in a manner favorable to claimants. Or, if like Tim suggests and it winds up favorable to claimants, then great! Just tell me what the law is that should be applied, and I will apply it.
I hope that the Supreme Court considers the amount of damage that bad VE testimony does to people with disabilities, and consequently how critically important it is to allow their testimony to be subject to scrutiny including requiring the source of their information.
ReplyDeleteWhen a VE makes mistakes by providing wrong numbers, citing to obsolete jobs that don't exist anymore, failing to present evidence of how jobs have changed since the DOT last updated them, or making other mistakes that affect a claim outcome, it causes a cascade of serious detrimental consequences. For disability claimants who should have been found disabled but were not due to the bad VE testimony, it can mean loss of their only hope of income needed to meet their most basic needs. Homelessness, inability to care for children and loved ones, exacerbation of illness, and a host of other consequences can follow. I know because I have met people this has happened to. It's not pretty.
What is the consequence for Social Security? If a person genuinely can't work but was denied due to bad VE testimony, they have no practical choice but to either appeal or reapply if they want any hope of one day having sufficient income to meet their basic needs. Those disability claims are not just going away. The system gets clogged with their appeals and new applications, causing greater administrative costs and contributing to claim backlogs. In my opinion, it is short-sighted of Social Security to oppose efforts to require VE testimony to be more reliable and verifiable. SSA appears to be valuing short term convenience over long-term costs and overall efficiency.
Then there is human nature. I don't mean to pick on VEs particularly by saying this, because it is true of most people. If you don't require a person to back up what they say, they will get lazy and start making mistakes. If you give them a way to do less work for the same money, many will do less work, as long as they can't get in trouble for it. Human nature. What this Supreme Court case seems to represent is whether VEs can do less work for the same money and not get in trouble for resulting mistakes. My hope is that the Supreme Court weighs that against what happens to disability claimants when bad VE testimony negatively effects claim outcomes. I hope they make the right decision.
9:31 AM. Or, the VE can inflate the claimant's skill level by claiming they did a different, albeit similar job. I worked as what was essentially a clerk at a convenience store . The VE claimed I was the Store Manager. The VE then claimed I was a Supervisor at a factory when I was a forklift driver. When I objected, the ALJ pointed his finger and glared at me. The ALJ made 2-3 questions that had me as disabled and one that did not...Then choose the RFC of the one that was not. He used the wrong legal standard for a less disabling condition. Then based upon the lesser diagnosis, claimed my complaintcomplaints "were not entirely credible" due to the "lack of objective evidence." I think this system is set up so the ALJ can basically justify any decision they want to make. There are rules, yet there is enough wiggle room...Just look at the cases in Federal Court for Fibromyalgia. There appears to be a systemic bias against anyone with this diagnosis and a pattern of arbitrarily dismissing the claimants pain, plus using the wrong legal standard. Is this the lack of training or by design? FYI: there is NO objecive evidence for Fibromyalgia and SSRSSR 12-2 aacknowledges this!
ReplyDeleteSo what I’m wondering is why is the US Supreme Court hearing a case like this.
ReplyDeleteThat said, No one human being can accurately survey a given job in the national economy. If it could be done, Skilltran would have a very limited business.
If the supremes decide that ve’s have to provide hard documentation, for job numbers, that would end the current system as we know it. Judges will have a harder time denying cases. Could it go to a system where every case is paid? Oh wait, then there would be no work for representatives.
I’m guessing that we will continue plodding along as we have been. There are terrible judges, terrible ME’s and Terrible VE’s. Unfortunately there are more than a handful of terrible reps. If a case is hurt by a clueless judge or bad expert testimony, it can be remanded. Oh wait, that requires skill and perseverance on the part of the rep. You just can’t win!
At he various hearings you all have attended how often and how closely does the VE question the claimant?.
ReplyDelete@9:54
ReplyDeleteVEs usually never question the claimant. A dutiful ALJ might ask the VE if more information is needed regarding a claimant's past relevant work. A good rep typically explores details of past work relevant to the claim.
Usually though, very little factual development is done to understand the nature of past relevant work. ALJ decisions only rarely define that past work in detail. The forms SSA gives claimants to describe their past work do not prompt for much critical information needed to truly understand what is really necessary to do the jobs, especially the mental requirements.
It’s not uncommon for a claimant to overstate their work history. Most judges carefully review, with the claimant, their past relevant work. If the judge fails to do this, it’s on the rep to address the issue. Most judges will ask the rep or claimant if they have objections to the characterization of PRW. Agree that the SSA forms can be inadequate. It’s on the VE to address the inadequate information.
ReplyDeleteYou can’t train an expert witness. Not sure what the entry requirements are for a SSA VE. Based on what I’ve seen, the bar is about as low as it is for a representative.