Saturday, November 23, 2019

Vocational Experts at Every Hearing -- Almost

If we are in competition and you know my weaknesses, you will exploit my weaknesses.  It doesn't matter if the competition is athletic, game, or litigation.  The game theory applies.  A Stanford article describes game theory:
Game theory is the study of the ways in which interacting choices of economic agents produce outcomes with respect to the preferences (or utilities) of those agents, where the outcomes in question might have been intended by none of the agents.
 What does this have to do with Social Security hearings?  The answer to that question rests in a different question:  is the agency ambivalent to the outcome of disability claims or is the agency subtly intent on maintaining allowance rates at certain levels to placate the public and policy makers?  Whether this perception applies in the macro or the micro (case-by-case), it is palpable.

Our fellow travelers tell me that their Achilles Heel is the cross-examination of vocational experts.  With that self-deprecating confession in the context of game theory, we can now examine the rate at which ALJs call vocational experts at disability hearings;

Expert                                   Year       Rate

Vocational Expert            1990       36%
Vocational Expert            1991       38%
Vocational Expert            1992       44%
Vocational Expert            1993       44%
Vocational Expert            1994       42%
Vocational Expert            1995       43%
Vocational Expert            1996       42%
Vocational Expert            1997       45%
Vocational Expert            1998       45%
Vocational Expert            1999       47%
Vocational Expert            2000       50%
Vocational Expert            2001       51%
Vocational Expert            2002       55%
Vocational Expert            2003       57%
Vocational Expert            2004       59%
Vocational Expert            2005       59%
Vocational Expert            2006       68%
Vocational Expert            2007       70%
Vocational Expert            2008       72%
Vocational Expert            2009       73%
Vocational Expert            2010       76%
Vocational Expert            2011       83%
Vocational Expert            2012       87%
Vocational Expert            2013       89%
Vocational Expert            2014       92%


Cross-examination of vocational experts has grown in importance.  We had the VE in half the cases in 2000 and now we have a VE in almost every case.  This observation heightens the importance of the VE at the hearing, transferring more of the decision outcome to the expert and the need to present conflicting evidence to the ALJ.  

That conflicting evidence must focus on the inability of the vocational expert to extrapolate the local experience to the national economy through a reliable method.  But when the nation data conflicts with the stated extrapolation, the published national data should always win.  The DOT/SCO is out-of-date.  The charts observes:
The use of vocational experts by ALJs has increased greatly since 1980, and they are now used in over three-fourths of all ALJ hearings, even though they rely on an outdated Dictionary of Occupational Titles to support their testimony.
We must submit rebuttal evidence in disability hearings to the ALJ.  Must must establish the lack of reliable method for extrapolating local experience to the national economy.  Or we will lose benefits for people that do not have the ability to engage in substantial gainful activity ... the social contract framed by the Social Security Act falls into breach. 

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SUGGESTED CITATION:

Lawrence Rohlfing, Vocational Experts at Every Hearing -- Almost, California Social Security Attorney (November 23, 2019),
https://californiasocialsecurityattorney.blogspot.com/2019/11/vocational-experts-at-every-hearing.html

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