The Heavyweight Bout of the Century -- Purdy versus Chavez

The battle royale is now set over the question of whether the vocational expert must have some logical defense of the job numbers regurgitated at a Social Security hearing.  In the blue corner, we have the Seventh Circuit on-demand rule culminating in Chavez v. Berryhill.  In the red corner, we have the rest of the country typified by the approach announced in Purdy v. Berryhill.

Purdy is simple.  The vocational expert identified job numbers using Job Browser Pro.  Counsel for Purdy asked the VE how JBP worked.  The VE didn't really know but claimed that it was generally accepted.  The SkillTran team puts out a generally reliable product.  Some of the industry codes are suspect, but the methodology is sound in using industry designations to winnow down job numbers.  Purdy's conclusion:

This is not to say that we could go to the extreme of approving reliance on evidence of the software numbers offered by a witness who could say nothing more about them than the name of the software that produced them. But that is not the case here. The VE, whose qualifications Purdy did not challenge, testified that the job numbers were from the Bureau of Labor Statistics and were stated in reference to job descriptions in the DOT; that is, they were specific to jobs, not to broad amalgams of jobs, some of which an applicant might be able to perform but not others. The VE testified that the software's conclusions on the described basis were generally accepted by those who are asked to give the sort of opinions sought here. She testified, in other words, to a reliable and practical basis of fact on which analysis was performed, and to a wide reputation for reliability.

Naming the software is not enough.  Knowing the source (BLS) of job numbers; that JBP stated DOT-specific job numbers not entire OES-SOC groups of job numbers; and the generally accepted nature of JBP in combination are sufficient.  What is missing from the Purdy presentation is any evidence that JBP was wrong about any of its job number conclusions.

Chavez set the stage as a fight between JBP and the Occupational Employment Quarterly.  Chavez does not disagree with the factors outlined in Purdy:

Establishing the reliability of a job-number estimate does not require meeting an overly exacting standard. Many variables combine to create uncertainty in a VE's job-number estimate.
...

VEs are neither required nor expected to administer their own surveys of employers to obtain a precise count of the number of positions that exist at a moment in time for a specific job. Think of the difficulty, if not impossibility, of acquiring the data necessary to tally how many residential laundry worker jobs exist throughout the United States or even in the Midwest. The VE necessarily must approximate, and there is no way to avoid uncertainty in doing so.

After discussing previous encounters with the equal-distribution method, Chavez highlights the problem with the vocational expert's testimony in this case:

And all the record shows is that the VE preferred the job-number estimates produced by the equal distribution method over those from the occupational density method. What is entirely lacking is any testimony from the VE explaining why he had a reasonable degree of confidence in his estimates. The VE, for example, could have drawn on his past experience with the equal distribution method, knowledge of national or local job markets, or practical learning from assisting people with locating jobs throughout the region, to offer an informed view on the reasonableness of his estimates. The absence of any such testimony left the ALJ without any reasoned and principled basis for accepting the job-number estimates.

Whereas the VE in Purdy stated reliance and general confidence in JBP, the VE in Chavez rejected JBP as reporting too small of numbers and just a blanket preference for the equal distribution method used in the OEQ.  The VE did not knowing the source of job numbers; could not state that the job numbers were DOT-specific; and could not or did not state that the OEQ was generally accepted as a reasonable estimate of job numbers.

Are Chavez and Purdy in conflict?  I don't think so.  They are factually distinct.  Purdy could truthfully rely on the accepted nature of JBP as an occupational density model for reporting job numbers by DOT code, it does.  Chavez could not truthfully state that VE's believe that the OEQ constitutes a reasonable basis for reporting job numbers by DOT code, it doesn't.   The 2017 Vocational Expert Handbook requires the defense described in Chavez and Purdy:

You should be prepared to explain why your sources are reliable.

NOTE: During your testimony, maintain easy access to any sources you rely upon, as the ALJ, claimant, or representative may have questions about your sources. Particularly, any sources outside of those listed under 20 CFR 404.1566(d) and 416.966(d).

See page 38.  Absent a reasonable statement of reliability of methodology, the testimony is not substantial evidence under either Chavez or Purdy.  In the next few posts, we will talk about questions to ask the VE on cross about the OEQ and JBP to bolster the rejection of the OEQ or disassemble reliance on JBP in some cases.

We close today with the observation in Chavez:

We also recognize and underscore that VEs cannot be expected to formulate opinions with more confidence than imperfect data allows. Nor is it our place to enjoin use of the equal distribution method. What we do require, though, is more than what supported the ALJ's decision here.

The COSS should tell her ALJs to stop accepting testimony based on the equal distribution method. 

The Continuing Presumption of Non-Disability in the Post-Conn Era

AR 94-2(4): Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987) (Rescinded 1/12/2000)

AR 00-1(4): Albright v. Commissioner of the Social Security Administration, 174 F.3d 473 (4th Cir. 1999) (Interpreting Lively v. Secretary of Health and Human Services)

AR 98-3(6): Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990)

AR 98-4(6): Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997)

AR 97-4 (9): Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988)

Those are the five cases that pain the landscape of the continuing presumption of non-disability.  They are inconsistent with agency policy and understanding of the Social Security Act and the Commissioner's regulations:

if the subsequent claim involves deciding whether the claimant is disabled during a period that was not adjudicated in the final determination or decision on the prior claim, SSA considers the issue of disability with respect to the unadjudicated period to be a new issue that prevents the application of administrative res judicata. Thus, when adjudicating a subsequent disability claim involving an unadjudicated period, SSA considers the facts and issues de novo in determining disability with respect to the unadjudicated period. SSA does not adopt findings from the final determination or decision on the prior disability claim in determining whether the claimant is disabled with respect to the unadjudicated period.

or 

In a subsequent disability claim, SSA considers the issue of disability with respect to a period of time that was not adjudicated in the final determination or decision on the prior claim to be a new issue that requires an independent evaluation from that made in the prior adjudication. Thus, when adjudicating a subsequent disability claim involving an unadjudicated period, SSA considers the facts and issues de novo in determining disability with respect to the unadjudicated period. SSA does not consider prior findings made in the final determination or decision on the prior claim as evidence in determining disability with respect to the unadjudicated period involved in the subsequent claim.

In three of the 11 circuits, the agency does not follow this national policy but instead forces claimants to come forward with evidence that something has changed since the last decision by an ALJ.  The continuing presumption of non-disability applies not just to the period adjudicated but flows forward in time to effectively bar claims in the future -- until something changes.  A change in the regulation that plainly states what the Commissioner has already stated in the rulings would wipe the continuing presumption off the face of the legal landscape under the doctrine of Brand X deference. 

For the agency, the continuing presumption makes quick work of cases that have already suffered an ALJ unfavorable decision.  The claimant loses without a material change in medical condition, past work falling off the relevant time-frame, crossing into an age category that requires application of a favorable grid rule, or some other factor.  That administrative application to boost the productivity of the ALJ corps of a judicially-made rule, that the Commissioner says is wrong, should strike the casual observer as both odd and wrong. 

But it comes at a price.  A title II claimant with a piece of insured status left or an SSI claimant that just wants to start over -- they cannot.  Those people must take the prior claim to federal court to prevent finality from attaching while filing a subsequent claim.  Those claimants must tread water in court just to keep hope alive on that subsequent claim whether the court filing has a 1% or a 100% chance of obtaining a favorable disposition. 

Which brings us back to the title of this blog.  In the post-Conn era, allowance rates dropped nationwide by the ALJs and the Appeals Council has loosened its sieve on the review of those unfavorable decisions.  That equates to about 50,000 cases a year.  For claimants in the fourth, sixth, and ninth circuits, they would have gotten benefits BCE (before Conn era).  Some of those suffer attrition of giving up, some of the claimants expire, and some just retire.  But a large chunk of those cases in the three affected circuits end up in court burdening an already burdened court system, the agency legal staff at the Office of General Counsel, the claimants' bar, and most importantly the claimants themselves. 

It is time for the courts or the agency to bring the national program into singular national focus.  Administrative res judicata is supposed to be loosely applied.  But here it applies in ways that would not hold in civil or criminal proceedings.  It applies to effectively bar claims for periods of time not considered.  Kill  the beast that is the continuing presumption of non-disability.  The few cases where the shield has turned into the claimant's sword are not worth the carnage of further stressing the administrative and judicial review processes.