It Really is Time to Object to Vocational Experts Giving Numbers Testimony -- Always

This is the body of a letter sent to the Administrative Law Judge objecting to the intent to ask a vocational expert questions about job numbers.  I use it in all cases where the notice of hearing from the Office of Disability Adjudication and Review states that a vocational expert will appear.  Copy it and paste it into your word processing program, then use it as you professionally see fit.

 

The notice of hearing in this matter provides for the presence of a vocational expert.  This letter serves to set forth the objection to the vocational expert’s identification of job numbers in the national economy, as defined by statute, without providing a basis for administrative notice. 

The current practice of adducing numbers of jobs evidence constitutes a request for a statement of the numbers of jobs.  The current prevailing practice violates the regulations.  The Commissioner takes administrative notice of the number of jobs from reliable governmental and non-governmental sources.  20 C.F.R. §§ 404.1566(d); 416.966(d).  Those subsections provide:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of—

(1) Dictionary of Occupational Titles, published by the Department of Labor;

(2) County Business Patterns, published by the Bureau of the Census;

(3) Census Reports, also published by the Bureau of the Census;

(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and

(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

Completely absent from this list the “vocational experts.”  Subsection (e) provides for the use of vocational experts to identify specific occupations, transferable skills, and similarly complex issues.  The existence of a number of jobs in the regional economy or several regions of the country is a matter of statistical fact that does not vary by the name of the person called.  The public interest in the uniform application of a complex administrative scheme of adjudication requires that the Commissioner fulfill the legal promise articulated in the regulations.  The agency must take administrative notice of job numbers data, not the unsupported word of someone with no statistical analysis background. 

The proper methodology described by the regulations requires administrative notice.  How an occupation gets performed falls within the ambit of the vocational expert’s knowledge.  HALLEX II-1-9-28.  All of the provisions regarding administrative notice of job data permit the agency to start with notice and deviate for persuasive reasons.  HALLEX II-1-4-23,  HALLEX II-1-6-23, HALLEX II-1-8-26, and HALLEX II-1-10-24.  This principle is found in a binding pronouncement.  See Social Security Ruling 00-4p (regarding the DOT, listed in 20 C.F.R. §§ 404.1566(d)(1); 416.966(d)(1)). 

 Two published sources of job numbers data form the cornerstone of the subject of administrative notice for the numbers of jobs.  Those are the County Business Patterns (CBP) and Bureau of Labor Statistics (BLS).  CBP publishes job numbers data by industry using North American Industry Classification System (NAICS) codes.  See http://www.census.gov/econ/cbp/overview.htm.  The Bureau of Labor Statistics (BLS) provides job numbers data by occupational category using the Standard Occupational Classification (SOC) system.  See http://www.bls.gov/soc/.  The label SOC or OES are interchangeable and refer to the same data sets.  See http://www.bls.gov/oes/current/_stru.htm. 

Because the Commissioner takes administrative notice of the numbers of jobs information from both the County Business Patterns and the Bureau of Labor Statistics, the proper methodology requires cross-indexing that job numbers information.  It is not hard to do.  The BLS Occupational Employment Statistics and the OES Query System provide the data.  The vocational expert need only provide:

1.       The statement of the SOC group for a particular DOT code;

2.      The identification of the NAICS codes for the industries in which that occupation exists;

3.      A statement of the number of other DOT codes that co-exist at that intersection; and

4.      How the existence of those other DOT codes at the intersection of the SOC group and the NAICS code affect the calculation of the numbers of jobs. 

An example helps.  Assume the vocational expert identifies an occupation classified as a production worker, all other.  Assume a plastic roller, DOT code 690.685-498.  This occupation falls into production worker, all other, SOC group 51-9199, along with over 1,500 other DOT codes.  If the vocational expert stated that the occupation existed in the Plastic Product Manufacturing industry, that would mean NAICS code 326100.  According to the BLS, the intersection of the SOC group and the NAICS code represents 5,200 jobs in the nation as of May 2012. 

The BLS states that production workers represent 1.02% of the workers within that industry.  CBP states that the industry 32600 and its subparts represented 559,991 jobs in the nation as of March 2011.  Applying the BLS percent of total employment to the CBP statement of the job size of the industry leads to an estimate of 5,712 jobs.  That industry employed 46,105 people in California as of March 12, 2012.  Total employment of production workers in California in the plastic product manufacturing industry represented 471 jobs total at all exertional and skill levels. 

Under the HALLEX provisions and using Social Security Ruling 00-4p by analogy, a vocational expert can deviate upward or downward from the BLS or CBP estimates of the numbers of jobs for a persuasive basis.  That would necessarily include a statement of the other codes within that intersection.  Aggregation would require a downward estimate of the number of jobs. 
 
If and when a vocational expert states that there are 218,740 jobs in a single occupation as a production worker, that witness gives testimony that is wholly unreliable.  There are too many DOT codes within SOC group 51-9199 for that to be entertainable much less true.  Of the 1,526 DOT codes in SOC group 51-9199, fully 869 are skilled or semi-skilled occupations.  Thirty-nine that are unskilled require very heavy or heavy exertion.  One hundred seventy six unskilled production worker occupations are classified as requiring medium exertion.  Almost a quarter of the unskilled light occupational base exist within this classification, i.e. 390 occupations.  The sedentary unskilled occupational base finds 52 of its members in SOC group 51-9199. 

The Social Security Administration should demand the basis for administrative notice of jobs numbers data.  That basis for administrative notice includes the SOC group, the NAICS code(s), and a statement of the number of DOT codes within that intersection.  The vocational expert should explain how he/she accounted for the other DOT codes in making the final estimate of the number of jobs.  The fundamental basis of judicial notice requires that the Court receive the necessary information so that the fact can be accurately and readily ascertained.  See generally FRE Rule 201(b) and (c). 

Administrative notice allows the Social Security Administration to establish the existence of facts without resorting to formal methods of proof.  See 2 KENNETH C. DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 10.6, at 150 (3rd ed. 1994); 4JACOB A. STEIN ET AL., ADMINISTRATIVE LAW § 25.01, at 2 (1993). “A court or an agency can make a finding of fact without evidentiary support by taking judicial or official notice, respectively, of that fact.” 2 id.; see MCCORMICK ON EVIDENCE § 359, at 1028-33 (Edward W. Cleary ed., 3rd ed. 1984). With administrative notice, an administrative law judge “bypasses the normal process of proof and relies upon facts and opinions not supported by evidence ‘on the record.’” Id. at 1028.

Recent Spate of Disability Fraud Discussions

The National Review Online ...

The New York Times ...

International Business Times ...

Market Watch ...

Dangle money in front of people and ethics go out the window?  Maybe for some but not for most.  Not from my perspective. 

Loss of employment or really loss of earning capacity devastate the afflicted.  The recent spate of fraud uncovered in New York, West Virginia, and elsewhere have the net effect of hurting most the people most in need, the truly disabled. 

This is not "disabled" as Senator Coburn would define the term, but disability in the real sense of having lost the ability to earn a living.  The Social Security Act defines disability as the inability to work at past work and then the inability to engage in other work considering age, education, and work experience. 

Truck drivers that can no longer drive, load, or unload a truck might be disabled.  The answer depends on age, education, and work experience.  What we, as society, expects from a 32 year old former truck driver is completely different than what we expect from a 61 year old former truck driver.  To the younger person, we want that person to do something else, something easier to do that conforms to the limitations and abilities left after the ravages of injury or disease.  To the older person, the law does not reflect a concern or desire to push that person back to something easier that conforms to the limitations and abilities left after the ravages of injury or disease. 

The same is true of education.  It is easier for the college graduate to transition to something different after having lost the ability to perform past work than it is for a similarly situated but illiterate person.  The squeezing out of opportunities and abilities caused by a dearth of education forms a foundation of compassion, not retribution.  We help people where they live, not where we want them to have arrived given a chance to do it all over again.  None of us gets a rewind button in life. 

Work experience also plays a factor in the disability calculation.  An individual with skills has a better opportunity to work at something easier than does a person that got through the last 30 or 40 years earning a living with their hands and back.  The Social Security Act takes all that into account. 

The concern about fraud should never cause us to throw the baby out with the bathwater.  The precious nature of human life forces us to exercise care in making the difficult decisions whether a person should or should not get the income replacement that is Social Security disability.  Sadly, the decision about Social Security disability presents an all or nothing cliff without a safety net of true vocational rehabilitation to catch those on the cusp.  The American public, as the ultimate consumer of the Social Security system, deserve oversight to limit fraud and compassion to help those truly in need.  Not those that we think deserve help but those that fall into the definition of disability under the statute and regulations. 

How to Find a Lawyer

In the old days, before I got my license, attorneys could not advertise.  Bates v. State Bar of Arizona, 433 U.S. 350 (1977) changed the landscape.  Bates qualifies as a watershed decision that changed the landscape of how attorneys tell you, the consumer, about their services. 

Before Bates, finding an attorney required asking around.  Other people had used the attorney in the past, had dealings with the attorney, or knew of the attorney's reputation.  The good will of the attorney pushed the practice of law. 

But that isn't true anymore.  Many people find their attorneys the modern way, on the internet.  This is similar to the predecessor to the internet, the yellow pages.  The television provides fertile ground to market the attorney's wares.  Does the presence of an advertisement in the yellow pages, on television, or on the internet speak highly of the attorney's ability, reputation for honesty, or general integrity?  No.  The presence of advertisement in any media speaks to the willingness to spend money on an advertisement in the yellow pages, on television, or on the internet.  That investment leads to some measure of financial success when engenders more advertisement in the yellow pages, on television, or on the internet which serves to heighten the perception of ability, never implicating honesty or integrity. 

60 Minutes aired a piece called Disability, USA.  If that isn't enough, 60 Minutes Overtime has another internet piece What happens when the U.S. disability fund runs dry? The leaders of the Association of Administrative Law Judges makes the point in the aired piece that attorneys are in the disability practice because it is lucrative.  That is true.  Attorneys have to eat too.  So says Chief Judge Alex Kozinski in Moreno v. City of Sacramento.  So attorneys are not likely to engage in an area of practice that doesn't put food on the table and keep the lights on at home. 

So what does that have to do with picking an attorney?  Everything.  The truth of the matter is that the practice of most kinds of law becomes easier with time and experience.  Disability litigation before the Social Security Administration takes out the learning curve for the majority of winning cases.  Most disability cases are won or lost before the case gets heard by an Administrative Law Judge.  People without attorneys win a healthy percentage of their claims.  So we know that an attorney doesn't have to be very good at all to win 40% to 50% of the cases that he or she brings to SSA.  The problem is that to win 60% to 80% of the cases that an attorney has requires that person to either reject cases on the cusp or to work 50% harder on all the cases in the office. 

Those really are the three kinds of attorneys out there practicing disability before SSA:  those that do only marginally better than a lay person; those that select on the very best cases and reject the rest even though they are winnable; and those that work harder on every case resulting in lower case volume.  Within those three broad categories, there are variations and exceptions.  But you are the consumer and you need to find out whether your attorney throws everything against the wall with minimal or no effort, just to pick of the winners selected by the Administrative Law Judge or whether you attorney only takes the low hanging fruit if easy winners (you probably don't need an attorney), or if your attorney takes the responsibility of representation seriously and will do everything ethical to win. 

That is the fundamental problem.  To run a business, attorneys need to be either the minimal effort and see what sticks model or the very selective model.  The minimal effort and see what sticks model is just plain unethical.  It isn't representation at all.  The highly selective model discourages many valid claims but ethically represents those selected.  The last model, the over the top model, that is the attorney you want in your corner. 

So back to the topic after a bit of digression:

1.  Don't rely on advertisements, ever.
2.  If you must rely on advertisements, don't rely on ads to hide the name of the attorney, ever.
3.  Ask attorneys that don't handle your kind of case for a referral to someone that does. 
4.  Ask judges, expert witnesses, or others in the industry.
5.  If you have an attorney appearing at your hearing, ask him or her if he or she will get paid more, less, or the same if he or she wins your case. 
6.  Check out the attorney's reputation for skill, honesty, and integrity. 

Good luck.  Half of all lawyers are below average, in case you didn't know. 

Vocational Experts, Trains, Automobiles, and Lies

Well really, just the first and the last.  Vocational experts are called upon by the Social Security Administration to tell us whether a claimant can perform either his past relevant work or any other work that exists in the national economy given assumptions of residual functional capacity, age, education, and work experience.  The vocational experts then have to state how many of such jobs exist in the regional, other regions, or national economy. 

I agree that vocational experts are trained to express the first set of opinions.  Whether a person can or cannot perform a specific job given well-defined limitations and capacities -- that is the stuff that vocational experts (VE) as rehabilitation specialists are trained to perform.  But the VE don't really do that job very well on the whole.  SSA issued Social Security Ruling (SSR) 00-4p 13 years ago to address the problem of rogue VE that would contradict published data in the Dictionary of Occupational Titles and its companion publications without admitting to the deviation, explaining the deviation, or having any good basis or reason for the deviation.  This happens because of negligence, recklessness, disregard for the truth, or prevarication.  In the vernacular, we call that last categories "lies." 

I start with the premise that VE will get the requirements of work wrong a statistically significant percentage of the time.  I base this assumption on 28 years of experience in thousands of SS disability hearings, thousands of SS disability appeals to the United States District Court, and something in the range of 150 appeals to the United States Court of Appeals, and the Commissioner of Social Security's perception that the ruling was necessary at all. 

But VE do not just stop at stating whether a person can perform his past relevant work and other work, VE must state the incidence of that other work in the regional, multi-regional, or national economy.  This is not a matter of expertise, it is an objective fact that does not take an expert.  It takes a lot of time and a clicker.  In the alternative, it takes statistical extrapolation from a relevant data set to estimate the numbers of jobs in the aggregate.  Think exit polling.  If the pollsters get a random sample of voters leaving the polls that fairly represents the demographics of the voting pool as a whole, the pollsters can extrapolate that data to project a winner in tonight's vote tally.  Same process of statistical extrapolation works here. 

That is the problem.  The VE aren't trained to know, don't have the experience to know, aren't paid to know, and just don't know how many jobs there are in any given occupational classification.  The Bureau of Labor Statistics (BLS) keeps occupational group numbers.  Given the lack of pay, lack of incentive, and the complete disregard of the average Administrative Law Judge to insist on better, most VE will give a complete OES/SOC/Census Code number aggregation of jobs as if it represented jobs exclusively in one DOT code. 

Example:  OES group 51-9199 represents 218,000 jobs in the national economy according to the BLS extrapolation.  The VE identify an occupation within that classification and state that the DOT code represents 200,000 or 20,000 jobs in that classification in the nation.  Do you believe 200,000?  Do you believe 20,000 or 10% of the total fall into that classification?  Would it matter if I told you that group 51-9199 represents over 1500 DOT codes at all ranges of exertion and at all skill levels?  Does it matter to you that unskilled work has been automated or shipped overseas in the past 10, 20, or 30 years?  Does it matter to you that the VE can offer no, absolutely zero, justification for the number beyond describing the size and shade of their own personal black box?  Well it should. 

People on the cusp of disability have their cases adjudicated at the "other work" question.  Can that person engage in "substantial gainful activity" meaning full-time work in light of his age, education, and work experience.  When VE testify negligently, recklessly, with disregard for the ascertainable truth, or with intent to prevaricate in their heart, they damage the integrity of the largest adjudicative body in the world.  VE make disability adjudication a lottery based on the willingness of the VE to just make it up. 

Note to the VE out there:  stop it. 

Social Security Disability Adjudcation -- Get Real

It seems popular to allege that the administrative system allows too many people to collect disability benefits either the earned variety (SSDI) or the welfare variety (SSI).  The AP story trumpets the alarm now heard in Congress -- the system is too lax.  STEPHEN OHLEMACHER writes the AP piece that now circulates all the major newspapers. 

The piece focuses on the allegation of ALJ misfeasance.  Really?  That discussion assumes that the ALJ corps is responsible in some meaningful manner for the growth in the disability rolls.  The facts do not allow the conclusion. 

The Social Security Advisory Board publishes the data.  In fiscal year 2000, the agency received just under 2 million claims for disability.  The initial claims processing allowed nearly 850,000 claims at initial or reconsideration.  The ALJ corps heard 433,000 claims that fiscal year, allowing just over 250,000 claims.  That's right, less than 25% of the claims allowed required a hearing. 

Of the 180,000 claims denied or dismissed by an ALJ, the Appeals Council found legal or factual error in over 29,000 claims.  In that fiscal year, the federal courts found legal or factual error in another 6,000 claims. 

Jump forward to fiscal year 2012 and find that not much has changed.  SSA received over 3 million claims for disability benefits from an aging population with more and more people eligible because of the entry into the workforce of women in the past 30 years.  The process allowed 1.1 million claims by initial and reconsideration determination.    The ALJ corps hear 688,000 claims and found disability whether granting in full, granting a closed period of disability that has now ended, or finding disability at a later date than originally alleged, in 347,000 claims.  So the ALJ corps is still responsible for less than 25% of the claims that are allowed at all. 

The Appeals Council continued to reverse and/or remand 20% of the ALJ decisions that it reviewed for legal and factual error.  The federal courts found legal or factual error in another 6,900 claims.  These astounding reversal rates come despite the advent of Social Security Ruling 11-1p, putting claimants on the horns of a dilemma having to choose to appeal an erroneous ALJ decision or file a new claim, washing away the right to fight against patent ALJ error. 

I have been doing this work, appealing administrative and ALJ decisions for coming up on 30 years.  Having argued disability claims at all levels of review, and losing before the Supreme Court, I have a relatively rare perspective of seeing these claims squeezed by a process that robs human beings of their dignity in a process bereft of compassion.  Frankly, about a quarter of the ALJs are outliers on both sides, granting too many or too few cases.  Getting rid of the lottery of ALJ decisional scatter by squeezing towards the middle -- that is a worthwhile goal.  Pressing down allowance rates is a bad idea that needs to die a lonely death.   

SSA Makes its Own Case for the Disability Program

Brenda Brown works for SSA.  In a regional piece, Ms. Brown makes the case that disability benefits honor all who serve.

Brown lays out the benefits that veterans can access at SSA.

1.  Survivor Benefits for those left behind after the death of a service member.
2.  Disability Benefits for those returning home with injuries.
3.  Disability during medical treatment.
4.  Retirement Benefits for those at retirement age or early retirement age.  SSA has a special page devoted to retiring military.

Social Security is ingrained in the fabric of American culture.  Retirees, survivors, and the disabled  count on the benefits to survive.  As a nation, we promised ourselves that we would not cast aside the widows, orphans, aged, or disabled to fend for themselves.  Rather, we choose to stretch out the safety net to catch them.  

Veterans and their families ... we owe them our liberty and providing for survivor, disability, and retirement benefits is the absolute minimum thank you that we owe. 

An Open Letter from Former Commissioners of the Social Security Administration

April 4, 2013
An Open Letter from Former Commissioners of the Social Security Administration
As former Commissioners of the Social Security Administration (SSA), we write to express our significant concerns regarding a series recently aired on This American Life, All Things Considered, and National Public Radio stations across the U.S. (“Unfit for Work: The Startling Rise of Disability in America”).  Our nation’s Social Security system serves as a vital lifeline for millions of individuals with severe disabilities.  We feel compelled to share our unique insight into the Social Security system because we know firsthand the dangers of mischaracterizing the disability programs via sensational, anecdote-based media accounts, leaving vulnerable beneficiaries to pick up the pieces.
Approximately 1 in 5 of our fellow Americans live with disabilities, but only those with the most significant disabilities qualify for disability benefits under Title II and Title XVI of the Social Security Act. Title II Old Age, Survivors, and Disability Insurance (DI) benefits and Title XVI Supplemental Security Income (SSI) benefits provide critical support to millions of Americans with the most severe disabilities, as well as their dependents and survivors.  Disabled beneficiaries often report multiple impairments, and many have such poor health that they are terminally ill: about 1 in 5 male DI beneficiaries and 1 in 7 female DI beneficiaries die within 5 years of receiving benefits.  Despite their impairments, many beneficiaries attempt work using the work incentives under the Social Security Act, and some do work part-time. For example, research by Mathematica and SSA finds that about 17 percent of beneficiaries worked in 2007.  However, their earnings are generally very low (two-thirds of those who worked in 2007 earned less than $5,000 for the whole year), and only a small share are able to earn enough to be self-sufficient and leave the DI and SSI programs each year.  Without Social Security or SSI, the alternatives for many beneficiaries are simply unthinkable.
The statutory standard for approval is very strict, and was made even more so in 1996.  To implement this strict standard, Social Security Administration (SSA) regulations, policies, and procedures require extensive documentation and medical evidence at all levels of the application process.  Less than one-third of initial DI and SSI applications are approved, and only about 40 percent of adult DI and SSI applicants receive benefits even after all levels of appeal.  As with adults, most children who apply are denied SSI, and only the most severely impaired qualify for benefits.
Managing the eligibility process for the disability system is a challenging task, and errors will always occur in any system of this size.  But the SSA makes every effort to pay benefits to the right person in the right amount at the right time.  When an individual applies for one of SSA’s disability programs, the agency has extensive systems in place to ensure accurate decisions, and the agency is home to many dedicated public servants who take their ongoing responsibility of the proper stewardship of the programs very seriously.  Program integrity is critically important and adequate funds must be available to make continued progress in quality assurance and monitoring.  In the face of annual appropriations that were far below what the President requested in Fiscal Year 2011 and Fiscal Year 2012, the agency has still continued to implement many new system improvements that protect taxpayers and live up to Americans’ commitment to protect the most vulnerable in our society.
It is true that DI has grown significantly in the past 30 years.  The growth that we’ve seen was predicted by actuaries as early as 1994 and is mostly the result of two factors: baby boomers entering their high-disability years, and women entering the workforce in large numbers in the 1970s and 1980s so that more are now “insured” for DI based on their own prior contributions.  The increase in the number of children receiving SSI benefits in the past decade is similarly explained by larger economic factors, namely the increase in the number of poor and low-income children.  More than 1 in 5 U.S. children live in poverty today and some 44 percent live in low-income households.  Since SSI is a means-tested program, more poor and low-income children mean more children with disabilities are financially eligible for benefits. Importantly, the share of low-income children who receive SSI benefits has remained constant at less than four percent.
Yet, the series aired on NPR sensationalizes this growth, as well as the DI trust fund’s projected shortfall. History tells a less dramatic story.  Since Social Security was enacted, Congress has “reallocated” payroll tax revenues across the OASI and DI trust funds – about equally in both directions – some 11 times to account for demographic shifts. In 1994, the last time such reallocation occurred, SSA actuaries projected that similar action would next be required in 2016.  They were right on target.
We are deeply concerned that the series “Unfit for Work” failed to tell the whole story and perpetuated dangerous myths about the Social Security disability programs and the people helped by this vital system.  We fear that listeners may come away with an incorrect impression of the program—as opposed to an understanding of the program actually based on facts.
As former Commissioners of the agency, we could not sit on the sidelines and witness this one perspective on the disability programs threaten to pull the rug out from under millions of people with severe disabilities.  Drastic changes to these programs would lead to drastic consequences for some of America’s most vulnerable people.  With the lives of so many vulnerable people at stake, it is vital that future reporting on the DI and SSI programs look at all parts of this important issue and take a balanced, careful look at how to preserve and strengthen these vital parts of our nation’s Social Security system.
Sincerely,


Kenneth S. Apfel
Michael J. Astrue
Jo Anne B. Barnhart
Shirley S. Chater
Herbert R. Doggette
Louis D. Enoff
Larry G. Massanari
Lawrence H. Thompson