Seventh Circuit Judge Richard Posner had harsh words for the Social Security Administration (SSA) Office of Disability Adjudication And Review (ODAR) regarding Vocational Expert (VE) Testimony: clean up your act.
The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI), finding the Administrative Law Judge’s (ALJ) credibility analysis was flawed.
Ms. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues included total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.
Her daily activities included babysitting, but she was unable to lift the child, did chores and went to church, but was unable to sit or stand for long periods of time.
The VE in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The VE, using his own experience to opine on how Ms Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.
Using the five-step analysis for assessing disability, the ALJ concluded Hill was not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction. The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.
“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had the ALJ not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.
Circuit Court of Appeals Judge Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.
He noted the issues regarding VE testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform. It appears the VEs simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.
“The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption,” Posner wrote.
“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”
The case is Anne R. Hill v. Carolyn W. Colvin, Acting Commissioner of Social Security, 15-1230.
(By Jennifer Nelson)
Circuit Court of Appeals Judge Posner in his concurring opinion made the point that he has noticed “a persistent, serious and often ignored deficiency in opinions by the Administrative Law Judges of the Social Security Administration” in denying benefits.
He stated that as fact. He did not offer or solicit any possible explanation for that fact. I submit that there is a probable easily explained reason for that fact. It is systemic. It could be remedied but at considerable expense. The SSA could hire only lawyers from the best law schools and pay them three times what the para-legal writers are receiving today. If only lawyers were writing SSA disability affirmations and the case load were reduced to a reasonable level, there would be a noticeable improvement in the quality of the denial decisions.
The hard truth is that SSA ALJs do not write their own decisions. They hold hearings and decide whether to pay or not to pay the claim. The decision is written by a staff writer who may not be a lawyer. The writers are often simply para-legal low level Government wage grade employees. Many para-legals have only completed a six month course at a junior college and received a para-legal certificate. Then through nepotism, favoritism, or affirmative action and luck they may find themselves at a Federal Agency writing Federal Court Decisions.
These writers do not have law degrees, but they are familiar with the SSA Regulations that pertain to disability evaluation. They simply choose which of the standard paragraphs in the SSA computer responds to each of the claimant’s allegations of symptoms and puts them into the decision. All of the parts of the decision are already written and are stored in the SSA computer.