WILL THE US SUPREME COURT MAKE IT EASIER TO GET SSDI BENEFITS?

The US Supreme Court heard oral arguments on December 4, 2018 in Biestak v. Berryhill, concerning a long argument over vocational witness testimony at Social Security disability hearings.  

A vocational expert (VE) is typically present for hearings involving denied Social Security disability claims.  In response to a set of hypothetical questions from the administrative law judge, the VE will state how many jobs of a specific kind are available in the US economy.

In other words, the judge says, "Assume I find that this claimant has this and that physical or mental limitation, how many jobs would be available that he or she could perform?"  The VE will then use the outdated Dictionary of Occupational Titles, where jobs are classified by "DOT codes" and respond with a specific number of jobs.  "There are 144,973 hand packager jobs in the US economy."

Claimants' representatives have long challenged how the vocational expert can possibly know how many jobs exist in the nation, based on one particular DOT code.  For instance, how can you know that there are 144,973 hand packagers working in the country?  Who counts them? The US Department of Labor and its Bureau of Labor Statistics have repeated stated that they don't know any way to get this sort of number.  Typically, when the claimant's representative asks the VE where she comes up with this number, she will respond, "It's based on my training, education and experience."

When pressed for more information about the method of trying to count or estimate these jobs, VEs are generally reticent.

Representatives and advocate groups have long criticized that the job numbers are little more than guesses and that they have no objective grounding in fact or solid research.

Some members of the US Supreme Court may also have misgivings about the validity of job numbers:

Chief Justice John Roberts:  "...No matter how much of an expert a person is, what you've basically said is...trust me.  [And] It's not just trust me...in general.  Trust me...I think it's 20 percent.  It does have a sense of being...pulled out of the air."

Justice Sotomayer (speaking to Social Security's attorney):  "You are worrying me that this is in fact, what all of the critics are saying...[t]hat these are numbers pulled out of a hat as a person sits there."

The question the Supreme Court must decide is:  How much documentation must the vocational expert provide to support his or her assertions that a certain number of jobs exist in the national economy?  Does the claimant, who may be approved or denied based on the job numbers, have the right to demand the source from which the VE estimates these numbers?

Why is the important?

At Step 5 of the disability determination process, if the judge finds that there are a significant number of jobs available to the claimant, based on his/her age, education, past work experience and residual functional capacity, benefits will be denied.  If the Government cannot demonstrate that a significant number of jobs exist, the claim will be approved.  So, in essence--in many cases-- the vocational witness if denying or approving a claim based on the job numbers that she reports in the hearing.

Is there any objective way to know whether those job numbers are accurate or real?  What is the Government's duty to allow the claimant access to the VE's source(s) for job incidence data?  Those are the big questions before the Supreme Court.

What is really amazing is that this is the first legal issue involving Social Security disability that has been before the Supreme Court in decades, and one of the very few in the history of the Social Security Administration.

The high Court may rule on the issue in the Spring of 2019. 
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Charles W. Forsythe
The Forsythe Firm
(256) 799-0297

SOCIAL SECURITY JUSTICE