Once an application for Social Security Disability Insurance (SSDI) benefits has been rejected by the U.S. Social Security Administration (SSA), the next thing which will happen in the appeals process is claimant must complete and submit what is known as a Request for Reconsideration. This is done by filing form SSA-561, and there is a very decent chance this written request for reconsideration will also be rejected as nearly all of them are. At this point in the long process, claimant can request an hearing before an administrative law judge (ALJ). While it may take a year or even two for this hearing to occur, ALJ will likely hear testimony from a Vocational Expert or “VE” as they are often called by SSA.
A Vocational Expert is an employee of SSA who is supposed to be an expert on what jobs people are capable of working when they have various disabilities or a combination of disabling conditions. The VE becomes an expert by being trained in how to use and interpret a guide book called the Dictionary of Occupational Titles. This book, which was written decades ago and not updated all too often contains what the drafter believed to be nearly every job in Boston and the rest of the nation (they use the terms local or national economy), and whether people with mental and physical disabilities can attain and hold those jobs, with or without accommodations.
Dictionary of Occupational Titles in Boston SSDI Disability Cases
As our Boston disability attorneys can explain, there are many jobs people have not likely ever heard of in this guide such as Creel Clerk, who according to the Dictionary of Occupational Titles (DOT), is responsible for interviewing recreational anglers to collect statistical data to determine information about the fish they catch. This is listed as Occupation 205.367-026 in the guide and has the physical and mental requirements needed to do this job. It such a job is available anywhere in the U.S., the VE can formulate an expert opinion someone in claimant’s condition is not disabled.
There are a couple of things to keep in mind. The first is it it doesn’t matter if a job claimant is allegedly capable of doing is nothing like what he or she was doing before disability. On this point, it doesn’t even matter if the job is not locally available according to many VEs pursuant to how the regulations are drafted.
Vocational Experts Only Speak in Terms of Hypothetical Claimants
The second thing to keep in mind is a Vocational Expert is a subject matter expert, but does not interview claimant or read his or her files. The way this is works is ALJ will ask VE hypothetical questions about a fictitious claimant who shares the same attributes in terms of physical and mental conditions as actual claimant. Vocational Expert will then compare this hypothetical claimant to the jobs listed in the Dictionary of Occupational Titles and their respective requirements.
Biestek v. Commissioner of Social Security
In Biestek v. Commissioner of Social Security, an appeal from the U.S. Court of Appeals for the Sixth Circuit, claimant worked for much of his life in the construction trades, mostly as a laborer and carpenter. His job included carrying scaffolding and related equipment to and from construction sites.
In late 2005 he stopped working due to a disability related to a degenerative disc condition as well as depression and Hepatitis C according to court records. He applied for Social Security Disability Insurance (SSDI) benefits and his application was rejected a few months after filing. As discussed-above, this should not come as a surprise since most applications are denied upon filing. It often has little to do with whether claimant is really disabled, and a lot more to do with SSA wanted to save money in its regularly insufficient budget by denying claimants and making the process take as long as possible. SSA would not admit this is their policy, but after decades of operating in such a fashion, it is hard to draw an other reasonable conclusions.
Claimant was eventually granted a hearing before an ALJ, and at the conclusion of this hearing, claimant was again denied for SSDI benefits. During the hearing, claimant argued ALJ had erred by not hearing sufficient medical testimony to support the denial and also to not have asked the right questions to a vocational expert. The issue is while an ALJ has fairly broad discretion in deciding whether claimant is disabled, there are certain requirements he or she must follow. For example, any medical testimony or other opinions from claimant’s treating physicians can only be dismissed upon a showing of reliance on enough contradictory evidence from another medical professional. This is not such an easy bar to overcome because the burden is on SSA to discredit claimant’s doctors, rather than claimant having a burden to disprove medical consultants hired by SSA.
With respect to VE testimony, hypothetical examples can be powerful evidence, but since Vocational Expert is not supposed to know anything about the real claimant, he or she can only testify based upon information posed by ALJ. If ALJ does not provide relevant hypothetical information, VE’s testimony and expert opinion will not be sufficient. In this case, on appeal, claimant argued ALJ had taken what amounts to a pick and choose approach when presenting ALJ with information. For this reason along with problems with credible medical testimony, Claimant request his denial be reversed and the case remanded for further proceedings consistent with its opinion.
Unfortunately for claimant, the court of appeals concluded ALJ has relied upon sufficient evidence and asked the proper questions to VE. He asked about a claimant closely approaching and advanced age, and while claimant argued this was vague, court of appeals found it to be sufficient. For this reason, claimant’s denial of benefits was affirmed on appeal. This leaves claimant with little choice, but to reapply for benefits and start the process once again.
If you or a loved one is seeking Social Security Disability Insurance in Boston, call for a free and confidential appointment at (617) 777-7777.
Biestek v. Commissioner of Social Security, January 29. 2018, U.S. Court of Appeals For the Sixth Circuit
More Blog Entries:
SSDI Appeal Results in Affirmation of Denial, Feb. 15, 2017, Boston SSDI Attorney Blog