After his skull was shattered by a blow from a bar stool, Hoosier Kyle Alaura underwent emergency surgery to remove a portion of his brain and insert a metal plate into his head. Years later, he still suffers impairments as a result of the incident including pain, severe headaches and “staring spells,” diagnosed as complex partial seizure activity that leave him disoriented, confused and lethargic.
His application for Social Security Disability Insurance was denied, so in his appeal, he detailed to the administrative law judge his health problems of hearing loss, nausea from headaches, weakness in his right leg that sometimes causes him to fall, tremors in his hand and difficulty gripping objects.
However, his claim for benefits was denied, and his appeal eventually reached the 7th Circuit Court of Appeals. The denial was based in part on the testimony of the vocational expert who said Alaura could still perform certain jobs. One of those positions was an addresser, which is defined as someone who addresses by hand or typewriter envelopes, cards and similar items for mailing.
Writing for the court, Judge Richard Posner gave special attention to the addresser occupation.
“It’s hard to believe that, as the vocational expert testified in this case, there are 200,000 people in the United States for who this is a full-time job,” Posner wrote in Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015). “And does anyone use a typewriter anymore?”
Attorneys hesitate to call it a trend, but the 7th Circuit has been voicing exasperation with the Social Security Administration over the denial of disability claims. Published opinions on cases being remanded from the appellate court contain pointed language expressing frustration with the administration’s reliance on outdated sources of job information and data that cannot be verified.
The opinions have been drawing attention, in part, because the appellate court in Chicago has been mostly alone in criticizing the Social Security Administration. Posner and his colleagues have been faulting the agency for using the outdated Dictionary of Occupational Titles, last published in 1991, to identify the jobs — like addresser — that claimants can do based on their disability. Also, the court has questioned statistics used by the vocational experts to show how many of the identified jobs exist in the economy.
“I think the 7th Circuit has been more willing to talk out loud about this than the other circuits,” said Joseph Shull, a Social Security disability attorney in Fort Wayne.
Notably, the 7th Circuit is raising these issues sua sponte. Cases are going back for issues over material facts, but the appellate panel — and in particular opinions written by Posner — is calling attention to the jobs the administration says are available and the claimants are capable of doing.
Judge Frank Easterbrook nodded to the problem more than a decade ago. In Donahue v. Barnhart, 279 F.3d 411 (7th Cir. 2002), which affirmed the denial of benefits, he pointed to a conflict between the vocational expert’s testimony and the Dictionary of Occupational Titles.
The Social Security Administration is working with the U.S. Department of Labor on the Occupational Information System, which will replace the occupational titles dictionary. Currently, the Bureau of Labor Statistics is collecting information and expects disability adjudicators can begin using the new data in 2019.
Still, what impact the 7th Circuit is having is difficult to determine.
In response to an IL inquiry, the federal agency did not specify any steps it has taken because of the appellant court’s criticisms. Instead it released a statement saying, “The Social Security Administration is aware of and carefully analyzes Federal court decisions from around the nation. We value the courts’ perspective in the administration of our national programs.”
The 7th Circuit is not outright awarding benefits but rather requiring the administration to take another look at the denials. A sharply worded remand is no guarantee the agency will reverse its position.
In Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014), Posner, again, went after the administrative law judge’s finding that Heather Browning could work. A resident of Chandler, Indiana, Browning has an IQ that has tested between 60 and 70 and suffers from Legg-Calve-Perthes disease, which limits the motion of her left leg.
Posner chastised the judge for not paying attention to the list of jobs the vocation expert testified Browning could perform. The expert identified the position of “hand packer” but there is no “hand packer” entry in the occupational titles dictionary. Instead the section the expert cited was for “hand bander,” a worker who wraps cigars.
The case was remanded but Browning has been denied again. In February 2016, she filed another complaint in the U.S. District Court for the Southern District of Indiana.
Social Security Disability attorney Eric Schnaufer described Posner as applying common sense and legal reasoning to areas where vocational experts are “just making stuff up.”
“The expert testimony to a large extent is invented out of whole cloth,” Schnaufer said. “Judge Posner is pulling back the curtain to show the vocational expert testimony the Social Security Administration uses unreliable and unreasonable testimony to adjudicated disability claims.”
Schnaufer, a solo practitioner in Evanston, Illinois, who is admitted to practice in the Southern District of Indiana, said Posner’s prodding is good for the agency, the courts and the claimants.
Challenging the expert
Reviewing disability claims follows a five-step process with the claimants having to prove their impairments impact their ability to work and with their limitations, they cannot do their previous job. At step five, the burden of proof shifts to the administration, which has to show the claimants are able to perform other types of work and that the jobs they can do are available in sufficient numbers.
“(Judge) Posner is trying to push a step five revolution,” said Randal Forbes, attorney at Forbes Disability Group LLC in Angola. Forbes represented Alaura.
Compounding the situation is the politics surrounding the issue of disability payments, which holds that many recipients really are capable of working, said Shull. That perception of the claimants seems to carry into the hearing with the administrative law judge at the Social Security Administration.
“Judges have decided by step five that people are not disabled,” Shull said. “The vocational expert testimony is just a formality.”
Still, cross-examining the expert can be problematic. Evansville attorney Erin Bauer of Barber & Bauer LLP recalled as a young practitioner she quickly realized that once the vocational expert started answering the administrative law judge’s hypothetical questions about jobs, her case was over. The judge would accept the expert’s opinion.
The difficulty, she explained, is cross-examining the vocational expert’s testimony in a way that is meaningful to the judge. Bauer, who is representing Browning, credited the National Organization of Social Security Claimants’ Representatives for the guidance and she is hoping the 7th Circuit’s remands will encourage the administration to allow more elaboration and leeway in examining the testimony of the experts.
Forbes is uncertain what changes the 7th Circuit’s opinions will bring or even if the administration will adjust.
“I wouldn’t begin to predict,” he said. “I just do one case at a time.”•