7th Circuit remands for new disability benefits hearing

A man with chronic neck and back pain who was denied disability benefits will receive a new hearing, the 7th Circuit Court of Appeals ruled in a Friday remand. The appellate court found a vocational expert’s testimony regarding potential job options was “entirely unilluminating.”

Aaron Bruce, 40, was injured on the job in 2013 and can no longer perform his previous work in the health service, food service and construction industries. Bruce applied for disability benefits after claiming persistent back and neck pain, among other conditions, but an administrative law judge denied his application.

The ALJ, who applied the five-step analysis found in 20 C.F.R. § 404.1520(a)(4), ruled at the fourth step that Brace could not perform any of his past work. But at the final step – whether Brace could nonetheless perform a significant number of other jobs in the national economy – a vocational expert testified that he could work as a callout operator, a semiconductor bonder, a registration clerk or a counter clerk. The expert also testified that an estimated 140,000 jobs existed across those four job categories.

Brace’s lawyer asked for an explanation of methodology, then objected to the expert’s testimony. Despite having conceded that the objection had “some merit,” the ALJ reasoned that an estimate of 140,000 jobs would leave a significant number of jobs available to Brace even if the vocational experts’ approach had a considerable margin of error.

In vacating the ALJ’s denial, the 7th Circuit concluded that the vocational expert’s testimony about the method he used to arrive at his job-number estimate was “entirely unilluminating.”

“Testimony that incants unelaborated words and phrases such as ‘weighting’ and ‘allocation’ and ‘my information that I have’ cannot possibly satisfy the substantial-evidence standard. What allocations? How is the weighting and re-weighting performed? According to what criteria? And what is the unidentified ‘information’ in the expert’s possession?” Chief Judge Diane Sykes wrote for the 7th Circuit.

“The VE’s jargon about his weighting methodology was neither cogent nor thorough — indeed, it was unintelligible. And he never claimed that his method for estimating job numbers is a well-accepted one, much less explained why that is so,” Sykes continued.

Neither of the ALJ’s reasons for accepting the testimony persuaded the 7th Circuit, with the panel finding that Brace’s counsel need not object to an expert’s qualifications in order to object to the expert’s methodology. Also, the 7th Circuit concluded that an unreliable job-number estimate cannot be considered reliable merely because it is large.

Thus, the panel vacated and remanded for a new hearing to determine Brace’s entitlement to benefits in Aaron P. Brace v. Andrew M. Saul, 19-2029.

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