Recently a television station in Charlotte, North Carolina ran a story about the Social Security disability decision making process called “Obsolete Jobs” Prevent People from Receiving Disability Payments (click on link to view story). The story recounted the struggles of a Charlotte man who with a severe and painful back injury who was denied at his disability hearing by a judge who concluded that he has the capacity to perform a variety of non physically demanding jobs that exist in the economy.
Since the underlying question in every disability hearing asks whether the claimant has the capacity to perform even a simple, entry-level job, judges rely on vocational expert witnesses to identify jobs that a “hypothetical person” with the same impairments as the claimant could perform.
The DOT is Significantly Out of Date
The television reporter points out that vocational witnesses at hearings usually cite a resource called the Dictionary of Occupational Titles (the “DOT”) to identify the jobs they cite, even though the DOT is severely outdated, last being updated in 1991.
In theory, therefore, a disability claimant could be denied if the vocational witness concluded that the claimant could reliably perform a 1991 era job (i.e., typewriter repairman, console television assembler, photographic film processor) that either does not exist in 2021 or that exists in very small numbers.
I am not sure, however, that this story accurately presents the reality of what goes on in a disability hearing.
What Really Goes on at Disability Hearings
First, while the DOT is clearly and obviously an outdated resource, every vocational witness that I encounter at hearings recognizes this fact and avoids testifying about jobs that no longer exist. While the DOT does contain a number of phantom jobs it also contains and describes dozens and dozens of jobs that still exist just as described in the DOT. For example, a forklift driver or warehouse worker in 2021 is pretty much doing the same tasks as a forklift driver or warehouse worker in 1991 – the technology has not changed that much. Moreover many (but not all) unskilled jobs continue to be unskilled in nature such that a person with an 8th grade education could be trained in an hour or two.
Second, disability judges do not ask vocational witnesses to rely solely on the DOT. At every hearing, the judge will ask the vocational witness to explain the source of her knowledge. And every vocational witness will answer that she relied on her training, experience, the DOT and other labor statistics publications.
Third, and perhaps most importantly, in real life disability judges decide to approve or deny a claim then use vocational witness testimony to justify their decision and not the other way around. Vocational witnesses are neutral experts and they only give answers based on the questions posed by the judge. If the judge’s hypothetical question asks the vocational witness to assume that the hypothetical claimant experiences a mild level of pain, with no restrictions on bending, stooping, reaching or climbing, the vocational witness will easily be able to identify dozens of jobs that the hypothetical person could perform.
On the other hand, if the judge asks the vocational witness to assume a hypothetical claimant with a severe level of low back pain such that the claimant would miss 3 days of work per month and would be off task 20% of the day, the vocational witness will respond that no jobs exist that such a person could perform.
To put this another way, disability judges use the questions they ask to vocational witnesses to support the decision they have already made. So it really does not matter that the DOT is outdated because judges are not using vocational testify to gather information; they use this testimony to support their conclusions.
In my experience disability judges have in their minds profiles of what constitutes a deserving claim for the majority of medical issues they see. If the evidence in your case fits the profile you win, if it does not, you lose.
The Real Scandal at Disability Hearings
I do think that most judges want to render fair and reasonable decisions the real question to ask when observing the Social Security decision making process is why there is such a variation in approval rates among judges. If you look at sites like disabilityjudges.com you will see that within any one hearing office Judge A has approved 70% of claims, while Judge B has approved only 17%. Cases are assigned to judges at random so you would expect that every judge in any particular hearing office would see about the same number of deserving and undeserving cases. But the wide variation in approval/disapproval rates suggests that the most important factor regarding whether you win or lose is the judge you draw as opposed to the actual evidence.
This issue – that winning or losing a disability case is more of a lottery than an administration of justice – is a lot more important than concerns about the outdated DOT.
In any case, I am grateful that television station WBTV and its reporter David Hodges did see the value of reporting about Social Security disability and I hope that news professionals will continue asking questions.