Vocational Expert’s Job Estimates Without Explanation Unreliable: 7th Circuit
With job number estimates possibly “conjured out of whole cloth,” the 7th Circuit Court of Appeals has rejected a vocational experts' opinion on the availability of work for a woman severely disabled by a brain tumor, vacating the district court's decision and remanding the case to the Social Security Administration for further proceedings.
In Chavez v. Berryhill, No. 17-2978 (7th Cir. 2018), Kelly Chavez appealed the Social Security Administrations rejection of her application for disability benefits. At 21, Chavez was diagnosed with a brain tumor and underwent five surgeries, leaving her depressed and anxious, unable to maintain concentration sor simple househodl tasks like loading a dishwasher.
The Administrative Law Judge (ALJ) accepted that Chavez was severely disabled, but denied the claim based on a vocational expert's opinion that a large number of suitable jobs were available to Chavez.
The vocational expert had offered two different job projections: one estimating 800 suitiable positions in the United States, the other 108,000 positions. The expert preferred the larger estimate.
Chavez objected to the vocational expert's job-number estimates.
When asked by the ADJ to explain how he arrived at his projections, the vocational expert responded by stating that he preferred the equal distribution method he had used to the occupational density method as the latter produced significantly lower numbers (800 positions) than the equal distribution method (108,000 positions).
Asked again by the ADJ to explain why he adopted the higher number, the vocational expert replied he thought it “almost logical” that there were far more positions than the 800 estimate. Asked a third time by the ADJ to explain further, the vocational expert responded that he was unsure if either of the methods gave very accurate numbers.
The ADJ decided to agree with the vocational expert and rejected Chavez disablity application. Chavez appealed to the district court which agreed with the ADJ. Chavez appealed again.
The 7th Circuit had a different view. It found the vocational expert offered no affirmative explanation for why his estimates were reliable.
The equal distribution method, the 7th Circuit noted, relies on the Department of Labor's Dictionary of Occupational Titles (DOT), last revised in 1991 — out-of-date in the 7th Circuits' opinion.
DOT only describes job duties and requirements, so Vocational Experts need to consult another resource to determine the number of jobs available. One common source, used in this case as well, is the Department of Labor's compilation of Occupational Employment Statistics, which uses a different job classification sytem, the Standard Occupational Classfication (SOC). As there is no one-to-one correlation between SOC and DOT, vocational experts are left with the ability to only due “crude data matching” which is “highly inaccurate”, the 7th Circuit found.
To exemplify its concern, the 7th Circuit gave the example of cashiers and tellers from the equal distribution method which would assume that “the totality of all cashier and teller positions in today's economy exist in equal numbers at race tracks as they do in banks and retail stores.” The court found that seriously doubtful.
The 7th Circuit noted that the vocational expert could have offered an informed view on the reasonableness of his estimates by drawing on his past experience with the equal distribution method, his knowledge of national or local job markets, or practical learning from assisting people with locating jobs. But he did not.
The Social Security Commissioner argued that the ALJ fulfilled her duty by asking questions about the vocational expert's method. The 7th Circuit rejected that argument as it “renders meaningless the substantial evidence standard.” The ALJ “needed to do more than just ask questions.”