Advocates who represent claimants in disability claims before the Social Security Administration (SSA) know all too well the frustrations of dealing with the outdated Dictionary of Occupational Titles. The D.O.T., as it fondly called, is a compilation of job titles and requirements first published by the Department of Labor in 1938. Most entries have not been updated since 1977. Yet Administrative Law Judges (ALJs) and other SSA adjudicators, as well as the vocational witnesses upon whom they rely, still depend on it at Step Five of SSA’s Sequential Evaluation process when deciding if there are a sufficient number of jobs that a claimant can perform. Advocates estimate that tens of thousands of claims are denied nationally based on this outdated data for numerous jobs that are clearly obsolete. How many advocates have confronted vocational testimony about allegedly numerous nut sorter or addresser jobs?
A December 27, 2022 article in the Washington Post chronicles the disheartening saga of SSA’s efforts to replace the D.O.T. SSA has been deliberating since the 1990s how to revise the list of occupations to reflect jobs that actually exist in the modern economy. But promises to Congress and $250 million later, SSA is still relying on the D.O.T. An interactive system built by the Bureau of Labor Statistics for SSA using a national sample of 60,000 employers and 440 occupations covering 95 percent of the economy sits unused. Instead, SSA claims it is working on its own data source “informed” by the Department of Labor. SSA plans to ask the labor bureau to refresh its occupational information every five years. The next wave is scheduled to start in 2023 at a cost of $167 million, auditors found. But the costs of SSA’s efforts to date have been questioned by both the General Accountability Office (GAO) and an audit by SSA’s Inspector General.
According to Lisa Rein of the Washington Post, SSA’s lack of progress has been compounded by a number of factors, including a power vacuum at SSA that can delay costly projects. In the past two decades, SSA has had six acting commissioners and only three Senate-confirmed commissioners. And any decision on a new system is fraught with political considerations. Will it result in a tightening of eligibility and be used to deny more claims?
The harm done in basing disability decisions on these outdated vocational considerations is further compounded by the vagaries of vocational testimony. Advocates are all too familiar with the lack of data supplied by vocational witnesses to support their testimony as to the availability of jobs. Rein cites the “blistering” dissent by Justice Neil Gorsuch in the Supreme Court’s 2019 Biestek decision upholding agency decisions even when vocational witnesses refuse to divulge the data upon which they relied.
In the meantime, SSA continues to rely on jobs that are clearly obsolete. Rein cites a 2011 SSA study finding that among the jobs most commonly cited in denying claims was “addresser.” According to advocates, not much has changed since then. Kevin Liebkemann, Chief Counsel for Disability Rights and Veterans’ Rights at Legal Services of New Jersey (LSNJ), has developed training materials for advocates to use when cross-examining vocational witnesses about some of these more notorious jobs. Kevin, who was quoted in the Washington Post article, made available sample scripts, including cross on the infamous Surveillance System Monitor position, when he presented a training on these issues for DAP advocates.
Contact Maia Younes at:firstname.lastname@example.org to obtain the scripts and other materials. Future DAP trainings covering cross-examination of vocational witnesses are being planned.