The Law Center For Social Security Disability
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Who decides when an SSD benefits applicant is unable to work?

When it comes to applying for Social Security disability benefits, Administrative Law Judges (ALJs) currently use information from vocational experts (VEs), such as employment counselors, contracted with the SSA,to decide whether there are enough jobs the applicant would be able to perform. This is significant, as an applicant in Oklahoma or elsewhere in the nation who can work and thus earn an income that is above a low threshold set by the SSA will not qualify for SSD benefits.

The danger with this current process is that a VE's testimony at a hearing could be murky and very difficult or even impossible to review. Back in April, the U.S. Supreme Court heard a case, Biestek v. Commissioner of Social Security, in which an applicant for SSD benefits was denied benefits because a VE testified that there were a significant number of appropriate jobs available to the applicant, and thus, he was not disabled. To meet the SSA's definition of disability, an applicant must be unable to perform any "substantial gainful work." It is the government's burden to prove that there is enough substantial gainful work available to the applicant.

What is problematic about this case is that the ALJ based its decision on the testimony of a VE who cited private job surveys she personally prepared and would not turn over to the applicant's representative, claiming confidentiality reasons. Thus, these surveys, which are at the heart of applicant's denial of benefits, are not part of his record.

In addition, ALJs can rely on the Dictionary of Occupational Titles, and VEs can either follow this resource or diverge from it if they can provide an explanation for the divergence. However, the Dictionary of Occupational Titles does not contain information on the mental and cognitive requirements of many jobs and hasn't been updated since 1991.

Some changes in the way it is determined whether an applicant can work have been proposed. One change is to adopt a rule in which judges can only allow testimony from a VE that is reliable and based on scientific principles. Also, the SSA is proposing developing a new Occupational Information System that would collect current information on job numbers and occupational requirements from government agencies. This information would then be made available online.

It remains to be seen whether either of these changes will be implemented in the future. Until then, those seeking SSD benefits will want to ensure their initial application is as thorough as possible and is sufficiently buttressed with the necessary evidence to show their disability.

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The Law Center for Social
Security Disability

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Oklahoma City, OK 73102

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