LAW FIRM BLOG

SSA Decides Disability Claims Based on Job Data from 1977

January 08, 2023

The jobs are described in a comprehensive tome known as the Dictionary of Occupational Titles (DOT). The vast majority of the 12,700 entries were last updated in 1977. The Department of Labor, which originally compiled the index, abandoned it 31 years ago as the U.S. economy shifted from blue-collar manufacturing to information and services.

The Social Security Administration (SSA), though, still relies on it when a claim is reviewed. The government, using strict vocational rules, assesses someone’s capacity to work and if jobs exist “in significant numbers” that they could still do. The DOT remains the foundation of a $200 billion disability system that provides benefits to 15 million people.

It lists 137 unskilled, sedentary jobs — jobs that most closely match the skills and limitations of those who apply for disability benefits. But in reality, most of these occupations were offshored, outsourced, and shifted to skilled work decades ago. Many have disappeared completely.

Since the 1990s, SSA officials have deliberated over how to revise the list of occupations to reflect jobs that actually exist in the present economy. For the last 14 years, the agency has promised courts, claimants, government watchdogs, and Congress that a new, state-of-the-art system representing the characteristics of modern work would soon be available to improve the quality of its 2 million disability decisions per year.

But after spending at least $250 million since 2012 to build a directory of 21st-century jobs, the SSA is not using it, leaving antiquated vocational data in place to determine whether claimants win or lose benefits. The SSA has estimated that the project’s initial cost will reach about $300 million, audits show.

Obsolete Jobs
In 2023, it is not easy to find a nut sorter position (code 521.687-086) in the national economy where one “observes nut meats” on a conveyor belt and picks out broken, shriveled, or wormy nuts. Similarly, how many workers in America inspect dowel pins (code 669.687-014), searching for flaws from square ends to splits, then discard them by hand? This type of work is largely automated today.

The Bureau of Labor Statistics, which is part of the Labor Department, has built a new, interactive system for the SSA using a national sample of 60,000 employers and 440 occupations covering 95 percent of the economy. But the SSA still has not instructed its staff to use it.

“They regularly tell us they plan on using the data,” Hilary Simpson, the labor bureau’s associate commissioner for compensation and working conditions, said of SSA officials. The data collection and estimation “have gone through extensive testing and use the best-in-class statistical methods,” he said. The survey is available to the public on the Labor Bureau’s website.

The SSA has not explained why it has yet to implement the labor bureau survey.

Acting Social Security commissioner Kilolo Kijakazi in a statement, said, “To date, the best available source for occupational information has been the Dictionary of Occupational Titles. We have enlisted vocational experts to provide more detailed and current information about the jobs available in the national economy, while we continue to work on creating our own occupational data source informed by [the Bureau of Labor Statistics] that best reflects the current job market.”

A spokeswoman for the agency declined to answer questions about a timeline for putting the modern data into use.

The SSA's delays in updating the database of job titles are rooted in conflicting political considerations, shifting leadership, and the drift that can hinder large federal projects, according to current and former officials, auditors, and disability advocates.

A modern list of occupations would also create new winners and losers in the application process—posing political sensitivities for a program that has long drawn judgment that the government is either too generous or not generous enough. Over two decades, the SSA has been led by six acting commissioners and just three Senate-confirmed leaders, leaving power vacuums at the top that can delay costly projects. Many advocates, however, believe the agency is motivated to delay the project so it can deny more claimants benefits.

“The scandal is that everybody wants this data discussed in terms of who will be hurt and who will be helped,” said David Weaver, a former Social Security associate commissioner who helped lead the early effort to modernize. “But a lot of money has been spent. You have the gold-standard of federal data, and Social Security is not producing anything.”

Congress continues to approve more than $30 million per year for the survey of modern jobs without asking hard questions about why the data sits unused, congressional aides and former Social Security officials said.

Senate Finance Committee Chairman Ron Wyden (D-Ore.) called on the SSA to move forward. “Occupational definitions used by the federal government need to reflect the reality of the work Americans are doing today,” Wyden said in a statement. He warned that data on modern jobs “must be handled with care to ensure that nobody is wrongly denied their earned benefits."

Federal courts, meanwhile, keep sending denied claims back to the SSA to redo its decisions, raising alarms that the government is shortchanging disabled Americans with arbitrary judgments that put it at legal risk.

“Does anyone use a typewriter anymore?” Richard Posner, a judge for the U.S. Court of Appeals for the 7th Circuit, asked in a 2015 decision reversing an Administrative Law Judge’s denial of benefits to a disabled man the judge claimed could work as an “addresser”—one who “addresses cards” by hand or typewriter. Posner called a vocational expert’s claim that 200,000 such jobs still exist today a “fabrication.”

Others have not been as fortunate. Few claimants without attorneys are aware that the jobs used to deny them benefits have been pulled from obscurity. And many lawyers representing them lack the expertise and resources to take a case to federal court, say advocates, vocational experts, and judges who rule in these cases.

“Every day we made decisions we don’t necessarily agree with,” said George Gaffaney, an Administrative Law Judge in the Chicago area. “It’s troubling.”

A Historical Perspective
The Dictionary of Occupational Titles was first published in 1938 to help the country match Great Depression-era workers with jobs. Each entry contains 1the time to train for the job, the aptitude required, physical demands, and the work performed—but not any recognition of which jobs match with the cognitive impairments common among the disabled today.

With its benefit award decisions hinging largely on whether someone’s impairment limits them from doing past jobs or other jobs, the SSA needed a resource with accurate information about available work. But by the time the Labor Department retired the DOT three decades ago, it was already stocked with jobs that, if not already gone, were quickly vanishing from the economy: elevator operators, thaw-shed heater tenders, window shade ring sewers. And it did not include a host of emerging information-economy jobs, from web designers to employment recruiters.

Inside the SSA, the publication’s 1991 demise set off a decade of extended internal debate and related indecision. Workgroups, panels, and committees of experts formed—all while the agency continued to rely on the outdated jobs list. By 1998, the Labor Department had developed a new database of jobs and what was required to do them. The SSA brought in another round of experts to determine whether that system, dubbed O*NET, could serve its disability program.

It took until 2008 — a full decade — to reach a consensus: the agency needed to develop its own vocational information because existing federal data lacked enough characteristics of jobs disabled people could do. So in 2012, the SSA contracted with the Bureau of Labor Statistics to design a modern system that would help make accurate disability determinations.

The same year, the Government Accountability Office began questioning the project’s cost estimates and schedule. After three years of tests, field economists began their surveys in 2015. When that data was delayed, government watchdogs began warning that the project was in danger of becoming a case study in the challenges of large federal investments.

In 2018, the agency’s inspector general wrote in an audit, “It remains crucial that [Social Security] leadership commit to ensuring appeal applications receive fair and consistent treatment.” In response, a SSA official set a target of fiscal 2020 to put the modern data into use and wrote, “We continue to work diligently to avoid delays in its implementation.”

The Labor Bureau now says it will finish a second wave of data collection next year. A third is planned.

When New York art collector and apparel company investor Andrew Saul was confirmed as President Donald Trump’s Social Security administrator in June 2019, his team drew up plans to start using the modern jobs data, concluding that disabled people, particularly older Americans, could learn new skills in an economy with more sedentary, skilled jobs. The new survey could tighten eligibility for benefits, Saul believed—-a then White House priority. “It was going to make the system fairer,” Saul said in an interview. “People who deserved disability would get it, and those who didn’t, would not.”

But the plan set off a furor among advocates, who opposed a provision that would have made it harder for older workers to qualify for benefits. The Biden administration quickly abandoned it and the president fired Saul in 2021.

Arbitrary Unfair Results
Even so, advocates and opponents agree that a disability system that relies on obsolete jobs data to decide claims produces arbitrary results.

The current system is leading thousands of disability claims per year to be denied that would otherwise have a good chance of approval, data suggests. The inspector general’s 2018 audit showed that from fiscal 2013 through 2017, occupational information was used to decide more than half of all initial claims and in four in five decisions at the hearing level when decisions are appealed. The data does not show if it was the deciding factor.

But a 2011 study commissioned by the SSA found the 11 jobs most commonly cited by disability examiners when denying benefits. The top job was addresser, used in almost 10 percent of denials. Twelve years later, little has changed, advocates say.

Estimates by SSA's experts of how many of these outdated jobs remain in the economy are also widely off the mark, courts have found.

The U.S. Supreme Court held in 2019 that Social Security judges could uphold agency decisions even when vocational experts refuse to provide data on how they come up with job numbers. But the decision led to a forceful dissent from Justice Neil M. Gorsuch, who cited dubious expert claims that 120,000 “sorter” and 240,000 “bench assembler” jobs are available to the disabled without clear evidence.

Earlier this year, the U.S. Court of Appeals for the 7th Circuit noted a similar problem while overturning a Social Security judge’s denial of benefits to a Wisconsin man.

“All three judges on this panel, assisted by very talented law clerks, read the transcript of the [vocational expert’s] testimony multiple times,” the court wrote. “And yet nobody can explain with coherence or confidence what the [vocational expert] did to arrive at her job-numbers estimate. … There has to be a better way.”

The expert claims can be equally baffling to claimants. At his hearing before an Administrative Law Judge (ALJ) in Pennsauken, N.J., in July 2019, Sean Dooley described the chronic pain and limited stamina from diabetes, thyroid impairment, and degenerative disk disease that had prevented him from working as a jewelry salesman for three years.

His mother testified that at 400 pounds, her son struggled to sit, stand, bend, and lift. Yet a vocational expert said Dooley could work as an order clerk, an addresser, or a call-out operator—a job he had never heard of. An expert whose software is used by many vocational experts has calculated that 2,000 addressers are left in the U.S., 2,060 call-out operators who compile credit information, and 424 order clerks.

In a written decision three months later, ALJ Lisa Hibner Olson denied Dooley benefits, overruling his lawyer’s arguments that the jobs were obsolete. Dooley’s denial was overturned by a U.S. district court and remanded to the same ALJ, who has scheduled a new hearing for January.

The problem is not limited to appeals heard before judges. State offices that first decide disability claims place blame for a historic backlog exceeding 1 million cases in part on the obsolete jobs system, which requires expertise most do not have.

“We’ve heard the message from Social Security, ‘We’re working on vocational policy changes,’ for 10 years,” said Jacki Russell, director of Disability Determination Services in North Carolina and president of the National Council of Disability Determination Directors. “ ‘It’s very sensitive,’ they say. Meanwhile, we’re over here trying to make the best decisions we can with a massive backlog.” Russell’s office of 600 employees has just two vocational experts.

In Maryland last spring, Larry Underwood quit in despair after 25 years testifying for the SSA as a vocational expert. He had concluded that there was no valid method to determine what work a disabled claimant could still do, and that it was impossible to project jobs in that field.

“I realized that a lot of vocational experts, including myself, have been giving false testimony for years,” Underwood said. “The numbers are not accurate. I decided I can’t do that anymore.”

A few advocates with expertise in vocational evidence have begun training disability attorneys, warning that if they aren’t savvy enough to rebut the job claims, they will lose.

The 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. Congressional staff have not been briefed on the project in at least three years, aides said. It is not clear if they have asked for a briefing. Meanwhile, courts continue to overturn denials based on the old data—even pleading with the SSA to modernize its system.

“It’s not our place to prescribe a way forward,” the Court of Appeals concluded in the case of the Wisconsin man who had been denied benefits. “Perhaps the Commissioner will read this opinion as an invitation to bring long-awaited and much-needed improvement to this aspect of administrative disability determination.”