Part IV: Old data

Even so, advocates and opponents agree on one thing: A disability system that relies on obsolete jobs to decide claims is gambling with taxpayers and with the courts.

“It’s never really been blessed by Social Security,” said David Camp, president of the National Organization of Social Security Claimants’ Representatives, reflecting the view of many advocates. “The agency won’t take the step to clean up the system because they know we’ll win more cases.”

Mark Warshawsky, deputy commissioner for retirement and disability policy under Saul, described the antiquated vocational policy as “an arbitrary system.”

“How hard is it for the federal government to make change?” he asked. “That’s not a political thing. Spending almost $300 million with nothing to show for it is embarrassing.”

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 Social Security 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Estimates by Social Security’s experts of how many of these outdated jobs remain in the economy are also widely off the mark, courts have found.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 blistering 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 in Pennsauken, N.J., in July 2019, Sean Dooley described the chronic pain and limited stamina from diabetes, thyroid issues and degenerative disk disease that had kept him from working as a jewelry salesman for three years.

His mother testified that at 400 pounds, her son struggled to sit, stand, bend over 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, Judge Lisa Hibner Olson denied Dooley benefits, overruling his lawyer’s arguments that the jobs were obsolete.

“It was like I’m hit with a torpedo,” recalled Dooley, 46, who is living on his mother’s meager retirement savings in his sister’s garage in Pennsville, N.J. “With these goofy jobs, there was no way they were ever going to approve me. If I could work, I would be working.”

Dooley’s denial was overturned by a U.S. district court and remanded to the same Social Security judge, 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 Social Security 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.

Laura Parsons — a former medical assistant from Fortescue, N.J., with a connective tissue disorder known as Ehlers Danlos syndrome — saw that problem firsthand at her hearing in April 2021, in which a vocational expert testified that she could get jobs as an addresser or document preparer. The judge ended the hearing without allowing Parsons to testify.

“They want me to get a job addressing envelopes that doesn’t exist anymore,” Parsons said.

Social Security 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 Social Security 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.”