Posner advises disability office to clean up its act, says expert testimony was 'worthless'
A federal appeals court says an administrative law judge “inappropriately ‘played doctor’” in denying disability benefits for a 56-year-old woman who had worked more than 13 years in a factory where she carried steel sheets weighing up to 100 pounds.
The Chicago-based 7th U.S. Circuit Court of Appeals overturned the denial of disability benefits for Anne Hill in a Dec. 3 opinion (PDF), Indiana Lawyer reports. In a concurrence, Judge Richard Posner criticized “worthless” testimony by a vocational expert and wrote, “It is time the Social Security Disability Office cleaned up its act.”
Hill listed eight impairments when she applied for disability benefits, according to the opinion by Judge Anne Claire Williams. They included a hip replacement, a recommendation for a shoulder replacement, a ruptured disc, knee pain and a broken left hand.
Hill testified the pain kept her awake at night, but she had stopped using narcotic pain relievers because her doctor was concerned about addiction. She also testified she had no health insurance and couldn’t afford the shoulder surgery. She had walked with a limp for a year, according to a friend who testified.
The administrative law judge had found Hill wasn’t disabled. Though Hill had limited use of her left arm, the judge said, she could still use her right arm and could occasionally carry up to 20 pounds. The judge concluded Hill was exaggerating her back pain, despite a lack of medical evidence to support the conclusion.
The errors require reversal, Williams wrote. In his concurrence, Posner focused on testimony by the government’s vocational expert.
According to the expert, Hill could perform light and unskilled jobs as a dealer account investigator, furniture rental consultant, counter clerk, call-out operator, semiconductor bonder and registration clerk—despite Hill’s limited ability to use her left extremities. As a result, the expert concluded, tens of thousands of jobs were available to Hill.
Posner said vocational experts in disability cases use a “preposterous” assumption to determine how many jobs are available to a partially disabled benefits applicant. The calculation begins with census data for broader job categories that include the specific type of job that could be performed. The number is then divided by the number of narrow job categories within the broader category. The assumption—which is wrong—is that every subcategory had exactly the same number of jobs, Posner said.
The applicant is denied benefits if there appear to be “a nontrivial number” of jobs available, Posner said.
In Hill’s case, the jobs identified by the expert, though deemed low-skilled, actually required skills and experience. “In short, the vocational expert’s testimony was worthless—and this apart from the apparent arbitrariness of numerology,” Posner said.
