Disability Vocational Expert Criticized in Federal Court Case

Alaura v. Colvin (2015)

By , J.D., University of Missouri School of Law
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This article discusses an actual Social Security disability claim for brain injury and seizures that was denied and appealed to federal court. We'll explain the background of the case and the judge's 2015 decision.

Facts of the Disability Claim

Kyle Alaura, a 22-year-old man, was struck in the head with a bar stool during an altercation, shattering his skull. He underwent an emergency craniotomy, a surgical procedure during which a small portion of his brain was removed and a metal plate was inserted into his skull.

During surgery, Alaura suffered a seizure. Following surgery and despite treatment from a neurologist, Alaura experienced regular "staring spells" consistent with a diagnosis of complex partial seizures. He also said he suffered from chronic daily headaches, sensitivity to light, dizziness, and cognitive problems, as well as severe head and neck pain.

Following a disability hearing, Social Security's administrative law judge (ALJ) denied disability benefits to Alaura. The ALJ stated that Alaura's daily activities, such as feeding the cat, making sandwiches, and sending text messages, were evidence that he could perform full-time work. At the hearing, Social Security's vocational expert (VE) testified that someone with Alaura's limitations could work as a hand packager, a retail marker, or an addresser (a job involving addressing envelopes and cards by hand or using a typewriter), and the judge agreed, denying the claim.

Alaura appealed the decision to federal district court and then again to federal circuit court.

The Judge's Decision

Judge Richard Posner, a prominent federal judge on the Seventh Circuit, wondered in his opinion how the ALJ could conclude that the claimant's daily activities translated into full-time work. "How being able to feed cats, make a sandwich, etc., prepare one for full-time employment … was left unexplained," he wrote.

Judge Posner also criticized the ALJ's reliance on the number of jobs that the vocational expert stated were available (there must be a significant number of jobs for a VE to say that a claimant could do that job):

It's hard to believe that, as the vocational expert testified in this case, there are 200,000 people in the United States for whom [addresser] is a full-time job. And does anyone use a typewriter anymore?

In addition, the judge expressed his disapproval of the way vocational experts estimate the number of jobs available:

We have recently expressed concern with the source and validity of the statistics that vocational experts trot out in social security disability hearings, as have other courts. Typically, it appears, the vocational expert simply divides the number of jobs in the broad category that includes the narrow category of jobs that the applicant can perform [in this case, addresser] by the number of narrow categories in the broad category, thus assuming that each narrow category has the same number of jobs as each other narrow category—which is preposterous. A vocational expert's stated number of jobs in a narrow category seems likely, therefore, to be a fabrication. [Emphasis added; citations omitted.]

The judge reversed the denial of benefits and sent the case back to Social Security for a new hearing.

Impact of the Decision

The Alaura case is the latest in a series of decisions coming out of the Seventh Circuit (which covers Illinois Indiana, and Wisconsin) that have criticized thinly reasoned disability determinations from ALJs (see also Browning v. Colvin and Goins v. Colvin, both from 2014). For now, only judges in the Seventh Circuit need to follow these court decisions. Whether these decisions make an impact nationwide remains to be seen, but it is clear that the Seventh Circuit is leading the charge against the Social Security Administration and the current state of its disability determination process.

Read the full text of this case, Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015).

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