Federal Court Criticizes “Blind Reliance” on Vocational Expert Testimony

Dimmett v. Colvin (2016)

By , J.D., University of Missouri School of Law
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This article discusses a 2016 federal court decision that overturned Social Security's denial of a claim for disability benefits. I'll explain the background of the case and why the Seventh Circuit Court of Appeals disagreed with the denial.

Facts of the Disability Case

The disability claimant, Paul Dimmett, was a 62-year-old former sheet metal worker who applied for Social Security disability benefits in 2011, shortly after quitting his job due to a possible heart attack. Dimmett's claim for benefits was based on a combination of impairments, including COPD, asthma, asbestosis, and a heel spur in the right foot.

Dimmett's doctor had previously determined in 2001 that his lungs had scarring consistent with asbestos exposure, and the claimant's respiratory and pulmonary problems eventually became severe enough that he was placed on "light duty" at work. (Sheet metal worker is generally classified as a "heavy" job by Social Security, requiring occasional lifting of up to 100 pounds and frequent lifting of up to 50 pounds.) This light duty accommodation lasted for several years until he stopped working in 2011.

After being denied benefits by Social Security, Dimmett appealed. Following a disability hearing, the administrative law judge (ALJ) rejected Dimmett's appeal, finding that the claimant was capable of performing work at the "medium" exertional level as long as he was not exposed to extreme temperatures, humidity, or airborne pollutants.

It's worth noting that, due to the claimant's age, if the ALJ had not found the claimant capable of performing at least medium work, he would have to find the claimant disabled based on the Grid Rules, due to his age, education, and work experience. This helps explain why the ALJ did not simply find that the claimant could perform a desk job at the sedentary level or even "light" work.

At the hearing, Social Security's vocational expert (VE) cited three "medium" jobs that a person with the claimant's limitations could perform: order filler, laundry and dry cleaning attendant, and dining room attendant. The VE ignored the claimant's need for a restrictive environment. Based on the VE's testimony, the ALJ found the claimant not disabled.

The Judge's Decision

In his majority opinion for the Seventh Circuit, Judge Richard Posner, a frequent critic of vocational expert testimony, wrote that the VE's inclusion of the dry cleaning and dining room attendant jobs "should have caused alarm bells to ring in the [ALJ]'s ears given that he'd instructed the vocational expert that the claimant is incapable of performing jobs that would expose him to temperature extremes, humidity, and airborne pollutants."

Judge Posner explained:

Judge Posner also criticized the "rubber-stamping" on appeal by the magistrate judge, whose "blind reliance on the vocational expert's hamstrung testimony" compromised his decision.

The Seventh Circuit reversed the District Court's upholding of the decision and sent the case back to Social Security for further proceedings.

Impact of the Decision

With echoes of his 2015 decision in Alaura v. Colvin, Judge Posner's decision in Dimmett continues a trend in the Seventh Circuit of skepticism towards vocational expert testimony. In this decision, the Dictionary of Occupational Titles (DOT), the volume upon which much VE testimony is based, also receives a thumping by Judge Posner—and a well-deserved one, many disability attorneys would argue, since the DOT is several decades out of date.

Unfortunately, disability claimants cannot rely on crusading federal courts to overturn every case with dubious VE testimony, especially since this skepticism is largely limited to the Seventh Circuit, which covers Indiana, Illinois, and Wisconsin. Instead, dubious vocational expert testimony must be exposed at the disability hearing. While most claimants do not understand how to argue the weaknesses of the DOT or how to cross-examine vocational experts, an experienced disability attorney can help reveal the shaky foundations underlying most VE testimony.

Read the full text of this case, Dimmett v. Colvin, 816 F.3d 486 (7th Cir. 2016).

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