Social Security denies disability benefits based on list with jobs from 1977

By Lisa Rein / The Washington Post

11:14 JST, December 29, 2022

He had made it through four years of denials and appeals, and Robert Heard was finally before a Social Security judge who would decide whether he qualified for disability benefits. Two debilitating strokes had left the 47-year-old electrician with halting speech, an enlarged heart and violent tremors.

There was just one final step: A vocational expert hired by the Social Security Administration had to tell the judge if there was any work Heard could still do despite his condition. Heard was stunned as the expert canvassed his computer and announced his findings: He could find work as a nut sorter, a dowel inspector or an egg processor – jobs that virtually no longer exist in the United States.

“Whatever it is that does those things, machines do it now,” said Heard, who lives on food stamps and a small stipend from his parents in a subsidized apartment in Tullahoma, Tenn. “Honestly, if they could see my shaking, they would see I couldn’t sort any nuts. I’d spill them all over the floor.”

He was still hopeful the administrative law judge hearing his claim for $1,300 to $1,700 per month in benefits had understood his limitations.

But while the judge agreed that Heard had multiple, severe impairments, he denied him benefits, writing that he had “job opportunities” in three occupations that are nearly obsolete and agreeing with the expert’s dubious claim that 130,000 positions were still available sorting nuts, inspecting dowels and processing eggs.

Every year, thousands of claimants like Heard find themselves blocked at this crucial last step in the arduous process of applying for disability benefits, thanks to labor market data that was last updated 45 years ago.

The jobs are spelled out in an exhaustive publication known as the Dictionary of Occupational Titles. 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 in a sign of the economy’s shift from blue-collar manufacturing to information and services.

Social Security, though, still relies on it at the final stage 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 dictionary remains the backbone 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 altogether.

Since the 1990s, Social Security officials have deliberated over how to revise the list of occupations to reflect jobs that actually exist in the modern economy, according to audits and interviews. 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, an internal fact sheet shows, Social Security is not using it, leaving antiquated vocational rules in place to determine whether disabled claimants win or lose. Social Security has estimated that the project’s initial cost will reach about $300 million, audits show.

“It’s a great injustice to these people,” said Kevin Liebkemann, a New Jersey attorney who trains disability attorneys and has written extensively on Social Security’s use of vocational data. “We’re relying on job information from the 1970s to say thumbs-up or thumbs-down to people who desperately need benefits. It’s horrifying.”

In 2022, it is not easy to find a nut sorter (code 521.687-086) in the national economy who “observes nut meats” on a conveyor belt and picks out broken, shriveled, or wormy nuts. 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? And even if Heard were qualified to remove virus-bearing fluid from fertile chicken eggs for use in vaccines by sawing off the end of an egg and removing its fetal membrane, that work is largely automated today.

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

“They regularly tell us they plan on using the data,” Hilery Simpson, the labor bureau’s associate commissioner for compensation and working conditions, said of Social Security 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.

Social Security has not explained why it has yet to implement the labor bureau survey.

Acting Social Security commissioner Kilolo Kijakazi declined to be interviewed. In a statement, she 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.

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

A modern list of occupations would 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, Social Security 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 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 Social Security 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 Social Security 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.”

The Dictionary of Occupational Titles was first published in 1938 to help a country pulling out of the Great Depression match workers with jobs. Each entry contained the time to train for the job, the aptitude required, physical demands, the work performed – but not any recognition of which jobs match with the cognitive impairments common among the disabled today.

With its benefit decisions hinging largely on whether someone’s impairment limits them from doing past jobs or other jobs, Social Security needed a resource with accurate information about available work. But by the time the Labor Department retired the red hardcover book 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 Social Security, the publication’s 1991 demise set off a decade of hand-wringing. 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. Social Security 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 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 Social Security signed a contract 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 Social Security 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.

“We thought we could do it in 10 years. It might take 20 years,” said Byron Haskins, who worked on the project as a branch chief from 2010 to 2016. “In the meantime, we’re not standing on solid ground on these decisions.”

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 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 shelved it and the president fired Saul in 2021.

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 it is 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.”