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In Donahue, a social security disability case pending in the 7th Circuit, Judge Easterbrook asked the opposing parties at oral argument what makes a VE an "expert" and "where [does] the information in the [DOT] c [o]me from." Not surprisingly, both parties "did not know." This predicament would not exist if the SSA adopted a Daubert-type standard.
Implementing a Daubert-type approach would ensure the following: (1) that all VEs adhere to reliable methodologies and data to support their findings; (2) that the level of fairness afforded to claimants is not jeopardized because of questionable testimony from VEs; (3) that uniformity exists within the SSA disability proceedings; and (4) that integrity in the fourth and fifth steps of the sequential evaluation process is maintained.
The claimant seeking disability benefits is entitled to a certain level of fairness, which "is applicable to the adjudicative [and] administrative proceeding involving ‘differing rules of fair play,['] ... and ... [to] the ‘extent to which procedural due process must be afforded[,] the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss'."'
The claimant who is denied disability benefits stands to suffer a grave loss (i.e., the loss of funds to sustain a meager living and funds to treat the severe impairment that hinders the ability to work), while the burden placed on the SSA is merely a more rigorous standard for its VEs, which would not adversely affect the substantial evidence standard, but rather complement it.
Furthermore, S.S.R. 00-4p already mandates that the ALJ act as a gatekeeper by requiring that the ALJ inquire into whether there are any inconsistencies between the VE's testimony and the foundational source (e.g., the DOT).
Extending the other safeguards of Daubert to address the problem of questionable VE testimony due to a VE's lack of statistical evaluation expertise, unreliable methodologies, or outdated source of occupational data, would not significantly burden the SSA. Indeed, any burden to the SSA would be outweighed only by the fact that the grievous loss typically suffered by the disability claimant would be averted.
Implementing a regulatory Daubert approach will force the SSA to better explain itself and better document its findings, thus ensuring that the claimant is afforded an adequate level of fairness and the integrity of the Social Security disability proceedings remains intact. The issue comes down to fairness.
Although the SSA is the largest adjudication system in the world and considers millions of applications a year, this should not exempt it from complying with the fundamental notion of fairness. The SSA has implemented a regulation that mandates the ALJ inquire into any inconsistencies between the VE's testimony and the DOT; it also requires that the evidence be substantial for the ALJ to make a decision. However, this level of protection granted to claimants is nominal.
The inadequacies are apparent when the system struggles to define who qualifies as an expert. If the VEs are unqualified in statistical evaluation and yet are likely to implement various methodologies--which arguably are not testable and are based on an obsolete occupational source--how can they be referred to as experts, and why should the SSA rely on their testimony in a disability proceeding? As if the deck was not already stacked against the claimant, a claimant who wishes to challenge a VE's testimony by arguing that the VE lacks qualifications, that a conflict of interest exists because the VE is hired and paid by the SSA, or that due process was violated, will rarely be successful by challenging the VE's qualifications or by challenging that a conflict of interest exists.
Additionally, if arguing that due process was violated, the claimant must show that the ALJ's behavior, in the context of the whole case, was so extreme as to display clear inability to render a fair judgment--again, in such a case, a claimaint will rarely be successful. These obstacles are nearly impossible to overcome, and it does not help the claimant that the courts are extremely deferential to the SSA.
Additionally, the claimant is more disadvantaged because he or she cannot directly attack the reliability of the VE's testimony; rather, the claimant is forced to establish that the ALJ's conduct is of such an extreme nature that a fair judgment is not possible.
For these reasons, the SSA should apply its statutory directives more vigorously by promulgating a Social Security Ruling directed at primarily VEs, the methodologies VEs implement, and the occupational sources on which VEs rely. This promulgation should include the Daubert-type safeguards which are applied to all experts engaged in the federal judiciary.