Social Security Disability: SSA Policies to address concerns regarding VE testimony




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Attorney licensed in Indiana
Contributor Level 5
In response to mounting concerns about the reliability of VE testimony, the SSA enacted S.S.R. 00-4p as an administrative check on the broad credibility granted to VEs. S.S.R. 00-4p is essentially an administrative or "regulatory Daubert" check on the broad credibility granted to vocational experts.  Under this Ruling, the ALJ is required to act as a gatekeeper by inquiring whether the VE's testimony adheres to data found in the DOT. Although the SSA only recently enacted S.S.R. 00-4p, the ruling has already been eroded by courts. The erosion continues to occur because courts are divided as to whether the failure to inquire into DOT inconsistencies entitles claimants to relief.  In other words, if the ALJ fails to fulfill their gatekeeping duty as mandated by S.S.R. 00-4p, the question arises as to whether that failure constitutes a reversible error. Courts have taken three avenues: first, some courts have ruled that the ALJ's failure to fulfill the gatekeeping role by S.S.R. 00-4p does not constitute a reversible error; second, other courts have held that failure to comply with S.S.R. 00-4p constitutes a reversible error; third, other courts have taken a middle ground approach by holding that whether failure to follow the mandate of S.S.R. 00-4p constitutes reversible error depends on the degree of the failure and the circumstances surrounding the decision. Viewing the three approaches as a whole, it is evident that the SSA still requires compliance with S.S.R 00-4p and that noncompliance is not always harmless error. Because the VE relies on the unreliable and obsolete DOT, and because there are no particularized standards regulating the VEs, the integrity of VE testimony and the SSA's entire disability determination process is brought into question.  Additionally, without testimony from VEs and reliance on the DOT, the SSA disability determination process crumbles. Thus, because the validity of the VE's testimony has been compromised, the entire SSA disability determination process is susceptible to collapse. 

Additional Resources

To read more, please follow the below link to my article published in the Valparaiso University Law Review. The article has been posted on Traver & Traver, S.C., a nationally recognized Social Security Disability law firm who has been advocating for a practical approach that is both scientific and reliable:

http://ssaconnect.com/content/view/7/175/

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