7th Circuit Court of Appeals Critical of Vocational Evidence in Social Security Disability Case
The Seventh Circuit Court of Appeals takes yet another opportunity to criticize the Social Security Administration’s disability claim adjudication process in Alaura v. Colvin, decided August 18, 2015 (decision written by Judge Richard Posner). The plaintiff, a 22-year old man was struck in the back of his head by an assailant wielding a bar stool as a weapon. The blow shattered his skull, necessitating emergency surgery. Still suffering after surgery two months later Alaura was examined by a neurologist who diagnosed post-traumatic headaches and cognitive impairment caused by the injury to his brain. In addition to daily headaches the Claimant was found to be suffering from occipital neuralgia causing piercing or throbbing pain in the neck, the back of the head, and front of head behind the eyes. Nerve blocks failed to lessen the pain. He later complained of seizures that occurred several times a week in which he would zone out for a couple of minutes. Another neurologist found Alaura’s symptoms consistent with complex partial seizure activity. Anti-depressants, and further nerve blocks failed to alleviate chronic headaches.
Despite this the administrative law judge made no effort to consider the combined effects of all of his impairments and limitations on Alaura’s ability to work. The Court criticized the Social Security administrative law judge’s (ALJ’s) failure to seek opinions from either a neurologist or pain specialist to examine the Claimant or his medical records and offer an opinion about his ability to do various forms of work. The ALJ also rejected the consulting internist’s opinion, without explanation, that the Claimant can sit for only 30 minutes at a stretch and walk only six blocks at a time. Posner criticized the judge’s “scattershot” analysis producing no confidence the ALJ had responsibly determined the Claimant’s fitness for gainful employment.
Posner further criticized the vocational expert’s conclusion there were jobs in the region that Alaura could perform. In particular, he once again expressed concern with the source and validity of the statistics that vocational experts “trot out” in SS disability hearings. Posner found it “preposterous” that typically a VE simply divides the number of jobs in the broad category that includes the narrow category of jobs that the Claimant can perform by the number of narrow categories, thus assuming that each narrow category has the same number of jobs as each other narrow category. Therefore, the stated number of jobs in a narrow category are likely to be a fabrication. The point was then illustrated by looking closer at the job of “addressor,” and Posner reasonably concluding it was unlikely 200,000 addressor jobs existed in the age of automated business mailing. The case was remanded for further consideration.
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