Jennifer Nelson for www.theindianalawyer.com

Seventh Circuit Judge Richard Posner had harsh words for the Social Security Disability Office regarding vocational expert testimony: clean up your act.

The 7th Circuit Court of Appeals reversed the denial of Anne Hill’s application for Disability Insurance Benefits and Supplemental Security Income, finding the administrative law judge’s credibility analysis was flawed. Hill, 56, worked for more than 13 years at a steel factory where she had to carry steel sheets weighing up to 100 pounds. The manual labor took a toll on her body and she applied for disability benefits in 2011. Her physical issues include total hip replacement, knee pain, recommended total shoulder replacement, and severe physical limitations in the use of her left side.

She babysits, but is unable to lift the child, does chores and goes to church, but is unable to sit or stand for long periods of time.

The vocation expert in her case testified that she could work at jobs classified as light and unskilled, such as dealer account investigator or a counter clerk. The expert, using his own experience to opine on how Hill’s issues with her left side would impact her ability to work, testified she could still perform sedentary jobs such as a registration clerk.

Using the five-step analysis for assessing disability, the ALJ concluded Hill is not disabled. The ALJ noted that Hill was not taking narcotic pain relievers, but Hill had testified that was because of her past alcohol addiction.  The judge reasoned Hill exaggerated her back pain because she hadn’t been diagnosed with certain conditions, but that conclusion is not supported by any medical evidence in the record.

“We are not confident that the ALJ would have reached the same conclusion about Hill’s credibility had she not inappropriately ‘played doctor,’ ignored possible explanations for Hill’s conservative treatment, and conflated a desire to work with the ability to do so. So the ALJ’s errors are not harmless,” Judge Anne Claire Williams wrote.

Posner wrote a concurring opinion in which he focused on “a persistent, serious and often ignored deficiency in opinions by the administrative law judges of the Social Security Administration” in denying benefits. He noted the issues regarding vocational expert testimony concerning the number and types of jobs that an applicant deemed not to be totally disabled could perform.  It appears the experts simply divide census data estimates on the number of jobs in a broad category that includes the narrow category of jobs that the applicant can perform, by the total number of narrow categories in the broad category.

“The assumption is thus that every narrow category has the same number of jobs as every other narrow category within the broad category – a preposterous assumption,” Posner wrote.

“In short, the vocational expert’s testimony was worthless – and this apart from the apparent arbitrariness of his numerology,” he continued. “It is time the Social Security Disability Office cleaned up its act.”

The case is Anne R. Hill v. Carolyn W. Colvin, acting commissioner of Social Security, 15-1230.

The Department of Music at the University of Evansville will present its annual Holiday Pops concert on Tuesday, December 8. The event is at 7:30 p.m. in the Victory Theatre in downtown Evansville. This concert is free and open to the public.

The concert program will feature the University Choir, the Men’s and Women’s Choruses, the UE Symphony Orchestra, the UE Wind Ensemble, and the UE String Ensemble performing separately and in various combinations. Director of Choral Activities Dennis Malfatti, Director of Orchestra Activities Jessica Morel, and Director of Bands Kenneth Steinsultz will lead ensembles in a program of traditional and popular holiday favorites. Assistant Professor of Music Alana Keenan will sing during the event.