SSA regulations create an opportunity for Social Security attorneys.
By David F. Traver
Excerpted from Social Security Disability Advocate’s Handbook
While the Social Security Administration has rejected the O*NET, the Commissioner’s Regulations adopting the Occupational Outlook Handbook are still in place, and they open the door to a wide and very-useful variety of the O*NET data. See 20 C.F.R. §404.1566 (d)(2006).1
The Occupational Outlook Handbook is easy to take to a hearing. If you wish, you can easily equip your laptop for a new high-speed wireless data service in many cities and have the Occupational Outlook Handbook and all the O*NET at your fingertips by taking your laptop to the hearing.
No wireless in your area? A CD-ROM of the Occupational Outlook Handbook is available for $22.00 from the Department of Labor.2 You can also buy a paper copy, and take that to the hearing if your ALJ does not allow the use of computers, or if you are not computer literate.
Assume for this hypothetical testimony, that the claimant is a 45-year old high-school dropout with a limitation to sedentary work. Additionally, the claimant has a prior history of illegal drug use, has a severe bipolar disorder, and receives regular psychiatric care. Assume too that you happen to have a copy of the Occupational Outlook Handbook. The ALJ gives a traditional RFC for simple, unskilled, repetitive, low-stress work, sedentary work, with limited public contact.
Attorney Are you aware that the Social Security Administration’s Regulations explain “we will take administrative notice of reliable job information available from various governmental and other publications? For example, we will take notice of the Occupational Outlook Handbook, published by the Bureau of Labor Statistics.”
Attorney Your Honor, for the record, the citation to that Regulation is 20 C.F.R. §404.1566 (d)(2006).
Attorney Do you agree with the Social Security Administration that the Occupational Outlook Handbook, published by the Bureau of Labor Statistics, is a reliable source of vocational information?
Attorney Are you aware there is an Occupational Outlook Handbook, 2004-2005 Edition?
VE Yes I am.
Attorney In response to the ALJ’s hypothetical questions, you testified that the hypothetical claimant could perform work as SURVEILLANCE-SYSTEM MONITOR, DOT code 379.367-010, and that this is a sedentary job with an SVP of 2, which makes it unskilled. You also testified there are 3,400 of these jobs in the Milwaukeemetropolitan area?
Attorney I would like you to assume the hypothetical to which you gave that answer, and add that the hypothetical claimant is a 45-year-old high-school dropout. Additionally, the claimant has a prior history of arrests for illegal drug use, has a severe bipolar disorder, and receives regular psychiatric care for that disorder.
Attorney Would that make any difference to your answer to the ALJ’s hypothetical?
VE It would not.
Attorney Would you then agree with this from the 2004-2005 edition of the Occupational Outlook Handbook, that for security guards “Rigorous hiring and screening programs consisting of background, criminal record, and fingerprint checks are becoming the norm in the occupation. Applicants are expected to have good character references, no serious police record, and good health. They should be mentally alert, emotionally stable, and physically fit in order to cope with emergencies. Guards who have frequent contact with the public should communicate well.”
Attorney Would that have any impact on the number of jobs you gave for the hypothetical claimant for this occupation?
VE Yes, it would eliminate all of those jobs.
David F. Traver has represented hundreds of claimants at SSA and over 200 claimants in U.S. District Courts. He has bachelor and master degrees in vocational rehabilitation, and is the author of Social Security Disability Advocate’s Handbook, from which this article is excerpted.