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Law offices of Stephen Barszcz Disability Lawyer

Federal Appeals Court Rejects Social Security’s Incorrect Use of Vocational Statistics


One of the oddest facets of the Social Security disability application process involves the use of an outdated government publication called the Dictionary of Occupational Titles (DOT). The U.S. Department of Labor published the DOT in 1991. It was essentially a manual that classified all of the known types of labor into roughly 13,000 categories. Although the Labor Department stopped publishing the DOT in the 1990s, Social Security officials continue to rely on its job classifications when determining what jobs might theoretically exist that disability applicants could perform.

So how exactly is the DOT used? During a disability hearing, the administrative law judge (ALJ) overseeing the case will question a vocational expert (VE), who is supposed to be a specialist in the area of employment. The VE will use the DOT’s classifications–no matter how outdated they might be–to identify the types of jobs the applicant could perform, taking into account their physical or mental impairments. The VE will then offer an estimate of how many jobs within a given DOT classification presently exist in the “national economy.” If sufficient jobs exist–at least according to the VE–then the ALJ will deny the application for disability benefits.

11th Circuit: There Are (Probably) Not 43,000 Bakery Worker Jobs Available in the U.S.

As you might suspect, there are a lot of problems with this system. Indeed, the U.S. 11th Circuit Court of Appeals recently ordered a new hearing on the disability application of a Florida woman after holding that a VE’s testimony regarding available jobs was “significantly and admittedly flawed.”

The plaintiff in this case previously worked as a nurse. She was unable to return to that job following a 2011 car accident. At the hearing on her disability application, the VE testified that given the plaintiff’s limitations she could still hold down a job as a “bakery worker,” which is an occupation listed in the DOT. The VE estimated there were 43,000 bakery worker jobs available nationally, and at least 1,000 such positions in Florida alone. The ALJ accepted these figures and concluded that there was sufficient work available for the plaintiff such that she did not need disability benefits.

The 11th Circuit identified several problems with this conclusion. First, since the DOT says nothing about the number of jobs available in a given category, the VE had to rely on a second source, known as the Occupational Employment Quarterly (EOQ), to actually provide an estimate to the ALJ. The EOQ relies on a different classification system than the DOT. The VE tried to compensate for this by translating the DOT title into a corresponding one used by the EOQ. Unfortunately, the 11th Circuit said, the VE’s conversion was incorrect. As a result, the VE “never provided the relevant job numbers in the national and regional economies from the correct” job category.

Second, if you look at the correct EOQ category, the 43,000 jobs cited by the VE was actually an aggregate figure for 65 different occupations listed under the DOT. The plaintiff only qualified for 1 of these occupations, i.e. bakery worker. Obviously, the 11th Circuit reasoned, not all of the 43,000 jobs cited fell within that single category.

Speak with a National Disability Benefits Attorney Today

The problems with Social Security’s use of job figures are well known. Yet the misuse of these numbers continues to defeat many legitimate disability applications. If you find yourself facing this problem, National SSD eligibility lawyer Stephen Barszcz can help. Contact his office today at 877-655-2667 to schedule a consultation.


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