Retention Date: Indefinite
|All ODAR Hearing Level Personnel
|ODAR Office of the Chief Administrative Law Judge
|Prohibition on Use of “Generic” Vocational Expert Interrogatories by Administrative Notice
|Chief Judge Bulletins
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The purpose of this CJB is to provide clarification that Vocational Expert (VE) interrogatory responses given in connection with one particular case should not be used in subsequent cases by taking administrative notice. Rather, as fully discussed below, both VE interrogatories and responses must be case specific and tailored to the facts of the individual case at issue as the Social Security Act, the regulations, and rulings require this approach.
Per 20 C.F.R. §§ 404.1566(d) and 416.966(d), the Agency will take administrative notice of reliable job information available in various governmental and other publications such as the Dictionary of Occupational Titles (DOT). However, there is no affirmative language regarding taking administrative notice of VE opinions. 20 C.F.R. §§ 404.1566(e) and 416.966(e) state that VEs can be used to determine whether an individual’s work skills can be used in other work and the specific occupations in which they can be used, or when there are other similarly complex issues. Reading these two sections together, administrative notice may be taken of publications, but not of VE opinions.
In addition, the VE opinion has not gone through procedural safeguards to ensure the accuracy of the facts contained therein. See Heckler v. Campbell, 461 U.S. 458, 470 (1983) (When the accuracy of facts has been tested through rulemaking, as the Commissioner’s “grid” rules were, the rulemaking process provides the necessary safeguard.). As the Supreme Court also noted, the statutory scheme (Social Security Act (Act) § 223(d)(2)(A)) contemplates that disability hearings before an Administrative Law Judge will be individualized determinations based on evidence adduced at a hearing. Heckler v. Campbell at 467.
Under §223(d)(2)(A) of the Act, in determining whether an individual is disabled, the adjudicator must consider whether the individual can “engage in any substantial gainful work which exists in the national economy,” which means “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” SSR 00-4p places an affirmative duty on the adjudicator to ask the VE about any possible conflict between the evidence about the requirements of a job or occupation that a VE provides and information provided in the DOT. Thus, repeated use of one VE interrogatory response in subsequent cases is impermissible because data about the work that exists in significant numbers in a particular region can change over time.
Finally, SSR 85-15 emphasizes the importance of evaluating the effects of mental impairments thoroughly and on an individualized basis, and notes that responses to the demands of work are highly individualized. This, in turn, reinforces the need for an individualized residual functional capacity (RFC) assessment in order for the adjudicator to make an individualized evaluation of disability. Even claimants who suffered from the same impairments or combination of impairments would not all be affected in the same way or to the same degree, so they would also be expected to have different RFCs. Thus, different RFCs require that hypothetical questions presented to the VE be individually tailored to the specific facts of each case.
Therefore, for the reasons discussed above, Administrative Law Judges and Attorney Adjudicators may not take administrative notice of a VE opinion in the form of an interrogatory response that is given in one particular case and use it in subsequent cases.
Direct all program – related questions to your ODAR Regional Office (RO) support staff. RO support staff may refer questions or unresolved issues to their contacts at ODAR headquarters.
CJB 09-03 - Prohibition on Use of “Generic” Vocational Expert Interrogatories by Administrative Notice - 05/26/2009