Posted: Wed Dec 05, 2007 02:03 am Post subject: Important Department of Labor letter regarding obsolete DOT
Attorney David B. Lowry provided an excellent letter that he obtained from Dixie Sommers, Assistant Commission, Office of Occupational Statistics and Employment Projections.
This handy letter is just the thing to pound a stake through the heart of that hideous thing that will not die, the Dictionary of Occupational Titles.
When using the letter in District Court, you may find it helpful to show the court the problem faced by SSA and the scramble in the 1960s for some sort of vocatioonal resource to allow SSA to meet its burden of proof in disability claims.
Kerner v. Flemming will be handy and her is why:
Quote:
History of SSA During the Johnson Administration 1963-1968
In June 1960 a decision was rendered by the Second Circuit Court of Appeals which materially changed both the administrative and judicial approach to disability cases. The court held that a denial of disability benefits could not be sustained on the "mere theoretical ability" to engage in substantial gainful activity. Rather, held the court, where a claimant for disability benefits has presented evidence to show that he is precluded from engaging in his usual, prior, or customary occupations, there is a burden on the administrative agency to produce evidence showing what other work, if any, he can still do and what employment opportunities in such work are available to him. This landmark case was Kerner V. Flemming and the requirements enunciated by the court have become known as the "Kerner criteria."
Initially, the Social Security Administration attempted to meet these requirements by citing selected government and industrial studies. These studies showed the results of surveys reflecting information that individuals with certain impairments were presently, or had been in the past, engaged in various types of occupations in American Industry. This approach was soon rejected by various courts as being speculative and theoretical in determining whether there were employment opportunities available to disability claimants who were unable to perform their usual jobs. To overcome this criticism, the Social Security Administration decided to employ vocational experts at administrative hearings, at which time these expert witnesses would address their testimony to the claimant's particular and highly individual situation in an effort to satisfy the Kerner criteria.
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