What Do You Do When the Vocational Expert Testifies that You Can Perform Work as a Surveillance System Monitor at Your Social Security Disability Hearing?
If you’re under the age of 50 and seeking Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) benefits, then you must prove not only that you’re unable to perform any of your past relevant work but also that you’re unable to do any other work that exists in significant numbers in the national economy. The Social Security Administration (SSA) does not have a bright line rule for what amount of jobs will be considered “significant numbers.”
Time and time again we’ve seen the administrative law judge (ALJ) at a Social Security disability hearing restrict the claimant to less than a full range of unskilled sedentary work (i.e. a sit down job) when asking the vocational expert whether jobs exist, only to hear the vocational expert testify that the claimant is capable of performing work as a surveillance system monitor. This testimony alone, if given weight by the administrative law judge, is enough to deny the application for Social Security disability benefits. Today we discuss how to fight back against this testimony.
Eliminating the Surveillance System Monitor Position When Cross-Examining the Vocational Expert
The Dictionary of Occupational Titles (DOT) describes the job of a Surveillance-System Monitor (379.367-010) as:
Monitors premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies authorities by telephone of need for corrective action: Observes television screens that transmit in sequence views of transportation facility sites. Pushes hold button to maintain surveillance of location where incident is developing, and telephones police or other designated agency to notify authorities of location of disruptive activity. Adjusts monitor controls when required to improve reception, and notifies repair service of equipment malfunctions. Although the number of jobs have declined the job still exists in some regions of the United States.
The Surveillance-System Monitor job was last updated in the Dictionary of Occupational Titles in 1986. And it refers to the job as being one of government service. This is important because government jobs involving the monitoring of mass public transportation sites were converted to the Department of Homeland Security (DHS) or the Transportation Security Administration (TSA) after the terrorist attacks of September 11, 2001.
An attorney’s first questions to the vocational expert regarding the surveillance system monitor position should be:
- When was the job of Surveillance System Monitor last updated in the DOT?
- Isn’t it correct that the DOT refers to the position as “Surveillance System Monitor Government Service?”
- Isn’t it correct that the DOT describes this position as one involving the monitoring of public transportation terminals?
- Wasn’t the monitoring of public transportation terminals taken over by the TSA and DHS after the September 11th attacks?
After these questions the vocational expert may testify that the claimant can perform the job of a surveillance system monitor at stadiums, shopping malls, and casinos. But there is a way to attack this testimony as well.
Attacking vocational expert testimony that you can do non-government work as a surveillance system monitor
The Standard Occupational Classification (SOC) system is a U.S. government system used to classify occupations. The SOC assigns number 33-9031 to the surveillance system monitor job at casinos. The official title is “Gaming Surveillance Officers and Gaming Investigators.” The description is:
Act as oversight and security agent for management and customers. Observe casino or casino hotel operation for irregular activities such as cheating or theft by either employees or patrons. May use one-way mirrors above the casino floor, cashier’s cage, and from desk. Use of audio/video equipment is also common to observe operation of the business. Usually require to provide verbal and written reports of all violations and suspicious behavior to supervisor.
The Specific Vocational Preparation (SVP) range for this job is 4 – 6. If the administrative law judge limited you to unskilled work, then you’re not capable of doing work above the SVP 1 or 2 level and this job should be excluded.
You should ask, therefore if the SOC number for the surveillance system monitor job is 33-9031. If the vocational expert answers in the affirmative then this job is excluded.
More experienced vocational experts may try to avoid this trap by testifying that SOC number 33-9099.02 is the most appropriate job title. This number refers to a Retail Loss Prevention Specialist, who implements procedures and systems to prevent merchandise loss, conducts audits and investigations of employee activity, and assists in developing policies, procedures, and system for safeguarding assets. This is a semiskilled or skilled job with an SVP of 4 to 6. So if the administrative law judge restricted the claimant to unskilled work, the job of retail loss prevention specialist must be excluded.
There is one more way that a vocational expert may try to get around your cross examination regarding the surveillance system monitor position – by referencing SOC code number 33-9099.00. This is a number that refers to all protective service workers. It does not refer to a specific job. The vocational expert, therefore, is unable to testify that you can perform any specific work.
If the vocational expert is unable to answer questions about the SOC code then your attorney can object to the vocational expert on the basis that the vocational expert is not qualified at all.
Over the past few years it has become more difficult to win claims for SSDI and SSI benefits even though there have not been many substantive changes to the law. By attacking vocational expert testimony you can help your claimant win his or her case.
Corey Pollard is a Richmond disability lawyer and Social Security disability attorney Norfolk who helps disabled adults and children get approved for the benefits they deserve. Call, text, or email today for a free consultation. And remember – there is no attorney fee unless you win your case.