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Rutgers law professor Jon Dubin has an article in the latest Administrative Law Review entitled “Overcoming Gridlock: Campbell after a Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration’s Disability Programs” (follow this link to read an executive summary or download a free pdf of the article).

Aside from his penchant for the word “gestalt,” which appears seven times in the article and once again in the executive summary, Professor Dubin makes excellent points regarding the gaps and exceptions in the medical-vocational guidelines, or “grids,” which are used to determine disability at step 5 of the sequential evaluation.

Since the grids do not take into account non-exertional limitations, either a) vocational evidence is required or b) the judge must make a determination regarding the erosion of the occupational base due to the non-exertional impairment(s). The particular approach taken by the judge can make the difference between winning and losing the claim. Professor Dubin writes:

Under the ad hoc “common sense” gestalt approach of ascertaining significant numbers without reference to the grid’s occupational and job base numbers (and without considering issues of adaptability based on age and the combination of adverse statutory vocational factors), the claimant would likely be found not disabled. However, if the grid framework approach described in the agency guidance above is interpreted as requiring analysis of the extent to which the grid’s occupational and job bases are eroded by the nonexertional limitations and the comparative size of the remaining bases, this claimant would be found disabled. 62 Admin.L.Rev. 937, 983 (2010).

I addressed this same issue in my recent post One Residual Functional Capacity, Two Outcomes. Based upon an erosion of the occupational base approach, a claimant is often found disabled. But under “ad hoc common sense approach” involving a VE, a finding of “not disabled” is quite possible. Such different outcomes on similar facts casts doubt on the Social Security disability process, which as Professor Dubin points out, has the largest adjudicative system in the western world.

The article offers an approach to resolve these issues, and is also worth reading for the history and context it provides regarding medical-vocational determinations since the landmark case of Heckler v. Campbell.