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Category Archives for Vocational Experts

Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.
–Lamont

My response: Lamont, I think that yes you can win if the judge does not use a VE or an ME.   Here is how I would analyze:

First, what is the custom in your hearing office?  In Atlanta, where I practice, all but one or two judges regularly use vocational expert witnesses.  There are a couple of judges who almost never use them.   If a judge who always uses a VE hears a case without VE testimony, it most likely means that the issue is fairly clear cut one way or the other.

In the Atlanta hearing offices, judges rarely use medical experts – in my practice I would estimate that ME’s appear about 15% of the time.  The absence of an ME would be of less concern to me here in Atlanta. Continue reading →

How do Vocational Witnesses Prepare for Your Hearing?

One of the least intuitive elements of a Social Security hearing is the vocational witness testimony.  Social Security judges frequently request the presence of vocational witnesses (also known as “VE’s”), independent experts who appear at your hearing to classify your past work and to answer hypothetical questions from the judge about work you might be able to do, given the limitations set out in the hypothetical question.

Vocational experts serve as the bridge between the medical evidence in your case and the work limitations would allow a judge to conclude that there is no work you can perform.

I have written before that I do not consider vocational witnesses as enemies.  They do not make up the hypothetical questions, they just answer them.  As such, I disagree with some disability lawyers who aggressively cross examine vocational witnesses to challenge their credentials or the factual basis of their assertions.  In most cases, the vocational witnesses that appear are part of a panel of experts, and both the judge and the attorney know how the VE will answer a question.  I would resort to an aggressive cross examination if the VE presents testimony that is inconsistent with what I know to be accurate.

One of my readers emailed me a question about VE’s that I have not previously addressed, and I would like to answer it here.  Her question:

What constitutes the vocational evidence reviewed by the VE before the hearing?

In fact, vocational witnesses do prepare for hearings – here is what they do:

  1. they familiarize themselves with your work history.  Your original application as well as several of the other forms your fill out as part of your application contains a job history.  The VE will use this history to identify the types of jobs you have performed during the 15 year period prior to allegedly becoming disabled
  2. they review the Dictionary of Occupational Titles (the “DOT”).  Social Security currently relies on a book called the DOT to characterize jobs.  The DOT contains thousands of jobs, each classified by exertional level – sedentary, light, medium, heavy or very heavy – and by skill level – unskilled, semi-skilled, or skilled.  In preparation for your hearing the VE will classify your past work and identify any transferable skills that arise from any semi-skilled or skilled work you may have done
  3. they anticipate questions from the judge.  VE’s are not lawyers and they don’t, or shouldn’t, have any interest in the outcome of your case.  However, experienced VE’s have been present for hundreds or even thousands of hearings and they generally have an idea about what questions may arise.  In most cases, the bottom line question comes down to whether a claimant can reliably perform a simple, unskilled, sedentary job that is not production based and does not require any significant interaction with co-workers or supervisors.  Every VE has his own list of “the easiest jobs that exist” and ones that I hear often are jobs like “surveillance system monitor,”  “hand packer,” “foil wrapper,” or “textile inspector.”

I am going to be appearing with a VE from the Atlanta area panel and I’ll ask him to elaborate on this answer and I’ll update as appropriate.

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

Yesterday, I appeared with a client at a video hearing with a judge from West Virginia.  This was actually our second hearing – the first hearing was held in August, 2006.  My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years.  During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs.  He subsequently fell and broke his left hip and he currently needs a knee replacement.  He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client’s physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client’s mental health condition.  Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist’s report.   As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint’s capacity to perform work.  The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE).  The first question – if the claimant’s psychological profile is as set out in the psychologist’s report, could he perform any type of work.  Let me interject here to say that 99% of vocational witnesses would answer “no,” because (1) the “poor” in “dealing with work stresses” and the cumulative effect of four “fairs” in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available.  Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the “fairs” and about his understanding of the word “poor”), the judge gave two more hypothetical questions, each with significant limitations.  It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case.  This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness.  This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

 

Can a Claimant’s Testimony at a Hearing Ruin a Case?

Can something I say at my Disabilty hearing cause me to lose my case? My ALJ asked me if my RA had gotten worse since I quit working, I replied no, and he said "so it doesnt get worse with movement?", I replied "no" to that too, but he didnt ask me why I said that and my lawyer told me not to elaborate and to just answer the question.

What I didnt get to say is that it does not have anything that triggers it , if im working hard or sleeping it comes on and nothing stops it, and the pain has always been unbearable! and that is why I dope myself up to the point of being looney! I feel my lawyer should have asked me to explain why I answered as I did, since he told me not to elaborate in the first place!

Now Im worried the ALJ has the wrong impression and hoping he just goes by the medical evidence I presented as it is all in my favor. Did I blow it by keeping my mouth shut?

–Sherry

Jonathan Ginsberg responds:  Sherry, my experience has been that judges rely more on the medical evidence in a claims file and less on the testimony of a claimant. That being said, some judges can take a statement like the one you described and use it as a basis to deny a claim.

In a case of RA (rheumatoid arthritis), I suspect that the medical record will be fairly complete so I would not stress out too much about your "incomplete" answer. You may want to ask your lawyer to send a short post-hearing brief to the judge to clarify what you said.

You did not tell me what questions were posed to the Vocational Expert – if the question only described mild impairments and resulted in an answer from the VE describing a large variety of jobs, then I would be concerned.

At the end of the day strong support from a treating doctor, preferably including functional capacity forms or Listing checklists will carry the most weight for most judges.

Please email me to let me know what happens – I’ll update this blog post when you do.

[tags] ALJ hearing, rheumatoid arthritis, vocational witness testimony, Social Security disability claimant testimony [/tags]

 

 

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