Call Today: 1-800-890-2262

Ginsberg Law Offices

Tag Archives for vocational expert

How Does a Social Security Judge Decide if I have “Transferable Skills” for Grid Rule Purposes?

transferable skillsThis is a good question – the short answer is that judges will look to vocational expert witness testimony to determine whether a claimant has acquired transferable skills.

Your question got me thinking that it might be helpful to review how the grid rules work and to take my readers through a grid rule analysis, so, here you go:

The grid rules, or “medical vocational guidelines” can qualify you for Social Security disability benefits even if you have some capacity to work, but you are not likely to find work because of limited skills and a limited education.

In order to qualify for a finding of disability under the grid rules you must have exertional limitations. This means that your medical issues must impact your physical capacity. Thus, a person asserting disability based on depression, or bi-polar disorder, or schizophrenia could never qualify under the grid rules [1. Such a person could, however, qualify for disability based on a listing or using a functional capacity argument.]

You can look at the grid rules here.

The grid rules look at several factors: your age, your education, the skill level of your past work and whether or not your past work generated any transferrable skills. SSA lays out these factors in a table divided by grid lines – thus the name.

When a judge applies the grid rules he first must make a decision about your capacity for work. If you are limited to sedentary work, you are more likely to be found disabled under the grid rules than if you are limited to light or medium work.

Let’s analyze how the grid rules work in practice. Continue reading →

How Does a Social Security Judge Decide if I have "Transferable Skills" for Grid Rule Purposes?

transferable skillsThis is a good question – the short answer is that judges will look to vocational expert witness testimony to determine whether a claimant has acquired transferable skills.

Your question got me thinking that it might be helpful to review how the grid rules work and to take my readers through a grid rule analysis, so, here you go:

The grid rules, or “medical vocational guidelines” can qualify you for Social Security disability benefits even if you have some capacity to work, but you are not likely to find work because of limited skills and a limited education.

In order to qualify for a finding of disability under the grid rules you must have exertional limitations. This means that your medical issues must impact your physical capacity. Thus, a person asserting disability based on depression, or bi-polar disorder, or schizophrenia could never qualify under the grid rules [1. Such a person could, however, qualify for disability based on a listing or using a functional capacity argument.]

You can look at the grid rules here.

The grid rules look at several factors: your age, your education, the skill level of your past work and whether or not your past work generated any transferrable skills. SSA lays out these factors in a table divided by grid lines – thus the name.

When a judge applies the grid rules he first must make a decision about your capacity for work. If you are limited to sedentary work, you are more likely to be found disabled under the grid rules than if you are limited to light or medium work.

Let’s analyze how the grid rules work in practice. Continue reading →

Vocational Expert FAQ: Everything you need to know about the VE

You have received notice of your hearing date from the SSA. You are going through all the paperwork when you come across a piece of correspondence indicating that a vocational expert (VE) witness will be present at your hearing.  ‘What is a vocational expert witness?,’ you may wonder. In case you have never heard of the VE, you have come to the right place. Below find everything you need to know about the vocational expert witness.

What is a vocational expert?

In September 1962, the vocational expert program was established. Since then, vocational experts have testified in approximately 25,000 disability cases at the appellate level. In a disability hearing, the expertise of a vocational expert is customarily used and is the result of an Administrative Law Judge’s request. In fact, vocational experts (VEs) appear more in disability hearings than medical experts (MEs). Vocational experts are professionals with vocational expertise who evaluate residual functional capacity ratings to ascertain if there are jobs in the national economy that a disability applicant can do. In essence, vocational experts testify about work abilities. A vocational expert is not an agent of the Social Security Administration. As an independent party, vocational experts are to remain completely objective and impartial in expressing their opinions.

What is the role of the vocational expert?

Incorporating their knowledge and experience, vocational experts are able to provide an overview of the types of work a claimant has performed over time. In most cases, vocational experts review fifteen years of an individual’s work history.

Why is a vocational expert needed to testify?

Most often, the Administrative Law Judge solicits the testimony of a vocational expert because he/she has questions that need to be answered and feels that the claimant’s testimony alone will not be sufficient to provide the answers needed. Having a vocational expert testify should not be inferred as being good or bad. Again, a vocational expert’s presence and testimony often indicates the personal preference of the ALJ. While some judges rarely request the appearance of a vocational expert, some do regardless of how clear-cut and simple a case may be.

How is ‘work’ defined? Are there different levels of ‘work’?

Yes, the types of work are broken down into four categories. They are as follows:

Heavy work – having the ability to lift or carry one hundred pounds occasionally and fifty pounds frequently, and to stand and walk six to eight hours per day.

Medium work – having the ability to lift or carry fifty pounds occasionally and twenty-five pounds frequently, and to stand or walk six to eight hours per day.

Light work – having the ability to lift or carry twenty pounds occasionally and ten pounds frequently and to stand or walk six to eight hours per day; or,

Sedentary work – having the ability to lift no more than ten pounds at a time and occasionally lift or carry small articles. Sedentary work usually refers to work that is done while sitting. The claimant must also have the ability to sit up to two hours out of an eight-hour day to be able to perform sedentary work.

In considering the above descriptions, it is important for the disability applicant to understand the meanings and usage of the words ‘occasionally’ and ‘frequently.’ Occasionally is the ability to lift or carry less than one-third of the time in an eight-hour period. Frequently is an individual’s ability to perform at the same level at least one-third of the time in an eight-hour day.

What types of training and qualifications are required of a Vocational Expert?

Different from medical experts, which are an additional source of experts available to aid Administrative Law Judges in rendering decisions, the training and qualifications of a vocational expert are varied. While some vocational experts may have a background in psychology, others may have experience in vocational education, counseling or rehabilitation.

Is the disability claimant privileged to communications between the Administrative Law Judge and Vocational Expert?

Yes, claimants and their attorney are both able and should receive a copy of any written correspondence between the vocational expert and the Administrative Law Judge assigned to the applicant’s case.

Are vocational experts subject to cross-examination?

Any witness who is called by an opposing side and presents testimony is subject to cross-examination. This process affords the disability attorney to ask new questions or to seek clarification on answers already interjected. Vocational experts are no exception to the cross-examination rule. Since a vocational expert has proffered an opinion as to an applicant’s job capabilities, he/she is subject to cross-examination.

Is there any way to know whether a Vocational Expert will be present at my hearing?

A couple of weeks prior to a hearing, your attorney and/or representative should receive a witness notice. The witness notice will list all individuals the Administrative Law Judge has requested testify in your matter. If your attorney has not received a witness list, your attorney should call the ALJ’s office and ask about experts. A word of caution, claimants should never personally contact any expert witness.

When do vocational experts normally testify during the hearing?

The vocational expert can obtain information primarily in three different ways. First, information is gathered when reviewing the claimant’s file prior to hearing. Second, the vocational expert obtains additional information through the oral testimony of the claimant as well as other individuals who testify during the proceedings. The third avenue and probably one of the most important means in which a vocational expert accumulates information is through observing the disability applicant during the hearing. Observation may yield clues regarding appearance, responsiveness, general intelligence, communication skills, and other claimant characteristics. It is during this time that vocational experts will note any physical capacities, such as the use of limbs or prostheses, or physical endurance. As a result, the vocational expert is usually the last to testify.

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 →

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.

 

Top