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Tag Archives for vocational witness testimony

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 →

Can Vocational Witness Testimony Predict the Outcome of Your Hearing?

SSDI hearing decisionsOver the past couple of years, Social Security has changed its procedures to offer less information to claimants and their lawyers.  Staring in January, 2012, for example, SSA began deleting the name of the judge from hearing notices.  Thus, when I meet with my client to prepare for an upcoming hearing, I cannot speak to the likes and dislikes of a particular judge because I do not know who that judge will be.

It is my understanding that the purpose of this particular change was to prevent “judge shopping” whereby a lawyer might tell his client to move rather than appear at a hearing before a judge who rarely grants cases.  It seems to me that claimants and the entire disability adjudication system benefit more by having their lawyers better prepared than SSA benefits from rare instances of judge manipulation.

Another change I have noticed involves SSA directives discouraging judges from announcing their decisions.  In years past, judges would sometimes announce favorable decisions in cases where the evidence was clear.  Now, judges rarely announce their decisions directly even if all of the evidence and testimony points towards a favorable decision.

From my clients’ perspectives, of course, this mystery is extremely frustrating.  Imagine waiting 2 years to get a hearing, then to discover that it may be another 6 weeks before a decision is announced. 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.

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.

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