Social Security vocational expert voodoo
I was recently asked the following:
I had my hearing today. The judge had a vocational rep come in to testify. He said I had two job options.
… I live in a small town that probably does not offer the two jobs the vocational expert said I could do.
Can the judge deny me for being able to do jobs that don’t exist in my town?
First, keep in mind that the Vocational Expert testifies about two things:
Job Titles. These are the kinds of jobs you can still perform despite your limitations. Examples of jobs the vocational expert may cite are: call out operator, surveillance systems monitor, information clerk, cashier, stocker, etc.
Incidence of jobs. This is the number of jobs for each job title.
Second, Social Security considers jobs on a national and regional level. The region is the state a person lives in.
If there are a significant number of jobs which you can still do at a substantial gainful activity level in the regional economy, then you can be denied.
Podcast: Part 2 of Social Security Tips With Jonathan Ginsberg
Here is part 2 of my discussion with attorney Jonathan Ginsberg as part of his SSDRadio podcast.
In case you missed it, here is part 1.
What does the “vocational expert” do at a Social Security hearing?
Under Social Security regulations, it is not enough to have a disability (a diagnosed medical condition). Your condition has to be severe enough to be prevent you from being able to engage in a “substantial gainful activity;” typically full time, competitive, employment. If you cannot show that your condition keeps you from being able to work, you will probably lose your case.
At the hearing, the Administrative Law Judge (ALJ) has a Vocational Expert testify about the the kinds of jobs are available, and how work-place limitations affect your ability to perform those jobs.
Basically, the Vocational Expert answers two questions for the judge (phrased as hypotheticals):
Can you still perform any of the jobs you have done over the last 15 years?
Can you still perform any other jobs which exist in substantial numbers in the national economy?
The judge uses the vocational expert’s answers to decide if you can still work (and therefore, whether you are disabled). This makes the vocational expert’s role extremely important!
Social Security hearing tip: be specific or be denied!
Be specific when answering the judge’s questions at your Social Security hearing.
Avoid answering a question with, “occasionally,” “sometimes” or “every once in a while.” This is not specific enough.
To you, “occasionally” may mean “every other day,” but the judge may interpret it as “a couple of times a month.” As a Colorado Social Security lawyer, I have seen this happen! A misunderstanding like this can mean the difference between winning and losing your case.
This is how specific you should be:
Social Security hearing tip: stay positive! Your attitude matters!
I am going to let you in on a secret. In my years helping people with Social Security disability cases in Colorado, I have seen time and again: Judges respond to a positive attitude.
Here are some questions I have heard judges ask:
What do you see for your future?
Where do you think you will be in a few years?
Do you see things getting better or worse for you?
Take a moment and consider how you would answer these questions…
Social Security hearing tip: keep a journal of rest breaks
Here is a useful exercise you can do to prepare for your hearing: keep a journal of everything you do from the moment you wake up to the moment you go to sleep, including every time you take a break.
Don’t worry. You do not have to turn this in to anyone, not to your lawyer (although he or she should be aware that you are keeping the journal), and not to Social Security. This is just for yourself.
But what good is it?
At the hearing, the judge will ask you a number of questions about “Activities of Daily Living” or ADLs. This includes some of the following:
Podcast: Tips on Social Security With Jonathan Ginsberg
I had a great discussion about the Social Security system and preparing for hearings with attorney Jonathan Ginsberg as part of his SSDRadio podcast.
Here is part 1.
What if the Social Security judge wants me to change the date my disability began?
Nate Craig of Truth of the Matter Asserted has a great article about what it means if a judge wants you to change the date you became disabled, or in Social Security parlance “amend your alleged onset date (AOD).”
Often, by the time the claimant’s hearing comes to be scheduled, the ALJ will review the file for the first time. During this review, the ALJ will determine if the onset date is established by the medical records. Most factors of a proposal to amend an onset date will be either a specific medical finding that seems to correlate with the claimant’s limitations or the claimant has earning posted to their earnings record, including unemployment benefits.
Long story short, if the Judge is asking you to amend the onset date, they essentially are going to award benefits.
Nate makes a great point, but there is one exception to this general rule of thumb: SSI cases.
Plan to expand Social Security video hearings – but can lawyers be trusted?
Charles T. Halls’ Social Security News blog ran an interesting article about Social Security’s plan to expand the video hearing system. Currently, video hearings take place with the claimant and their attorney (if they have one) at one ODAR (Office of Disability Adjudication and Review) office, and the ALJ at another ODAR office.
The new plan is allow the claimant and their attorney to do the video hearing from their attorney’s office. So, instead of going to an unfamiliar location and endure the time and financial costs of travel, the claimant just goes to their attorney’s office and they do the video hearing there. Of course, the attorney has to have the facilities (camera, speaker, microphones, video monitor, bandwidth) to perform the hearing.
Social Security hearing tip: don’t be browbeaten by the judge
You are finally at your hearing. The judge, wearing black robes, turns to you and asks:
“You last worked in 2003, right?”
It’s the “Dirty Harry” moment! You try to remember.
Was it 2003? Maybe it was 2004? Or 2005? Well, if the judge thinks it was 2003, it must have been 2003.
“Yes, judge. I last worked in 2003.”
Bzzt! Wrong answer!
Do not guess the answer to the judge’s question; and do not accept the what the judge tells you about your history if you do not remember the answer yourself.
What to wear to your Social Security hearing? Comfort rules!
Your hearing has finally been scheduled? Wonderful! What will you wear?
Does this seem an odd thing to ask? After a ridiculously long wait, you finally get your chance to present your case to a judge. There is a lot to think about: Social Security’s standard of disability, the 5 step sequential evaluation process, answering the judge’s questions, dealing with a vocational expert.
So, why am I asking you to think about what you are going to wear?
Because wearing the wrong thing can be one of the worst mistakes you can make, and one of the easiest to remedy. Here are some quick tips:
How long does It take to get a Social Security hearing?
In my experience with Colorado Social Security cases, hearings are usually scheduled approximately 12-14 months after the appeal is filed. That is the most common time frame that I see for having a hearing scheduled.
However, I occasionally see cases scheduled as early as six months after the appeal (this is pretty rare), and sometimes as late as 18 months.
This is a long time! For most people there is a real question of how they are going to make ends meet while waiting for their case to go in front of an Administrative Law Judge (ALJ).
However, it is important to try to make the best use of this time:
What is a Partly Favorable decision in a Social Security disability case?
Getting a Partly Favorable or Partially Favorable decision in a Social Security disability claim is confusing for a lot of people.
First, lets go over what it does not mean. Under the Social Security system, there is no partly or partially disabled. Either your impairments keep you from being able to work (and therefore disabled) or not. There is no half disabled. Disability determinations under the Social Security system are all or nothing. Comment: This is also one reason it is so hard to get on Social Security.
So, the judge has to either find you disabled or not disabled. However, even if the judge finds you disabled, the judge may not be able to give you everything you asked for. In those cases, you get a partly favorable decision.
If you get a partly favorable decision, it usually means one of three things:
Social Security disagrees with the date you became disabled.
Social Security disagrees that your disability continues.
Social Security disagrees with the beginning and/or ending dates of your disability.
Lets take these one at a time:
How long after my Social Security hearing does it take to get a decision?
I went to my Social Security hearing. But, the Judge did not say if she was going to find me disabled or not. When do I get my decision?!?
As you personally experienced, in most Social Security cases, the judge does not rule on your case at your hearing. In Colorado, I only see a decision from the bench in about one in ten cases.
In most cases, you will receive a written decision about 45 to 90 days after the hearing.
Why does it take so long?
Some judges write their own decision between reviewing upcoming cases and performing hearings. However, it is not unusual for the decision to …
Social Security hearing tip: know your judge
I enjoyed attorney Gordon Gates‘ article about knowing who your judge is in your Social Security case:
The first thing I want to know when I receive a hearing notice for a Social Security disability claim is the name of the administrative law judge (ALJ) who will hear the case and decide the claim. It probably shouldn’t matter which judge hears your case, since they all interpret the same rules and would be looking at the same facts. But it really does matter. Each judge approaches a claim a little bit differently, and it is very helpful to know how a particular judge tends to look at a case. Also, each judge conducts the hearing in a particular way, so I prepare for the hearing in a way tailored to the ALJ who will hear the case.
I could not agree more! When someone contacts me with a hearing already set, I ask who the judge is on their case.
Here are some examples of how judges differ:
