I was recently asked what it meant that the Administrative Law Judge did not have a Vocational Expert (VE) testify at an individual’s Social Security hearing.

What happens when the administrative law judge does not call the vocational expert to the hearing. Why would the judge do that?

Well, I can’t tell you “why” the judge didn’t have VE. Some judges use VEs all the time, others do not. A VE provides evidence (testimony) about steps 4 & 5 of the sequential evaluation process. 

That is, whether an individual can perform any past work (step 4) or any other type of work (step 5).

Keep in mind that the burden of proof shifts at step 5. At steps 1 through 4, the claimant has the entire burden of proving their case. If the claimant fails to provide sufficient evidence, Social Security can deny the case without lifting a finger (as it were).

However, if an individual get to step 5, *then* the burden shifts to the Commissioner of the Social Security Administration to prove that the individual can still work. From a legal standpoint, if the judge wants to deny an individual at step 5, it helps for the judge to have a VE to provide testimony. Otherwise, there is a potential appealable issue that the judge made a step 5 denial without supporting evidence.

Note: denying an individual at step 5 (being able to do other work) is not automatically appealable error. There are ways this kind of decision can be valid, eg applying the medical vocational guidelines, aka the Grids. The grids a describe various age groups (50 to 54, 55 to 59, 60 to 64) along with educational backgrounds and describe the maximum physical abilities that can still result in a disabled finding. Use of the grids in the decision process does not require a VE.

Why doesn’t a judge always have a VE? Perhaps the judge feels the case is a slam dunk and there is not need to have a VE present. Perhaps the judge feels the case had serious issues and could be resolved (either by an approval OR a denial).

I don’t want to tease you. However, I just can’t say why some judges do not have VEs. It’s asking me to read the tea leaves without even seeing the tea cup. However, I hope a brief discussion of the impact of not having a VE at the hearing was useful!

Good luck!

1. Establish a medically determinable impairment. In any Social Security disability case, you have to prove the existence of not only symptoms, but also an underlying cause — a diagnosis. When the records are not clear, or when different doctors have provided different diagnoses (especially over time), a Medical Expert can help clarify what the underlying conditions have been and are today.
2. Determine if the impairments meet or equal a listing level impairment (step 3 in the Sequential Evaluation Process). If a Medical Expert states your impairments either meet the requirements of  listing level impairment, or have the same limitations as a listing level impairment, the case may be approved very quickly.
3. Provide limitations from the impairment(s). In many cases, treating doctors do not want to make any kind of opinion about work-place limitations. They refuse to complete forms which often results in a gap in your evidence. Even though Social Security often has one of their own doctors review a case and determine limitations during the initial case review (before the first decision), the Medical Expert can provide a new opinion. This can be a better opinion since it is based on evidence that has been developed over the course of the case.
4. Establish an onset date. If the Medical Expert is supportive of the disability, they may also be asked to estimate how far back the limitations existed. This is important to establishing the correct onset date in a case.
5. Provide a prognosis. In order for a condition to be disabling it has to either be expected to result in death or be disabling for 12 months or longer. If a condition has not clearly been disabling for 12 months, a Medical Expert may be asked whether it is likely to continue until the durational requirement is met.

While a Medical Expert may touch on any or all of these, the make or break issues are whether the impairments meet a listing, or if not, what limitations are expected to result from the impairments.

Is having a Medical Expert good or bad?

Unfortunately,  you have no way of knowing until the ME testifies at the hearing. I have had cases where the ME is completely supportive of the disability and we are done and have an approval five minutes after the ME testifies. I have also had cases where the ME is completely unhelpful and the rest of the hearing is like trying to scale Mount Everest. MEs make or break cases. When they are helpful, it is like the heavens part. When they are not, it is as if they threw and hand grenade into the room and then walked out. Why do MEs have such a critical impact on Social Security hearings?

• Medical Expert testimony is often the last evidence the Judge receives. In trial presentation theory, there are the concepts of recency and primacy. This simply means that jurors, or in this case the Judge, is more likely to accept what is heard first or last. When a Medical Expert testifies at the hearing, that testimony has the benefit of recency.
• Medical Experts are perceived as independent.
• Medical Experts provide live testimony. Unlike other doctors’ reports and records in the file, the Medical Expert is providing live testimony and responding to the Judge’s questions. Combined with the other two factors, Medical Expert testimony is usually quite persuasive at hearings.

What to do about bad medical expert testimony:

So, is that it? If a Medical Expert testifies, is that the entire case?

No. You have several options:

1. Object to the Medical Expert / object to certifying the witness as an expert. You can always object to a witness at the hearing. However, this cannot be done willy-nilly. There has to grounds for the objection, and the Judge may overrule the objection. Another risk is that you can only object to the ME before they testify. If you object, and the ME testimony was going to be good, you may be loosing the best evidence you could possibly get.
2. Have your own doctor testify at your Social Security disability hearing. This is one of those things that sounds perfectly reasonable and yet, rarely happens. I have had a number of clients tell me that their doctor testify. However, when the hearing date is set and the doctor is notified, it turns out they will not attend. I can count on one hand the number of times I have seen a treating provider actually come in to testify. Keep in mind that even if a doctor is willing to testify, you may have to pay from two hours to half a day for the doctor’s time — even if they only testify for 20 minutes. This can easily cost several thousand dollars.
3. Submit a post hearing rebuttal opinion. Some Judges will allow you to provide a written report from your doctor addressing the Medical Expert’s testimony. Even doctors who were previously unwilling to get involved are sometimes spurred to take action by the Medical Expert’s testimony. A rebuttal report may be free, or may cost several hundred dollars.
4. Put on the best damn case you have. Even if the Medical Expert is not helpful, all you can do is present the case you have prepared. Remember that the Medical Expert has never examined you and does not know you as well as your own doctors. Social Security has to give consideration to the length, extent, and nature of treating relationship between you and your doctors.

Even if the Medical Expert is not helpful, there is often evidence in the file that supports your disability. You just have to fight extra hard to bring it to the Judge’s attention.

To qualify for Social Security disability benefits you have to show that your disability prevents you from being able to work. In Social Security’s words, you have to show that you are unable to engage in a substantial gainful activity (SGA). SGA translates into a maximum dollar amount you are allowed to earn and still be potentially eligible for Social Security benefits.

For 2011, the most you can earn is $1,000 per month (before taxes or deductions).  If you earn more than this, Social Security may say that you are engaging in a substantial gainful activity and, therefore, not eligible for disability benefits.

The SGA issue is so important that it is the very first step of the 5 step sequential evaluation process – the way Social Security evaluates adult disability claims!

What do I do if I earn more than the substantial gainful activity amount? Does than mean I can’t get Social Security disability benefits?!?

Not necessarily. There are exceptions that may allow you to still qualify for Social Security disability benefits even if you are earning more than the SGA amount.

Some of these exceptions include:

1. Impairment Related Work Expenses (IRWE).
2. Subsidized Earnings and/or Sheltered Employment.
3. Unsuccessful Work Attempts (UWA).
4. Trial Work Period (TWP). Note: TWP are a way to test your ability to work if you are already on Social Security while still preserving eligibility for Social Security benefits.

If Social Security has said that you earn too much, it is not the end of your case!

UPDATED 01/05/11: Updating amounts for 2011.

I have written about how Social Security defines disability, work, and a substantial gainful activity.

But, how does Social Security really evaluate a case?

Social Security reviews cases using the five-step sequential evaluation process to decide is a person is disabled.  Here are the 5 questions that make up the sequential evaluation process:

1. Does your impairment keep you from being able to perform a substantial gainful activity (SGA), generally full-time, competitive, work?
2. Is your impairment severe?  AND, is your impairment expected to remain severe for at least 12 months?
3. Does your impairment “meet or equal” one of Social Security’s “Listing of Impairments?” A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling.  There are separate listings for adults and for children.
4. Does your impairment prevents you from being able to perform any job you performed over the last 15 years which was also a substantial gainful activity?
5. Does your impairment prevent you from being able to perform any other type of work which exists in substantial numbers of the national economy?

Let’s take these one at a time:

Step 1: Engaging in a Substantial Gainful Activity (SGA)

A.k.a.: Are you working?

Even you have a clearly disabling condition, if you are able to work at a substantial gainful activity level (SGA), you are not disabled.

Example, you may be limited to crutches or a wheelchair, but you force yourself to work a full time, competitive, job.  Under Social Security regulations, you are not considered disabled.

Because you are able to work, you do not qualify for Social Security disability benefits.

There are exceptions to this:

• If you are working full time, but your medical expense, which let you work, are so high that your pre-tax income is still below SGA threshold, then your Impairment Related Work Expenses (IRWEs) make your work not SGA.  So, you case should not be denied at step 1.
• If you are working at an SGA level, but the work is not competitive: you either got a job through a friend or family member and you not held to the same standards as another worker in the same position, or if you are being paid a “subsidy” — the value of your work is $600 a week, but you are being paid $800 a week.

Step 2: Severity

For an impairment to be severe, it has to cause more than a minimal effect on your ability to perform daily activities?

Example: many people have asthma.  However, asthma is not always disabling. Asthma is often well controlled with medications. When it is not well controlled, it may be a severe impairment.

As a Colorado lawyer, I do not see Social Security deny a lot of cases because they do not believe a impairment is severe.  However, every once in a while, this comes up.  Having a “severe” condition is a pretty low standard and it is usually fairly easy to show that a condition has more than a minimal effect on daily activities.

The second part of this is more difficult.  The condition has to be expected to remain severe for 12 months or longer.

If you are denied because Social Security does not think your condition will be disabling for 12 months, it is called a “durational denial.”

I often see a durational denial, where there has been a traumatic accident (such as a car accident) or in cases of disability during the recovery period following serious surgery (such as a back fusion).

Social Security accepts that there will be a healing period where you may not be able to work.  But, unless you can convince Social Security that your condition will remain disabling for 12 months, you may be denied.

Step 3: Listing Level Impairment

This is the “short-cut” step.  If you have a condition which is contained in the Social Security Listing of Impairments AND the medical findings match what is required for your listing, you may be found disabled without Social Security considering the last two steps.  This is “meeting a listing.”

You can also be found disabled at this step if your condition “equals a listing.” Equaling a listing means that while your condition may not be mentioned in the Listing of Impairments, it is just a severe AND has the same findings as a listed impairment.

In my experience with individuals who have already been denied once, the chance of meeting or equaling a listing level impairment is small.  But, it is always worth considering.

Step 4: Ability to Perform Prior Work

If you are able to perform any of the past work you have done at a substantial gainful activity level, over the last 15 years before your disability began, Social Security can deny you.

Example: If you previously performed very physical work (construction work or nursing), but you also did worked as a manager for a few months, you may be denied based on your ability to still be able to perform the management job.  This may apply even though it is not your most recent work, the employer is no longer in business, or if you cannot get hired for that type of work any more.

Keep in mind that this is just a general overview.  Every case depends on its specific circumstances. Also, there are a number of issues around this step including whether you worked long enough to learn the job.

Step 5: Ability to Perform Other Work

Even if you are unable to perform any of your past jobs, you can still be denied if there are other jobs you can still perform which exist in substantial numbers in the national economy.

This is a very complicated area where many cases are won or lost.   The rules at this step change depending on your age group (18-49, 50-54, and 55-60).

• If you are under 50, the rule of thumb is that you have to prove that there is no work in the national economy that you can still perform.
• If you are over 50 years old, the rules get a bit easier, but you still have to eliminate most kinds of jobs to win your case.

This is just a quick rundown of the five-step sequential evaluation process. There are exceptions and corollaries to this but I just want to quickly state the steps that Social Security goes through in evaluating a disability claim.

I was recently asked to write about how Social Security views disability claims based on anemia and other blood disorders.   First, I will address how Social Security generally handles disability claims.  If that puts you to sleep, just skip ahead a few paragraphs

In general, Social Security reviews cases using the five-step sequential evaluation process:

1. Does your impairment keep you from being able to work?
2. Is your impairment severe. That is, does your impairment have more than a minimal at effect on your ability to perform daily activities?
3. Does your impairment meet or equal one of Social Security’s “Listing of Impairments?” A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling.
4. Does your impairment prevent you from being able to perform any job you performed over the last 15 years which was also a substantial gainful activity?
5. Does your impairment prevent you from being able to perform any other type of work which exists in substantial numbers of the national economy?

This is just a quick rundown of the five-step sequential evaluation process. There are exceptions and corollaries to this but I just want to quickly state the steps that Social Security will go through in evaluating a disability claim.

Assuming that anemia and/or other blood disorder keeps you from being able to work (step one) and has more than a minimal impact on your ability to perform daily activities (step two), that brings us to step three: does the impairment meet or equal a listing level impairment.

Listing 7.02 Chronic Anemia, discusses how Social Security looks at anemia. You can read about how Social Security views other blood disorders here.

7.02 Chronic anemia (hematocrit persisting at 30 percent or less due to any cause) With:

A. Requirement of one or more blood transfusions on an average of at least once every 2 months; or

B. Evaluation of the resulting impairment under criteria for the affected body system.

You may look at this, and say to yourself,

Whoa! I don’t need blood transfusions every two months! Does that mean I am not disabled?”

No. Just because you do not meet one of the Social Security listing of impairments, does not mean that you are not disabled. It simply means that Social Security will probably not find the disabled at step three.  Social Security may still find you disabled at steps four and five. This is where things really get interesting and a lawyer’s knowledge, experience and creativity come into play.

If you are skipping ahead, this is where you want to continue reading.

If the condition does not meet or equal one of the Social Security listing of impairments, the question becomes whether anemia, or another blood condition, keeps you from being able to do any job you have done over the past 15 years, and would keep you from being able to do any other kind of work.

In my experience, anemia may cause fatigue,  loss of energy,  loss of concentration,  weakness, dizziness, shortness of breath, chest pain, and/or abdominal pain. Some of these symptoms, such as weakness or shortness of breath,  might limit the kind of work you would be able to perform, but might not eliminate your ability to do all kinds of work — in other words, it may not be enough to find you disabled.

For example: weakness or shortness of breath might make you unable to  work on a construction site, but these symptoms might still allow you to do office work.

Along the same lines, loss of concentration might mean that you are no longer able to do some type of skilled work, because you are no longer able to focus long enough on a project to complete it. However, you may still be able to perform an unskilled job which does not require extended periods of concentration or attention.

The more important symptoms may be fatigue and loss of energy. These might make you unable to work any type of full-time job simply because you are unable to work for eight hours a day or 40 hours a week, or require frequent breaks, or make you frequently miss work (resulting in excessive absenteeism).

This is just a quick review of how Social Security may review an anemia case and some thoughts on how to build a disability claim based on anemia or other blood disorders. Please note, there is no one-size-fits-all plan for every case or every impairment. Every case is different. Everybody reacts to an impairment in their own individual way.   I strongly recommend reviewing your case with an attorney to determine how best to pursue your case.