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!

A reader asked:

How can a vocational expert have any say on my disabilities and limitations? I mean I dont get a VE slip to give to my boss when I’m sick.

That’s true. If a Vocational Expert (VE) says that a particular limitation should not prevent someone from being able to perform the duties a hypothetical job, does not help that person find an employer who will tolerate that limitation in the real world.

However, that is not the VE’s job. The VE only provides testimony about which jobs an individual is still able to perform (if any) despite their limitations. Also, the VE tempers the often out-of-date evidence in the Dictionary of Occupational Titles with more recent job treatises and personally performed surveys of real-world jobs as they are actually performed.

However, if the VE says I can still do a job that is inconsistent with my limitations, what can I do?

If the VE’s testimony is out of sync with reality, well… When there is a discrepancy between a claimant’s experience with a job and what the VE testifies to (often as to duties or which limitations would be tolerated in a job), that can be brought up during the cross examination of the VE. For example, the VE can be asked about their experience with the particular job:

• Have you personally done a survey of the job?
• How long ago?
• For how long?
• Was the survey for this particular job title?
• Who was the employer and what was the nature of the job? This is to verify that the job cited and the job surveyed are actually one and the same.

The VE can also be asked questions such as:

• Don’t these jobs require… (production minimums, constant sitting, no unscheduled breaks, etc)?
• Don’t these jobs limit… (restroom breaks, standing, moving about the work area, not remaining at the work station, standing and stretching, etc)?
• Would the following limitations… interfere with… (production requirements, call-time limits, etc)?

These are just some examples. The questions have to be suited to the situation. However, I hope to give you some idea of possible questions that can be asked.

Keep in mind that you may not necessarily get the VE to change their mind. Each question attacking the VE’s testimony about whether a hypothetical employer will tolerate certain limitation may be met with a rejection and an affirmation of the original testimony.

However, if you present a good argument, you may end up convincing the ALJ that the VE’s responses are not credible. In which case, the VE’s testimony may be thrown out even though you never get the VE to change what they say.

Note: this is only one method of attacking VE testimony. There are others including having your own VE at the hearing (which you will have to foot the bill for), or providing a supplemental VE report after the hearing (ditto).

The vocational expert at a Social Security hearing may testify that there is an, “erosion in the job base.” I have had a number of people ask me what this means?

As I wrote about before, the vocational expert’s job is to testify about the availability of different jobs in the national economy. The vocational expert responds to be Administrative Law Judge’s (ALJ’s) hypothetical questions about the effect of limitations on an individual’s ability to perform job duties.

In other words, the vocational expert testifies about what jobs (if any) a person can still do despite their limitations.

However, not every job is performed the same way, and, jobs can be performed differently (with different abilities and limitations) in different industries.

Example 1: cashier. Working as a cashier typically requires an individual to stand for the entire shift. However, some hospital cafeteria cashiers can sit while working as a cashier. So, a vocational expert may testify that an individual as follows:

An individual with those limitations still has the capacity of working as a cashier, with a 65% erosion in the job base.

In other words, 65% of cashier jobs (note: this is a number out of the air) requires standing, but 35% of cashier jobs allow an individual to work while sitting down (cashiers in hospital cafeterias).

Example 2: parking lot attendant. This is a job where a person provides tickets and takes payments at a parking lot. Since this job requires an individual to be at the parking lot during the blazing heat of summer and the biting cold of winter, this position is often eliminated if an individual has limitations on exposure to temperature extremes.

However, some parking lots have been enclosed booths with temperature controls (air-conditioning and heating) which might allow an individual to perform the duties of a parking lot attendant even they cannot be in temperature extremes. This would result in an erosion in the number of parking lot attendant jobs the individual would be able to work at, but a percentage of parking lot attendant positions would remain.

• An erosion does not mean that an individual will be found disabled. In order to win an adult Social Security facility case, an individual has to show that that there is not a substantial number of jobs the he or she can perform.
• If the erosion is particularly high, and the actual number of available jobs is very small, the erosion might mean that Social Security would approve the claim. However, that is not guaranteed.

It all depends on he final number of jobs still available that the individual can still perform.

CC photo credit: nateOne

I was recently asked where Vocational Experts get their information from?

There a number of sources Vocational Experts use:

• The Dictionary of Occupational Titles
• Selected Characteristics of Occupations
• Job surveys performed by the Vocational Expert
• Services Vocational Experts sign up for which provide job titles, requirements and national and regional job numbers. 

If you are working with a lawyer, he or she probably has at least some of these and can verify the skill level, exertional and non-exertional requirements of a jobs the Vocational Expert testified about.

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:

1. 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.
2. 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.  

How many jobs make up a “significant number of jobs?”

That is hard to say. There is a rule of thumb that 1,000 jobs (not job titles) within a region is a significant number of jobs and enough to deny you. However, there is no bright line rule about how many jobs are a “significant number.”

If the Vocational Expert says that you can still work as an “Information Clerk” and there are 30,000 Information Clerk positions nationally, and 1,200 in the region (state), you may be denied.  Note: these numbers are made up for this example.

But, what if there aren’t any “Information Clerk” jobs in my town?

Unfortunately, Social Security does not consider the availability of jobs in your town, so long as they exist in your “region.” Not only that, Social Security also does not consider:

• The number of job openings for any of the cited jobs.
• Whether a person can actually get hired for any of the cited jobs. 

It is quite possible to be denied because you are theoretically capable to do a job that does not exist in your home town. Or, there are no job openings. Or, there are job openings, but you cannot get hired for that job.  

Social Security is a difficult system. You just have to keep trying and it really helps to have a skilled lawyer assisting you.

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):

1. Can you still perform any of the jobs you have done over the last 15 years?
2. 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!

Bloomington Illinois Social Security Lawyer Dirk May wrote an interesting article a while back about vocational experts:

What do you do when the judge turns to the vocational expert and gives him the hypothetical question?

You need to listen carefully to the type of limitations the judge provides to the vocational expert. If you have a limitation that he does not list or that is in your medical records you need to ask the expert about the effect the limitation would have on your past work.

The vocational expert will often be asked to provide examples of jobs you could perform based on your limitations. Once again, listen carefully for the types of jobs listed. If you do not understand the job duties ask for details. Listen for the exertional level, such as sedentary or light. Ask what makes the particular job sedentary or light.

Typically, the Judge will ask vocational expert two or sometimes three sets of hypotheticals based on different limitations.  

• The first set of hypotheticals may be based a form a Social Security doctor or technician filled out about your limitations.  
• The second set may be based on a what your doctors have said about your limitations.  This often gives you your best chance of winning.  You have gotten your doctors to describe your limitations haven’t you?  
• The last set of questions may be a mash up of what the Social Security doctor has said, what your doctor has said, and what you said during the hearing. 

Here is the $64,000 question:  if the judge asks three sets of questions, and gets three different (even conflicting) answers … which set of answers will the judge use to decide if you are disabled or not?

The only way to even try to answer this is to have done a lot of hearings with that judge and really know the Social Security rules and regulations.  Only then, can you hope to read the judge.  In other words, you really need to have an attorney by your side.

Read the rest of Dirk May’s article here.

Did you hear any strange questions, or answers, at your Social Security hearing? Share your experiences in the comments?