I am scheduled for a hearing before an
ALJ. The hearing notice says there will
be a Vocational Expert at the hearing, what does that mean?
vocational expert (VE) is an individual trained in all aspects of the
labor market. For example, a VE calculates the effect of a personal
injury on an individual's earning capacity, tracks changes in job
markets, determines the skills needed to perform certain jobs, and
develops hiring practices.
In the setting of a disability hearing, the Social Security
Administration (SSA) hires a VE to give his or her opinion as to what
jobs a disability applicant can do in light of the applicant’s
impairments. The VE’s opinion is given a great amount of weight in
determining whether a disability claim is approved.
One of the VE’s
functions is to look at all the jobs you have done and determine the
skill level and exertion level needed to perform each one.
Skill levels are divided into the following categories:
Exertion levels are divided into the following categories:
In order to accurately determine the skill and exertion levels
required to do your past jobs, the administrative law judge (ALJ) will
ask you to describe your work history in detail. You should state
whether you managed other workers, describe the physical requirements of
your job, explain whether your job required special training, and how
long it took for you to learn to do your job. The ALJ may ask why you
quit working or question you on any significant gaps in your employment
Once the VE has heard your testimony about your work, he or she will
classify each prior job based on its skill level and its exertional
requirements. The ALJ will use this information later to determine
whether he or she thinks you can still do your old job. It is important
that you listen closely to how the VE describes your past work to make
sure it is correct; for example, the VE could underestimate the physical
requirements of your job. This is important because these errors can
impact the ALJ's decision about whether you can do your old job.
After the ALJ and the VE have listened to your testimony about your
disability, the ALJ will then ask the VE if he or she thinks you can do
your past work despite your condition. If the VE feels that you can do
your old job, and the ALJ agrees, your claim will be denied.
If the VE states that you cannot do your old job, the ALJ and your
attorney will be given the opportunity to question the VE about what
other work you might be able to do. To win your claim at the hearing
level, the VE must state that there are no jobs you can do, considering
the limitations imposed by your disability.
Once you have finished testifying about your disability, the ALJ will
ask the VE a series of questions. These questions are called
hypotheticals ("hypos" for short). Here is an example of what an ALJ may ask a VE:
In response, the VE will identify several jobs he or she thinks that
the individual described in the hypo can do. The VE will also provide
each job’s code (a number given each job title by the Department of
Labor) and the number of those jobs in your geographic area (this is not
the number of open positions).
The ALJ will then proceed with several more hypos, each with
different job restrictions. The ALJ will usually refer to residual
functional capacity (RFC) assessments prepared by the SSA and your
doctor to create the hypos. For example, if you suffer from spinal
impairments and your range of motion and ability to lift and carry are
diminished, the ALJ may ask a hypo like this:
Again, the VE will consider the work-related limitations presented in
the hypo and give his or her opinion as to whether there are jobs the
individual can do.
Your attorney will be allowed to cross-examine the VE after the ALJ
has finished asking questions. The goal of the cross-examination is to
eliminate some or all of the jobs that the VE has stated you can do. One
way to do this is to provide more limitations for the VE to consider.
For example, after the ALJ finishs asking questions, the VE may have
stated that you could do a sedentary job like secretarial work. To
counter this, your attorney will ask the VE follow-up questions based on
any documented limitations the ALJ didn’t mention. For example, if your
medical records reflect that you cannot stoop or bend, your attorney
may pose the following question to the VE:
Because almost all jobs require some amount of bending and stooping,
the VE will probably say you can’t do secretarial work. Your attorney
will then continue to question the VE until all the jobs identified by
the VE have been eliminated.
Because it takes a thorough knowledge of disability law and procedure
to ask the right questions, it greatly increases your chances of
winning disability on appeal if you have a lawyer representing you.
by: Melissa Linebaugh, Contributing Author