How Do Disability Hearings With an Administrative Law Judge and a Vocational Expert Work?

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Question:

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?

Answer:

A 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.

VE's Assessment of Your Prior Jobs

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:

  •  Unskilled job
    1. • Requires little or no judgment
    2. • Can be learned in a short period of time
  • Semi-skilled job
    1. • Requires some skill but no complex job duties
    2. • Requires attention to detail
    3. • May require the ability to quickly move hands and feet to do a repetitive task
  •  Skilled job
    1. • Requires qualifications to perform job correctly
    2. • Often requires ability to deal with numbers, abstract ideas, facts, or people

 Exertion levels are divided into the following categories:

  •  Sedentary job
    1. • Primarily seated jobs
    2. • Lifting no more than 10 pounds
    3. • Only occasional walking and standing
  •  Light job
    1. • Lifting no more than 20 pounds
    2. • Carrying no more than 10 pounds
    3. • Significant walking or standing
  •  Medium job
    1. • Lifting no more than 50 pounds
    2. • Carrying no more than 25 pounds
    3. • Standing or walking at least 6 hours per day
  •  Heavy job (full range of work)
    1. • Generally able to perform at all exertion levels

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 history.

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.

VE's Assessment of Your Ability to Work

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.

ALJ's Questioning of the VE

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:

  1. •  “Consider a hypothetical individual of the same age, educational background, and with the same work history as the claimant. This hypothetical individual can perform only sedentary, unskilled jobs. Are there any jobs in the national economy that such an individual can perform?”

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:

  1. •  “Consider a hypothetical individual of the same age, educational background, and with the same work history as the claimant. According to his RFC, this hypothetical individual is able to sit  only four hours out of an eight-hour day, can lift only 10 pounds occasionally, and cannot reach overhead. Are there any jobs in the national economy that such an individual can perform?

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's Cross-Examination of the VE

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:

  1. •  “Consider a hypothetical individual of the same age, educational background, and with the same work history as the claimant. This individual cannot stoop or bend. Would such an individual still be able to perform secretarial work as it is normally performed?”

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: , Contributing Author

This article is provided for informational purposes only. If you need legal advice or representation,
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