The Social Security Administration (SSA) uses a five step analysis to determine if a person is disabled. This analysis applies to claims for both Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI).
The administrative law judge (ALJ) presiding over your disability hearing may obtain Vocational Expert (VE) testimony to make a decision at Step 4 and Step 5 of the analysis. At Step 4 the ALJ must determine whether you have the physical and mental capacity to return to any of the jobs you performed in the fifteen years before you filed for disability benefits. And at Step 5 the SSA has the burden of demonstrating that jobs exist in significant numbers in the national economy that you can perform in light of your age, education, acquired job skills, and physical and mental limitations.
This article’s purpose is to discuss the role of the vocational expert in Social Security Disability hearings. It explains:
If you have questions about the Social Security process, or are looking for help from a top-rated Richmond disability attorney and Newport News SSDI lawyer, call me for a free consultation: 804-251-1620 or 757-810-5614. I help disabled adults throughout the state get approved.
A vocational expert is a vocational professional whose job is to provide evidence at disability hearings before an ALJ.
Specifically the VE is supposed to provide impartial expert opinion about (1) jobs you held during the fifteen-year period before you filed for disability benefits and (2) your current vocational abilities.
The SSA will consider a VE impartial if he or she avoids having off-the-record discussions with the ALJ and your attorney before the case and has had no past professional contact with you.
Though rare, it’s possible to have had past professional contact with the vocational expert. This is because some of them work for employers and insurance carriers part-time and provide vocational rehabilitation to injured employees receiving workers compensation benefits. So if your Social Security Disability claim resulted from a work-related injury for which you filed for workers comp, you may have worked with the vocational expert assigned to your SSD claim before.
The VE’s testimony is not binding. Rather, it is just another piece of evidence the ALJ may use to decide your claim.
At a minimum the vocational expert at your Social Security Disability hearing should have:
The ALJ decides whether a vocational expert is necessary.
An ALJ may obtain vocational expert testimony if:
An ALJ must obtain vocational expert testimony if:
In my experience most ALJs will ask a vocational expert to testify at a disability hearing if the claimant is an adult. Vocational experts are not needed for childrens’ disability claims.
Unfortunately you and your attorney do not get to chose the vocational expert.
Each Social Security Administration Regional Office maintains a roster of VEs who have agreed to provide opinion testimony.
The ALJ is supposed to select a VE from the roster in rotation. This means that when a VE is picked, he or she goes to the bottom of the list. The VE will not be picked again until all other VEs are called to testify at hearing.
The ALJ will often provide the vocational expert with relevant documents from your case file, which includes the Work History Report the SSA asks you to complete soon after you file your initial application for benefits.
This is why it’s so important to take your time and to complete the Work History Report completely and accurately. Do not leave out any tasks – including physical, mental, and supervisory (hiring/firing). The Work History Report is often the basis for the VE’s testimony about your past work.
All ALJ contact with a VE about your case must be in writing or at the disability hearing.
And all letters to and from the VE are made part of the evidentiary record. This means you get to review them.
Similarly, neither you nor your attorney should contact the VE outside of the hearing.
The ALJ decides the manner in which VE testimony is given: in person, by phone, by video, or by responding to written interrogatories. Live testimony is the preferred method, but ALJs may use written interrogatories.
I handle many disability hearings in Richmond, Norfolk, Roanoke, and Charlottesville. Often the vocational expert testifies in person at these locations.
But I also handle disability hearings in Falls Church, VA, where the vocational expert often testifies by phone.
ALJs use vocational experts to help them decide whether a claimant can do his or her past work or other work that exists in numbers in the national economy. The vocational expert, therefore, must be able to testify regarding:
Before the Hearing
Often the vocational expert prepares a written summary of your past relevant work just before the hearing.
If so, your attorney should review it with you to make sure it accurately describes the work you have performed and the skills you have acquired.
If it does then the ALJ may not want to hear testimony from you regarding your past relevant work. If, however, the VE’s report is wrong then it is important to testify why it’s wrong during your hearing.
At the Start of the Hearing
The ALJ must tell you why vocational expert testimony is necessary.
During the Hearing
Depending on the ALJ presiding over your case, the VE may attend the entire disability hearing. But this is not required.
Questioning the VE
If the VE was not present during the hearing the ALJ should summarize your testimony as well as that of any witnesses you called to testify on your behalf.
Then the ALJ will elicit vocational expert testimony.
Usually the vocational expert testimony has three parts.
First the ALJ will ask the vocational expert about his or her qualifications to testify as an expert and whether the vocational expert has talked about the case with the ALJ, you, or your attorney.
The ALJ will ask your attorney whether you have any objections to the VE’s testimony. In my experience the ALJ will overrule your objection regarding the VE’s qualifications no matter what, but you should still make an objection if appropriate.
Second the ALJ will ask the VE to classify your past relevant work. This means the VE will provide the following for each job you’ve had in the past fifteen years:
Finally the ALJ will ask the vocational expert to respond to a series of hypothetical questions.
The hypothetical question begins with your age, education, and past relevant work. Then it adds specific functional limitations.
After stating the hypothetical the ALJ will ask the VE the following:
Usually the ALJ will build on the first hypothetical by adding additional limitations. On average the ALJ will ask anywhere from three to six hypothetical questions. Usually some find work and others don’t so that the ALJ has evidence to either award or deny your claim.
After asking hypothetical questions the ALJ must ask whether there are conflicts between the VE’s testimony and the information found in the DOT and SCO. If there are the ALJ must obtain a reasonable explanation for the conflict. And then put how the conflict was resolved in your written decision.
The VE is not permitted to do the following:
Either you or your attorney should object or move to strike if the vocational expert offers testimony regarding these issues.
Vocational expert testimony at Social Security disability hearings is problematic for several reasons.
First, vocational experts are supposed to be impartial. They do not work for the SSA. Unfortunately some seem to forget this and think that their role is to please the ALJ and find jobs no matter what. Perhaps this is because testifying at disability hearings is a significant percentage of the VE’s income and he wants the ALJ to continue to select him.
Second, vocational experts often have a difficult time justifying the underlying data on which their testimony is based. This is a problem that disability attorneys have long known about but that just recently got the attention of the U.S. Supreme Court. Oral argument in Biestek v. Berryhill took place in December 2018. When it issues its opinion the U.S. Supreme Court will address whether a vocational expert’s testimony can constitute substantial evidence of “other work” that exists in significant numbers in the national economy when the expert is unable to provide the underlying data on which his or her testimony is based.
These problems provide several areas for possible cross-examination of the VE. Your attorney should question:
When cross-examining the vocational expert at a disability hearing your attorney’s goal is to either (1) demonstrate that the VE’s testimony that you are capable of performing a specific job is wrong because it is based on incorrect facts or (2) demonstrate that the VE’s testimony is not credible because it is based on underlying data that cannot be verified or because the VE does not have enough experience to offer a valuable opinion.
Every thing you do at hearing, including the testimony offered, should have two purposes: (1) to help you win your claim and (2) to help you prepare your claim for appeal if the ALJ issues an unfavorable decision.
Your attorney should ask questions of you that develop favorable evidence regarding specific limitations. This includes how long you can sit, stand, and walk. Whether you need to change positions frequently. If you have swelling in your legs that requires you to elevate them. Whether you experience fatigue. Whether you have trouble with concentration, memory, and getting along with others. And more.
Then your attorney should use your hearing testimony, along with the opinions from your treating medical providers, to ask hypotheticals of the VE. These hypotheticals should all result in a finding of no work. Or they should result in a finding that you are disabled under Social Security’s Grid Rules based on your age, education, and past work.
These hypothetical questions can serve as the basis for filing a Request for Review to the Appeals Council or a lawsuit in federal district court.
Below is an explanation of three situations that may happen between the ALJ and vocational expert at your disability hearing and what they mean for your case.
The ALJ Calls a Vocational Expert to Testify at Your Disability Hearing But Asks No Questions
If the ALJ has asked a vocational expert to testify at hearing but doesn’t ask him or her any questions, this is either a very good or a very bad thing.
In my experience it means that the ALJ has determined that you either meet the criteria for a medical condition found in the Listing of Impairments or that you have a residual functional capacity (RFC) that would lead to you being found disabled under the Medical – Vocational Guidelines based on your age, education, and pas work experience. Of course either of these scenarios is a good thing because you would receive a favorable decision from the Social Security Administration.
There is, however, a possibility that the ALJ has decided not to ask the vocational expert any questions because he or she has found that you do not have a severe medical impairment or that you can return to your past relevant work. If you’ve hired an experienced Social Security lawyer then he or she will have a good idea of whether this is a concern. It depends on the ALJ hearing your case, whether you have any opinion statements from your treating medical providers, and the exertional and SVP levels of your past work.
The ALJ Asks the Vocational Expert Just One Hypothetical Question
In my experience it is a good thing if the ALJ asks the vocational expert just one hypothetical question. Because usually the one question leads to an answer that you cannot work.
If this happens your attorney should not ask the vocational expert any questions. It is the Social Security Administration’s burden to prove that there is other work you can perform based on your residual functional capacity assessment, age, education, and past work experience.
You Are Closely Approaching Advanced Age or Have Reached Advanced Age
The Social Security disability evaluation changes when a claimant reaches age 50 and again when the claimant reaches age 55. If you are over the age of 50, limited to unskilled sedentary work, and the vocational expert testifies that you have no transferable skills and are unable to return to any of your past relevant work, then you win. There are similar situations where you win at age 55 or older.
Your attorney should not ask the vocational expert any questions that try to exclude work at the sedentary level (if you’re age 50 to 54) or light level (if you’re 55 or older) if the vocational expert has testified that you cannot perform past work. This is because a “yes” answer from the vocational expert would still lead to a finding that you’re disabled under the Medical-Vocational Guidelines, also called the Grid Rules.
You have a lot on the line with your application for SSDI or SSI benefits.
And VE testimony may stand in the way of you receiving monthly benefits, thousands in back pay, and medical coverage.
Get help presenting your case at the disability hearing and handling the vocational expert.
All you have to do is call me: 804-251-1620 or 757-810-5614. Your consultation is free.
I represent disabled adults throughout Virginia, North Carolina, and Maryland including those in Richmond, Fredericksburg, Hampton, Newport News, Raleigh, Charlotte, Greensboro, Baltimore, and Hagerstown.