"The
vocational expert is a highly trained professional and so is the
administrative law judge. If the unrepresented claimant is not a
well trained and experienced professional, he/she will be the only
person in the hearing who is not. This is a recipe for disaster. "
In nearly all adult disability hearings, judges will call a vocational expert to testify. These experts are typically vocational rehabilitation counselors. They have two functions at a Social Security disability hearing:
One function is to categorize your past work experience and classify it as to exertion and skill level. For instance, if your past work was a general cashier as performed in a grocery store or other retail outlet, it would be classified under DOT code 211.462-014, as light work with a Specific Vocational Preparation (SVP) of 2, which is unskilled work. SVP is determined by how much training it takes to prepare for the job. The lower the SVP number, the lower the required skills.
A second function of the vocational expert is to answer the judge's hypothetical questions concerning what types of work a claimant may still be able to perform in spite of certain exertional or non-exertional restrictions. The vocational expert will usually list a number of available jobs (available, meaning they exist in significant numbers in the US economy). She will usually also estimate how many jobs exist in each category. For example, she may testify that the claimant is capable of performing work as a retail sales clerk and that there are currently approximately 975,240 of these jobs in the US economy.
Here is the basis for the judge denying a claim, based on vocational testimony:
Scenario 1: The vocational expert testifies that the claimant can perform one or more of his past jobs. This would lead the judge to issue what is called a Step Four denial: the claimant can return to one or more of the jobs he performed in the past 15 years. Therefore, the claim would be denied.
Scenario 2: The vocational expert testifies that the claimant cannot return to any previous work; however, he can perform other work which exists in significant numbers in the US, regional or local economy. (I will discuss the "availability of other work" below).
Work is "available" if there exists a significant number of the described job in the national, regional or local economy. It must be understood that availability of work, in the Social Security meaning, does NOT necessarily mean that
- the claimant can find or be hired for one of the jobs
- these jobs are open and needing to be filled
- the claimant has any interest in performing this type of work, or
- a potential employer would hire the claimant for any of these jobs.
The best way to prepare for vocational testimony in a Social Security hearing is to recognize the nature and purpose of the testimony and the potential damage it can do to a disability claim. The claimant must be prepared to prove that his physical or mental ailments are so restrictive that he cannot perform any of his past relevant work or any other work. Exertional limitations in standing, walking, lifting, etc. should be proven. Non-exertional limitations such as sitting, concentrating, remembering or following instructions, etc. should be documented. These allegations must be supported by objective medical evidence. The vocational expert should be given the chance to admit, under oath, that a person with the claimant's known restrictions would be unable to perform any work on a full-time, consistent basis. Also, the expert's allegations of the existence of large numbers of jobs should be challenged by the claimant's representative if they seem unreasonable.
The vocational expert is a highly trained professional and so is the administrative law judge. If the unrepresented claimant is not a well trained and experienced professional, he/she will be the only person in the hearing who is not. This is a recipe for disaster. Avoid it by taking a qualified attorney or non-attorney representative with you to the hearing.
When Social Security denies your disability claim, you appeal, then appear at a hearing before an administrative law judge (ALJ). Here are some of the mistakes to avoid when testifying at your hearing.
1. Don't exaggerate or lie to the judge. Judges have heard it all, thousands of times. They have an uncanny way of knowing when testimony doesn't ring true. For example, don't say, "I never drive" if you really drive occasionally. The judge will always follow up with, "When was the last time you drove?"
2.
Don't make statements like, "I know I can't work," or "If I could work, I'd be working now." Let the judge make his/her own conclusions about your ability to work. This conclusion will be made primarily on what is in your medical records.
3. Don't try to explain away clear evidence in your records. This often happens with alcohol or drug use, or with past criminal charges. For example, if the judge states, "You were arrested for possession of marijuana in June of 2010," don't say, "Oh, it wasn't mine. It belonged to my cousin and I got charged and convicted, but it was all my counsin's fault." This always backfires.
4. Don't fail to tell your representatve in advance if you have worked for pay, even for one day, after your alleged onset date (the date you claim to have first become disabled). Also, tell your representative if you received workers compensation, unemployment benefits or sick pay/disabiity pay from your employer. These are problems if your representative doesn't know about them and gets "ambushed" at the hearing.
5. Avoid very general answers to questions, such as "not very far, not very long, not very much, or just a little bit." For example, How far can you walk without needing to stop? A good answer would be in feet, yards or minutes; such as, "I can walk about 100 feet, then I have to stop and rest."
6. Don't criticize the Social Security system or process. Don't say, for example, "I should not even be here. Social Security should have paid my benefits a long time ago."
7. Never compare yourself to other people. For instance, avoid saying, "I know people who have nothing wrong with them who get Social Security disability benefits." Or, "I have a neighbor who is a drug addict and alcoholic and you pay him a benefit." This can only hurt your case.
8. Don't be vague about why you stopped working. The judge will always ask, "Why did you leave your last job?" If you left because you could no longer perform the work, explain that briefly and in some detail. For example, "I could no longer lift the required 20 to 30 pounds and I couldn't stand most of the workday; also, I became unable to reach above my head or grasp and hold items with my hands." Brifely explain any other limitations or problems you were having, such as, concentration, fatigue, inability to understand instructions, excessive absences due to illness or pain, etc.
9. It is a mistake to go into a disability hearing without a Medical Source Statement (MSS) from your doctor. This form is NOT the same as medical records. An MSS form will list very specific limitations that you have in terms of work related activities, such as standing/walking, sitting, lifting, bending, concentrating, etc. It can make the difference between an award and a denial. Social Security will NOT request or obtain this statement for you. It is up to you or your representative to obtain it from your doctor.
