STEP 5 IN A DISABILITY HEARING: WHERE MOST CASES ARE LOST

Toward the end of a Social Security disability hearing, there is a kind of side show that takes place between the judge and the vocational expert.  Most claimants are totally unprepared and surprised by this amazing side show.

The judge will use the claimant's medical record and testimony taken during the hearing to pose a series of hypothetical questions to the vocational expert.  Something like this, for example:

Judge:  Assume we have an individual of the same age, education and work experience as the claimant.  Assume this person could perform a full range of light work, as defined by the regulations. Further assume that this person can sit for at least 6 hours out of an 8 hour day, can stand and/or walk in combination for at least 4 hours out of an 8 hour day but would only be able to reach above shoulder level with the dominant right arm on an occasional basis.  Further assume that this individual would be off task less than 10 percent of an 8 hour workday and would be absent less than 1 day per month on a persistent basis.  Could such an individual perform any of the claimant's past relevant work?

Vocational Witness (Reply):  No, Your Honor. The claimant's past relevant work as a truck driver was at the medium exertion level. I also think the limitation that makes past relevant work impossible is your limitation to reaching above shoulder height only occasionally.  I think this rules out past relevant work.

Judge:  Are there any other jobs that exist in the national economy that such an individual could perform?

Vocational Witness (Reply):  Yes, Your Honor.  Such an individual could work at the following:

1.  Assembler:  DOT Code 729.684-054.  This is light work with an SVP of 2.  There are 75,000 jobs in the U.S.
2. Laundry Worker:  DOT Code 361.684-014.  This is light work with an SVP of 2.  There are 68,000 jobs in the U.S.
3. Wire Worker:  DOT Code 728.684-022.  This is light work with an SVP of 2.  There are approximately 125,000 jobs in the U.S.

And so it goes.  What just happened is this:  The vocational witness gave the judge sufficient justification to deny the claim at Step 5 because the claimant can perform several other jobs that exist in the national economy.  This is where most cases are lost at hearing.

What needs to happen here?  The vocational witness should be questioned about a wide range of issues concerning these jobs.  The issues are technical and often complicated.  A series of hypothetical questions should be provided by the claimant's representatives to show that this testimony is not credible and cannot be relied upon to deny the claim.  Unfortunately, the claimant is shocked and has little idea of what to expect and probably no idea of how to question the vocational witness effectively.  Case lost.

An experienced representative or advocate, who has faced hundreds of vocational experts, will be prepared to ask the right questions during his/her examination of the witness.  This may potentially save the case.   

Q.  Is there always a vocational witness at a hearing?  
A.   I have never attended an adult's hearing where there was not a vocational witness called by Social Security.

Q.  Does the vocational witness' testimony always hurt the case?
A.  No.  But in my experience, the vocational witness will give testimony that can deny the claim in 75 to 80 percent of hearings.