More often than not, an administrative law judge will request to have a vocational expert present at your disability hearing. The big question becomes, who is this vocational expert and are they even qualified to testify as an expert?
A Vocational Expert is an expert witness called to testify at a disability hearing regarding an individual’s past work as it relates to the dictionary of occupational titles along with other work available. This Expert is an individual who is supposed to be an authority on vocational rehabilitation, vocational and earning capacity, lost earnings, cost of replacement labor and lost ability/time in performing household services. Social Security mainly calls a vocational expert to testify regarding vocational rehabilitation.
At the hearing, the Administrative Law Judge will pose a question to the Vocational Expert using a hypothetical individual’s age, education, and limitations. This individual is meant to mirror your client’s situation. Once the Judge frames the hypothetical individual to the vocational expert the expert will then testify as to whether it is their belief someone with this vocational profile could perform the past work listed. If the hypothetical individual would not be able to perform the past relevant work then the vocational expert will consider whether there are any other jobs the individual can do.
Depending upon the Judge, they may pose one hypothetical question to the vocational expert, or they may pose multiple hypotheticals. The best way to anticipate the hypotheticals the Judge will use is to review the limitations notated by DDS in their initial and reconsideration denials. Most Judges will form their first hypothetical around the DDS limitations and then simply add on limitations they deem necessary later on.
Here is an example of a typical Vocational Expert’s testimony:
Administrative Law Judge:
Assume an individual who has the same age, education and past work experience as the claimant. Further, assume that this individual is limited to unskilled sedentary work with occasional postural limitations; is able to sit for 45 minutes at a time with 1-2 minute changes in position; and is precluded from production or pace type of work. Is this individual able to perform their past relevant work?
No, they cannot do their past work.
Administrative Law Judge:
Are there other jobs this hypothetical individual could do?
Yes, they can do general production jobs, packing jobs, and bench assembly jobs.
Say in this situation the Judge stops his or her questioning right here. At this point, it is the Claimant or their representative’s turn to question the vocational expert. The question is, what questions should you ask…if any at all? Do you add additional limitations into the hypothetical, do you pursue questioning towards the number of jobs offered including methodology in determining the numbers, or do you question the vocational expert as to their training and placement of individuals? I find the best way to approach the questioning of the vocational expert is by knowing your Judge. If you know your Judge well enough to know they are going to deny your claim you should question the vocational expert so as to force an appealable issue in the case. If you know the Judge is looking for you to add limitations with specific references into the file, then this is something you should do.
Whichever way you decide to approach questioning the vocational expert, it is always recommended to object to their qualifications in general. If you simply agree to their qualifications, you are giving away a possible way to win your case on appeal. All Judges are required to exhibit the vocational experts resume in the file. Take a look at it. You may be surprised at their education or lack thereof. If the individual lacks any specific vocational training…object immediately! If the individual does not have an advanced degree…object immediately! It may surprise you how little it really takes for an individual to become a vocational expert for social security disability hearings.
If after reading the vocational expert’s resume you cannot find a way to object to their education or qualifications, you can always make a blanket objection stating you are unable to stipulate to the qualifications of a vocational expert as Social Security has not explicitly outlined what those qualifications are. Typically using this objection will get you nowhere with the Judge. However, it will persevere your objection for the record in the event of an appeal. Depending upon your Judge, the ultimate decision in your claim may come down to how your vocational expert testifies. With so many new Judges you cannot rely on the Judge to know when a vocational expert has testified poorly or not. You need to be on guard with any vocational expert testifying at your hearing. Their testimony could simply make or break your case.
If you have a scheduled hearing and you are not represented by an experienced Social Security Disability Attorney, I strongly urge you to seek representation. After reading this article, it should be very clear to you that you are at an extreme disadvantage if you do not have experience in litigation cases or cross-examining witnesses.
Hiring an experienced Social Security Disability attorney is easy. You may shy away from seeking advice from an attorney because frankly how are you going to pay for it? You are not working and have zero income. Well, Social Security has determined one type of fee agreement for all disability attorneys. That one fee agreement is based on a contingency. Meaning, the attorney does not get paid if they do not win your case. You pay nothing out of pocket unless your case is approved and there are back benefits to pay the attorney with. In fact, the Social Security Administration handles the representative payment so you do not even need to worry about writing a check to your attorney. The process of hiring a disability attorney could not be easier. So if you have a scheduled hearing before an administrative law judge and are nervous about the vocational expert at the hearing, call us at LaBovick Law Group. We would be happy to litigate your case for you.