PLAN FOR THE EXPERT WITNESS AT YOUR HEARING

"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.