October 24, 2014

Will I Win if the Judge Does Not Use a Vocational Witness or Medical Expert?

what are your chances of winning a case at a hearing when there is no voc rehab guy or medical specialist to assist the alj in a decision.
–Lamont

My response: Lamont, I think that yes you can win if the judge does not use a VE or an ME.   Here is how I would analyze:

First, what is the custom in your hearing office?  In Atlanta, where I practice, all but one or two judges regularly use vocational expert witnesses.  There are a couple of judges who almost never use them.   If a judge who always uses a VE hears a case without VE testimony, it most likely means that the issue is fairly clear cut one way or the other.

In the Atlanta hearing offices, judges rarely use medical experts – in my practice I would estimate that ME’s appear about 15% of the time.  The absence of an ME would be of less concern to me here in Atlanta.

I think you need to find out whether the absence of a VE or ME is unusual in your jurisdiction.   What does your lawyer say?

I also think that an unfavorable decision issued without the testimony of a VE and/or ME should be looked at carefully by an appellate specialist.  Since disability hinges on vocational capacity I am of the opinion that an unfavorable decision issued without VE testimony may give you an appeal angle.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.

Comments

  1. I had my hearingon March 10,2009 in greensboro nc the ALJ was Judge Edward,,, there was no experts ve or med…i have cushings disease and obesity and depression anxiety…With no ve or n=med experts are my chances any good? I had an attorney, and still have received no descision as of today and it is now June 15,2009! Boy, what takes so long…?

  2. I have a question. I was wanting to know how can you find out how many administrative law judges in your area? Plus, what is the shortest and longest time to complete a disability case

  3. Isn’t it true that if an ALJ doesn’t use a VE, that you only have to show that the claimant can’t do his/her past work? Because once you prove that, doesn’t the burden switch to the SSA to prove that claimant cannot do other work in the national economy? With a VE, how can the ALJ prove that claimant can do other work in significant numbers in the national economy? I don’t see how a claimant can lose when there is no VE and he can’t do past work. Is there something I’m missing?

  4. I have a quick question I had my Hearing on November 9th, I went in front of a judge, a vocational expert was present but she wasn’t asked any questions and she didn’t say a word is that a good sign, and the other is that I went to my SSDI Hearing in my prescribed Wheelchair pushed by my mother who was their for moral support, the hearing lasted 10 mins and when the hearing was over my mother and I was told to step outside, 3 mins later my lawyer came out and told me that the ALJ approved my case upon review that I need to come back to see an SSA doctor for a follow-up on my condition, I called recently and was told that my case was still pending for decision am I in a good position still to say?

  5. Eatha Greene says:

    went to my hearing last week. The Judge didn’t ask theVE any questions. He had issues with me being young women. My lawyer said he could tell this judge had a problem with me. I ask have a lot of documentation. My doctor faxes in another medical statement to my lawyer late. So he had to submit it. Can he deny me if I have great medical records and not getting the VE testimony

  6. The judge has a lot of discretion about how to interpret medical records. Younger individuals have an uphill battle and in the current climate where the SSDI trust fund is running out of money cases that were being approved just a year or two ago are now being denied.

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