Ginsberg Law Offices

Vocational Expert FAQ: Everything you need to know about the VE

You have received notice of your hearing date from the SSA. You are going through all the paperwork when you come across a piece of correspondence indicating that a vocational expert (VE) witness will be present at your hearing. ‘What is a vocational expert witness?,’ you may wonder. In case you have never heard of the VE, you have come to the right place. Below find everything you need to know about the vocational expert witness.

What is a vocational expert?

In September 1962, the vocational expert program was established. Since then, vocational experts have testified in approximately 25,000 disability cases at the appellate level. In a disability hearing, the expertise of a vocational expert is customarily used and is the result of an Administrative Law Judge’s request. In fact, vocational experts (VEs) appear more in disability hearings than medical experts (MEs). Vocational experts are professionals with vocational expertise who evaluate residual functional capacity ratings to ascertain if there are jobs in the national economy that a disability applicant can do. In essence, vocational experts testify about work abilities. A vocational expert is not an agent of the Social Security Administration. As an independent party, vocational experts are to remain completely objective and impartial in expressing their opinions.

What is the role of the vocational expert?

Incorporating their knowledge and experience, vocational experts are able to provide an overview of the types of work a claimant has performed over time. In most cases, vocational experts review fifteen years of an individual’s work history.

Why is a vocational expert needed to testify?

Most often, the Administrative Law Judge solicits the testimony of a vocational expert because he/she has questions that need to be answered and feels that the claimant’s testimony alone will not be sufficient to provide the answers needed. Having a vocational expert testify should not be inferred as being good or bad. Again, a vocational expert’s presence and testimony often indicates the personal preference of the ALJ. While some judges rarely request the appearance of a vocational expert, some do regardless of how clear-cut and simple a case may be.

How is ‘work’ defined? Are there different levels of ‘work’?

Yes, the types of work are broken down into four categories. They are as follows:

Heavy work – having the ability to lift or carry one hundred pounds occasionally and fifty pounds frequently, and to stand and walk six to eight hours per day.

Medium work – having the ability to lift or carry fifty pounds occasionally and twenty-five pounds frequently, and to stand or walk six to eight hours per day.

Light work – having the ability to lift or carry twenty pounds occasionally and ten pounds frequently and to stand or walk six to eight hours per day; or,

Sedentary work – having the ability to lift no more than ten pounds at a time and occasionally lift or carry small articles. Sedentary work usually refers to work that is done while sitting. The claimant must also have the ability to sit up to two hours out of an eight-hour day to be able to perform sedentary work.

In considering the above descriptions, it is important for the disability applicant to understand the meanings and usage of the words ‘occasionally’ and ‘frequently.’ Occasionally is the ability to lift or carry less than one-third of the time in an eight-hour period. Frequently is an individual’s ability to perform at the same level at least one-third of the time in an eight-hour day.

What types of training and qualifications are required of a Vocational Expert?

Different from medical experts, which are an additional source of experts available to aid Administrative Law Judges in rendering decisions, the training and qualifications of a vocational expert are varied. While some vocational experts may have a background in psychology, others may have experience in vocational education, counseling or rehabilitation.

Is the disability claimant privileged to communications between the Administrative Law Judge and Vocational Expert?

Yes, claimants and their attorney are both able and should receive a copy of any written correspondence between the vocational expert and the Administrative Law Judge assigned to the applicant’s case.

Are vocational experts subject to cross-examination?

Any witness who is called by an opposing side and presents testimony is subject to cross-examination. This process affords the disability attorney to ask new questions or to seek clarification on answers already interjected. Vocational experts are no exception to the cross-examination rule. Since a vocational expert has proffered an opinion as to an applicant’s job capabilities, he/she is subject to cross-examination.

Is there any way to know whether a Vocational Expert will be present at my hearing?

A couple of weeks prior to a hearing, your attorney and/or representative should receive a witness notice. The witness notice will list all individuals the Administrative Law Judge has requested testify in your matter. If your attorney has not received a witness list, your attorney should call the ALJ’s office and ask about experts. A word of caution, claimants should never personally contact any expert witness.

When do vocational experts normally testify during the hearing?

The vocational expert can obtain information primarily in three different ways. First, information is gathered when reviewing the claimant’s file prior to hearing. Second, the vocational expert obtains additional information through the oral testimony of the claimant as well as other individuals who testify during the proceedings. The third avenue and probably one of the most important means in which a vocational expert accumulates information is through observing the disability applicant during the hearing. Observation may yield clues regarding appearance, responsiveness, general intelligence, communication skills, and other claimant characteristics. It is during this time that vocational experts will note any physical capacities, such as the use of limbs or prostheses, or physical endurance. As a result, the vocational expert is usually the last to testify.

Paying taxes on Social Security Disability benefits

Jonathan
March 15, 2010
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With only one month to go until April 15th, our focus has quickly shifted to this year’s tax preparations. From W-2s to 1099s, to 1040 mailings to tax preparer solicitations, we are bombarded with reminders of our obligations to both the federal and state governments – whether we like it or not!

While some individuals who receive Social Security Disability pay taxes on their benefits, some do not. Individuals excluded from this rule are those persons receiving SSI. SSI benefits are non-taxable, thus depleting the need to report them on any tax return. However, if a SSI recipient earned additional monies other than SSI benefits, he or she is required to report those monies earned on the appropriate tax form.

Approximately one-third of all beneficiaries receiving benefits are required to pay taxes on money received. Two factors determine whether an individual will be required to pay taxes on any benefits received. The total amount of money earned (SSDI + additional income) and an individual’s filing status (single, married filing jointly, married filing separately) are those things considered. To determine whether your benefits are taxable, compare the base amount representing with filing status with one-half of your benefits plus any additional income, including tax-exempt interest.

Single	$25,000.00 (base amount)
Married filing separately	$0.00 (base amount)
Married filing jointly	$32,000.00 (base amount)

Hypothetical cases incorporating these guidelines are below:

Hypothetical situation # 1

Anne is single and receives SSDI, and over the course of 2009 received $18,000.00 in disability benefits. She received $2,000.00 as additional income in the form of commission from a business that she has. Her combined total income for 2009 is therefore $20,000.00. Since the total amount earned is below the $25,000.00 required for a person-filing single, Anne is not taxed on her disability benefits. *Note: Because Anne’s salary combined was below the set income of $25,000, there was no need to consider one-half of her benefits. The results either way would have been the same.

Hypothetical situation # 2

Daniel, a single 43-year-old male, received $18,000 in disability benefits during the year of 2009. In addition, he earned $18,000.00 as a commercial construction consultant. In this case, to determine whether Daniel would have to pay taxes on his disability benefits, we would need to take one-half of Daniel’s disability benefits (1/2 of $18,000 = $9,000.00) and add those monies to any other income that Daniel received in 2009. In this case, he earned an additional $18,000.00. These two totals combined equal $27,000.00, which is $2,000.00 over the $25,000.00 maximum for individuals whom file single. In this case, Daniel’s benefits would be taxed as well as any other income he earned during 2009.

A rule of thumb, if you are in doubt whether you are required to pay taxes on your benefits, consult with a professional tax preparer. Ignorance is not a defense in law.

SSI and SSDI During and After Incarceration

Question:

What happens to an individual’s disability benefits when they are convicted of a felony offense and sentenced to a time of incarceration?

Answer: Under Section 404.468 of the Code of Regulations, “No monthly benefits will be paid to any individual for any month any part of which the individual is confined in a jail, prison, or other penal institution or correctional facility for conviction of a felony.” Thus, if an individual receiving disability benefits commits and is later convicted of a felony offense, any disability payments he/she was receiving at the time of his/her incarceration will stop until such a time as the individual is released.

*Please note: both SSDI and SSI payments are subject to termination if an individual is convicted on a felony offense and as a result is sentenced to a period of incarceration. However, auxiliary benefits, those benefits paid to eligible family members, will continue even if the individual is not receiving benefits at the time because of his/her felony conviction and imprisonment.

Restoring SSI and SSDI Benefits After Being Released from Prison

Although an individual may lose his/her benefits during the time of incarceration, benefits can be restored as soon as the individual is released from prison. The procedures for having disability payments reinstated differ slightly according to the type of benefit that an individual was receiving prior to his/her confinement.

Restoring SSI

Depending on the length that an individual expects to be confined, he/she may be able to begin a “pre-release procedure” while still incarcerated. This is completed through a “Pre-Release Agreement” between the jail and the SSA and applies to inmates that have been or expect to be incarcerated for a period of less than one year. Although felony sentences by law carry a prison sentence of more than one year, it is possible that a defendant could be given credit for any time he/she has already served while awaiting trial and/or disposition in their case. An example of a hypothetical situation is as follows:

“John,” a SSI recipient of five years, is convicted on felony theft, which in the state of Georgia is theft of property in excess of $500.00 and is punishable by a possible term of imprisonment of 1-10 years. John was unable to afford bond and as a result spent six months in jail awaiting trial and/or disposition in his matter. John subsequently entered a guilty plea and was sentenced to 15 months in the state penitentiary. At his discretion, the sentencing judge gave John credit for the time he had already served, meaning that John only had nine months remaining. In this particular case, John was able to start the paperwork necessary to reinstate his benefits while incarcerated. Since John was proactive, it is likely that his benefits will start immediately following his release. If John has chosen to wait until his release to start the reinstatement of his benefits, again he would have received payment for any day that he was eligible, but the probability of his checks being delayed would have significantly increased.

Since any SSI award is based on the recipient’s income, individuals presently confined need to know what his/her income will be upon release and what resources he/she will have available. In addition, the SSA will need to know what other persons, if any, will be residing with the defendant following their release. On the day a disability claimant is released from confinement, they are encouraged to go directly to their Social Security office with personal identification and proof of their release.

Restoring SSDI

If an individual is receiving SSDI at the time of his/her incarceration, he/she will remain on the rolls during their jail or prison term, regardless of the length of their sentence. Like with SSI, SSDI payments will stop when a claimant is incarcerated and recipients will need to request reinstatement of their benefits when the time comes to be released from prison.

Although there is no pre-release procedure for SSDI as there is for SSI, jails or prisons that have Pre-Release Agreements for SSI can also use the same form to help SSDI recipients get the reinstatement process started. Those inmates unable to obtain a Pre-Release Agreement form should inquire as to whether the prison staff knows how SSDI payments can be restarted upon their release. If all else fails, incarcerated individuals should seek the assistance of their family members who can contact their local Social Security office for more information. In addition, the Social Security’s website, http://www.ssa.gov/disability/ contains a wealth of useful information.

In closing, it is against the law for any person convicted of a felony and sentenced to a term of imprisonment to continue to receive social security disability benefits during their period of incarceration. Likewise, it is illegal for someone other than the intended recipient to cash a disability check in the name of another person, specifically under the disguise of the individual in prison.

Diabetes and Social Security Disability Case Study Posted

This afternoon, I tried an SSDI case involving a 53 year old woman claiming disability based on diabetes and associated complications. In reviewing the record it appears to me that my client had been diabetic for several years prior to her diagnosis and has most likely suffered permanent vision and nerve damage. Unfortunately her medical care has been suboptimal and while she has been compliant with treatment the record does not contain enough for me to make an argument based on the listing at 9.08. Instead I went with a functional capacity argument.

You can read the case study on my Georgia Social Security disability web site.

Helpful Tips for the Disability Claimant: Knowing How To Describe Pain

In a recent post on the importance of claimant credibility, I made a point that your ability to effectively describe your physical pain at the hearing may play a role in helping you win your case. Since physical pain is common to many disability cases, I want to elaborate on this point. Not only should you be able to effectively describe your pain at the hearing, but also throughout the claims process and during doctor’s visits as well.

Pain is subjective and can be hard to describe

All individuals have experienced some degree of pain at some point throughout life. The intensity of pain can range from a dull headache, to an agonizing toothache, to the more severe type of pain commonly associated with chronic conditions such as migraine headaches, Fibromyalgia, and Reflex Sympathetic Dystrophy (RSD). Although pain is a symptom and we easily recognize it when we experience it, pain is nevertheless hard to describe. Fellow Blogger Tomasz Stasiuk, whose Colorado Social Security Disability Blog contains a wealth of information about the disability claims process, made note of this fact in his December 2009 article on how to describe pain in a Social Security Disability case.

As Thomas suggests, pain can be hard to describe because 1) it is subjective and cannot be felt by others and 2) it is not a visible condition. Thus, a judge assigned to your case may not fully understand the extent your pain if you merely state you have pain. Stating you have pain is not enough; in order to strengthen your chances of winning your disability case, you must learn how to effectively describe your physical pain so that the caseworkers, physicians, and even the ALJ (Administrative Law Judge) assigned to your case can understand what you experience each day and how your pain limits your functioning.

Your ability to effectively describe your pain to your doctors is also important. This is because their reports and records will be evaluated by the SSA. I have seen many medical records where during an office visit, a client replied only by saying “Fine” after being asked by the doctor “How are you doing?” In such cases, the client’s chart might reflect something like: “Patient stated that she is doing fine today.” The word “fine” does not win a social security disability case. In fact, some adjudicators will often seize on something like this to justify denying a claim. Choose your words cautiously – even while at the doctor – especially if your words relate to describing how you are feeling.

Tips on how to effectively describe your pain

As mentioned above, fellow blogger Tomasz Stasiuk has written on this topic as well and has offered some great tips on how to effectively describe pain in a disability case. Because his tips are so useful, I am republishing them here (with minor additions) for your convenience. The following are some guidelines suggested by Tomasz Stasiuk to help claimants be able to effectively describe their pain.

Nature of the pain: What is the pain like? Is it sharp or dull? Is the pain aching, shooting or throbbing? Does the pain burn? Is it a constant ache that progresses to spasms as it evolves? On a scale from one-to-ten, how does your pain rate?

Location: Where is the pain physically located on your body?

Frequency and Duration: It is painful all the time or just some of the time? How long does the pain last? Do you feel better in the morning? Alternatively, does it start bad in the morning and continue to worsen until you go to bed?

Triggers: What events trigger your pain, if any? Do events such as walking result in pain? Does looking at a computer screen for an extended period of time result in migraine headaches?

Effects of pain: Does the pain affect how much you can lift? Does the pain affect your ability to interact with your children or spouse? How long can you sit, stand or walk? Does your pain affect your ability to read any type of written correspondence, whether it be a book or letter?

Effects of medications: Do your medicines help? Does the pill or injections relieve all of the pain or just some of the pain? What do the medications help with? What pain does the medication not relieve?

Keeping a journal of your symptoms and pain may be useful

Again, pain must be described in other words than by just saying “I hurt.” As noted in earlier posts, keep a journal handy and write down your daily symptoms and experiences with pain. Something like: “A day in the life of X (your name).” It does not have to be in some fancy, formal writing style. Notes jotted down are just fine. Be sure to include things such as pain level, daily limitations, and medicines taken (and side effects). It can be hard to remember on your own how you feel each day. The disability process is long and enduring. Do yourself a favor and start journaling today.