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.

Post from: Social Security Disability Blog

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