I want my client to understand the hearing procedure so he can focus on what he needs to say.  The less uncertainty about the process – the better.

In Atlanta, which is my primary area of  practice, we have two live hearing offices and one video hearing location.   Between these hearing offices, there are around 20 judges that I see on a fairly regular basis and a few more that I see less frequently.  While every judge has his or her own style of conducting hearings, I have noticed one trend – judges seem to be relying more on me (the attorney) to ask the direct examination questions.   This may not be the case in every hearing office or every attorney, but this is what I am seeing.

In my view, having control of the questioning is a positive development because I can better prepare my client for his hearing.   I know what I will want to ask, and here are the areas of questioning that I cover.   In any case, whether I ask the questions or the judge asks the questions, there is certain information that every claimant should know and be able to discuss clearly and accurately – there is no reason to be surprised by any of this:

Personal background

• state your full legal name and social security number
• state your mailing address
• how tall and you and how much do you weigh?
• how far did you go in school and have you had any education or vocational training beyond high school?

Work background

• are you now working?
• have you tried to work since your onset date?
• describe your unsuccessful work attempt(s) – who was the employer, what did you try to do, how long were you able to stay and why were you unable to remain on that job?
• identify the last job you worked prior to your onset date – what were your job duties and what were your dates of employment?  why did you leave this job?
• what was the job before that – what were your job duties and dates of employment.  Why did you leave this job?
• going in date order, identify your past work going back for the past 15 years

Medical issues

• the medical record suggests that you have been diagnosed with __________ how does this condition/disease affect your capacity to work?
• how long have you had this disease/condition?
• when did it start and how has it progressed?
• if you were going to describe __________ to someone who was not familiar with this disease/condition, how would you explain what it is like to live with it?

Specific activity limitations (if applicable)

• how long can you stand before you have to sit down?
• how long of a break must you take before you can stand/walk again?
• how long or how far can you walk?
• how long can you sit before you have to stand up and move around
• if you had a job that required standing and walking and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you stand and/or walk?
• if you had a job that required sitting and you could take a break every ___ minutes, how many minutes or hours total during an 8 hour workday could you sit?
• how much can you lift on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you lift occasionally – occasionally meaning up to 1/3 of a workday?
• how much can you carry on a frequent basis – frequent meaning at least 2/3 of a workday?
• how much can you carry occasionally – occasionally meaning up to 1/3 of a workday
• are you able to bend, crawl or stoop?
• can you safely climb ladders, ropes or scaffolds?
• do you have any balance or other issues that would prevent you from working at unprotected heights?
• do you have any need to take unscheduled bathroom breaks? if so, why and how often?

Activity limitations arising from non-physical problems (i.e. mental health or pain)

• do you have any need to take other unscheduled breaks (i.e. crying spells)?  if so, how often?
• do you have any trouble getting dressed, or dealing with personal hygiene?
• do you have any issues getting along with family, friends, co-workers or supervisors?  If so, please describe these problems?
• do you have any memory problems
• do you have any problems with concentration
• do you experience pain – if so, where in your body?   when your pain is at its worst, how bad is it (use scale of 1-10)  how often is your pain at that high level?  do you experience  pain at a lower level?  how often?  does this lower level pain interfere with activities
• are there activities/hobbies that you used to enjoy that you can no longer do?

Drug and alcohol use (if applicable)

• the record indicates that you have had some trouble with alcohol use/marijuana use/street drug use.  is that still a problem?  when was the last time you used?  what type of program did you attend to address this problem?

This is not intended to serve as a list of every question that you may be asked.   However, at a minimum, you should be able to answer the above questions.  There is no excuse, for example, if you are surprised by the question:  "how far can you walk?"  The wrong answer is "I have never really thought about it – I just don't know."  The right type of answer is "I can walk to my mailbox, which is about 20 yards.  Because of the pain in my back, I have to stop and lean against a wall for about 5 minutes before I can walk back.  I always walk with a cane because I am unsteady on my feet."

My "big picture" point here is simple – you have to prepare for your hearing.  Judges are busy and they don't have a lot of time.  Preliminary matters like your work background and education should not eat up valuable hearing time.  I have seen instances where a judge will not include a limitation in his hypothetical question to a vocational expert because the claimant (my client) was so vague about his symptoms.

Judges understand that your symptoms may not follow a rigid schedule – for example if you experience seizures, and the question is "how often do you experience major seizures?" the answer may be "as many as 4 in a bad month and at least 1 every month, but on average 2 bad seizures a month."

As a rule, it is not a good idea to answer:

• I don't really know
• it depends
• sometimes
• not very much
• not very far
• not too long
• its hard to say

Instead, discuss with your lawyer how to offer a truthful answer to an "it depends" situation.  The more specific you can be, the better your results will be.

Post from: Social Security Disability Blog

These Questions Always Get Asked at Hearings

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.

Post from: Social Security Disability Blog

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

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

Post from: Social Security Disability Blog

Diabetes and Social Security Disability Case Study Posted

At Social Security hearings, judges often call vocational witnesses to classify your past relevant work.   Generally Social Security is concerned with your past relevant work over the past 15 years.  Short durations jobs of less than 3 months are usually considered unsuccessful work attempts (UWA) and don't count as past relevant work.

Vocational witnesses identify both the "exertional level" of your past relevant work as well as the "skill level" of that work.   Jobs are classified exertionally as:

• sedentary
• light
• medium
• heavy
• very heavy

More explanation about what these exertional levels mean – page on this blog;  post from Colorado disability lawyer Tomasz Stasiuk

Jobs are classified by skill level as:

• unskilled
• semi-skilled
• skilled

Vocational experts use a resource called the Dictionary of Occupational Titles (D.O.T.) to classify the exertional and skill level of every job that (in theory) exists in the national economy of the United States.  You can read the D.O.T. online by clicking on the link.

The D.O.T. classification of your past work can also be important in a determination as to whether you meet a grid rule.  I have also described how I use the grid rules in cases on my Georgia Social Security web site.

While you are not expected to know how the Dictionary of Occupational Titles works, it will help if you discuss ahead of time with your lawyer how you should describe your past work.   For example you may have had a job title that suggests a particular job, whereas the work you actually performed represents a different job in terms of the D.O.T.

Post from: Social Security Disability Blog

Understanding How Social Security Classifies Your Past Work

One line of questioning that always comes up relates to my client's capacity to perform various physical activities, such as lifting, sitting, standing and walking.  Physical activities like these are known as "exertional" activities by the Social Security Administration and one's exertional capacity is almost always a factor in questions asked of the vocational witness.

For Social Security purposes, your exertional capacity is defined as follows:

Sedentary: Requires the ability to sit up to six hours in an eight hour work day, lift light objects such as files and paperwork frequently during the day, and objects weighing up to 10 pounds occasionally during the day.

Light: Requires the ability to stand up to six hours in an eight hour work day, lift up to 10 pounds frequently and up to 20 pounds occasionally.

Medium: Requires the ability to stand up to six hours in an eight hour work day, lift up to 25 pounds frequently and 50 pounds occasionally.

Heavy: Same standing as light and medium, lifting heavier than medium.

As you can see, each of these definitions includes some very specific numbers.  When you prepare to testify, you will need to be prepared to discuss your capacities.

Frequently, however, in a pre-hearing meeting I will ask my client "how much can you lift?" and I will get responses like:

• I don't really know – I haven't tried to lift anything heavy recently
• It depends on the day – if I am having a good day I can lift a pretty good amount, but not so much on a bad day
• My doctor says I can't lift anything
• Not very much

I hope you can see that these answers are not very helpful.  More importantly, these answers cannot be included in a question for the vocational witness.   How much is "not very much?"  What does "I can't lift anything mean?"

Instead, when you prepare for testifying at a hearing you need to be prepared to offer specific answers to these questions:

• I can lift 5 lbs. without too much trouble.  However, when I recently tried to lift a gallon of milk, I had to use both hands and I almost dropped it.
• I can lift 10 lbs. without too much trouble.  I don't believe I could lift or push a 20 lb. box at all without really hurting my back.
• I usually have about 2 good days a week in which my back feels fairly loose.  I can carry a 5 lb. bag of sugar without too much trouble.  On a bad day, however, I can barely stand up straight and even 5 lbs. would cause my back to go into spasm.

You need to prepare similarly specific answers to questions about:

• how far you can walk before you have to stop
• how long you can sit before you have to stand up and move around
• how long you can stand without moving much, such as standing behind a counter

The more specific you are the better, such as:

• I can walk for about 10 minutes then I need to sit down and rest because my back will really start hurting and I will feel pain running down my right leg.  After resting for 15 minutes I can get up and walk or stand for about 10 minutes, then I have to rest again.  I would estimate that I could stand and walk for a total of about 90 minutes total during the day.
• After sitting for 15 to 20 minutes, my back starts to tighten up and I have to stand and walk around for about 10 minutes to loosen up.  Then I can sit for another 15 minutes or so.  I would then have to lie down for 20 minutes to get the pressure off my back.   I spend most days moving from sitting to standing to lying down trying to get comfortable.

At the very least, stay away from phrases like "not very far," "not too much weight," and "a lot less than I used to."

In my experience judges often use your estimates of exertional capacity in their hypothetical questions to vocational witnesses.  The more specific you can be, the better.

Post from: Social Security Disability Blog

Hearing Testimony Tip: Know How Much You Can Lift and How Far You Can Walk

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?

Vocational experts serve as the bridge between the medical evidence in your case and the work limitations would allow a judge to conclude that there is no work you can perform.

I have written before that I do not consider vocational witnesses as enemies.  They do not make up the hypothetical questions, they just answer them.  As such, I disagree with some disability lawyers who aggressively cross examine vocational witnesses to challenge their credentials or the factual basis of their assertions.  In most cases, the vocational witnesses that appear are part of a panel of experts, and both the judge and the attorney know how the VE will answer a question.  I would resort to an aggressive cross examination if the VE presents testimony that is inconsistent with what I know to be accurate.

One of my readers emailed me a question about VE's that I have not previously addressed, and I would like to answer it here.  Her question:

What constitutes the vocational evidence reviewed by the VE before the hearing?

In fact, vocational witnesses do prepare for hearings – here is what they do:

1. they familiarize themselves with your work history.  Your original application as well as several of the other forms your fill out as part of your application contains a job history.  The VE will use this history to identify the types of jobs you have performed during the 15 year period prior to allegedly becoming disabled
2. they review the Dictionary of Occupational Titles (the "DOT").  Social Security currently relies on a book called the DOT to characterize jobs.  The DOT contains thousands of jobs, each classified by exertional level – sedentary, light, medium, heavy or very heavy – and by skill level – unskilled, semi-skilled, or skilled.  In preparation for your hearing the VE will classify your past work and identify any transferable skills that arise from any semi-skilled or skilled work you may have done
3. they anticipate questions from the judge.  VE's are not lawyers and they don't, or shouldn't, have any interest in the outcome of your case.  However, experienced VE's have been present for hundreds or even thousands of hearings and they generally have an idea about what questions may arise.  In most cases, the bottom line question comes down to whether a claimant can reliably perform a simple, unskilled, sedentary job that is not production based and does not require any significant interaction with co-workers or supervisors.  Every VE has his own list of "the easiest jobs that exist" and ones that I hear often are jobs like "surveillance system monitor,"  "hand packer," "foil wrapper," or "textile inspector."

I am going to be appearing with a VE from the Atlanta area panel and I'll ask him to elaborate on this answer and I'll update as appropriate.

Post from: Social Security Disability Blog

How do Vocational Witnesses Prepare for Your Hearing?

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs.  He subsequently fell and broke his left hip and he currently needs a knee replacement.  He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client's physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client's mental health condition.  Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist's report.   For confidentiality reasons, I cannot show the entire report, but I have made available the Medical Assessment of Ability to do Work Related Activities.  As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint's capacity to perform work.  The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE).  The first question – if the claimant's psychological profile is as set out in the psychologist's report, could he perform any type of work.  Let me interject here to say that 99% of vocational witnesses would answer "no," because (1) the "poor" in "dealing with work stresses" and the cumulative effect of four "fairs" in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available.  Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the "fairs" and about his understanding of the word "poor"), the judge gave two more hypothetical questions, each with significant limitations.  It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case.  This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness.  This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

Technorati Tags: vocational expert, consultative psychological exam, dealing with work stress, MMPI, social security hearing, ODAR

Post from: Social Security Disability Blog

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

What I didnt get to say is that it does not have anything that triggers it , if im working hard or sleeping it comes on and nothing stops it, and the pain has always been unbearable! and that is why I dope myself up to the point of being looney! I feel my lawyer should have asked me to explain why I answered as I did, since he told me not to elaborate in the first place!

Now Im worried the ALJ has the wrong impression and hoping he just goes by the medical evidence I presented as it is all in my favor. Did I blow it by keeping my mouth shut?

–Sherry

Jonathan Ginsberg responds:  Sherry, my experience has been that judges rely more on the medical evidence in a claims file and less on the testimony of a claimant. That being said, some judges can take a statement like the one you described and use it as a basis to deny a claim.

In a case of RA (rheumatoid arthritis), I suspect that the medical record will be fairly complete so I would not stress out too much about your "incomplete" answer. You may want to ask your lawyer to send a short post-hearing brief to the judge to clarify what you said.

You did not tell me what questions were posed to the Vocational Expert – if the question only described mild impairments and resulted in an answer from the VE describing a large variety of jobs, then I would be concerned.

At the end of the day strong support from a treating doctor, preferably including functional capacity forms or Listing checklists will carry the most weight for most judges.

Please email me to let me know what happens – I'll update this blog post when you do.

Technorati Tags: ALJ hearing, rheumatoid arthritis, vocational witness testimony, Social Security disability claimant testimony

Post from: Social Security Disability Blog

Can a Claimant's Testimony at a Hearing Ruin a Case?