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?