Yesterday, I appeared with a client at a video hearing with a judge from West Virginia.  This was actually our second hearing – the first hearing was held in August, 2006.  My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years.  During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

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.   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.