Administrative Law Judge hearings now routinely include a Vocational Expert (VE). The “Notice of Hearing” letter sent to disability claimants includes a copy of the letter to the VE requesting their presence to testify. Social security disability claimants are often, and understandably, confused about this “vocational expert”. Many are unsettled by the prospect of someone associated with the government testifying in their disability hearing.
Some questions that I often hear from social security disability claimants in Dallas Fort Worth Texas:
“What role will the VE play in the hearing?””Will the VE by try to find me a job?”
“Is the VE there to “testify against me”?”
“Will the vocational expert, not the Judge, be making the decision on my disability claim?”
The VE is neither for or against you. Their job is to provide unbiased information and opinion testimony for the judge concerning the functional and vocational requirements of different types of work. The VE will help the judge understand the functional requirements of the work you did over the past 15 years. While it is true that you, and not the VE, know exactly what your job required, the judge must also consider your ability to past work “as generally performed in the national economy”. For example, a person could have been a cashier in a small grocery store. In this job they had to stock shelves when no customers were at the cash register. This job would require significant lifting (the shelf stocking), but the job of “Cashier” in the national economy would not require stocking and have no significant lifting. The VE will classify the type of work you have done for the judge.
But the VE’s main job in the hearing is to provide expert opinion of job availability given your age, education, work background, and work-related functional limitations. In the hearing the judge requests this opinion evidence by asking the VE a series of “hypothetical questions”. This part of the hearing can be quite confusing for disability claimants. In order to determine whether a claimant could return to past work and, if not, whether other work exists in sufficient numbers, the ALJ will ask the VE for an opinion about employability for a “hypothetical” person with a set of hypothetical problems. The age, work history, and educational background of that “hypothetical” person just happen to be the same as the you!
The process of posing “hypothetical” questions to the VE in the ALJ hearing is indeed very strange. It is as if two people are talking about you in front of your face: you want to scream, “Hello, I am right here!”
Maybe you feel a bit like Lucille Ball in her famous mirror routine with Harpo Marx. (If you are under 50 years of age, go look for it on YouTube: its hilarious). Think of the “hypothetical person” the ALJ and VE are discussing as the “hypothetical you” in the mirror – you being Lucy and Harpo as your “hypothetical you”. This can seem quite contrived and strange to claimants, but the purpose of this strange practice is to isolate the salient facts, and avoid an appearance of bias for or against the claimant.
The hypothetical questions posed to the VE by the ALJ will include functional limitations that the judge has either found cited in or reasonably inferred by the medical evidence, or alleged by the claimant in the hearing testimony. The hypothetical questions do no reflect “what the judge is going to decide” or what limitations she finds reasonable. ALJs typically “layer” the hypothetical questions posed to the vocational expert starting with the least restrictions and ending with the most recent. Often times the initial hypothetical question will start with the limitations found by the Disability Determination Services (DDS) at the initial and reconsideration stage. These minimal restrictions, of course, resulted in a “not disabled” finding at these early decision points in the case, so it is to be expected that when the ALJ poses this hypothetical the vocational expert could identify jobs in the national economy that could be performed. (The question is posed because it is possible the VE believes those limited restriction are more serious that the DDS found.) The ALJ typically will ask additional hypothetical questions, each including greater restrictions. Usually the ALJ will pose a final hypothetical question that includes so many limitations that the VE will testify that there are “no jobs”.
When I have a vocational expert in a hearing, I always explain the purpose and role of the vocational expert to the client in our hearing preparation conference. Over the years I have handled several hearings where the claimant was not fully informed about the VE either because they had missed our pre-hearing conference, or because I was handling another attorney’s case at the last minute. In these instances, claimants can become very alarmed when they hear the VE listing jobs that could be performed.
Once, when the VE identified jobs that could be performed by his “hypothetical you”, a claimant blurted out “Judge I can’t do that work!!…”. What this claimant failed to understand is that the ALJ is creating a series of hypothetical questions, the first of which do indeed typically result in job identification, and the last of which typically results in the VE saying that “no jobs” being found. This helps the ALJ identify which functional limitations are critical to determining whether the claimant is or is not disabled.
In addition, disability claimants often wrongly assume that a favorable decision will issues when they hear the VE say there are “no jobs” under the ALJs final hypothetical question. I have fielded many phone calls in Dallas Fort Worth from claimants denied at the ALJ hearing looking for a lawyer to appeal the denial. Many are perplexed that the VE said there were “no jobs” and they still were denied. The fundamental misunderstanding about VE testimony is that it simply opinion evidence for the judge as to what vocational impact certain functional limitations would have on employability. They do not reflect what impairments and limitations the ALJ will find supported by the medical evidence and the facts.
The ALJ will always give the attorney the opportunity to pose her own hypothetical questions to the VE.
Bottom line: With an experienced social security disability attorney at your side, relax and don’t stress as the hypothetical questions are posed to the VE. If impairments and limitations you think are important have not been included in any hypothetical question, make sure your attorney knows. But just because one question and answer suggest that you are able to work does not mean the outcome will be negative for the hearing. And conversely, “no jobs” testimony from the VE does not guarantee you will win.