The Administrative Law Judge hearing can be a puzzling and confusing event for social security disability claimants in Texas. Few disability claimant have been involved in any legal proceeding quite like it. A frequent source of confusion centers on the Vocational Expert (VE) – now almost uniformly present in Dallas Fort Worth Texas social security disability hearings. The VE’s role is to provide the Administrative Law Judge with testimony about the job market, economy and the impact certain limitations and impairments may have on the ability to work. Here are the top 5 facts and misunderstanding about the VE I have seen in my social security disability practice for the past 25 years in Dallas Texas.
1. The Vocational Expert is not Present to Help You Find a Job or To Provide You with Vocational Assistance.
Social security disability applicants with a pending request for administrative hearing will eventually receive a letter in the mail setting the date, time and place for the hearing. The Notice of Hearing is a long document with lots of “boilerplate” language (are you surprised, we are dealing with the federal government, after all). It will include notice about the VE and a copy of the letter sent to the VE asking them to be present and testify at the hearing. Many, perhaps most, claimant are confused about the VE’s role, and many assume the VE is going to try and find them a job or give them advice about getting another job. Many find that possibility disconcerting, since they believe they are unable to work, and might suspect the government is intent on denying their claim, armed with testimony from the VE about jobs they “should be” going out and applying for.
The VE will have no role as a vocational counselor to the disability applicant. They will not help you with job skills or otherwise help you find a job, Most of the time they will have no conversation or dialog with the claimant: they are present solely to provide evidence to the judge in response to his or her questions.
2. The Vocational Expert Does Not Decide Whether You are Disabled.
Another common fear disability claimants have on receiving the Notice of Hearing is that the “vocation person” will be a part of deciding whether the claimant wins or loses. The VE is not the decider – the Administrative Law Judge alone makes the decision as to whether you are approved or not approved for social security disability benefits.
3. The Vocational Expert will Classify Past Work as Generally Performed in the National Economy, which may be Different than the Demands of your Prior Work.
A vital part of the ALJ’s job is to accurately assess the functional demands of “past relevant work” (work done by the claimant in the prior 15 years). Claimants can be denied social security disability benefits if they are able to return to past relevant work, either as actually performed or as performed generally in the national economy. The Dictionary of Occupational Titles (“DOT”) is a large government publication that describes specific jobs and the general functional work requirements. The VE gives the ALJ an opinion on how each of the claimant’s past relevant work jobs would be classified in the DOT. This testimony can often be puzzling to claimants where the job requirements for prior jobs as actually performed differ from the requirements of that job classification as described in the DOT.
4. The Fact that the Judge asks No or Few Questions of the Vocational Expert Does not Mean You Have Either Won or Lost
Very confusing, I know. Why would the ALJ have asked the VE to come to the hearing and not ask the VE any questions? Many claimant’s assume Judge’s failure to ask many, maybe any, questions of the VE means the judge is going to turn them down. Others conclude the judges silence must be a good sign. This is a area when it is particularly good to have an experienced local social security disability attorney who is familiar with the Judge concerned. In my opinion, an ALJ’s failure to ask the VE questions is usually a good sign because in general when an ALJ believes a claimant is not disabled he or she will make sure there is a complete evidence record to support the denial. That support would include VE testimony. It is, however, possible the ALJ’s silence does not reflect the opinion that the claimant is entitled to disability benefits. Remember that up to the ALJ hearing the social security administration had denied the disability claimant. The ALJ may be of the opinion that that decision was sound, based upon the evidence, and that further vocational evidence at the hearing was simply not needed.
5. Just because the VE says there are “No Jobs” does not mean you have Won.
The ALJ will typically ask the VE a series of hypothetical questions about the employability of a fictious person. The odd thing is that the age, vocatonal training and past work experience of this hypothetical persons matches the claimant! (it is an add little system). ALJ’s are now trained to start the series of hypotheticals with the least restrictive functional impairments. Usually this is the restrictions and limitations that the government had found in the claimant’s case at the initial and/or reconsideration decision level. It will hardly be a surprise then that the VE responds to the ALJ’s first hypothetical question with an opinion that the claimant could either return to past work and could do other work in the national economy. The last hypothetical question the ALJ asks usually includes the most extensive and severe restrictions – one that the ALJ anticipates will result in VE testimony that there are “no jobs” a person could do with those problems. It is very satifying to hear the VE say “no jobs” but it does not necessarily mean victory has been achieved.
The VE hypothetical questions are how the ALJ lays out the vocational impact that alleged restrictions would have. It is the role of the Judge to determine whether those restrictions are “reasonably related” to the medical evidence. So just because the ALJ asks the VE whether there would be jobs for a person that would be expected to be chronically absence from work due to his medical condition over 5 days a month – resulting in VE “no jobs” testimony- it does not mean that the ALJ believes the claimant’s condition would reasonably result in such chronic absenteeism.
Hiring an experienced, local social security disability lawyer assures you will understand most of what occurs in your hearing, and what role the VE plays. Perhaps more importantly, hiring an experienced local social security disability attorney assures you will know your interests are being protected: even if you don’t quite understand everything that goes on in the ALJ hearing.