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.
Want more information about Vocational Experts in Social Security Disability hearings? See my You Tube video on the subject!
In the last 25 years of handling only social security disability in Dallas Texas, I have seen the waiting time for the Administrative Law Judge hearing go up, and go down. But it has never gone down to anything close to an acceptable level. Clients asking me all the time” “Why does it take so long to get a hearing”? (Attorney Nick Ortiz has written a very good article on the subject as well).
First lets look at what the hearing wait times and hearing request backlog looks like in Dallas Fort Worth and throughout the nation. The below chart show that in the last 4 years the waiting time for a hearing peaked in 2017 at 605 days. (Ponder that staggering number for a moment). But the good news is that the wait time went down in bot 2017 and 2018. As you can see the Administrative Law Judge hearing wait time for 2018 was 538 days.
So how do the waiting times in the 3 social security disability hearing offices in the Dallas Fort Worth area look? Here are the most recent numbers for DFW:
|Hearing Office||November 2018||December 2018||January 2019||February 2019||March 2019|
|Dallas Downtown||12.5 months||13 months||13 months||13 months||12 months|
|Dallas North||10 months||10 months||11 months||11 months||11 months|
|Fort Worth||12 months||12 months||11 months||11 months||11.5 months|
But back to the question I get 2-3 times a week for the last 25 years: WHY? Well, the simple answer is that the disability hearing offices incoming hearing requests (receipts) have exceeded the number of case dispositions for many years now. Not a very satisfying answer, is it? Social security claims that social security disability applications have been going up each year for many many years and that Congress has not provided sufficient resources (i.e, money) to handle the backlog.The numbers are really shocking to most people: it takes over year to get an ALJ hearing in Dallas Fort Worth? And that is not from the initial application, it is from the actually hearing request.
Those skeptical of government (nearly everyone now?) suspect ODAR to be a lazy bureaucracy always looking for more funding and filled with slackers who cannot be fired because of strong government unions. Partly right. But my experience in the past 25 years is that there are dozens of hard working staff and ALJs in Dallas Fort Worth that are working harder than most of us have to help disabled Americans. When considering the growing Hearing Wait, I would urge consideration of the following:
1. The Administrative Law Judge Hearing is by Nature Time-Intensive
Setting up and conducting the ALJ hearing takes a lot of time on the part of staff and the Administrative Law Judges. Many claimants don’t show up for their hearing, and the hearing office must give them an opportunity to explain why they were a ‘no-show’. People come to hearings without an attorney or representative and the ALJ must give them the chance to get an attorney if they want. Even though they have been waiting for over a year, some people fail to secure representation, wasting valuable time and resources.
2. ALJ’s are duty bound to develop evidence.
For 25 years one of top priorities in representing Dallas Fort Worth social security disability claimants is to come to the ALJ with all medical evidence in front of the judge and up to date. This can be a challenge, and ALJs routinely give claimants and their representatives more time to secure missing evidence after the hearing. Sometimes a claimant has not been seeing a doctor very much, so the ALJ will order a consultative examination at the government’s expense. Moreover, more TV national social security disability firms are getting into this practice that often fail to develop the case causing significant delays. One firm, Citizen’s Disability, requires that their attorneys formally object to every Vocational Expert’s credentials, requiring ALJ’s to waste their time responding to their objections in writing. They needless extending the length hearings with repetitive questions to the vocational expert.
3. Increased Disability Applications Following the 2008-2009 Financial Crisis
There is significant evidence that good paying blue collar jobs are not coming back under any President. The reality for people over 50 that lose a job is that it is very difficult to find another job. Many are applying for disability now that in the past would keep working. Its not that they are faking; they have genuine health problems, but if they had a jo that would somehow force themselves to work.
4. Congress has no appetite for proving social security with more money
The social security admistration has come under intense criticism, with some good reason, in the last fews years for failing to monitor disability claimants, and paying benefits when they should not. Congress is not likely to open themselves up to critics in the conservative media who would contend they are “enabling” more government dependence but giving the agency added funding.
So it is not a pretty picture, but consider this: so-called “liberal” Canada does not provide for an administrative hearing for disability claimants. They have no opportunity to sit in front of a disability decision and tell their story. And consider delays like a judge ordering a consultative exam, or giving a claimant a chance to reset a hearing to get a representative. These delays would not happen if the judge just denied the claimant and sent her on her way.
So a large part of the delay in getting your ALJ hearing is that you are being provided substantive rights we all should be proud of; rights you will be happy you have when it is your time to have an administrative law judge hearing.
Administrative Law Judge’s are now routinely giving the claimant in a social security disability hearing the “last word”.While many of the questions an ALJ asks a claimant during the course of the hearing are very specific, a closing query such as “Is there anytihing else you would like me to know?” is broad and intended to insure that the ALJ has all the pertinent information so as to render a fair and impartial decision.
Claimants can often react to this question with some anxiety, thinking they might have left something important out. After all, they have in most cases been waiting over a year for this chance to tell their story to the social security administration. I prepare my clients for this question, but I remain tense when it comes along. In a hearing in which I have done my job to bring out the salient facts and evidence, and one I feel has gone well, further statements can feel like a chance to snatch defeat from the jaws of victory. The disasterous 2015 play call by Seattle Seahawks coach Pete Carroll in the last Super Bowl comes easily to mind.
Claimants often bring up minor health problems in response to this “kitchen sink” question,innocently thinking that this level of thoroughness is important. When claimant’s present non-disabling medical or mental conditions, ALJ’s can misinterpret the claimant’s testimony as a sign of exaggeration.
Claimants may also take the final chance to address the judge to make sure the ALJ understands that they are not lazy or entitled. Often times, however, statements made to that end can be misinterpreted, and in some cases have the opposite effect.
Statements like “I would rather be working” or “I have worked all my life” are understandable but in the experience of ALJs are often made by claimants that are fact not disabled. More troubling would be final statements such as “I can’t find a job”. Such a statement on its face is a clear indication of ability to work. In my 23 years of social security disability experience in Dallas Fort Worth I have on rare occasions ( and despite of my preparation session with the client) had well-qualified and clearly disabled clients made such a statement. In most cases, the ALJ have ben wise and fair enough to fquestion the claimant further and clarify that the claimant is not saying they are able to work.
The reality is that the Administrative Law Judge hearing can be a minefield where innocent and well-meaning statements can be misinterpreted. Social security disability claimants in Dalllas Fort Worth Texas and throughout the nation need experienced, local and personal representation to reach the goal of securing social security disability benefits.
I have never been a Donald Rumsfeld fan, but his odd yet compelling-decision making ideas about “known unknowns” and “unknown unknowns” has always intrigued me. And I believe they are applicable to the unpleasant task of finding a good Texas social security disability attorney.
In preparing Texas social security disability clients for the all-important administrative hearing I utlize the concept of the “evalator pitch”. In the context of business, the name “elevator pitch” reflects the idea that one’s business or value proposition should be concise enough to deliver in the time span of an elevator ride (approximately thirty seconds to two minutes). I want my client to boil her answer to the crucial “why-can’t-you-work?” question to its essence. This is not based upon the Administrative Law Judge not having enough time to hear a longer explanation. Rather it is my experience from 23 years of handling only social security disability cases in north Texas that most disability claims come down to one or two crucial points. Moreover I have represented many well qualified and deserving claimant whose “elevator pitch” is ineffect and often undermines their credibility in the judge’s eyes. For example, a contention of disability based upon inability to find work because of age or medical history is sure to generate an unfavorable disability decision in Texas given our conversation “can-do” attitude and a strong job market.
What is most important is that the allegations of that “elevator pitch” be grounded in medical findings and facts. For example, claimants often contend that they “cannot handle stress” and therefore cannot work. While this can be the basis of a favorable social security disability decision, in order for that claim to be credible problems with stress must be reflected in the medical records, and the claimant must be under medical treatment for the stress and anxiety.
Consider a client whose “elevate pitch” is inability to handle stress but is not seeing a psychiatrist or psychologist, taking no medications for anxiety, and never reports stress-related problems to his doctor. This claimant appearing before a Dallas and Fort Worth administrative law judge will not be successful. Sadly, this client may be truly disabled.
This underlines the need for retaining an effective and experienced social security disability attorney early in the process. I am available for a free consultation for Dallas, Fort Worth, Tyler and Waco disability claimants.