Author’s Note: This article contains a number of defined terms used by the Social Security Administration. If you are not familiar with disability terminology, in particular the role of a Vocational Expert, please see our list of Common Disability Definitions.
For most Claimants, especially those younger than age 50, one of the most unexpected portions of a Social Security Hearing is Vocational Expert (VE) testimony. The vocational expert’s primary roles in the hearing are providing insight about the Claimant’s past relevant work as performed and as listed in the Dictionary of Occupational Titles (DOT), providing information about the ability of hypothetical workers to perform jobs, as well as how many of those jobs exist in the national economy, and also providing information regarding transferable skills that Claimant might have acquired through their Past Relevant Work (PRW). The purpose of this blog entry is to discuss the portion of VE testimony that focuses on the hypothetical Claimant.
Typically near the end of disability hearings, disability judges will present vocational experts with sets of limitations to apply to a hypothetical claimant. This hypothetical claimant may or may not sound like the individual who is actually in front of the judge, by they typically will start with a hypothetical claimant of the same age, education level, and work experience that the actual Claimant possesses. The judge may then add additional limitations of the exertional (limited to sedentary, light, medium work), and non-exertional limitations (such as vision issues, reaching, handling, balancing, and concentrating). These limitations are often introduced in stages, with additional limitations being added with each iteration. Judges use this testimony to examine varying levels of limitations and better understand how those limitations affect a Claimant’s ability to maintain employment. It is not uncommon for a judge to initially present a hypothetical with very few effects, and then add additional effects in additional iterations. One could view the purpose of these multiple questions as finding the point at which the hypothetical person becomes too burdened to engage in Substantial Gainful Activity. There are many variables that may be considered during this kind of testimony, and a well-prepared Claimant or their attorney should be able to capitalize on these variables to positive effect. The text, Selected Characteristics of Occupations is a wise place to start when identifying how limitations may affect a Claimant’s work prospects.
This portion of the disability hearing can be unnerving. A Claimant is likely to hear someone who is not a treating physician provide testimony about the multitude of jobs that a “hypothetical” Claimant can perform. The word hypothetical is in quotes in the prior sentence because it is not a secret that the hypothetical individual is actually a representation of the Claimant in different forms. The next section discusses an actual vocational expert hypothetical for a Claimant that our firm represented. No names are included, and the dialog is not a perfect one for one match, but the example is provided to shed some light on this process.
My client experienced an amputation as a result of an accident. He experiences significant phantom limb pain for which he receives narcotic pain medication, and he also deals with well-documented shoulder and back issues. This portion of the hearing occurred immediately after verifying the vocational expert’s credentials.
Hearing Excerpt (Vocational Expert Testimony)
Judge: Madam vocational expert I would like you to assume the following about a hypothetical Claimant
1. A younger individual, with limited education, and a history of unskilled work.
2. Capable of work at the light exertional level, occasionally lifting 20lbs, and frequently lifting up to 10lbs.
3. Able to stand for 6 hours of an 8 hour workday.
4. No use of dominant right arm, and left arm is capable of frequent overheard reaching
5. No exposure to vibration and temperature extremes.
5. No pushing, pulling, reaching, handling, fingering, or feeling.
6. Never use ladders, ropes, or scaffolds.
7. Occasionally able to use ramps and stairs, and balance.
8. Frequently able to stoop, kneel, and crouch.
9. Never able to crawl.
Given these restrictions, is there any work that this hypothetical Claimant can do?
VE: Yes there are jobs that this hypothetical person can do. They are:
1. Chaperone – DOT Code 359.667-010, Exertional level = light, SVP of 2, 71,000 jobs in the national economy.
2. Usher – DOT Code 344.677-014, Exertional level = light, SVP of 2, 107,000 jobs in the national economy.
3. Research Subject – DOT Code 359.677-030, Exertional level = light, SVP of 1, 71,000 jobs in the national economy.
Judge: Thank you Madam VE, Counsel do you have any questions?
This hypothetical question was difficult for my client to hear, and the results are scary. Did I have any questions for the vocational expert? Absolutely.
The Claimant just heard about all of the jobs available to him, and now he has an opportunity ask how these conclusions were reached. More importantly, did the Judge believe that my Claimant had thousands of jobs from which to choose? Possibly, but if the right questions are able to be asked, this sizeable number of jobs may be reduced significantly.
Where to go next…
Several items that should be questioned about the vocational expert testimony above. This article is going to focus on the actual Dictionary of Occupational Titles (DOT) listings, but one should also question characteristics of the jobs cited, the source of the job numbers, the date they were pulled, how jobs 1 and 3 seem to have the incidence, and how job counts are matched to DOT codes. Job counts are often supplied from census codes which do not map directly to DOT codes and are usually aged. It should also be noted that the DOT is quite old, and is often lacking in describing the jobs of today. There are several ways that these disconnects can be used to a Claimant’s benefit, but the focus for today is on job descriptions.
I highly recommend having access to the Dictionary of Occupational Titles AND Selected Characteristics of Occupations when at a Social Security hearing. Many details may be found in these texts that can help erode the Claimant’s occupational base. Here are the DOT descriptions for the jobs that were cited.
- Chaperone – Accompanies minors on trips to educational institutions, public functions, or recreational activities such as dances, concerts, or sports events, to provide adult supervision in absence of parents. Follows parents’ instructions regarding minors’ activities and imposes limitations and restrictions to ensure their safety, well-being, and conformance to specified behavior standards. May plan free-time activities. May arrange for transportation, tickets, and meals.
- Usher – Assists patrons at entertainment events to find seats, search for lost articles, and locate facilities, such as restrooms and telephones. Distributes programs to patrons. Assists other workers to change advertising display
- Research Subject – Submits to scientifically conducted research relating to such fields as medicine, psychology, or consumer-product testing: Participates in activities such as performing physical tasks, taking psychological tests, or using experimental products, following instructions of researcher. Replies verbally or records responses to questionnaire to provide researcher with data for evaluation.
When questioning the vocational expert, there are two types of approach that may be employed. One class of question relates to the hypothetical as presented by the Judge. The second type of question can be presenting by making up one’s own hypothetical, or adjusting the Judge’s scenario and asking questions. For the second type of questions, it would be wise to be able to ensure that the hypothetical reflect limitations that are supported by medical evidence in the Claimant’s case file. Both types of questions though may represent great help to Claimant’s case, and one should be aware that there are certain times to not ask questions (such as where there has been no testimony that hurts your case). Also note that the vocational expert is not necessarily an adversary. Though their experience varies widely, in most cases, their responses are driven by the hypothetical limitations as opposed to any other agenda. Though their evidence may be harmful to a Claimant’s case, I have seen very few vocational experts that consistently “have it out” for Claimants, and most vocational experts, if presented with an appropriately targeted and persuasive question, may provide testimony that can strengthen a Claimant’s case considerably.
In the following paragraphs are some questions that address the nature of the proposed jobs and challenge the ability of my Client to perform those jobs. Each practitioner is going to see this portion of the hearing differently, so this is not a strict rule about how to examine a vocational expert, but rather some cues that may help a Claimant make use of potentially helpful testimony. As always, I would recommend that when asking the questions, one should remain respectful and polite. An angry expert can provide large hurdles to overcome, and even if they introduce appealable issues, the delay caused by an AC appeal can cause significant hardship.
Notice above that the “Chaperone” accompanies minors on trips, dances, concerts, and sporting events. When comparing this description with the Judge’s hypothetical, there seems to be a conflict. Most concerts and sporting events take place in theaters and arenas. Nearly every one of these locations features ramps or stairs as does the bus used to transport folks to those locales. The job of Chaperone does not neatly fit into the Judge’s limitations that the Claimant can “occasionally…use ramps and stairs”. In this case, the vocational expert should be asked whether the jobs cited were full time positions and whether or not chaperones would likely encounter ramps and stairs on a more than occasional basis when escorting students. An honest vocational expert will acknowledge the inherent conflict in this scenario, and may supply another job or simply concede.
By description, the “Usher” helps people find their seats, distribute programs, and change the advertising display. The issues discussed above regarding ramps and stairs remain for this position, which occurs in theaters and entertainment areas with some notable additions. An usher must hand out programs and change marketing signs. The vocational expert should be questioned regarding a one-armed client’s ability to hand out programs and place letters on a sign to erode the occupational base. Additionally, when considering changing signage, it is reasonable to expect that a ladder might be involved, which the Judge clearly prohibited in their hypothetical.
Finally, a ”Research Subject” must be able to fill out response forms or use experimental products. The vocational expert should be questioned how an amputated dominant hand would interfere with the ability of the Claimant to perform research related tasks in their job as a research subject. Additionally, any job that requires “filling out responses” would require the use of a writing instrument or keyboard, which would be problematic for a new dominant-hand amputee. A well-placed question about the loss of a dominant hand would be proper in ascertaining whether or not the occupational base was eroded. It would also be wise to ask about the impact of taking daily prescription drugs on the performance of the Research Subject position, since many of these positions would require strict control groups.
To be clear, there are many different approaches that one may use when working with the testimony of the vocational expert. Sometimes it is appropriate to not seek any further input from the vocational expert, and sometimes adjusting a hypothetical and scrutinizing vocational expert responses may be the only way to win for a Claimant. It is nearly always advisable that for Claimants under the age of 50 offer a hypothetical that puts the Claimant out of work entirely (and is supported by evidence).
For more information about this article or to discuss your case with a Georgia-based disability attorney, contact Attorney Thomas O’Brien at The Law Firm of O’Brien & Feiler.
