The vocational expert (VE) is an expert in the field of work, who testifies at a Social Security Disability hearing. The VE uses the Dictionary of Occupational Titles to respond to hypotheticals presented by the Administrative Law Judge (ALJ). Hypotheticals are based on the claimant’s age, education, past work, skills, and ailments, both physical and mental. The VE is neutral, but, if properly questioned by the lawyer, the VE can become a tool to positively impact the case.
There are many schools of thought on how to question a VE. In my experience handling a few hundred disability hearings, the best thing to do is to find a quick and direct way to have the VE testify there are no jobs available. How do you do this?
Assume a claimant is 45-years-old with a 12th grade education. Claimant’s past work is on the assembly line at the medium level (lifting 25 lbs. frequently, and 50 lbs. occasionally). Ailments include back problems (herniated discs) and irritable bowel syndrome (IBS), and claimant cannot perform past work due to lifting requirements and standing requirements. VE rules out past work, but VE testifies there is light work (lifting 10 lbs. frequently, and 20 lbs. occasionally) available as a non-production oriented job sorting items while sitting down. What do you do then?
Let us further assume claimant testified about IBS, and that testimony is supported by medical evidence. This issue requires a claimant take breaks, which take the claimant off task more than 20% of the day. Is the claimant disabled?
More than likely, yes, because the legal standard is whether you can work eight hours a day, five days a week. If you are off task more than 20% of the day, you are not employable. Therefore, you are disabled.
At first glance, claimant’s age (under 50) may give some lawyers pause. Not me. Age is significant, but the key issue is whether a claimant can work eight hours a day, five days a week. If that can be shown using VE testimony backed up by credible claimant testimony, and strong medical evidence, the age factor is less relevant.