Wednesday, September 12, 2007

Social Security Disability Hearing, Vocational Expert, Judge

I've stated many times on this blog and on Disability Secrets that you should never go to a social security disability hearing alone. If you choose to go without representation at the disability application and reconsideration levels, you may or may not run into any problems on your claim; however, many claimants have no difficulty at these levels.

The hearing is different. In a recent post, I stated why it is that an attorney who is experienced with social security disability and SSI claims would be better prepared than an unrepresented claimant (which all boils down to familiarity with SSA rules and regulations, and expertise in presenting medical evidence and in developing a rationale for approval).

Well, here's another reason why you shouldn't go alone. Sometimes, an ALJ (administrative law judge) will decide to have a VE present at the hearing. What is a VE? This is a vocational expert.

What is the purpose of the vocational expert? There are two possible definitions for this. One is that a vocational expert may be required to advise the judge as to the availability of jobs in the national economy for an individual who has a specific set of functional limitations (based on a reading of the claimant's medical evidence).

The second way to define the purpose of the vocational expert, however, is this: the judge has already developed the opinion that you will be denied on the basis of being able to perform "other work" and would like to have a vocational expert present at the hearing to substantiate this.

How is this justification made? The judge at the disability hearing will typically present a hypothetical scenario to the vocational expert that A. addresses the claimant's current limitations (how much the claimant can lift, how long the claimant can sit or stand, whether or not the claimant can bend, stoop, reach overhead, etc, etc) and B. asks the vocational expert whether or not jobs exist in the "national economy" that a person with such limitations could possibly do.

In other words, the disability judge is fishing for a particular answer that he wants. Not surprisingly, judges often get exactly the answer they want, especially since they are allowed to pick the specific vocational expert they want for their hearings.

It doesn't really take a rocket scientist to figure out that the entire nature of the vocational expert being present at a hearing can be adversarial to the claimant.

How does a claimant counter the statements issued by a vocational expert? Typically, by knowing enough about the disability system and the vocational aspects of it to either challenge the vocational expert's assertions or to present a counter hypothetical based on some aspect of the claimant's background (medical and/or vocational) that the judge and vocational expert may have somehow missed.

Of course, most claimants will not be able to do this, whereas, experienced and able disability lawyers generally have a fair amount of experience in handling VE's.

It bears repeating: applicants for social security disability and SSI should not go to hearings unrepresented.

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