Almost all of the judges who preside in the Atlanta area hearing offices (Atlanta downtown, North Atlanta, Marietta and Covington) use vocational witnesses in disability hearings. From your perspective as a claimant, it may seem odd to see a witness sitting there during the course of your hearing and answering questions from the judge about your case because you have never met this person before.
Vocational Witness testimony in Social Security disability cases from Jonathan Ginsberg on Vimeo.
Social Security judges use vocational experts (called “VE’s”) to help them better understand the physical and intellectual demands of your past work and of other work in the economy. Every job that you have ever done and every job that exists has been classified by the United States Department of Labor based on its requirements. Currently Social Security relies on a Department of Labor publication called the Dictionary of Occupational Titles to classify jobs. While the D.O.T. is outdated (it was last updated in 1991, and some of the jobs contained in the D.O.T. date back to the 1970’s), this is the source of vocational data that Social Security still uses.
The vocational witness helps the judge understand the vocational impact of your medical and mental health problems. In a typical hearing, the judge will turn to the vocational witness after listening to your testimony. The judge will first ask the VE to identify and classify your past work, and identify any transferable skills you may have picked up while working a particular job.
Next, the judge will pose one or more hypothetical questions to the vocational witness. These questions are really about you but the judge poses them as a hypothetical like this:
“Mr. Vocational Witness: assume a hypothetical person who is the same age as the claimant (you), with the same education and work background. Assume further that for the purpose of this hypothetical I find that this person can perform the duties of a light job with the following limitations:
- this person should avoid ladders, ropes & scaffolds
- this person should avoid repetitive use of the right upper extremity
- this person can occasional kneel, crouch, stoop and bend
- this person should avoid dusty environments
- this person should be limited to simple, repetitive tasks because of his various mental health issues including depression and anxiety
Could such a person perform the claimant’s past work or any other work? If so, can you identify examples of these jobs from the D.O.T.?”
The judge may ask one, or he may ask 10+ hypothetical questions. We win if the limitations set out in the hypothetical are so restrictive that the VE cannot identify any jobs that this hypothetical person could perform.
Once the judge has asked his hypotheticals, I will be given a chance to ask my own hypothetical questions. As I point out in the video, we need to make sure that the VE answers “no jobs” to a question that reflects what you testified. In other words, if the judge finds you fully credible and accepts all of the limitations you discuss in your testimony, those limitations need to preclude all work – if not, you are not going to win. This is why it is so important to practice hearing testimony a few days or weeks before your hearing.
Vocational Witness Not There to Help or Hurt You
Vocational experts are not there to hurt you or to help you. If the judge sets out a hypothetical with very restrictive limitations, the VE will most likely find no jobs that you could do. If the judge’s limitations are minimal the VE will most likely find jobs.
Vocational witnesses testify about a hypothetical person’s capacity to perform a particular job. They are not there to say that they can find you a job or that a particular job exists near where you live. Vocational witness testimony speaks to a pretend world, not real life. So, when your hearing is over, do not express anger at the VE for “saying that I can do a job that I can’t do.” The VE’s testimony is only helpful or damaging to your case to the degree that the judge’s hypothetical contains restrictive limitations.