Challenge Vocational Experts in ALJ Hearings
By: Disability Group (www.socialsecuritylaw.com)
After an initial denial of a Social Security Disability Application, there are several levels of appeal. There have been several recent changes in the law so that some levels are omitted or replaced. For now, the process in most levels is: Request for Reconsideration and then a Administrative Law Judge Hearing.
What does the Administrative Law Judge have to decide at your hearing?
The judge needs to determine whether you are able to return to your past work, and if not, whether you can perform any other job that exists in the national economy. You are found disabled if you are unable to perform any job. If your ability to return to work is not evident from your physical limitations, age, education and work skills a vocational expert’s opinion will be necessary.
What does a Vocational Expert testify about?
A Vocational Expert is a person who knows about an injured person’s ability to perform work or household tasks. The Vocational Expert conducts research and provides expert evaluations and testimony for cases, which involve employment and earning capacity issues. At the hearing the judge will ask hypothetical questions to the expert, describing a person with the same limitations you have and ask whether there is any job you could perform.
What can your attorney do if the Vocational Expert says you are able to work?
When the Vocational Expert gives the judge examples of jobs you can perform and states how many of these types of jobs exist in the economy, your attorney should question this expert’s research. The expert did not go out and count the number of jobs.
Where does the Vocational Expert get the numbers stating how many and which types of jobs exist?
Vocational Experts use the numbers from the US Census directly or from a private company (US Publishing) who puts the US Census numbers in a more user friendly package.
What is wrong with the Vocational Expert using Census data?
The problem with the Vocational Expert using these numbers during his/her testimony is they are not consistent with the Dictionary of Occupational Titles (DOT). The Vocational Expert is regulated by the court to be consistent with the DOT. Census data does not assess physical demands or skill levels. Census data does not use the same job titles as DOT. There are 800 job titles in the Census and there are 12,000 job titles in the DOT. This is why US Publishing states it is “virtually impossible” to calculate number of jobs from the Census data into DOT jobs without conducting an inspection to gather needed information.
What can your lawyer do to discredit the Vocational Expert in front of the judge?
If the Vocational Expert testifies that his/her numbers came from the Census rather than conducting an inspection, your attorney can point out the above mentioned problems with that. If the Vocational Expert states “in his 25 years of experience he conducted studies”, your attorney should ask when and where these studies were conducted. Your attorney should ask for the written report. Your attorney should ask whether the study included part-time work because in a disability claim all part-time work should be excluded. Regarding the jobs the Vocational Expert says you can perform, your lawyer should expose any jobs that are outdated, meaning due to technology the job does not exist or requires computer skills.
The source of the Vocational Expert’s testimony should be questioned. An honest Vocational Expert will admit the shortcomings of calculating the data. This might be enough to overcome a Vocational Expert’s testimony and win your case.
If you have any questions about hearings, Vocational Experts, or how lawyers deal with them, give us a call!