Wednesday, October 24, 2012

The Importance of Cross-Examining the Vocational Expert about DOT Job Descriptions in a Social Security Hearing


For many Claimants, especially those less than age 50, one of the most unnerving portions of a Social Security Hearing is the testimony of the Vocational Expert (VE).  Generally speaking, the VE’s role in the hearing is to provide insight about the Claimant’s past relevant work as performed and as listed in the Dictionary of Occupational Titles (DOT), and also to provide information about the ability of hypothetical workers to engage in jobs, as well as how many of those jobs occur in the national or local economy.  The purpose of this note is to discuss the portion of VE testimony that focuses on the hypothetical Claimant.
As you may recall, the Vocational Expert is presented with a set of limitations to apply to a hypothetical individual with age, education, and work experience that may or may not mirror the condition of the Claimant.  These limitations are often presented in one or more hypothetical bundles by the Judge or the Claimant’s attorney.  Many Judges take this opportunity to test varying levels of medical limitations with regard to the Claimant’s ability to maintain employment.  They often accomplish this by presenting a hypothetical with a bare minimum of effects, and then a hypothetical with more severe effects.  The purpose of these multiple variants is to find the point at which the hypothetical person becomes too burdened to engage in Substantial Gainful Activity.  There are an awful lot of variables that may or may not be considered during this kind of testimony, and a well-prepared Claimant or their attorney can sometime capitalize on these variables to positive effect.
Hearing a stranger who is not a treating physician provide testimony about the hundreds and hundreds of jobs that a “hypothetical” Claimant can perform can be disturbing to a Claimant.  The word hypothetical is in quotes in the prior sentence because it is not a secret that the hypothetical individual is nothing but a straw-man representation of the Claimant in various forms.  The following section discusses an actual set of hypothetical parameters for a Claimant that I represented recently, who granted me permission to share this information.  The names are removed to protect the privacy of those involved, and the dialog is not exact, but these changes should negatively affect the message.
My Claimant experienced an amputation as a result of an industrial accident.  He experiences significant phantom limb pain, which is treated by narcotic pain medication, and also deals with other provable shoulder and back issues, for which we presented multiple medical records.  This portion of the hearing occurs immediately after verifying the VE’s credentials, and asking if Claimant had any objections to the information therein.

Judge:   Madam VE, I would like you to assume the following about a hypothetical Claimant
1.  A younger individual, with limited education
2.  Capable of light work, occasionally lifting 20lbs, and frequently lifting 10lbs.
3.  Capable of standing for 6 hours of a workday, and sitting for 6 hours of a workday.
4.  No activities capable with right arm, which was dominant, left arm capable of frequent overheard reaching, and vibration should be avoided.
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, 700 jobs locally, 71,000 in the national economy.
2.  Usher - DOT Code 344.677-014, Exertional level = light, SVP of 2, 3.300 jobs locally, 107,000 in the national economy.
3.  Research Subject - DOT Code 359.677-030, Exertional level = light, SVP of 1, 700 jobs locally, 71,000 in the national economy.

Judge:   Thank you Madam VE, Counsel do you have any questions?

               The question posed by the judge is emotionally challenging, yet important, and the answer should be a resounding “YES”.  The Claimant just heard about the thousands of jobs available to him, and now he has an opportunity ask questions about how this testimony was reached.  More importantly, does the Judge believe that a Claimant has thousands of jobs from which to choose given the testimony of the VE?  Possibly, but with a few well targeted questions, the impressive number of jobs may be winnowed down significantly.   
Please note, there are several items that should be questioned about the testimony above.  This article is going to focus on the actual job listings in the DOT, but one should also question the source of the job numbers, the date they are pulled, and how jobs 1 and 3 seem to have the same number of occurrences.  With regard to the job counts, the answer is that the counts are often driven by census codes, which do not often neatly crosswalk over to DOT codes and are usually aged.  Also, it should be noted that the DOT is an aging text, and often out of step with the job market of today.  There are several ways that this can be used to a Claimant’s benefit, but this article focuses strictly on job descriptions.
               With regard to the actual jobs cited by the VE, I highly recommend having access to a Dictionary of Occupational Titles when at a Social Security hearing.  Many details may be found in this text that can help erode the actual number of jobs under a certain title that may be performed.  Here are the DOT descriptions for the jobs that were cited.

1.       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.

2.      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

3.      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 VE, there are two distinct classes of questions that can be posed.  One class of question can relate to the exact hypothetical as presented by the Judge.  The second class of question can be presenting one’s own scenario, or tweaking the Judge-presented scenario and asking questions.  Both may represent potent assistance to a Claimant, and it should be noted that there are certain times when it is best not to ask questions at all (generally where there is no testimony that has negative implications for your case).  It is also important to note that the VE should not be looked at as an adversary in these cases.  While it is true that their evidence may be harmful to your Claimant’s case, I have seen never seen a VE that “has it out” for Claimants.  In fact, in my experience, if presented with an appropriately targeted and persuasive question, the VEs testimony may strengthen a Claimant’s case considerably.
Here are some questions that, in my opinion, question the nature of the jobs proposed, and challenge the ability of my Client to perform them as they would be in the national economy.  Each practitioner is going to see this portion of the hearing differently, so this is not a “bright line” rule about how to examine VE testimony, but rather some direction that may help the reader make use of a source of potentially helpful testimony.  I recommend that when asking the VE questions, one should remain respectful and polite because an angry expert provides large hurdles to overcome.
You will see that the “Chaperone” must accompany minors on trips, and to dances, concerts, and sporting events.  When comparing this with the Judge’s hypothetical impairments listed above, there seems to be somewhat of 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”.  So the VE should be questioned about whether the jobs cited were full time positions, and whether or not in their vocation experience, chaperones encountered ramps and stairs when escorting student within arenas and theaters.  An honest VE will acknowledge the inherent conflict in this scenario.
With regard to the second position, the “Usher” must help folks find seats, distribute programs, and change the advertising display.  The issues discussed above regarding ramps and stairs still stand for this position, which occurs in places of public entertainment, with some notable additions.  An usher is required to hand out programs, and change marketing signs.  The VE should be questioned regarding a one-armed client’s ability to hand out programs and wrangle letters on a sign in the hopes of eroding the vocational base.  Additionally, with regard to changing letters on signs, it is reasonable to expect that ladders might be involved in this undertaking, which the Judge clearly prohibited in item 6 of his hypothetical.  These items erode the vocational base as well
Finally, the person performing the job ”Research Subject” must perform tasks, fill out responses, or use experimental products.  The VE should be questioned about the purpose of employing research subjects, and then asking, in my client’s case, if the physical restrictions noted by the Judge, including in my client’s case an amputated dominant hand, would interfere with the ability to perform tasks as generally required by those folks employing the research subjects.  Additionally, any job that would require “filling out responses” would be required to use a writing instrument to fill out a document.  Certainly a question about the loss of a dominant hand would be proper in ascertaining whether or not the vocational base was eroded.  Additionally, in the case of a Claimant who takes daily prescription drugs, it would be worthwhile to add this fact to the hypothetical and ask if this fact would affect the number of job available under this DOT title.
In closing, I want to note that there are multiple angles one can take when examining the testimony of the VE.  Sometimes it is appropriate to leave well enough alone, and sometimes heavy scrutiny is warranted.  In cases where it would seem that the Judge might be persuaded that the Claimant is capable of work that exists in significant numbers in the national economy, I would recommend scrutinizing every element provided by the VE and looking for holes.  Just because they are trained experts does not mean that they are perfect and rely on perfect data.  If this were the case, Social Security would not be pursuing other avenues of Vocational Information to utilize in the Social Security process.

For more information about this article, or to discuss your case with an attorney, contact Thomas O’Brien at Feiler & Associates.

4 comments:

  1. Can the disability attorney provide a expert witness to dispute what the VE is saying?

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  2. My best friend works for a social security disability company in Minnesota and he told me about something like this the other day. According to him, it's important to cover everything when dealing with disability claims.

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  3. It does seem important to cross examine! Seeing things through new perspectives and a fresh view would be beneficial. I think that seeing an Illinois social security disability attorney would probably be a good idea first. http://www.johnehornattorney.com

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  4. I had no idea that a judge would ask you all these things before you can get disability. All four of my grandparents applied for social security disability and they didn't get it. I wonder if it's because they didn't have lawyers working with them. I just don't know enough about the law to try and tackle that on my own. http://www.mooneyparklaw.com/Social-Security-Disability-Claims/

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