Tuesday, February 3, 2015

"Hypothetical Individuals" and Vocational Testimony at ALJ Hearings

One of the most common concerns that Claimants have when approaching an Administrative Law Judge Hearing concerns the testimony of the Vocational Expert (VE).  This seems to be a point of concern from a Claimant’s perspective because “they are going to tell me I can work.”  This is not exactly true.

Generally, the job of the VE is to classify Past Relevant Work (PRW), assess the transferability of employee skills, and apply their skill and expertise when being called on to assess the employability of a hypothetical individual that the judge or the Claimant will present to them.  As such, assuming that their PRW and transferability testimony (where applicable) is reasonable, eliciting favorable testimony about a hypothetical from a VE should be the focus of the Claimant (or their counsel) during the hearing.  A hypothetical individual may or may not resemble a Claimant’s condition, and for this reason, it is imperative that the hypothetical individual be presented in a way that truly reflects the limitations experienced by the Claimant.

There is a lot of available information about the vocational portion of the hearing, and different practitioners approach VE testimony differently.  There is NOT a one-size-fits-all approach to securing reasonable and favorable testimony from the VE, but I will attempt to enumerate some helpful practices, and highlight some true-to-life approaches.

First off, every judge approaches the VE with their own style.  Some judges start with a very broad hypothetical and leave the refinements to Claimant or Counsel.  Sometimes they will start broad and work their way to a more refined hypothetical, and sometimes a judge will start with a very restrictive hypothetical that yields no work for the hypothetical individual.  Often, one can get some idea about the judge’s feeling about granting a case from the nature their hypotheticals presented to the VE

If a judge ONLY offers a hypothetical that is very restrictive and leads to a scenario where the hypothetical person could not return to PRW or perform any other work in the national economy, I generally recommend that Claimants leave the testimony alone.

However, if the judge presents hypotheticals that allow for the performance of PRW or other work in the national economy, the approach should be to work to erode the vocational base using limitations found within the medical records and testimony.  Some judges do this for themselves by offering several hypotheticals, and it is here that Claimants will need to judge how hard to push cross-examination.  As a general rule, the goal is to minimize the number of jobs that each hypothetical individual can perform.
The setup for vocational testimony will often look like this:

Judge: Madame VE, please assume a hypothetical individual that matches the Claimant’s
1) Age
2) Education
3) Past Relevant Work (ensure that this is classified correctly)
4) And that this hypothetical person is capable of work at the (Sedentary/Light/Medium/Heavy/Very Heavy) residual functional capacity (RFC)

Judge: In light of these assumptions, can the hypothetical person return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?

Judge: Now, further assume that the hypothetical individual is limited by the need to:
1) Sit/Stand at will for periods of not to exceed 30 minutes in one position (Back problems)
2) Perform simple repetitive work due to mental limitations (Anxiety problems)
3) Perform no work around hazards (Medication or Anxiety Problems)
4) Perform no work including ladders, ropes, or scaffolds (Balance or anxiety problems)
5) Have limited interaction with co-workers, supervisors, or the public (mental or communication problems)
6) Be off task for 10 minutes per hour due to medication/psychiatric-based symptoms (pain or pain medication, water pills, digestive issues) 
7) Avoid temperature extremes (often seen in heart issues)
8) Limit crouching, kneeling, crawling to _______ percent of the day (Back or joint problems)
9) Limit reaching, handling, fingering to _______ percent of the day (Arthritis issues)
10) Miss X days per month due to the need for regularly scheduled medical care (Medical or mental health care)

Judge: In light of these assumptions, can the hypothetical individual return to their Past Relevant Work?  Is there any other work in the National Economy that they could perform?

As you can see, there are two sections to this hypothetical.  First, there are the initial four general assumptions: age, education, PRW, and exertional level.  Age and education are largely factual, whereas Past Relevant Work and exertional level may be more subjective.  A Claimant will want to ensure that their past work is fairly characterized since the nature of this work can hold a direct bearing on their disability determination.  Exertional level is crucial as well since it can direct a finding under the Vocational Grids.  For the purposes of VE hypotheticals, Claimants will nearly always wish to present hypotheticals at the Light or Sedentary exertional level.  For information about exertional levels, please see. CFR §404.1567 (http://www.ssa.gov/OP_Home/cfr20/404/404-1567.htm) 

The second section of the hypothetical creates more limitations that the VE must address when providing opinions about PRW or other employment.  For hearings with judges that provide only general hypotheticals that allow employment, it is very important that Claimants refine these hypotheticals with evidence-based limitations that further erode the vocational base.  When asking the VE to provide testimony based on the refined hypothetical, one should include the limitation, the “why” of the limitation, and potentially the exhibit that expresses this limitation.  Generally, as credible limitations are introduced, available job options become fewer and fewer (and that is good news for Claimants).  Ultimately, the goal should be to erode the occupational base as much as possible using plausible and documented limitations.

There are numerous ways to approach VE testimony in Disability Hearings, but the best advice that I can offer is to address their testimony using a factual, non-emotional approach.  The VEs can create very favorable and convincing testimony for Claimants when approached appropriately, and rarely will an emotional reaction to their testimony convince the judge that benefits should be awarded.

This information does not create an attorney-client or physician-patient relationship or any kind, and is for informational purposes only. For advice regarding your specific circumstances, contact Disability Attorney Thomas O’Brien.


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  2. The ALJ asked the VE one hypothetical the VE said no jobs on cross and my rep said we lost. Waiting...