Monday, August 14, 2017

It’s not a job interview…

One of the discussions that nearly always takes place at disability hearings is a discussion of the work that was performed by the Claimant in the 15 years preceding the hearing.  The jobs that were performed on a full-time basis are generally considered “Past Relevant Work (PRW)”.  When a Claimant does not have a listing level impairment, the adjudicator will proceed to Step Four of the Five-Step Disability Process.  Step Four requires that PRW be analyzed to see whether or not a Claimant can return to this work.  A judge will inform herself about a Claimant’s PRW by examining the scanned disability report, and frequently by taking direct testimony on the hearing record in the presence of the Vocational Expert.

A common issue that I see when discussing past relevant work with Claimants is a tendency to treat the conversation like a job interview.  “Puffery” if often involved when job seeking, and people that cannot work may also romanticize their past work as “the good old days”.  Both of these inclinations are reasonable in the real world, but can be very damaging in the context of disability proceedings.  Claimants may have the immediate inclination to discuss past work in terms that are likely to impress prospective employers or their peers.  Very rarely would an individual discuss the particulars of their day-to-day vocations outside of the job interview process, especially if their prior work might be viewed as dull or not requiring skill.  Puffery is a natural reaction, but not controlling it CAN HURT YOUR CASE.

When conversing under oath with the ALJ or the VE, it is advisable to tell the “warts and all” truth.  If a Claimant sat at a desk, answered phones, and transferred calls to other team members, they should say this directly and unequivocally.  The Claimant does not want to have sales skills or other skills implied.  If a Claimant input numbers into an Excel spreadsheet to hand off to an analysis team, they should say this directly.  Having computer and analysis skills imputed to them may give the ALJ the opinion that there are transferable skills, which can jeopardize your case.

In addition to avoiding having skills imputed, it is important to discuss management situations with particularity.  If part of a Claimant’s job responsibilities involved managing a job site when the boss was out, make sure that the Claimant discuss the frequency of this occurrence, and the responsibilities with which they were tasked.  Additionally, it is common for managers to have a higher specific vocational preparation period (SVP) and lower exertional level than laborers.  Allowing the adjudicators to believe that a Claimant was a manager when this was not the case can cause significant issues when analyzing whether or not they can return to your PRW.

In summary, simply discussing the actual day-to-day work as it was performed in a Claimant’s Past Relevant Work is the most advisable course of action.  This may require counseling and preparation in advance of a disability hearing to avoid puffery, but as the saying goes “an ounce of prevention is worth more than a pound of cure.”