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.
