VOCATIONAL EXPERT TESTIMONY MUST BE BASED ON EVIDENCE
VOCATIONAL EXPERT TESTIMONY
Vocational expert (VE) testimony requires evidence at an ALJ hearing. If you have appeared at a hearing before an SSA judge, a VE probably gave testimony during your hearing. VEs are often called by the judge to testify about the number of jobs that are available to a person seeking benefits.
The VE reviews your past work, considers factors such as job duties and your education and skill levels. The VE uses sources, such as the Dictionary of Occupational Titles (DOT), labor market surveys, and their own experience, to provide information about specific jobs you could perform. They consider factors such as the number of available jobs, where jobs are, and the skills required to do certain jobs. The VE presents their findings to the ALJ during the hearing. Their testimony helps the ALJ to make a decision about your ability to perform work.
At the hearing, the ALJ presents a series of questions to the VE. Then, the VE will testify as to whether you can work with the physical or mental issues found by the ALJ. Likewise, your attorney presents questions to the VE. Those questions are also based upon your testimony and your medical conditions. At Cannon Disability, we have the experience you need to question the VE and to win your case.
THE VOCATIONAL EXPERT TESTIMONY INCLUDES YOUR PAST RELEVANT WORK
Past relevant work includes any work you have done within the last 15 years prior to the date you last worked at the substantial gainful activity (SGA) level. It refers to work that was done long enough (usually at least three months) and recently enough for you to have gained skills and experience that can be applied to other jobs.
Past work must meet the rules of SGA. SGA refers to work that is done for pay or profit and requires physical or mental activities. The amount of money you earn to reach the SGA limit changes every year and is used to determine whether your work counts as past work.
Past work is considered relevant because it helps assess your ability to engage in work activity despite your medical condition. The SSA looks at whether you can still perform your past work or if your medical symptoms prevent you from doing so. If the ALJ finds that you are capable of performing your past jobs, then you will not be paid SSD benefits.
THE VOCATIONAL EXPERT LISTS YOUR SKILLS
The VE will tell the judge about any skills you have learned from doing your past work. There are three skill levels: unskilled, semi-skilled, and skilled. The level of skills you learned from your past work helps determine the types of jobs you may be able to perform in the future. Therefore, the judge will want to know what skills you learned from your prior jobs. Learn more information about job skills.
Also, the judge will want to know if you have any skills from past work that can be used to do other work. These are called transferable skills. Transferable skills are skills that can be used in other jobs, even if the job is a different job.
For example, most attorneys know how to type. Perhaps a person can no longer be an attorney due to their medical conditions. However, they still have typing as a skill they can perform. Therefore, the VE might testify that typing is a skill that can transfer to a job like secretary. If secretary is an easier job than lawyer, the judge may find that despite medical conditions, the attorney could use their typing skill and work as a secretary.
7TH CIRCUIT REVERSES ALJ BECAUSE VOCATIONAL EXPERT TESTIMONY REQUIRES EVIDENCE
In Brace v. Saul (7th Circuit 08/17/2020), the Seventh Circuit held for Brace. Brace applied for Social Security benefits. His claim was based on a number of chronic conditions — mostly back and neck pain due to degenerative disc disease. A judge from the SSA denied his application. The ALJ’s denial relied on testimony from a VE. The VE stated at the hearing that jobs were available in significant numbers in the national economy for a person like Brace.
At Brace’s hearing, the VE said he could perform certain jobs, even with his physical conditions. Brace’s lawyer asked the VE to explain how he arrived at his job estimates. The VE did not have a viable answer for how he came up with the number of jobs Brace could do. But, the ALJ accepted his testimony anyway and then denied Brace’s claim for benefits.
The 7th Circuit disagreed with the judge’s decision. They held that the VE must provide proof for his testimony. If the VE does not provide proof, then the judge’s decision is not based on substantial evidence. Thus, the 7th Circuit sent back the ALJ’s decision to correct the errors.
WHY DOES THE VOCATIONAL EXPERT NEED TO GIVE TESTIMONY AT THE HEARING?
The SSA does not care whether a job is in your area, near your home, or how much it pays. The judge does not need to consider common sense factors, as if you were searching for a job. Instead, the judge looks at whether or not there are jobs available to you, based upon your physical and mental symptoms, in the entire nation.
VE’s have training in placing people in jobs. They also understand how to look up the numbers and types of jobs that exist in the nation. They are at the hearing in order to answer questions about jobs.
Once the Judge asks you questions about your physical and mental limits, she will decide what you are capable of doing during an 8 hour work day. The SSA calls this your residual functional capacity (RFC). Your RFC what you can physically do during an 8 hour work day. Therefore, your answers to the questions at the hearing are very important. Your answers are just as important as the medical records you submit.
The Judge uses your hearing testimony and the symptoms from your medical records to determine how your health impacts you on the job. At the end of your hearing, the Judge will ask the VE questions about what jobs someone with your symptoms could do.
Most judges are not experts in how many and what types of jobs there are in the country. They are also not experts at placing people with medical conditions in those jobs. Therefore, they hire a VE to testify about those issues at the hearing.
WHAT WE DO TO HELP YOU WIN SSD BENEFITS
You do not need to try to win SSDI and SSI benefits by yourself. We can help file your SSDI and SSI application. Also, we can help you appeal every SSA denial. That way, you can focus on your health. For example, our attorneys and staff can:
- Send you the paperwork you need to become our client
- Help you file your application for SSD and SSI benefits
- Inform the SSA that they should pay your benefits under the Compassionate Allowance Rules
- File an appeal if you receive an initial denial from DDS
- Help you confirm your Consultative Exam
- Request a Hearing with an Administrative Law Judge (ALJ)
- Prepare you to testify at your ALJ hearing
- Represent you at your hearing and question the expert witnesses
- Read more about vocational expert here
- Learn more about medical expert testimony here
- Request review of an SSA decision with the Appeals Council
- Request review of an Appeals Council denial in Federal Court
If you file your application for benefits online at Social Security’s website, then you have 6 months to complete the application. Once you submit your application online, the SSA sends you an application summary in the mail. You must sign it and mail it back.
Additionally, once you receive a denial, you have 60 days to file an appeal. You must also meet the time limit set by the SSA. If you do not, then you will have to start the process over again. That means you will lose any benefits you could receive on any prior application.
IS IT WORTH THE ATTORNEY FEE TO HIRE AN SSD LAWYER?
It isn’t easy to get Social Security benefits and the application process can be frustrating for most people. But, having an attorney throughout the appeal process can relieve stress. It is our belief that when you have a law firm with experience handling your Social Security case, the SSA makes sure that they follow their own procedures.
Additionally, when you have an attorney with legal experience, they will have access to Social Security’s decisions throughout the process. They can also submit medical evidence that may be missing from your case. Of course, they can also question the expert witness at your hearing, like the vocational expert.
There is evidence that hiring an attorney with experience raises your chances of winning your SSDI and SSI benefits by 30%. It is also smart to hire an attorney to help you at your hearing. After all, you are the star witness at your hearing. If you hire an attorney with experience, they can also prepare you to be a good witness at your hearing. Learn more about how to prepare for your hearing here.
HIRE CANNON DISABILITY TO QUESTION THE VOCATIONAL EXPERT
The truth is you need an attorney to know how to question the VE. You may be able to provide testimony on your own to the judge, but when it comes time to ask questions of the VE, you won’t know what to do. Vocational expert testimony is hard to understand. Likewise, the rules regarding jobs and how physical and mental symptoms prevent you from working are complex. If you do not have an attorney, you can lose your hearing due to the VE’s testimony.
In order to question the VE, you must know what symptoms prevent certain types of work. For example, if you cannot perform you use fingers due to pain, then you cannot type. That symptom would prevent you from working as a secretary and working as an order puller. Similarly, if you cannot lift more than 10 pounds, you would not be able to perform most light jobs, such as cashier or laundry folder. Being unable to stoop and kneel also prevent you from doing many jobs. This is what the VE is there to testify about. You need a lawyer who knows whether or not the VE is telling the truth.
The attorneys at Cannon Disability have won over $100 million dollars for their clients. We have the experience you need in court to win your case. Many of our clients live in Utah. Find out more about filing for Utah SSD benefits here. We also represent clients in Nevada. Nevada benefit information can be found here. Likewise, we have information on Idaho SSD and SSI benefits and California SSDI benefits.
FILE YOUR SSD APPLICATION FOR BENEFITS ASAP
This article talks about vocational expert testimony, but you may be wondering how to file your application for benefits. We can help you with that too. Our lawyers and staff are experts at filing applications and appeals. We can help you file your application for benefits online at Social Security’s website.
Many people contact our office asking if they should file for Social Security benefits or Supplemental Security Income. Usually, they wonder if they can get benefits and what types of benefits are available. But, they also wonder if they should wait to file for benefits. After all, many people are injured and think they may return to work or they become ill but believe they might get better.
Whether you have suffered a serious job injury, a car accident, or have a disease, every day you wait to file for benefits is a day that you lose money. SSD benefits are available one year prior to the date of application if you were not working during that past year. SSI benefits are available on the date of application, but not prior to the application.
Therefore, it is important to file your application for benefits as soon as you think you may have a period to time off work or you may not know when you may be able to return to work because of your physical or mental condition.
HIRE US TO QUESTION THE VOCATIONAL EXPERT
When you are seeking an attorney to help you with your Social Security case, you need to find one that you can get along with. However, you also need to find one who has years of experience doing this kind of law. Many law firms state they practice Social Security law, but the truth is they do very few SSDI and SSI cases. You should hire a law firm that focuses on Social Security cases. Hire a law firm that can counter VE testimony. At Cannon Disability Law, that is all we do and we have over 30 years of experiencing in this area of law.
In order to choose a lawyer, find out more about them. You can find out more about our lawyers and staff on our about us page. For example, Dianna Cannon has been helping clients win Social Security benefits for over 30 years. Brett Bunkall also has years of legal experience and has won hundreds of cases in Utah, Nevada, Idaho, and California. Andria Summers has worked at our law firm for 21 years and has helped thousands of our clients win benefits.
We can help you with your SSDI case. Call now. Or, contact us on this website. We will look at your case for free. Also, if we take your case, you do not need to pay an attorney fee upfront. Additionally, we can represent you wherever you live.
You paid for your benefits by working. Now you need them. You deserve financial security. Call now. If we win your case, then you will have financial security for you and your family. We can question the vocational expert and win your benefits. Contact us today to hire a Social Security attorney with the legal experience you need to win your SSD case.