During a disability hearing, you can expect a Vocational Expert (“VE”) to be present at your hearing. A VE serves as an expert witness in your hearing providing sworn testimony regarding jobs available in the current labor market and the required skills necessary to perform specific jobs. The standard for denying a claim is not that you can actually find a job named by the VE, but that jobs exist somewhere in the economy that the ALJ determines you can perform. This makes it integral to be well-versed in regards to the VE’s role in your hearing.
Prior to the hearing, you should receive a copy of the Vocational Expert’s resume for your review to ensure that the VE at your hearing has the required credentials to provide expert testimony. Knowing information about your VE can help anticipate responses and credibility of the expert witness testimony.
So how should you expect this process to go? At the beginning of your hearing, the Administrative Law Judge (“ALJ”) will swear in both you and the VE. Your Vocational Expert will listen to your testimony to provide a classification of your previous work. After the ALJ has finished hearing testimony, the ALJ will then ask the VE about past relevant work, transferable skills, and hypotheticals relevant to other potential jobs.
The ALJ will likely begin with a question to the VE asking if an individual with limitations relevant to your claim can perform past relevant. If the VE responds that you can, the ALJ is likely to deny your claim. If the VE responds that you cannot, then the ALJ will ask additional hypothetical questions.
The hypothetical questions the ALJ asks the VE typically begin with, “Can a hypothetical individual with the same age, education, and skillset as the claimant…” followed by limiting work to a sedentary, light or greater category, and then other physical or mental limitations. The types of limitations the ALJ adds to the hypothetical are likely to be based on the medical evidence and testimony provided prior to and at the hearing. The VE is likely to respond with potential jobs, including the job title, the Dictionary of Occupational Titles (“DOT”) number, and the number of jobs that exist in the current competitive job market.
The ALJ is likely to ask multiple hypothetical questions, with the VE giving responses of either naming potential jobs or declaring that no jobs exist. Just because the VE names jobs in one hypothetical, does not necessarily mean that the ALJ will deny your claim. However, if the VE responds that there are no jobs available, then that is a strong indicator of a favorable or partially favorable decision.
After the ALJ is finished asking the Vocational Expert questions, the ALJ will ask the VE if his or her answers are in accordance with the DOT (a publication by the U.S. Department of Labor which helps define different types of work). The VE will need to affirm that all testimony is compliant, or state which parts are not and how they based their testimony. One example of this is that the DOT does not provide information to “time off task.” If the VE is asked a question about this at the hearing, the VE’s answers may vary, and the VE will testify that the time-off-task percentage is based on professional experience. From my experience, I have VE’s testify that anywhere from 10-20% time-off-task precludes employment, with 15-20% being the more frequent response.
Although the VE may respond that the testimony provided was in accordance with the DOT, this may not always be the case. I recently represented a claimant whose VE answered the ALJ’s question that the testimony provided was in accordance with the DOT; however, I knew that it was not. To best protect my client’s interests, I asked the ALJ for time to provide a post-hearing brief. In this brief, I detailed, with cites to the DOT, how the VE’s testimony was not in accordance with the DOT. By doing this, the ALJ granted a supplemental hearing which preserved the claimant’s claim instead of denying based off of faulty expert witness testimony. Had the individual been unrepresented, it is unlikely that he or she would have known that the VE’s testimony was suspect.
Since the Vocational Expert’s testimony is integral to you proving your claim for disability; knowing the VE’s background, role in the hearing, and evidence the testimony is based has the potential to make or break a claim. To best protect your claim, hire an attorney or make sure to do proper research on all aspects of your VE, prior to your hearing. Contact Mallary Scheer Law in Charleston today to see what we can do to facilitate with your disability case.