Using Vocational Experts in Social Security Disability Cases – Increase Your Wins
Since Kerner v. Flemming, 283 F.2d 916 (2d Cir. 1960), Vocational Experts, who are vocational rehabilitation professionals educated, trained, and skilled in job placement of injured persons and knowledgeable about labor market conditions, have been asked to formulate vocational opinions about specific job opportunities of a person based on their age, education, background, work experience, and medical condition based on hypothetical questions posed by the Federal Administrative Law Judges.
The “impartial” Vocational Expert’s opinions are based on information provided by the ALJ to them at the time of the hearing. Many times, they have not been provided with the medical records. Other times, they are called telephonically just to render their vocational opinion and never see the Social Security Claimant or hear their testimony. Sometimes, they are provided with convoluted hypotheticals which do not make sense in the real world.
Unfortunately, the “impartial” Vocational Experts are beholden to the ALJ or the administration for additional testimony assignments so they may feel pressured to testify in a way the ALJ wants them to for fear of not receiving additional assignments.
No wonder the grant rate for Social Security Cases has declined from 70% in the 1970s to currently about 40%-45%.
One of the best methods to increase the social security attorney’s “win rate” is to retain your own Vocational Expert.
The OAS Vocational Experts can assist you in counteracting the impartial VE’s testimony on significant numbers of jobs or transferability of skills in the local or national economy.
Independent Vocational Experts (VEs) are contracted by Social Security to respond to the ALJ’s hypothetical questions. The VE testifies as to the types of jobs available given the parameters of the hypothetical question and the “significant” number of jobs available.
Next to “mis-classification” of the claimant’s past relevant work, the second most frequent error made by the government’s VE is making a determination as to the numbers of jobs existing for a particular occupation.
In the beginning of the Social Security Disability Vocational Expert program (1970s and 1980s), the administration paid Vocational Experts to perform labor market studies in their geographical areas to determine the types and amounts of jobs existing. This has been discontinued, requiring the Vocational Expert to rely on their own experience and reported numbers from the United States Government wage surveys. Many of these surveys are reported in one of 503 census groups from which the Vocational Expert extrapolates the number of jobs existing for a particular DOT Occupation from the group of jobs.
Many Vocational Experts “guess” at the local or national numbers for each job they testify about. This determination requires some data massaging using the methodology suggested by Jeff Trutran of Vertek, Inc., publisher of Job Browser Pro and OccuBrowse software. This software is now being used in the Social Security Office.
The pre-hearing retention of your own Vocational Expert allows you to classify your claimant’s employment using the proper DOT Number and Job Classification, as well as the skill level. Your Vocational Expert can do a transferability of skills evaluation and discuss the findings in their report. This allows you to show the ALJ you are prepared and ready for an appeal if your claimant receives an unfavorable decision.
OAS can assist the Social Security Attorney in providing a Vocational Opinion based on our objective assessment.
An assessment is made of the claimant’s vocational capabilities based on the record review, standardized diagnostic interview, vocational testing as to transferable skills and competitive employability (if needed), transferability skills analysis, and labor market research in the person’s local geographical area to determine if any “significant number of jobs” exist in the local or national labor market that the claimant could perform.
When the case goes to Hearing, we will work closely with the attorney so they can better understand our evaluation and prepare for the cross-examination of the government’s impartial expert’s testimony.
OAS Experts have testified in numerous Social Security Disability cases. We have been recognized as Vocational Experts in the Federal Courts of New Jersey, New York, Pennsylvania, Georgia, Massachusetts, and Florida.
OAS works closely with each attorney to assist them in assessing their Social Security Disability claimant. For further information, please call OAS at 800-292-1919 for a sample Social Security report, professional qualifications, and our article Social Security Vocational Expert Friend or Foe: How to Cross Examine & Win Your Case, which further describes how we can help you win your Social Security cases.