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When you are scheduled for a SSDI hearing, is a VE usually present or not?

Seattle, WA |

Also, If the ALJ goes through the 5 step sequential process and finds you disabled at steps 1-4, does he or she need a VE to make a determination at step 5? If a VE is not present, can the ALJ find you not disabled at step 5? Suppose a VE is present. Suppose the VE says there are no hypothetical jobs you can do in the national economy. Does this mean the ALJ must automatically approve your claim by law? Thanks for any and all input.

Attorney Answers 3

  1. Best answer

    My nearly 30 years of experience practicing Social Security disability law appears to depart markedly from that of Mr. Curtis and Mr. Gibney.

    First of all, a VE is scheduled for the administrative hearing when the ALJ suspects he will not have enough vocational evidence to support his ruling in the absence of a VE

    The sequential analysis under 20 CFR 404.1520 is mandatory. The question of each step must be answered in order, and an award at an earlier step precludes further analysis. The sequential analysis is the roadmap to victory. Diligent attorneys work hard with treating physicians to document Listings meeting or equivalence because the opinion of a treating physician when properly documented is entitled to "controlling weight." In my experience, winning by establishing Listing meeting or equivalence is far more common than letting the analysis get to the VE level, but a diligent attorney argues more than one basis for the award. The secret of my own success is the effort I put into a detailed and comprehensive on-the-record request complete with depositions of treating physicians and affidavits of claimants and other witnesses. When a VE testifies that there is no hypothetical job you can do, that answer is limited to the hypothetical worker described by the ALJ. Should the ALJ find that the claimant is not so limited, the VE answer would not apply and possibly disability could be denied. A diligent attorney will also be fully prepared to cross-examine the VE to establish vocational opinion more favorable to an award.

    While you seem unusually well versed in the vocabulary for a lay claimant, you should be aware that the administrative hearing is never an appropriate DIY project. That event is the last opportunity of right to present evidence. Subsequent appeals are based on the record made at the hearing. A diligent attorney is unlikely to undertake appeal from an ALJ denial without having had the opportunity to make the record.

    Best wishes for a favorable outcome. and please remember to designate a best answer.

    This answer is offered as a public service for general information only and may not be relied upon as legal advice.

  2. It depends. VE's are sometimes present when you would normally think they would not be needed and not present in cases where you would expect to find them. The VE's job is to offer an opinion based upon the record provided. The ALJ is the decision maker and makes the final decision after weighing all input.

  3. The claimant (you) have the burden of proof at Steps 1-4 but if the Judge finds that you meet a "Listing" he should not proceed to the other steps. However, it is very difficult and rare for a Judge to find that you meet a listing. The VE will initially testify whether or not the claimant can perform his or her job. If the answer to that question is "no, he cannot perform his past relevant work", the ALJ typically asks several hypotheticals and then select the answer that he or she feels is most consistent with the evidence of record. The VE's answers will be heavily dependent on the assumptions from the ALJ. It is important for you or your representative to be familiar with the record so that you may ask hypotheticals as well. if the VE answers "no, there would be no jobs" to all the hypotheticals then it is likely that the person will be found to be disabled. Best of luck to you.

    This information is provided as a public service to provide a general answer and should not be relied upon as legal advice.

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