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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

Posted

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.

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Asker

Posted

Thanks for your detailed response Ms. Sinclair. Much appreciated! What percentage of ALJ's request a VE @ the hearing? Any idea? I don't understand something you said. You said "In my experience, winning by establishing Listing meeting or equivalence is far more common than letting the analysis get to the VE level" By VE level, do you mean step 5? If a VE is not present at the hearing and the ALJ denies you, I assume you never get to step 5 because your claim is denied for reasons based at one of the earlier steps. Can the ALJ decide based on the medical evidence that there are no other jobs that you can do or does does the ALJ need the opinion of a VE for this at step 5?

Paula Brown Sinclair

Paula Brown Sinclair

Posted

I don't know what percentage of cases have VEs, and I'm not a good attorney to ask. I prove my cases much earlier in the sequential analysis. One other attorney said winning by proving a Listing is rare, but not in my practice. VE level is the last step of the sequential analysis.

Asker

Posted

If the VE is the last step in the 5 step sequential process and you said "The sequential analysis under 20 CFR 404.1520 is mandatory", are you saying an ALJ can approve the claim in just steps 1-4 of the sequential analysis w/o step 5? How do they show there are no other jobs that you can adjust to without a VE? Can the ALJ make this decision him or her (self).

Paula Brown Sinclair

Paula Brown Sinclair

Posted

If a finding of "disable" is mandated due to meeting a Listing, equaling a Listing or on the Grids, the question of "other jobs" is irrelevant. Be aware that Avvo is no substitute for capable representation, and the presentation you make at the administrative hearing is critical.

Posted

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.

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Posted

So your claim might still be denied if the VE says there are no jobs that you can do? Thanks for your reply. Who decides whether a VE is going to be present or not? I assume it is the ALJ who is presiding over your hearing.

Clint Curtis

Clint Curtis

Posted

Yes, the judge makes the final determination.

Posted

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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Posted

Who decides whether a VE is present at the hearing or not? How can step 5 in the 5 step sequential disability process be decided without a VE present? Thanks for your input.

Lawrence John Gibney Jr.

Lawrence John Gibney Jr.

Posted

The Judge decides whether to call a VE; the claimant (you) is free to have their own VE but it will be at your expense. Usually a VE is always needed if the person is over 50 and the issue of transferable skills is an issue or when the person (regardless of age) has any non-exertional impairments (pain for instance). In the majority of my cases a VE is present to testify for the SS Administration.

Clifford Michael Farrell

Clifford Michael Farrell

Posted

I know some courts think there is a shift here, but even at step 5 the burden of persuasion remains on the claimant. 20 CFR 404.1512(a) (2012). See also http://www.ssa.gov/OP_Home/cfr20/404/404-1512.htm

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