Written by attorney Gerald Gregory Lutkenhaus

Your Social Security Disability Claim

Mr. Smith came to me after he has lost his Virginia Social Security disability hearing. He said there was some "doctor" at the hearing. This "doctor" said Mr. Smith could work as a cashier, information clerk, or credit clerk but Mr. Smith complained he had only worked construction. How could he say I could do jobs that I have never done before? Mr. Smith did not understand his claim and that is why he lost his case.

A short explanation of the role of the Vocational Expert will illustrate his mistake. The Vocational Expert (VE) will be a person who specializes in Vocational Rehabilitation. He will often have a PhD in this field. Thus, he will not be a medical doctor but he often will have a doctorate in the field of rehabilitation. Prior to the hearing, the Social Security Judge will send out a notice about the hearing. This notice will also say whether or not a VE will be asked to testify at the hearing. It will list the name of the VE. Usually, the Judge will want a VE at the hearing because he has reviewed the file and has made a preliminary decision that the claimant cannot do his past relevant work (PRW) based on the medical evidence. Social Security then has the burden of proof to show what light or sedentary jobs the claimant can do with his work restrictions.

The easiest way for the Judge to meet Social Security's burden of proof is by using the VE. He will ask the VE a hypothetical question such as assuming the claimant cannot stand for more than two hours in a day and cannot lift more than ten pounds is there any jobs in the national economy this former construction worker can do? The VE will then list jobs such as cashier, information clerk, or credit clerk. These are jobs within the restrictions listed by the Judge. Because there are jobs Mr. Smith could still do the Judge found he was not disabled. It also would have been more difficult for Mr. Smith if he had had extensive transferable skills from his prior jobs. Usually, the more highly skilled the PRW is then the more transferable skills the claimant will have. It is also the job of the VE to identify those transferable skills. The more that are identified then the harder it will be for the claimant to win his case. But Mr. Smith said: (1) the VE did not consider the side effects of my medications; (2) the VE did not consider my severe pain; (3) he did not consider I have to prop up my leg 50% of the day; (4) he did not consider I walk with a cane; etc. I had to tell Mr. Smith if these restrictions were not included in the Judge's question then the VE would not consider them. If these restrictions were mandated by the medical evidence, then Mr. Smith could have a good case for an appeal.

But such an appeal of a Judge's decision can take years. However, all of this could have avoided if Mr. Smith had contacted an experienced Social Security Attorney before his unsuccessful hearing who would have cross-examined the VE on these issues.

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