Gerald G. Lutkenhaus Social Security Disability Law Blog on Lawyers.com

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 vocational expert (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 the claimant 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 the claimant 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 the claimant 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.

CONCLUSION: A VE will often testify at Social Security Hearings. As a claimant, you need to know the role of the VE. You need to know he may suggest other jobs you can do. You need to consult an attorney about this possibility.

This may be considered AN ADVERTISEMENT or Advertising Material under the Rules of Professional Conduct governing lawyers in Virginia. This note is designed for general information only. The information presented in this note should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Jerry Lutkenhaus has been a practitioner of Social Security Disability law in the Richmond, VA for over 35 years. He was given an "AV" rating by Martindale-Hubbell in 2003. Richmond Magazine has listed Mr. Lutkenhaus as one of the best lawyers in central Virginia. There is more information at www.virginiadisabilitylawyer.com or www.geraldlutkenhaus.com.