The Vocational Expert

You are attempting to obtain social security disability benefits.  You were denied on your initial application and on reconsideration.  You now arrive at the hearing; in the hearing room you are introduced to the judge, the judge’s clerk and reporter, the medical expert if one is present and then you are introduced to the Vocation Expert.  Why is that person in the room?  What is the expert’s function?  What information on vocations is the expert allowed?

Seeing that that ALJ has called on a vocational expert means, one good thing, apparently you haven’t already lost!  A vocational expert is not necessary if the Medical Vocational Guidelines apply (‘the grid’).  If the grid applies, it mandates a finding of disabled or not disabled based upon the criteria applicable to the individual applicant (20 C.F.R. Part 404, Subpart P, Appendix 2).[1]

In all other cases, vocational expert testimony would be appropriate.  Since the grid does not apply, the ALJ will need the expert’s assistance on the issue of whether or not a claimant is employable.

Before I continue, it is important to understand that the older the claimant is, the better chance of success under the grid rules or testimony of a vocational expert.  The system is geared to individuals 50 years of age or older (even more favorable if the claimant is over 55 years of age).  The older the claimant the less vocational adjustment he/she will be required from past employment into other work.

The hearing covers five areas of consideration, substantial gainful activity, severe impairment, listings, residual functional capacity, ability to return to former work, and ability to do any full time work in the regional or national economy.

It is in steps four and five that the vocational expert’s testimony is relevant, to-wit, can the individual do any past relevant work, if not, is there work in the national economy that can be performed on a full time basis.  The Vocational Expert’s expertise, experience and testimony will usually assess the claimant’s ability to work based upon past work, performed in the prior 15 years, medical limitations, claimant’s education and age.

Vocational expert’s testimony assists when: (i) there are significant non-strength limitations that exist and make application of the grid inappropriate; (ii) there is a question as to the existence and nature of skills that claimant can be transferable to other work (An important and frequent issue that the vocational expert can address); (iii) a claimant’s limitations because of an impairment preclude performance of a full range of work activity at a given level of exertion.  If a claimant has such limitations, it is up to the vocational expert to determine if, in his/her opinion, claimant can perform some occupation(s) at the specific level of exertion with his/her limitations.

Given the importance of the Vocational testimony to the outcome of a case, how do you judge the vocational expert?

A place to start may be the credentials of the expert.  A problem is that credentials needed by a person presenting as a vocational expert are not specified in any regulation or agency rule.  My experience is that the vocational expert called to testify generally is an individual trained in rehabilitation counseling, such as a qualified rehabilitation consultant, or someone trained in industrial psychology.  Most have had years of experience.

Clients frequently ask about the various jobs that a vocational expert refers, many which the client does not recognize.  The regulations provide sources that provide, what social security will accept, reliable job information.  The regulations specifically cite several sources such as:   the Dictionary of Occupational titles, which is published by the Department of Labor; Census reports published by the Bureau of the Census, Occupational Analysis published by Social Security and various state publications.

It is sometimes fruitful to inquire of the vocational expert as to whether or not he/she has ever placed any individuals in the jobs identified?  Are you still placing people in jobs as part of your day to day work? Have you recently placed anyone into a job, you have now identified, who had impairments similar to claimant?  Although it is not unheard of an ALJ cutting off such questions if the expert’s testimony is based upon approved source material.

An interesting question is can the ALJ take into account provisions of the American’s with Disabilities Act (ADA)in ruling on whether or not the claimant is employable.  Under provisions of the ADA an employer must make reasonable accommodations for an employee’s disability.  Can the ALJ ask the vocational expert whether or not with reasonable accommodations made for the claimant’s disability, is the claimant employable?

Such was the issue in Eback v. Chater, 94 F.3d 410 (8^th Cir. 1996).  The Court’s holding was that it was inappropriate --

“This rationale is faulty for numerous reasons, the most significant of which is that a determination of relevant jobs existing in the national economy in significant numbers must be based on an assumption that the employer would be willing to make accommodations under the ADA. The Associate Commissioner of Social Security issued a statement that the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other.

[The inquiry into other available jobs] is based on the functional demands and duties of jobs as ordinarily required by employers throughout the national economy, and not on what may be isolated variations in job demands (regardless of whether such variations are due to compliance with anti-discrimination statutes or other factors). Whether or how an employer might be willing (or required) to alter job duties to suit the limitations of a specific individual would not be relevant because our assessment must be based on broad vocational patterns ... rather than on any individual employer's practices. To support a ... finding that an individual can perform "other work," the evidence ... would have to show that a job, which is within the individual's capacity because of employer modifications, is representative of a significant number of other such jobs in the national economy.” @ 412 (underlining added)

The vocational expert testimony in many cases can result in finding of disability or not disabled.  It is important that the evidence relied upon by the vocational expert, is all the evidence, that any hypothetical question put to the expert is based upon the whole record.  Good luck!

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

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[1] The grid presumes that an individual can perform a full range of work at one of three levels of exertion, sedentary, light, and medium. Once the level of exertion is determined, the grid applies specific criteria—age, education, pervious work experience, skills, no skills, skills that are transferrable and skills that are not to determine if a finding of disabled or not disabled apply.  In general, the use of the grid is limited to impairments that result in only exertional limitations, i.e. if only strength activities are involved.