SOCIAL SECURITY HEARINGS: HANDLING ADVERSE TESTIMONY

Adverse or negative testimony in a Social Security disability hearing will usually be presented, if at all, by the vocational expert (VE).  Vocational experts are said to testify at just over 60 percent of disability hearings.  I don't know who set that number but I have never had a hearing where a VE was not present - not one.

The "expert" will testify at sequential step 4 and/or step 5 of the hearing.  At step 4, the VE will be asked to determine if the claimant can perform any of his/her past relevant work.  If not, the hearing progresses to step 5, where the VE is asked whether there is any other work in the national economy that the claimant might be able to do.  A "yes" answer at either step is bad juju for a Social Security disability claimant.  The job of the advocate, attorney or representative is to rebut the VE's testimony--if it was adverse--and thereby reassert that the claimant is disabled to work.  Questions that may be asked of the vocational expert include:

• What is the source of the job numbers you are giving?  What data base are those numbers coming from?
• Do the numbers you give include only full-time jobs or are part-time jobs included?
• Do these numbers represent only the DOT number for the job you cited or are other jobs with different DOT numbers grouped with that job?
• Do all of the jobs in that grouping meet the judge's hypothetical?
• How many persons have you actually placed in one of those jobs?

The more doubt you can cast on the VE's answers, the better.  The more times you can get the VE to say, "I don't know," the better.

If the medical evidence is supportive, you may also ask about how additional limitations, such as mental or other non-exertional limitations affect the occupational base.  For instance, "How does the fact that the claimant has up to 5 panic attacks per day, each lasting from 15 to 30 minutes, affect her ability to perform one of the jobs you site?"

Finally, let me say that the Vocational Expert's testimony will doubtless be shaped by the hypothetical questions posed by the administrative law judge.  Presentation of evidence BEFORE the VE is called on to testify will shape the ALJ's hypothetical questions.  I have actually been at hearings where the medical evidence and claimant's testimony was so compelling that the judge never called on the vocational expert to testify.  That is an obvious indication that the case has been won prior to step 4 and the judge is satisfied and ready to make a favorable decision (assuming the case was not lost prior to step 4).  This also reinforces my belief that most hearings are not won in the hearing itself but in adequate preparation and presentation of evidence before the hearing takes place.  One cannot take a poorly prepared case and "pull it off" at the last minute in a hearing.  It is fool hardy to try.

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Charles W. Forsythe, MS, is a founding partner of the Forsythe Firm in Huntsville, Alabama--a firm that practices exclusively in Social Security disability representation.  The link below connects to the Firm's main web page for more information about Social Security disability representation.  Or you may phone (256) 799-0297.  Toll free at:  1-855-854-CASH.

mailto:www.forsythefirm.com

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