Can Vocational Witness Testimony Predict the Outcome of Your Hearing?
Posted Aug 27 2012 2:41pm
Over the past couple of years, Social Security has changed its procedures to offer less information to claimants and their lawyers. Staring in January, 2012, for example, SSA began deleting the name of the judge from hearing notices. Thus, when I meet with my client to prepare for an upcoming hearing, I cannot speak to the likes and dislikes of a particular judge because I do not know who that judge will be.
It is my understanding that the purpose of this particular change was to prevent “judge shopping” whereby a lawyer might tell his client to move rather than appear at a hearing before a judge who rarely grants cases. It seems to me that claimants and the entire disability adjudication system benefit more by having their lawyers better prepared than SSA benefits from rare instances of judge manipulation.
Another change I have noticed involves SSA directives discouraging judges from announcing their decisions. In years past, judges would sometimes announce favorable decisions in cases where the evidence was clear. Now, judges rarely announce their decisions directly even if all of the evidence and testimony points towards a favorable decision.
From my clients’ perspectives, of course, this mystery is extremely frustrating. Imagine waiting 2 years to get a hearing, then to discover that it may be another 6 weeks before a decision is announced.
Can we derive any clues from the vocational witness’ testimony? Unfortunately, I would have to answer in the negative. Vocational witnesses appear to answer hypothetical questions from the judge about a claimant’s work capacity. I document numerous examples of these hypothetical questions in the case write-ups you can read at the Case Strategies section of my web site. The judge will pose a question like this:
Assume a hypothetical person who is the same age as the claimant, with the same work history and education. Assume further that I find that this hypothetical person can perform the physical requirements of light work , but with the following limitations:
this person can only occasionally climb stairs
this person could not perform overhead lifting with the dominant right hand
this person should only need to grip occasionally
this person can climb ladders, ropes and scaffolds occasionally
this person should not perform work at unprotected heights
this person should not work around dangerous machinery
Based on these limitations, could such a person perform the claimant’s past work?
Could such a person perform any other job in the local or regional economy?
Most judges will ask several questions of the vocational witness, some of which will elicit a list of jobs that a hypothetical person could do, while other questions will elicit (the desired response, from our perspective) the response that there are no jobs that a person with these restrictions can perform.
In addition to the judge’s questions, I will also ask questions, and usually my questions are designed to include significant limitations such that the response “no jobs” is given.
Obviously, most judges make their decision about whether or not to approve a case, then they create questions to fit their conclusions. Nevertheless the judge may still ask a question that produces the response “no jobs.”
The point here – even if you hear the response “no jobs” from one or more of the judge’s questions or from my questions, it does not mean that your case will be approved. I have been involved in cases where the judge asked five hypothetical questions and the VE identified jobs in four out of the five, and we won. Unfortunately VE testimony rarely generates reliable clues - you are going to have to wait a few more weeks to learn the outcome of your case.