Social Security Disability Vocational Experts and Medical Experts
Vocational experts (VEs) or medical experts (MEs) may testify, appearing in person, by video teleconferencing, or sometimes by telephone. VEs testify in nearly 60 percent of all hearings. MEs testify in somewhat fewer than 20 percent. Such experts are supposed to be neutral, too, unlike, for example, experts in worker’s compensation or personal injury cases, where everyone expects the experts to take sides. Of course, when a medical expert appears who is used to testifying for insurance companies in worker’s compensation cases, you are not likely to get much help on the case from the ME. Although an ME’s testimony alone can win a case for you (by demonstrating that your impairments meet or equal an impairment found in SSA’s Listing of Impairments), it is less likely that an ME’s testimony will be the sole reason you lose.
On the other hand, a vocational expert’s testimony can be the sole reason you lose a disability case. Although VEs also view themselves as neutral, neutrality is not the issue. VEs have been given a nearly impossible role by SSA, one that is at the very edge of their expertise. A vocational expert’s real expertise usually involves job placement for people with physical or mental limitations. VEs’ jobs often include encouraging employers to accommodate disabilities, which SSA says is not relevant to the disability determination process because SSA is concerned with how jobs are ordinarily performed in the economy, not with whether an employer might be willing to alter job duties to accommodate a limitation. SSA expects a VE to be familiar with the Dictionary of Occupational Titles, which most VEs have stopped using in their regular jobs because it is outdated. And SSA expects a VE to be able to tell an ALJ how many jobs exist in the economy for people with certain limitations, which is not something they do in their regular jobs and which requires a lot of guess work.
Most VEs view their role as giving the ALJ options — that is, they provide a basis for a denial decision and a basis for a favorable decision. VEs say they help ALJs find the line between who is disabled and who is not. However, it is a rare VE who will challenge an ALJ’s preconceived notion about a case.
If the VE draws the line correctly between those who are disabled and those who are not, your attorney’s job is to make sure you are on the disabled side of the line. This is not something done by cross-examining a VE. This is done by your attorney presenting convincing evidence about your residual functional capacity. If the ALJ does not include enough limitations in hypothetical questions to the VE, your attorney’s job is to ask additional questions that include all your limitations so that the line can be drawn between the disabled and not disabled. If the VE draws the line incorrectly, your attorney must deal with that VE testimony (through cross examination or obtaining a rebuttal VE opinion) in order to redraw the line.
Sometimes at the conclusion of a hearing, an ALJ will issue an oral bench decision setting forth findings of fact and conclusions of law establishing that you are disabled. Then, within a few days, you will receive a short summary of the decision, which is the official favorable decision from which benefits are paid.
Otherwise, after the hearing, a full written decision will be issued by the administrative law judge. Although ALJs have no time limits for issuing decisions, because of the backlog at hearing offices, ALJs are under pressure from SSA to issue decisions expeditiously. Most ALJs do so, though a few do not.
When an ALJ does not issue a bench decision at the hearing, the ALJ usually will not tell your attorney whether you won or lost. Sometimes, though, it is obvious — such as when an ALJ stops a hearing without taking testimony from a vocational expert after a medical expert testifies that your impairment meets or equals an impairment found in the Listing of Impairments.