The Government's Social Security Disability Vocational Expert
If your case involves a vocational issue then a vocational expert (VE) may be scheduled to testify. This expert is most likely to be appointed by the Administrative Law Judge (ALJ), but sometimes your attorney may have an opportunity to have your own VE testify or provide a written opinion.
Vocational experts testify at the request of the Social Security Administration in many more Social Security disability hearings than do medical experts. However, the experience, knowledge, ability, understanding of the VE role, and the prejudices of individual VEs vary much more widely than do the skills and experience of medical experts. Your attorney will probably not be pleased to receive a notice that a government vocational expert will be testifying at your hearing.
The primary purpose of vocational expert testimony is to meet the Social Security Administration’s burden of proof in denying disability benefits. However, this may not be the motivation of an individual ALJ. Generally the presence of a VE at a disability hearing means that the ALJ has reviewed the hearing exhibits and concluded that you cannot do past work, at least as you actually performed it, and that the case is not one in which benefits can be granted or denied using the Medical-Vocational Guidelines alone.
The vocational expert is supposed to address the vocational issues created by the Social Security Act and the Medical-Vocational Guidelines. The Social Security Act provides that a claimant “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kinds of substantial gainful work which exists in the national economy . . . in significant numbers.”
The Medical-Vocational Guidelines were designed to address two things:
- whether jobs exist in significant numbers for certain combinations of residual functional capacity (RFC), age, education and work experience.
- to set the parameters for assessing the impact of age, education and work experience in those cases where the rules themselves do not direct a conclusion whether a claimant is or is not disabled.
If you are under age 50 (or under age 45 if illiterate or unable to communicate in English), the job of the vocational expert is to determine how many jobs you are capable of doing based on the your residual functional capacity. If you are capable of performing a “significant number” of jobs, then you are not disabled. Age, education and work experience really do not enter into this calculation.
It is the decision-maker’s job to determine what a “significant number” is.
The Medical-Vocational Guidelines say that a claimant with the same age, education and work experience will be found disabled if limited to sedentary work, but if he were capable of a full range of light work he will be found not disabled.
An ALJ needs to consult a vocational expert “where the extent of the erosion of the occupational base is not clear” and the claimant’s exertional capacity falls between two rules from the Medical-Vocational Guidelines that dictate opposite conclusions.
In recent years, when the Medical-Vocational Guidelines are not directly applicable, the role of the vocational expert in assessing the case of a claimant over age 50 is simply to offer an opinion about the number of jobs in the economy that the claimant is capable of performing. Then, it is up to the ALJ to determine whether this is a “significant number.” Although ALJs tend to take an “I know a significant number when I see one” approach, the regulations require “full consideration to all relevant facts in accordance with the definitions and discussions under vocational considerations,” and “full consideration must be given to all of the relevant facts in the case in accordance with the definitions and discussions of each factor in the appropriate sections of the regulations, which will provide insight into the adjudicative weight to be accorded each factor.”.