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CJ Henry Law Firm, PLLC

When a Vocational Expert Testifies That You are Able to Do Your Prior Job

  • Published: September 11, 2012

When you meet with your Ocala disability attorney, she will explain to you how the administrative law judge (ALJ) will question a vocational expert (VE) during your hearing. A VE is a person who testifies at your disability hearing on behalf of the Social Security Administration regarding the types of jobs available in your field and howyour limitations affect your ability to carry out your necessary job duties.

If your ability to perform your past relevant work is an issue, the ALJ will ask the VE if, hypothetically, a person with your limitations could perform your past relevant job. This means, the ALJ will ask a question framed like this:

Can a person [insert your limitations] perform the job of [insert job title], which requires [insert requirements]?

VE Responses

Generally, there are fourpossibilities to consider when the ALJ poses this hypothetical and the VE answers yes.

Possibility #1

You will likely lose your case unless one of the following possibilities also applies and your disability attorney is skillful at cross-examining the VE.

Possibility #2

The ALJ’s hypothetical question to the VE does not include all of your limitations.  In this case, your disability lawyer will likely propose a hypothetical question to the VE that does include all of your limitations.

Possibilities #3 and #4

The VE claims you are capable of performing your past relevant job, but the VE simply doesn’t understand the limitations stated by the ALJ or the VE is refusing to apply them.  Your disability lawyer might handle this situation by asking the following question:

Are some abilities that are so essential to competitive employment that without them the claimant would be unable to work?

The VE will probably respond by mentioning such things as reliability, regular attendance, the ability to deal with routine work stress, and so forth.  Then your attorney can pose a serious of questions coupling the VE’s response with elements of the ALJ’s hypothetical question. For example, if the ALJ’s question mentioned a need to miss 3 to 5 days of work per month, your attorney could ask:

Would an employer regard an employee who needed to miss3 to 5 days of work per month as reliable and capable of regular attendance?

Your lawyer could also ask:

Do you think the claimant would be capable of performing past work if everything the claimant testifed to today were true?

Furthermore, your disability lawyer can compare specific parts of the ALJ’s hypothetical question to the your former job duties. For example, he might ask the VE:

Didn’t the claimant’s former job involve occasionally lifting up to 30 lbs.?

Didn’t the ALJ ask you to assume that this hypothetical individual was incapable of lifting over 20 lbs.?

If you would like legal assistance with your Social Security disability case, speak to a knowledgeable Ocala disability attorney by contacting CJ Henry at (352) 304-5300.

Claudeth Henry

Attorney Henry is a Florida disability lawyer uniquely suited to
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