Vocational Experts

Wednesday, February 25th, 2009

There are two types of experts who may appear at Social Security Disability hearings; a medical expert and/or a vocational expert (“VE”). The typical role for a VE is answering whether a claimant can do work other than his or his past work.

Claimants have the right to ask the VE questions. My cross examinations have lasted over an hour, and cover countless topics, much of which relates to the VE’s background and methodology as opposed to the particulars of the claimant’s case. In essence, I treat the cross examination of the VE as if it were a federal court deposition. At a minimum however, the VE needs to be queried regarding the treating doctors’ functional evaluations.

I represent a 48 year old who had to stop working and close his real estate agency because of his rheumatoid arthritis. The VE identified possible occupations the claimant could do based upon hypothetical questions posed by the administrative law judge (“ALJ”). On cross examination, I asked the VE if the claimant could perform those occupations given the various limitations assessed by the claimant’s treating doctors. The VE responded that if the treating doctors’ assessments were accepted, then the claimant could not do any type of work.

The above cross examination essentially eliminates the VE’s opinion, and makes the fate of the case ride on the ALJ’s accepting or rejecting the treating doctors’ opinions. Because the regulations favor treating doctors’ opinions, a denial by the ALJ becomes difficult to sustain ultimately. Perhaps cognizant of that point the ALJ approved the claimant’s application for disability benefits.

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