The Role of a Vocational Evaluator in Your Social Security Disability Claim

Welcome to Season 1, Episode 33 of Winning Isn't Easy: Navigating Your Social Security Disability Claim. In this episode, we'll dive into the complicated topic of "The Role of a Vocational Evaluator in Your Social Security Disability Claim."

For many Social Security Disability claimants, the hearing process can be full of surprises - and one of the biggest is the presence of a vocational expert. Who are they? Why are they testifying about your ability to work? And how much influence do they really have on the outcome of your case? In this episode of Winning Isn’t Easy, we’re unpacking the powerful, and often misunderstood, role of vocational experts in Social Security Disability hearings. These experts don’t just discuss whether you can perform your past job; they also testify about whether there’s “other work” you could supposedly do in the national economy. Sometimes those jobs sound outdated, unrealistic, or even impossible given your medical limitations - but their testimony can carry tremendous weight with the judge. You’ll learn how vocational experts fit into the Social Security Administration’s five-step sequential evaluation process, what types of vocational evidence can strengthen your case, and when it might make sense for your attorney to bring in an expert of their own. We’ll also dive into how to challenge flawed testimony, why job numbers can be so hard to dispute, and what to do if a vocational expert’s opinion seems to contradict your lived reality. If you’re approaching your hearing, or simply want to understand how decisions are really made behind the scenes, this episode is a must-listen. Because when it comes to winning your Social Security Disability case, understanding how to handle vocational testimony could be the difference between success and denial.

In this episode, we'll cover the following topics:

One - Why Is a Vocational Expert Testifying at My Hearing?

Two - What Vocational Evidence Will Help Me Win My Claim?

Three - Should My Attorney Hire a Vocational Expert Before the Hearing?

Four - When the Vocational Evaluator Testifies Against You

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Long-Term Disability ERISA Claims. Give it a listen: https://wiedisabilitypodcast.buzzsprout.com


Resources Mentioned In This Episode:

LINK TO YOUR RIGHTS TO SOCIAL SECURITY DISABILITY: https://mailchi.mp/caveylaw/your-rights-to-social-security-disability-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Need help with your Social Security Disability claim? Have questions? Please feel welcome to reach out to use for a FREE consultation. Just mention you listened to our podcast.

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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Nancy Cavey [00:00:00]:
 Foreign hey, I'm Nancy Cavey. Welcome back to Winning Isn't Easy, the Social Security Disability Benefit Podcast. We're going to break down everything you need to know about navigating the Social Security disability claim system, and I'm your host, Nancy Cavey. This podcast isn't legal advice. The the Florida Bar association says I've got to tell you that. But now that I've said that, nothing will ever prevent me from giving you an easy to understand overview of the Social Security disability claims process, the games that are played during the claims process, and what you need to know about getting the disability benefits you deserve. So off we go. Now, in today's episode, we're going to take a close look at the role of a vocational expert in your Social Security disability claim.
 
 Nancy Cavey [00:00:52]:
 If you have received notice of your hearing, you may be surprised or even alarmed to learn that the judge is going to be calling a vocational expert. Who are these experts? Why are they there, and how much power do they really have over whether your claim is approved or denied? Here's the truth. A vocational expert can make or break your case. They don't just weigh on whether you can return to your old job at step four of the five step sequential evaluation. They also testify at step five other work that you can do in the national economy. Jobs that are outdated, unrealistic, or even impossible given your condition. And yet their testimony often carries tremendous weight with the judge. They're also going to be asked in appropriate cases, whether or not the skills that you've learned in your past work are skills that you could take to other work at step five in view of your age, your education, and the restrictions and limitations that you might have based on the judge's hypothetical.
 
 Nancy Cavey [00:01:51]:
 And again, that testimony will often carry tremendous weight at step five of the five step sequential evaluation with the judge. So in the course of this episode, what I'm going to do is walk you through that five step sequential evaluation process. Explain why vocational experts are called and how the vocational evidence can be used to strengthen your claim. I'm also going to cover whether your attorney should bring in their own vocational expert. What happens when the testimony of the VE goes against you and why challenging their testimony, including job numbers, is so difficult under the current law. If you're preparing for a Social Security hearing, or if you want to understand the five step sequential evaluation and the vocational analysis that's done this episode is essential. We know that when it comes to winning your case, knowing how to handle that vocational testimony is the difference between approval and denial. So let's get started.
 
 Nancy Cavey [00:02:52]:
 I'm going to talk about four things. One, why is that vocational expert testifying at your hearing? Two, what vocational evidence will help me with my claim? Three, should my attorney hire a vocational expert before the hearing? And four, when the vocational evaluator testifies against you, what happens? All right, before we get started, let's take a quick break. You might have received a notice of your hearing and were surprised to learn that the judge is going to call a vocational expert. And we need to explain to you the five step sequential evaluation test used in every case and why a judge will be calling a vocational expert. So let's start with the basics. Social Security uses a five step sequential evaluation. And at step four, the issue becomes whether you can go back to the lightest and simplest job you held in the five years before this claim is decided. If Social Security determines or the judge determines that you can go back to your past relevant work, prw, you're going to lose.
 
 Nancy Cavey [00:04:05]:
 It's as simple as that. Most cases, however, are decided at step five because Social Security recognizes that you can't go back to your past relevant work. And at this stage of the game, there are two ways to be found disabled. The first test is whether there is other work in the mythical hypothetical, not real world national economy that you wouldn't want to do that does not pay a living wage in view of your age, your education, skills, and whatever your physical, cognitive or psychiatric restrictions and limitations might be. Now, the other way is something called the grids, and literally they're a grid. Once the judge determines the level of your physical functioning, very heavy work, heavy work, medium work, light work, or sedentary work, the judge is going to pull out the applicable grid and look at it from left to right to see whether or not based on the ve's testimony, you have transferable skills that you could take to other work. Transferable skills are skills that you worked in your learned in your past work, but your restrictions and limitations may prevent those skills from being used in another occupation. And if that's the case, you're going to grid out.
 
 Nancy Cavey [00:05:15]:
 Because there are vocational issues. In practically every case, the judge is legally required to call an expert and ask hypothetical questions about your ability to return to your past work or perform other work. And as I've said, the answer to these questions can make or break your case. If you have gotten notice that the judge is calling a vocational expert, you should consider, and actually not consider, you should hire an experienced Social Security disability attorney. Why? Well, that attorney is going to Ensure that your medical records are well developed. Obtain, if possible, the applicable residual functional capacity forms based on your specific medical condition or conditions. Prepare you for the hearing. Develop hypothetical questions for the vocational expert based on your doctor's descriptions.
 
 Nancy Cavey [00:06:01]:
 As Abraham Lincoln once said, a person who represents themselves has a fool for a client. So don't be a fool. Hire a Social Security attorney, particularly when you get notice that there is going to be a vocational evaluator at the hearing. The judge is not your friend. The judge is not your attorney. The judge, more often than not is an advocate for the Social Security Administration. Is that right? No. There are some that are.
 
 Nancy Cavey [00:06:29]:
 There are some that aren't. But you never know who you're going to get. And I never count on a judge being an advocate for a Social Security disability claimant. That's why you should have representation. Now, before we move on to the next part of our podcast, let's take a quick break.
 
 Speaker B [00:06:46]:
 Are you considering filing for Social Security Disability or has your claim been denied already? Either way, you require a copy of your rights to Social Security disability benefits, which will cover everything you need to know about the Social Security disability claims process. Request your free copy of the book@kvlaw.com today.
 
 Nancy Cavey [00:07:21]:
 Welcome back to Winning Isn't Easy. Why is vocational evidence important in my claim and how will it help me? But remember, when you apply for your Social Security disability benefits, you have to prove prove at step four that you're unable to go back to the lightest and simplest job you held in the five years before your claim was decided. And once you've proven the other work in the mythical, hypothetical, not real world national economy that you wouldn't want to do that does not pay a living wage in view of your age, your education skills, and your physical, cognitive and psychiatric limitations. Now, vocational evidence is crucial at both steps four and five. You might have been referred to the state vocational services and participated in testing or placement. That would. That's great. And your attempt is probably at this point unsuccessful.
 
 Nancy Cavey [00:08:09]:
 We want to be able to get those records because they're highly relevant to whether or not you can perform your past work or other work in the national economy. But that's generally not the case. I don't see very many cases referred state vocational services. So what we're really stuck with is dealing with whatever is in the record. So what is the record? Well, it's your medical records. It's any psychological evaluations related to your ability to work. It might be even vocational reports that have been secured in conjunction with other litigation like a personal injury lawsuit or a shorter long term disability claim or a worker's comp claim. What's also important is the results of reading, math and other aptitude testing.
 
 Nancy Cavey [00:08:50]:
 So I will tell you there are many times when I have a client who may not have a high school education or may have other issues with reading or writing or cognitive issues where I want to get the person's school records. So we'll actually reach out to the Pacific County School Board to get our clients educational records and the results of any reading, math or aptitude testing. If you have again been involved in an attempt through the state agency to engage in vocational rehabilitation or you've had a workers comp case where rehabilitation has been at issue and you've been evaluated or reports have been issued regarding retraining or placement, those types of information is really relevant. Now the Social Security claims process is going to take into consideration your education. They're going to take into consideration the skills that you have learned and ultimately they're going to be determining those two questions. Can you go back to your past work, lightest, simplest, five years before your claim has been decided? And then they're going to decide that test is step five other work in the national economy or do you not have transferable skills that would transfer to other work so that you grid out, should my attorney hire a vocational expert before my Social Security disability hearing? Well, I will tell you as a rule the answer is no unless you've already had a vocational expert opinion and in your workers comp claim and they say you're permanently totally disabled or you've had a vocational expert opinion in the context of a personal injury case or a vocational expert opinion in a short or long term disability claim. I routinely submit that type of documentation to Social Security. Under Social Security rules and regulations, I and you as the client are required to submit all relevant documentation, including vocational expert opinions, to the Social Security administration and to the judge.
 
 Nancy Cavey [00:11:12]:
 I think that this is crucial because when I secure a vocational opinion, I'm getting one from a vocational evaluator who understands both short and long term disability, for example, and Social Security rules and regulations so that the opinion that I obtain can be used in both cases. But I will tell you generally, even in the context of a workers comp case, most of these vocational reports are going to address only whether you can go back to your past work. So in the context of a workers comp claim, they want to understand, can you go back to your work? Do you need some modifications? Do you need some retraining? In the context of the shorter long term disability case, normally we're at the what's called the own occupation stage that's been denied. And we're securing a vocational report that addresses those kinds of issues. Not all these vocational reports are going to address whether you can do other work based on your education, training and skills. And what you're going to understand ultimately is that if you're in the context of a private disability insurance policy or an ERISA policy or plan, the definition of disability is different depending on the policy of the plan, and it's different than what the criteria is for Social Security disability benefits, ERISA short and long term disability policies or plans, or individual disability policies. Don't use the five step sequential evaluation. It might be that you're a veteran and you've also had evaluations for vocational retraining or placement.
 
 Nancy Cavey [00:12:45]:
 And again, that's helpful. But the standard to determine if you're a candidate for vocational rehabilitation services as a veteran are different than in Social Security. That isn't to say that it can't be used. In fact, it has to be used because of the Social Security regulations. But I want you to understand that it is different. Now, what I find is that if the state agency has mischaracterized your past work and used the wrong occupation, then generally the case is going to fail at step four because they'll say you can do your past work. There are times when we do get vocational reports to address an early denial based on the state agency's mischaracterization of past work. So I'm going to ask the vocational expert to review your records and clarify the what work you actually performed in the five years before you became disabled and how work is classified in the economy.
 
 Nancy Cavey [00:13:41]:
 One of the most crucial mistakes that I see people make when they're applying for Social Security disability benefits is that they don't fill out that work history form accurately. If you don't fill it out accurately, giving a thorough description of your job duties, both physically and cognitively, psychologically, and the exertional requirements, lifting, standing, bending, stooping, and then non exertional impairment requirements like bilateral manual dexterity, it's going to be very difficult for Social Security and their vocational experts to analyze in fact what your past relevant work is. So I want you to understand that there are times when we'll actually go out and get a report to address those very issues. What in fact was the past relevant work and are there transferable skills? Or we'll submit a report that's been prepared in conjunction with other litigation. But other than that, I will tell you I find it rare for vocational experts to be hired to prepare a report before a Social Security hearing since the judge is already going to call one and they don't necessarily believe the opinion of what they consider to be a liar or a hired expert. Now remember step five. The question changes to other work in the national economy or do you grid out and the judge is going to take the hypothetical that they gave to the vocational evaluator at step four and potentially say, well, in view of that hypothetical, Mr. And Mrs.
 
 Nancy Cavey [00:15:11]:
 Ve, can this person do other work in the national economy? And I will tell you many times the judges don't frame the hypotheticals correctly or the vocational evaluator overlooks key issues based on assumptions that they're making in the hypothetical that the judge is giving. Or they may overlook transferable skills. There are all sorts of errors that they make. Can you do you have transferable skills? Do you have the ability to adapt unskilled work? And then ultimately the question of whether the jobs exist in significant numbers. There are a myriad of reasons why vocational testimony can be wrong. Yet the judge is going to rely on that testimony to render a decision. And in these situations, and in particular these days, based on the fight about job numbers, we're doing post hearing vocational memorandums of law with actual attachments from statisticians attacking the vocational evaluator's methodology and job numbers. Now, ultimately, the use of a vocational expert is certainly up to you and your attorney.
 
 Nancy Cavey [00:16:23]:
 Again, I generally do not use them except for in limited circumstances and there are times where I may actually also use them after the hearing to rebut the vocational testimony. Or I just may simply in my memo attack the VE's, attack the hypothetical that the VE is relying on, but also attack the VE's testimony and methodology. You can see this is complex and again, a reason why you don't want to be handling a Social Security disability hearing on your own because you're not equipped, quite frankly, to understand the vocational issues, much less cross examine the vocational evaluator. Got it. Let's take a break.
 
 Speaker B [00:17:05]:
 Struggling with your Social Security disability case. The right attorney can make all the difference. Get our booklet the key to hiring a great attorney for your Social Security disability case. Discover how to find an exception experienced attorney who will fight for your rights and navigate the process with ease. Don't leave your future to chance. Request your free copy@kvlaw.com today and ensure you have the expert support you deserve.
 
 Nancy Cavey [00:17:45]:
 Welcome back to Winning Isn't easy. What happens when the vocational evaluator at the hearing testifies against you? Now I will tell you that many claimants are shocked when the vocational evaluator testifies that other stupid jobs exist and exist in significant numbers and the judge rules against them. So let's talk about this. Remember, Social Security uses the five step sequential evaluation test. And at step four, the issue is whether you can go back to your past relevant work. And if not, at step five, we get this crazy question of is there other work based on this hypothetical that you could mythically do in the mythical, not real world national economy, given your age, education, skills and restrictions and limitations? This is all mythical and hypothetical, not real world. So what will happen is the administrative law judge is going to offer up some hypotheticals and if the vocational evaluator ultimately says no, you can't do your past work and no, you can't do other work based on, on the hypothetical that you're going to win. But more often than not, the evaluator is going to say based on the hypothetical that there's other work that you can do.
 
 Nancy Cavey [00:18:53]:
 And guess what? The judge is going to ask them to identify at least three other jobs and state whether those jobs exist in significant numbers. Now, vocational evaluators have to address job numbers. A single job isn't going to cut it. The evaluator will typically use the Dictionary of Occupational Titles to identify jobs. But then they're going to also generally use various computer based services like Skilltran, or they may use US publishing. And what will happen is the evaluators are going to be using these tools in an effort to identify other work and then to identify numbers. I will tell you, quite frankly, I think this is all suspect because the methodology is not statistically valid and reliable. And we are vigorously attacking the testimony at the hearing to set up an appeal if the judge rules against us.
 
 Nancy Cavey [00:19:52]:
 But we're also doing post hearing vocational memorandums. And why are we doing that? Well, unlike most areas of law, I don't know what the testimony is going to be before I arrive at the courthouse. What do I mean? I, I haven't had an opportunity. And the judge will never tell me what the hypothetical is that they're going to formulate before the hearing. And I don't know what the VE is going to say in response to the hypothetical. So here I am taking down the judge's hypothetical, thinking about whether that's right based on the residual functional capacity forms. And then the VE is testifying no or yes. And if they say yes, they're going to start identifying jobs.
 
 Nancy Cavey [00:20:34]:
 Now these are common jobs though every once in a while we'll hear some weird suggestions about different jobs you can do. But they'll range from movie ticket taker to cashier, to cleaner, to greeter, to surveillance system monitor, to a packer to a sorter, to an attendant, to a clerk, to a phone operator, phone solicitor. And their answers come pretty quick. They'll give the dot number of that particular job, they'll talk about the specific vocational prep, all of which can be wrong. And I'm, you know, listening to this, thinking through and then they're going to use job browser pro US Publishing where their experience and spit out numbers. Well they're actually putting this in the computer as the judge is talking or they already sort of know what the numbers are. And I use the word no in quotes. They may adjust the numbers based on some of the restrictions and limitations assigned by the judge.
 
 Nancy Cavey [00:21:36]:
 So I always think that the vocational evaluators are coming in with 10 or 15 pre canned jobs with here's the common restrictions. They've already thought this through, they've anticipated the hypothetical. They have widowed down those jobs, if you will, to maybe three, well, two, three. And then they have already estimated the job numbers. All of this they've done in advance and I don't know a thing about it. So I'm there on the fly trying to establish one, that they are not an expert in statistics, that the methodology that they are using is not scientifically valid or reliable. And of course I'm changing the hypothetical so that it closely matches the restrictions and limitations that I think are applicable. Ultimately of course the judge gets to decide.
 
 Nancy Cavey [00:22:23]:
 But I'm doing all this and it's rapid fire machine gun questions. That's why we are now doing post hearing vocational memos. The judges will normally grant us a week to 10 days to do that. Now some jobs judges will say no. And there's actually a Social Security regulation that says we have the right to rebut this testimony. So we're taking the opportunity to rebut it simply because if the judge screws up the vocational aspect of their decision, I really think that it's a great appealable issue to the appeals council and the federal court. We are having federal judges. Well actually we are having the Social Security staff attorneys at the federal level agree to a remand back to the judge because they recognize the mistakes that judges and vocational evaluators are making.
 
 Nancy Cavey [00:23:13]:
 At Stephen 4 and 5 now we've covered a lot and I hope that we've unpacked the role of vocational experts, why judges rely on them, what evidence matters most, and how their testimony can shape the outcome of the claim and more importantly, why you need to have a Social Security disability attorney representing you at your Social Security hearing. Remember, it's not about whether you think you can do your past work or other work in the national economy. You it doesn't matter that you can't find a job. It doesn't matter that nobody's going to hire you. It doesn't matter that they're not going to pay a living wage. It doesn't matter that you might not be interested in it. It's a question about, based on that hypothetical, whether you can do your past work or other work, and whether the skills and education and limitations you have have been eroded so that you can't take, depending on your age, those skills to other work. You can see that having the right attorney by your side can make all the difference.
 
 Nancy Cavey [00:24:14]:
 If you found this episode helpful, please like a moment Take a moment to like our page, leave a review and share it with your family and friends. And better yet, subscribe to this podcast. Join us next week, please, for another insightful episode of Winning Isn't Easy. Thanks for listening, Sam.