Maximizing Vocational Expert Testimony in Disability Adjudication

1. Office of Disability Adjudication and ReviewUTILIZING VOCATIONAL EXPERT TESTIMONY AT THE HEARING LEVEL Administrative Law Judge David G. Hatfield

2. PRE-HEARING PROCEDURES

3. ADMINISTRATIVE REVIEW • A hearing before an Administrative Law Judge (ALJ) is the third step in the administrative review process (following review at the initial and reconsideration levels).

4. REQUESTING A HEARING • To request a hearing before an ALJ, a person submits a SSA form-501 to the SSA field office (or files an iAppeal on the SSA internet) within 60 days of the date of the reconsideration determination, indicating the reasons why the person disagrees with the prior determination. • The request is forwarded to the hearing office for determination of timeliness and whether the request is proper (i.e., whether the appropriate procedural steps have occurred).

5. General Statistics- Fiscal Year 2008 • In FY 08, ODAR offices nationwide received 591,888 new Requests for Hearing. In the first two months of FY 09, ODAR received 105,161 additional requests. • During FY 08, ALJs issued 550,805 dispositions, and Attorney Adjudicators issued 24,575 fully favorable decisions. In the first two months of FY 09, ALJs issued 92,978 dispositions, and Attorney Adjudicators issued 5,192 fully favorable decisions. • At the end of FY 08, there were 760,813 open cases pending at the hearing level. In the first two months of FY 09, this number increased to 767,426. Information obtained from CPMS Caseload Analysis Report-National, ODAR WORKLOAD AND PERFORMANCE SUMMARY, Month Ending: 11/28/08

6. PRE-HEARING REVIEW • Before a hearing is scheduled, a case may be selected for pre-hearing review. Pre-hearing reviews may be based on new evidence, notification of a terminal illness or dire need, or other indications that a fully favorable decision on-the-record (OTR) may be warranted. • Fully favorable OTR decisions may be issued by an ALJ or Attorney Adjudicator. • A Medical Expert (ME) or Vocational Expert (VE) may be asked to complete interrogatories. The answers may form the basis for an OTR decision.

7. BASIC HEARING PROCEDURES

8. Closed Hearing • Hearings may be held in-person or by Video-Teleconferencing. • Witnesses, such as ME or VE, may testify by telephone. • Only individuals an ALJ deems necessary to the hearing are allowed to attend (i.e., ALJ hearings are “closed” proceedings). • In most cases, individuals attending the hearing include the claimant, appointed representative (if applicable), ALJ, hearing recorder, ME, and VE.

9. Hearing Procedures • Introduction of individuals present at the hearing • ALJ Opening statement • Must include issues to be decided at hearing and inform unrepresented individuals of right to be represented • Adducing the evidence • All testimony is taken under oath or affirmation • The judge admits evidence into the record, whether written or oral • The representative, claimant or the judge questions witnesses, including a ME and/or VE • Closing statements • If all evidence has been presented, the claimant or representative may present a closing statement.

10. EXPERT TESTIMONY

11. Expert Testimony and the 5-Step Sequential Evaluation Process • Expert testimony is not necessary if a case is decided before Step 3 of the Sequential Evaluation process. For example, no expert testimony is necessary if the case must be denied based on substantial gainful activity issues. • Expert testimony at the hearing level may be necessary at Steps 3, 4, and 5 of the Sequential Evaluation process.

12. When expert testimony is required at an ALJ hearing • Before scheduling a hearing, an ALJ or hearing office staff reviews a file to determine if additional evidence is necessary to fully inquire into the matters at issue. • If this review indicates that medical or vocational expert opinion is needed, an ALJ may obtain the opinion by requesting an expert appear at hearing or by requesting an expert answer interrogatories.

13. Use of Experts- General Statistics • In FY 08, MEs participated in 75,139 hearings, or approximately 17% of the total hearings held. • In FY 08, VEs participated in 316,788 hearings, or approximately 72% of the total hearings held. • NOTE: These numbers reflect expert participation at a hearing. An expert’s response to interrogatories before or after a hearing are not included. Information obtained from CPMS Caseload Analysis Report-National, HEARINGS SCHEDULED AND HELD, Month Ending: 12/26/08

14. VOCATIONAL EXPERT TESTIMONY

15. Vocational Experts (VE) in General • VEs are vocational professionals who provide impartial expert opinion by either testifying at hearing or providing written responses to interrogatories. • VEs agree to provide impartial expert opinion pursuant to a blanket purchase agreement issued by the Regional Office.

16. Selecting a VE • VEs are generally selected from a roster on a rotational basis. • The roster is maintained by the Regional Office. • Claimants and representatives are notified of the selection of a VE in the Notice of Hearing.

17. When VE testimony may be necessary • To give an opinion whether the claimant can perform past relevant work, either as actually or as customarily performed, given the residual functional capacity (RFC) determined by the ALJ (Step 4). • If a claimant can perform past relevant work, the case is denied at Step 4. • If a claimant cannot perform past relevant work, an ALJ may need a VE opinion as to whether one or more occupations exist which an individual with the claimant’s RFC could perform and the number of jobs in each of those occupations (Step 5). • An ALJ may ask a VE to give an opinion whether the claimant has transferable skills, if that issue is material to the decision.

18. When VE testimony may not be necessary • VE testimony is not appropriate in the following situations: • Title XVI childhood disability claims • Non-disability claims • A grid rule directs that the claimant is disabled (rules are irrebuttable)

19. Past Relevant Work • At Step 4, an ALJ asks the VE to detail jobs the individual has performed in the past, as described in the Dictionary of Occupational Titles (DOT). The description generally includes the strength level required, whether the job is skilled/semi-skilled/unskilled, and the number of jobs existing in the national economy for the particular job description. • The VE will also note any variance in the description of a particular job if the evidence suggests the individual performed the job differently than described in the DOT (“as performed”). • While the VE provides a description of jobs performed in the past, the determination of whether these jobs constitute past relevant work is a legal conclusion made by the ALJ.

20. ALJ Hypothetical Questions • After obtaining testimony regarding an individual’s past relevant work, an ALJ will pose a series of hypothetical questions to a VE (based on findings or allegations of exertional or non-exertional limitations). • VE responses are dependent on the hypothetical presented by the ALJ. A VE does not draw independent conclusions and present them at hearing. • In responding to a hypothetical, a VE relies on the information provided in the DOT regarding a specific job description.

21. Addressing Conflicts in VE testimony (SSR 00-4p) • If a VE determines that the hypothetical individual could perform work in the national economy, the ALJ will ask the VE to provide examples of jobs which an individual with these limitations could perform and state the number of jobs available in the national economy. • If a VE identifies jobs based on the hypothetical, an ALJ has an affirmative duty to ask if the VE’s testimony is consistent with the occupational information supplied by the DOT. • When there is an apparent unresolved conflict between a VE’s testimony and the DOT, the ALJ must elicit a reasonable explanation for the conflict before relying on the evidence. For example, an ALJ may ask the VE to identify the conflict, inquire how the VE resolved the conflict, and whether the conflict impacts the number of jobs provided by the VE. If adjustments are necessary, the ALJ must obtain from the VE the basis of the adjustments and how the adjustments were made.

22. Concern with outdated DOT data • Occupation evidence provided by a VE should be consistent with occupational information supplied by the DOT. However, as the DOT becomes more outdated, more conflicts arise between the DOT description of the skills and exertional level of jobs, and the VE’s testimony.

23. Example ALJ Hypothetical #1 (Step 5) • Suppose you have an individual of the claimant’s same age, educational background, and previous work experience, with the ability to perform sedentary work as defined in the regulations. Additionally, this individual: • Can use repetitive hand movements at 45 minute intervals with a 20 minute break at each interval • Would be off-task more than 20% of the workday due to concentration difficulties

24. Example VE Response Hypothetical #1 • An individual with these limitations would be unable to perform any work in the national economy. These limitations in combination would result in an individual being off-task more than is acceptable in a typical work environment.

25. Example ALJ Hypothetical #2 (Step 5) • Suppose you have an individual of the claimant’s same age, educational background, and previous work experience, with the ability to perform light work as defined in the regulations. However, due to anxiety, this individual would be unable to work with the general public more than 35% of an 8 hour workday.

26. Example VE Response Hypothetical #2 • An individual with these limitations would be capable of performing a limited number of light jobs on a full-time basis. One example is a file clerk, which the DOT defines as a light, unskilled job. Approximately (number) of these jobs exist in the national economy. However, I would reduce the number of these jobs by 10% as approximately that number would require contact with the general public.

27. Individual’s Right to Question a VE • A claimant or appointed representative, if any, has the right to pose additional questions to a VE, whether testimony was provided at the hearing or in interrogatories. • Typical questions include: • Clarification of the VE’s response to an ALJ hypothetical • Additional hypothetical questions

28. ALJ DECISION

29. In General • In the written decision, an ALJ disposes of all issues raised in the Request for Hearing and any other applicable issues. • An ALJ’s decision is based on findings of fact and evidence in the record.

30. Content of ALJ Decision • Procedural history of the case • Statement of issues to be resolved • Statement of applicable law • Explanation of findings of fact and conclusions of law on each issue to include: • Assessment of sequential evaluation process • Discussion of weight assigned to evidence • Resolution of allegations and credibility findings

31. Using VE testimony in an ALJ decision • If a case reaches the fourth step of the sequential evaluation, a decision will contain a finding regarding a claimant’s functional limitations and residual capacity. • Based on these findings, the testimony provided by the VE may be used to show why the claimant is or is not capable of performing his or her past relevant work. • If it is found the claimant cannot perform his or her past relevant work, VE testimony may be further used to explain that: (1) the claimant cannot perform any work in the national economy; or (2) there are other jobs existing in significant numbers in the national economy which the claimant can perform.