Social Security Disability

Over many years I have seen a lot of representatives ask questions about the numbers of jobs vocational experts (VEs) testify to under a set of limitations the ALJ accepts.

However, the latest dialogue among

representatives has confirmed for me that those who depend on winning a case based on tearing apart a VE's testimony are, in the words of an ALJ I appeared before 10 years ago, trying to dance too many fairies on the head of a pin.

The fundamental issue is functionality, functionality, functionality.

A representative's job is to shut down the VE. That means you provide substantial evidence which renders the VE pointless and irrelevant. Since the ALJ is not qualified to make medical judgments, the doc's testimony through a residual functional capacity assessment reigns.

Shutting down the VE is accomplished by getting the treating physician to state that (1) his or her patient is not able to think and concentrate for at least 20% of the time due to pain, and/or a reduction of mental acuity due to the side effects of prescribed medications or depression - with a commensurate loss of productivity.; (2) If your client were placed in a work situation, then he or she would need to take frequent and unscheduled breaks lasting 10 minutes each time; (3) your client is unable to use his or her arms for frequent reaching; or he or she is not able to use his or her hands for grasping and/or fingering; your client would be absent from work as a result of his or her symptoms more than 3 times a month; (4) your client needs to take naps during the day to relieve pain and discomfort.

It's also critical to keep in mind that a patient/client would be looking for a job in a competitive, able-bodied marketplace.

If your ALJ is intellectually honest, then he or she will pay you based on the residual functional capacity assessment which is backed by the medical evidence.

If all of the above is accomplished, and the ALJ turns to the VE to answer a hypothetical patient who does not include all the clear limitations you have, then you're probably dealing with a hanging judge. In which case, you can't do much else than you've already done.

However, if you're with an intellectually honest judge, he or she will usually go through the motions of asking the VE hypothetical questions which will obviously elicit a response of "no jobs."

My point is that if your representative gets into a pissing match with the VE over how many jobs there are in the economy that a patient can do, then you need to take a very hard look at the merits of your case.

The third category of ALJs are those who are intellectually dishonest and deny everyone - in which case you'll have to take your case to the Appeals Council.