An Albuquerque Social Security Attorney Discusses the Role of Expert Witnesses at Your Hearing

Albuquerque Social Security AttorneyAt your Albuquerque Social Security disability hearing, the judge may call expert witnesses. There are two kinds of experts:

Medical experts who are medical doctors or psychologists, and
Vocational experts.

If an expert witness is going to testify at your hearing, you will be given notice of this in the Notice of Hearing.

Vocational experts (VEs) and medical experts (MEs) may testify in person, by video teleconferencing, or sometimes by telephone. VEs testify in nearly three quarters of all hearings. MEs testify in somewhat fewer than 20 percent. Both of these experts are supposed to be neutral.
Medical experts

The medical expert’s job is to help the judge understand medical issues, particularly medical issues involving Social Security regulations.

When you get a notice indicating that a medical expert is going to testify, it means that the ALJ has reviewed the hearing exhibits and concluded that your case involves one or more of the following seven issues:

1. A complicated medical issue that a medical expert may assist the ALJ in understanding.
2. A question of whether your impairment meets the Listings at Step 3 of the sequential evaluation process;
3. A question of whether your impairment equals the Listings at Step 3 of the sequential evaluation process;
4. A mental impairment and the ALJ needs a medical expert’s help in completing a form (the psychiatric review technique form) that she is required to complete. Medical experts testify more often in mental impairment cases than in cases involving any other single impairment.
5. A question about your residual functional capacity;
6. An onset date for your disability that is not clear and must be inferred from the medical evidence; or
7. A question of whether you failed to follow prescribed treatment that would permit you to work.

Although an ME’s testimony alone can win your case (by demonstrating that your impairments meet or equal an impairment found in the Listing of Impairments), it is less likely that an ME’s testimony will be the sole reason you lose.
Vocational experts

Albuquerque Social Security AttorneyA vocational expert’s testimony, on the other hand, can be the sole reason a claimant loses a disability case. Vocational experts are called to testify much more often than medical experts. Some administrative law judges ask a vocational expert to testify in virtually all of their cases involving adult disability.

The vocational expert helps the judge understand the significant jobs you have done in the past 15 years, which is called your “past relevant work.” The vocational expert will describe each of these jobs as you did the job and as the job is usually performed in the economy. (Although this doesn’t happen very often, it can be the basis for denial of your case if you retain the capacity to do your job as it is usually performed in the economy even if you cannot do the job the way you actually did it.)

The vocational expert will describe the skill and exertional level of your past relevant work. Exertional level pertains to how much you had to lift and how much standing and walking was involved in these jobs. Skill level depends on how long it would take a new employee to learn to do your job with average proficiency. If it would take more than 30 days, it may mean that you have acquired work skills that could be transferable to other, easier jobs. If so, the vocational expert will describe your transferable skills, state what jobs these skills are transferable to and how many of these jobs there are in the economy.

Vocational experts are not supposed to provide their own evaluation of the medical evidence in your case, state whether job vacancies exist or whether you would be hired for a job, or state that you are or are not disabled. Instead, judges ask vocational experts a series of hypothetical questions based on different possible limitations in order to figure out whether you can do any past relevant work and whether other jobs exist in significant numbers in the economy for various different capacities for working. Then, often after the hearing is over, the judge will figure out which one of the hypothetical questions most closely describes you. The judge’s decision may be based on the vocational expert’s answer to that question.

VEs have been given a nearly impossible role by the Social Security Administration, one that is at the very edge of their expertise. A vocational expert’s real expertise usually involves job placement for people with physical or mental limitations. VEs’ jobs often include encouraging employers to accommodate disabilities, which the Social Security Administration says is not relevant to the disability determination process because Social Security is concerned with how jobs are ordinarily performed in the economy, not with whether an employer might be willing to alter job duties to accommodate a limitation. The Social Security Administration expects a VE to have expertise with the Dictionary of Occupational Titles, which most VEs have stopped using in their regular jobs because it is outdated. And Social Security expects a VE to be able to tell an ALJ how many jobs exist in the economy for people with certain limitations, which is not something they do much at all in their regular jobs and requires a lot of guess work.
Your Albuquerque Social Security lawyer’s role

It is your Albuquerque Social Security disability lawyer’s job to cross-examine any expert witnesses to make sure there is a legitimate basis for the expert’s testimony. Cross-examining experts requires considerable knowledge of Social Security law and medical and vocational issues. The ability to effectively cross-examine an expert is a skill developed after years of experience. Having an experienced Albuquerque Social Security disability attorney at your side during your hearing is essential, especially if the judge intends to take expert testimony.

If you are not already represented by an Albuquerque Social Security attorney and want my evaluation of your case, please give me a brief description of your claim using the form to the right. Or you may contact me at:

Phone: 505-872-1144
Fax: 505-872-1155

6301 Indian School Road NE
Suite 614
Albuquerque, New Mexico 87110