In my last blog post, I talked about what to expect in the first part of your hearing, when you are questioned by both the administrative law judge (the ALJ) and by your lawyer. During that time, the ALJ will ask you questions about your work history, including each of the jobs you’ve done for the past fifteen years. After your witness has had a chance to testify, the ALJ will usually turn to the Vocational Expert (the VE). A VE’s opinion is important in the case because a VE is assumed to know about the skills needed to perform jobs and what jobs exist both locally and nationally. Since you cannot be found disabled if there are still jobs you can do with your impairments, this is a critical part of your hearing. Be prepared to hear the VE list jobs (and numbers of jobs) that don’t sound right to you. You may be certain that such a job has never been advertised in the paper — or that the numbers of these jobs in your area don’t sound right — or even that you’d never be hired for that job. Unfortunately, none of these will be sufficient to outweigh the VE’s opinion.
The first thing that ALJ will do is ask the VE to describe how your past jobs fit into the descriptions of jobs found in the Dictionary of Occupational Titles. Next, the judge will pose a hypothetical question to the VE. It will sound like this:
“Now Ms. VE, I will ask you to assume a hypothetical claimant who is the same age and has the same education and work history as the claimant. Assume that he can do light work except that he can only occasionally stoop and kneel and he should only occasionally have contact with the public. Can he do any of his past work? If not, are there jobs he can do?”
If the VE says you can do any of your past work, you will lose your case unless your lawyer’s cross-examination causes the VE to change her opinion. If the VE says you cannot do your past work, then the judge will ask a number of additional hypothetical questions designed to see if there are jobs you can still do, even with your impairments. When the judge is done with his hypotheticals, he will give your lawyer a chance to pose additional hypotheticals. In the example above, your lawyer might say:
“Now assume that in addition to all of the limitations given by the Judge, this claimant also will be distracted by pain and/or by the effects of pain medication such that he will be off-task 10% of the time. Will he still be able to do the jobs you listed?”
In Part 3, I’ll discuss what happens next.