The 4th and 5th Steps of the 5-Step Sequential Disability Determination Process: Part 1 - The VE




Written by: 
Attorney licensed in Indiana
Contributor Level 5
At the fourth of the five-step sequential disability determination, the Administrative Law Judge ("ALJ") relies on VE testimony on a limited basis; at the fifth step, however, the SSA relies heavily on testimony from the VE who forms his or her opinion after reviewing the disability claimant's records and data in the DOT. This testimony is crucial because neither the ALJ nor the claimant possess the ability to analyze the exertion or skill required by particular employment positions, because the categories in the DOT are organized in an exceedingly technical fashion.  Thus, VE testimony serves as the foundational building block of the SSA disability determination process, because, without it, a complete, accurate, and reasonable decision would not be possible.
1. The Vocational Expert
A VE is a consultant who specializes in employment placement and occupational requirements.  Although a VE is hired by the SSA, a VE is neither the SSA's nor the claimant's witness, but rather renders an impartial opinion based on evidence presented at a hearing and the claimant's assigned RFC.  Because a VE bases his opinion on prehearing documentation and oral testimony of the claimant and others, the VE is normally the last witness to testify. The VE's role is to provide an opinion regarding the skill and exertion levels of various jobs, the transferability of the claimant's skills, and the employment positions that the applicant for disability benefits can or cannot perform. The basis of a VE's authority is the VE's credentials. Thus, the SSA holds that an ALJ is authorized to defer to a proposed VE on the ground that the VE has good credentials in a vocational field that is categorized as atypical and complex. The broad deference afforded to a VE is limited by only two safeguards. First, while attempting to strike a balance between fairness and the implementation of an efficient, informal adjudication process, courts have held that VE testimony supporting a Social Security disability proceeding "is not 'substantial' if [that] vital testimony has been conjured out of whole cloth."  The other example of a check on VEs testimony is that if a contradiction exists between the VE's testimony and the data contained in the DOT, the ALJ shall make an inquiry (similar to Rule 702 of the Federal Rules of Evidence ("Rule 702")), to determine whether the VE's testimony is reliable. After a VE testifies and the ALJ asks whether the VE's testimony is in accordance with the DOT, if the claimant does not question the VE's reasoning (even if that reasoning contradicts the data contained in the DOT), then the claimant's right to later question the reasoning is waived. This means that the claimant's attorney needs to be well-versed in the intricacies of the DOT and understand the methodologies used by VEs to form their conclusions.
On appeal, if a claimant wishes to challenge the VE's testimony by arguing that the same claimant did not receive a fair hearing, the claimant must show that the ALJ's behavior, in the context of the whole case, was so extreme as to display clear inability to render a fair judgment.  This is a strict requirement to overcome and does not allow the claimant to attack the reliability of the VE's testimony; rather, the claimant is forced to establish that the ALJ's conduct is of such an extreme nature that a fair judgment is not possible. As mentioned above, the VE's testimony is based on the oral testimony of the claimant, the claimant's RFC for work, and any of the claimant's pre-hearing documentation. The VE takes into account all of this information and then places the assigned limitations into categories within the DOT to determine the types of jobs the claimant is able to perform. Thus, the DOT and the VE's testimony are intricately linked, and because the DOT is the main source upon which the VE's conclusion is based, familiarity with this reference is essential.

Additional Resources

To read more, please follow the below link to my article published in the Valparaiso University Law Review.
Attorney Nathaniel Hubley
Attorney Nathaniel Hubley's blog
Attorney Nathaniel Hubley's video
 
Location: Fort Wayne, IN, USA

Comments

Post a Comment

Popular posts from this blog

Recent changes to the Indiana Worker's Compensation Board's policy regarding nurse case managers

Image
In some worker's compensation claims it is not uncommon for the worker's compensation insurance company to retain a nurse case manager to oversee the injured worker's medical treatment. Essentially, a nurse case manager acts as the worker's compensation insurance company's claim adjuster's eyes and ears on the ground. On April 17, 2018, the Indiana Worker's Compensation Board issued an update regarding its nurse case manager guidelines . According to the Indiana Worker's Compensation Board, "ideally, a nurse case manager is a liaison among the medical provider, the employer and the injured worker.  While not an indispensable player in the Indiana worker’s compensation process or specifically governed by the Worker’s Compensation Act, the nurse case manager can play an integral role in the coordination of medical treatment and the stay-at-work/return-to-work process." In its updated guidelines, the Indiana Worker's Compensation Lawyer
Read more
Image
In the 2011-2012 Session of the Indiana General Assembly, Public Law 69-2012 was passed allowing D felons to reduce their past mistakes and have them entered as Class A Misdemeanors.  ( See  new I.C. s 35-50-2-7). In order to reduce a Class D Felony conviction and have it entered as a Class A Misdemeanor: 1.  The offense cannot be of a sexual or violent nature (as defined in I.C. 11-8-8-5); 2.  The offense did not result in bodily injury to another person; 3.  The offense did not involve perjury or official misconduct. 4.  At least three (3) years must have passed since the sentence was completed (if any); 5.  At least three (3) years must have passed since any other obligations were satisfied; and 6.  The defendant has no pending criminal charges. If you meet these criteria and would like to have your Class D Felony conviction reduced to a Class A Misdemeanor in Indiana    Attorney Fort Wayne Indiana .  
Read more

The Four Stages of the Social Security Disability Process

Image
When filing for Social Security Disability benefits, it is important to know what you are dealing with and how the disability process works. Specifically, there are four stages in the disability process. The first stage involves filing an application for Social Security Disability benefits, completing the initial interview at the Field Office, undergoing the medical evaluation, and receiving a decision from Social Security regarding your application. If Social Security denies the application, then you will receive a letter indicating as such and informing you of your rights to appeal the denial decision. When you appeal the denial, the Field Office will review the medical evidence and evidence in the record and either confirm or reverse its decision. If Social Security confirms the decision, it will send a letter to that affect and inform you of your rights to appeal to the Hearing Office for a hearing in front of an Administrative Law Judge. The first two stages are conducted by
Read more