Vocational Witnesses Discuss
the Disability Process
Recently, attorney Jonathan Ginsberg of 4SocialSecurityDisability.net had an opportunity to sit down with two vocational witnesses who testify frequently at the busy Atlanta area hearing offices.
For those unfamiliar with the role of the vocational witness, these expert witnesses appear in disability hearings to offer expert testimony about your past work and about other work you might be able to do given limitations identified by your Judge.
Vocational expert witnesses are usually called upon by the judge to answer “hypothetical questions.” After listening to your testimony and reviewing the evidence, the judge will pose a series of questions to the vocational witness in an effort to determine whether the work limitations arising from your medical condition are truly disabling.
Vocational witnesses are not for you or against you - they are there to help the judge translate your medical limitations into work activity terms.
In most jurisdictions, there might be two or more vocational witnesses that serve on a panel of witnesses. In busier hearing offices, there may be ten or more vocational witnesses (also called “VE’s”) on the panel. Vocational expert witnesses have a unique opportunity to observe hundreds of hearings as well as the performance of lawyers and claimants. Here is a partial transcript of Jonathan’s interview:
Question: What is the biggest mistake you see claimants make?
Answer: Claimants really get themselves in trouble when they try to exaggerate their symptoms. Some people seem to think that in order to win disability, they must be completely bedridden and unable to do anything. For example, I have heard claimants testify that they were too weak to pick up a pencil, or that lifting a telephone receiver was too difficult. That kind of talk is simply not believable.
Question: I try to encourage my clients to express the attitude that if they could work they would try. Judges don’t like claimants who look like they are looking for a handout.
Answer: I think that many truly disabled claimants might be able to try to work for two or three hours. The problem arises if they were to try to work 8 hours, five days a week. Generally, its okay to be able to exist - to get the mail, to watch TV. Judges are not stupid. They recognize that there is a big difference between puttering around the house and working a steady job.
Question: I think that a claimant needs to be believable to give himself the best chance at winning.
Answer: Absolutely. If you lie about something relatively small, like the type of place you live or whether you did part time work, the judge is going to have a more difficult time believing you about more important things....
Question: I tell my clients not to try to outsmart the system. There is a good chance that some reference to that part time job or that long car trip is in the doctor’s notes or in an earnings record somewhere.
Answer: Another mistake I see is claimants who have obviously not given full disclosure to their lawyers.
Question: That is a very common thing when it comes to the claimant’s return to work. Sometimes people get better or they decide to return to work because they have to. Regardless, if the missed 12 months, we can ask for a closed period. Actually, I think that judges like closed period cases because they can afford to give the claimant the benefit of the doubt. Someone who has returned to work is automatically more credible.
Answer: I would agree that judges tend to be more lenient when a lawyer is asking for a closed period.
Question:Â Now, let’s turn the table and talk about the lawyers. You see good lawyers and not so good lawyers. What makes the difference?
Answer: In my view, the best lawyers go into their cases with a clear idea about what they are trying to prove. If the lawyer has an opportunity to make an opening statement, he should take that opportunity because it makes his case that much clearer...
Question: Let me add that some judges don’t ask for opening statements. In those cases I try to prepare a one to two page pre-hearing brief that sets out my theory of the case.
Answer: I see some lawyers who start asking all kind of unrelated questions. A Social Security case is about one thing - can the claimant perform work. Everything else is secondary.
Question: Anything else?
Answer: I think some lawyers fail to talk to their clients enough prior to the hearing. Paralegals can do a great job preparing the documents, but there is nothing like a sit down, face to face meeting.
Question: It helps to get a sense of your client’s personality. Also, you can get a sense of what type of witness they will make. Some people just don’t speak very well and have trouble describing what is wrong. In those cases, I might actually tell the judge in my opening or in my pre-hearing brief that the claimant is not well spoken and ask the judge to rely more on the record.
Answer: Another pet peeve I have has to do with lawyers who try to attack me in cross examination. I am not the enemy. If they are upset with my answer, it is because the question I was given did not have enough limitations.
Question: I agree. I have seen presentations at seminars where they tell you how to attack the vocational witness’ credibility or the statistics he uses. My feeling is that if you are reduced to attacking the VE, you have already lost. Plus, if you do this type of work, you’ll see that VE again and there is no reason to make an enemy.