HOW TO OVERCOME VE TESTIMONY ABOUT "OTHER WORK"

If you are under age 50 and don't meet a Social Security "listing," you will be subjected to this test:  Does there exist any work in the national economy that you are able to perform, based on your age, education, previous work skills and residual function capacity?

In a majority of Social Security hearings, a vocational expert (VE) will testify that, yes, there are some unskilled jobs that you could perform at the sedentary or light exertion levels.  This is enough to cause a denial of disability benefits.

The claimant must overcome this view in order to prevail.  How do you do it?  I use a two-pronged strategy:

1)  I try to obtain from the claimant's doctor a medical source statement that specifies in detail the claimant's restrictions in certain work-related activities.  In short, I want the doctor to state in writing that the claimant can sit, stand or walk for only X number of minutes, can lift no more than X number of pounds, is restricted to sitting no more than X number of minutes at one time, etc.

2)  I use the restrictions in the medical source statement to question the vocational expert during the hearing.  For example, let's say the vocational expert (VE) testifies that my client can do the work of a pickle pusher, which is sedentary, unskilled work, requiring little lifting, standing, walking or bending.  I might ask the following questions, based on the medical source statement from the claimant's doctor:

"Mr. Expert, I want you to assume that the individual under discussion is able to sit for no more than 30 minutes at one time and no more than 4 hours in an 8-hour day.  Further assume that the person can stand and/or walk in combination no more than 2 hours per 8-hour day.  Assume, also that the individual would require all the regularly scheduled breaks plus 2 additional 20-minute breaks each day. Finally, please assume that the individual would be off task because of pain or other symptoms at least 15 percent of the work-day on a consistent basis.  With these restrictions, would there be any work available as a pickle pusher?

The obvious answer is, No, there would not.  Assuming that the medical record supports severe symptoms that would make these restrictions reasonable and credible, the case should be approved.

The point is:  In many cases, Social Security will concede that the claimant cannot perform any of his or her past work.  However, if any other work could be performed, the case may still be denied.  We must look for ways to prove that the claimant cannot perform any full-time work as it exists in the national economy (and as defined in the outdated Dictionary of Occupational Titles, which has not been updated in past quarter of a century).