April 24, 2019

Why Do Social Security Judges Ask Hypothetical Questions to Vocational Witnesses at Hearings?

Transcript of video:

Hi there. This is Jonathan Ginsberg; I’m a Social Security Disability attorney in Atlanta, Georgia. I want to talk to you about hypothetical questions that the judge is going to ask the vocational expert at your Social Security Disability hearing.

If you haven’t yet gone to your hearing, what you’ll find is that the judge will in many cases have a vocational witness there. The vocational witness is typically a person with experience, knowledge, education about jobs in the economy, and is going to testify for the judge about jobs that you might be able to do given the limitations that may exist in your record.

For example after taking testimony, the judge will turn to the vocational witness and say, “Mr. Vocational Witness, assume we have an individual the same age, education, work experience as our claimant. Assume further I find this individual is limited to light work with the following non-exertional limitations. This individual should avoid all unprotected heights and hazardous equipment, should avoid fumes, odors, dusts and gases. This person should be limited to simple repetitive tasks that do not involve significant changes in the worksite, etc. Again based on this question, could this person return to past work? Could this person do any other kind of work?”

The vocational witness will testify accordingly. Obviously what you’re looking for, what we want to have happen is the vocational witness to testify, ‘Based on the limitations you’ve described, Your Honor, in this hypothetical, there are no jobs that I can think of that I’m aware of that this person can do.’ That’s what we want to do because that means, obviously, you’re disabled. Basically, we’re trying to get to that point.

Obviously as an attorney, I’m going to prepare you and ask you questions so that if the judge accepts your testimony as true, then there are no jobs you could do. My question that I’m already going to have prepared is going to really reflect your testimony and those limitations.

Inevitably what’s going to happen at the hearing is the judge will ask a number of questions. Sometimes the answer’s going to be, “Your Honor, I can give you jobs in sedentary, sit-down type work. I can give you light jobs. I can give you medium jobs,” and really go through a whole number of different jobs.

You come out of the hearing, “What is that all about? This person said I could be a toll-taker on a tollway, an expressway. They said I could be a hand packer. The vocational witness said I could be a foil wrapper or a surveillance system monitor. What does all that mean?”

I get a lot of questions from people saying, “I went to my hearing and the vocational witness said I could do all these jobs. What does that mean?”

Basically, it may mean a lot, it may mean nothing. The reason for that is that some judges will ask a lot of questions, starting with a question where clearly there are jobs that exist and then move steadily over to the point where there are no jobs.

The reason judges are doing this is because their decisions are being looked at, so they want to show the appeals counsel or anybody looking at their decision that they considered all the evidence from every angle. Maybe they looked at your limitation and they started out with, ‘What if your physical limitation is mild but your mental health limitation is a little more severe? What if your mental health limitation is severe but I think your physical limitations are very mild.’

They’ll go through the whole exercise to try to come up with where that line is. If you’re above the line, you’re disabled; if you’re below the line, you’re not.

Realize that judges are trying to come up with, really, as close to that line as possible. They’re trying to figure out . . . they don’t want to assume more than is in the evidence. They want to come as close to what the evidence would show and that can be justified as possible. Sometimes they’re doing that to cover their own behind, to create a paper trail that will cover their own behind. Sometimes they really don’t know what the vocational witness is going to say.

I’ll tell you, my experience has been that most judges know pretty quickly what they’re going to do, and they base their hearing and their questions around that. Sometimes they really don’t know what they’re going to do and they want to find out by asking these questions.

Really, I think what you want to talk to your attorney about is what is your attorney’s sense from the questions. Sometimes if you’ve been in front of the same judge, you know that if he asks a lot of questions that get 15 jobs as a response, that’s not a good sign. Sometimes that means the judge really is just going through the exercise, and based on the last 2 or 3 questions, he’s going to approve you. It really depends on the particular judge.

The reason they’re asking all those questions is they’re trying to figure out where that line is and how close they can get it so that they can figure out, are you disabled?  If you’re just over that line, he wants to approve you but he doesn’t want to do so in a way that assumes too much. If he’s going to deny you, he wants to do so in a way that gives you the benefit of the doubt; that even if he found you have moderate limitations here, you still could possibly do some work.

From your perspective as the claimant, what you want to do is when you testify, when you practice with your lawyer, you want to identify very, very specific work limitations and put some timeframe to it. In other words, you don’t want to say, “I can’t sit very long. I can’t stand very long. I can’t lift very much,” because when you try to plug that into a hypothetical, it means nothing.  If you can say, “3 hours a day, at least 4 days a week, my pain in my back is so severe that I cannot function at all. I have to lie down and take pain medications which puts me to sleep.” You can plug that 3 hours a day, 4 days a week into a hypothetical question.

Obviously if you’re missing that much time from work, it’s going to be very hard for the vocational witness to find jobs you can do. That’s why preparation is so important in Social Security cases in identifying specific work limitations that you cannot perform is so important as well.

I hope this has been helpful and I hope this helps answer that question so that you can really pose it. It’s not a question that you can give an answer to without knowing the judge, but you’ll know how to pose the question to your lawyer and also maybe a little bit of advice about how to prepare better for your hearings.

Again, my name is Jonathan Ginsberg. I  hope this has been helpful. Any questions you have or you want me to answer, please let me know. I’ll be seeing you soon. Thanks a lot.

About

Jonathan Ginsberg represents clients in disability claims filed with the Social Security Administration.

Would you like your Social Security disability question answered on Jonathan's podcast?  Record your question for Jonathan directly from your computer.

Jonathan Ginsberg

Jonathan Ginsberg represents clients in disability claims filed with the Social Security Administration.


Would you like your Social Security disability question answered on Jonathan's podcast?  Record your question for Jonathan directly from your computer.



About Jonathan Ginsberg

Jonathan Ginsberg represents clients in disability claims filed with the Social Security Administration.

Would you like your Social Security disability question answered on Jonathan's podcast?  Record your question for Jonathan directly from your computer.

Comments

  1. Dothel Edwards says

    Excellent explanation of the use of a VE!

  2. I had my alj hearing and really nervous.during the hearing the ve came up with 3 jobs the judge asked a question to ve about someone missing 2-3 days would they still be gainfully employed. The VE stated no.my lawyer then used having a break every hr for 10 mins would those jobs allow that the VE stated no.in my medical records my main Dr says I would miss 4 days a month an would likely require 10 minute break every hr is this good for me?

  3. Betty Abbott says

    Mr. Ginsberg,

    Hi, my name is Betty Abbott, i had my hearing on April 11th, 2017. Yes the VE was present and yes their were 2 hypothetical questions threw out. First question was ok this individual with this physical impairment, could this individual work 8 hrs a day 40 hrs a week and what jobs could said individual do? VE response was yes and only listed 2-3 jobs

    Second hypothetical question; same individual with all mental and physical impairments could this individual by ssa standards work 8 hrs a day 40 hrs a week? Answer was no, and was said regarding past employment this individual VE wouldn’t recommend working in general public ever again and found no jobs available.
    Ok so my question is, is this a good sign? Yes i did have attorney’s and when came out of court room my attorney said i did good and we did good.
    I would just like more of a definitive answer from all the research i have done and read online seems like i would get favorable decision. My only other concern is the judge i had only has a 25% approval rating and 60% denial rating!!!! It truly scares me.

  4. I’m still learning from you, while I’m trying to redach my goals.

    I certainly love reading everything that is written on your website.Keep the posts coming.
    I enjoyed it!

  5. When the judge started in on me with the hypothetical questions, I listened to the whole question before I answered. With all of my issues, which are all in my paperwork, there was no way I could give a definite answer to his ‘could you do x if this, this or this condition was met’? I politely told him that I can’t answer a hypothetical question. He said ‘fair enough’. Then he asked me if I was given additional break, how often would I need to take a break? I told him once an hour. He asked through VE if there would be any jobs in the dictionary that I could do with those limitations. The VE said there were none. Good or bad? I have no idea.

  6. John Faulk Jr says

    At my hearing the first hypothetical question was answered yes there is jobs, but the next 3 questions were answered no jobs, so what I really need to know is the hypothetical questions my documented limitations from my doctors and the social security state non examining doctors?

    • John Faulk Jr says

      What I mean is, are the questions the judge asks, are they in my medical records (the limitations) ? If so I should get approved, I am 51 yrs old, have GED that’s 32 yrs old and no prior work since 1995 .

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