Every part of a Social Security disability hearing is important--from the opening to the closing argument. But one point is especially fearful because it is at this point the claim can be won or lost.
It occurs during testimony by the vocational witness. The judge will ask the vocational witness two questions which strike fear into the heart of all disability attorneys:
Can the claimant perform any of his/her past relevant work?
A "Yes" answer can be the death knell of the case. Even if the witness answers is "No," the case isn't home free. If the claimant is under age of 55, the second question is just as dangerous:
2. Is there any other work in the national economy that the claimant could still perform? Attorneys have been known to fall dead if the witness says "Yes" to this question.
Of course, these questions have to be influenced by what goes on earlier in the hearing. The claimant's lawyer will emphasize the factors that attempt to predispose a "No" answer from the vocational expert. Age, education, past work experience (including job requirements) and residual functional capacity have hopefully pointed to the strong reservation about being able to perform any full-time work.
I attempt to let the judge know why my client can't perform any of his/her past relevant work:
The work required functions that the claimant can no longer do on a sustained basis.
The claimant's medical record is consistent with an individiual who cannot sit for up to 6 hours per day, stand or walk up to 6 hours per day or lift up to 10 pounds occasionally. If there are mental impairments, I want the judge to know about the claimant's inability to sustain concentration, persistence and pace. If the claimant cannot cooperate with supervisors, coworkers to the general public, I want the judge to know how these allegations are reasonably supported int he medical record.
I want to head off doubt or questions by the judge by covering the medical evidence clearly
It is, after all, the judge who will formulae the questions to the vocational expert. It is the questions and the way they are asked, that will determine the vocational expert's answers.
A lawyer leaves the hearing feeling good and positive when the vocational expert has answered no to both questions on all hypotheticals.
Can the claimant perform any of her past relevant work? NO.
Is there any other work in the national economy that the claimant could perform? NO.
If we have consistently achieved a "No" to all these questions, we usually don't have to fear the forthcoming Notice of Decision. It will be an award / approval.
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A disability hearing is much more complicated and technical than most people realize. That's why professional representation is so important to achieving a favorable decision. Contact The Forsythe Firm for a free consultation now. (256) 799-0927.
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