If your disability claim is denied because Social Security says there is "other work" you can do (rather than your past work), you'll need to request an appeal hearing. Your disability claim will be denied again if the vocational expert at your hearing agrees that, although you can’t do your past work, there is other work you can still do.
The best way to win this stage of your disability appeal hearing is to rule out the proposed jobs that the VE says you can do. You can counter the VE's testimony by showing that you don't have the transferable skills from your prior jobs that the VE thinks you have.
It is important to make sure the VE understands the tasks you learned in your old job to ensure that the VE doesn't think you are qualified for certain other work when you are not. For instance, if the VE thinks you worked at a semi-skilled job such as running a cash register at a supermarket, when in fact you worked the unskilled job of bagger at a supermarket, the VE is going to mistakenly think you have more skills and training than you actually have.
Here are some tips to use your prior work to help rule out jobs suggested by the VE.
Provide Abundant Details About Your Past Work
By bringing the details of your past work to the attention of the VE and ALJ, you may be able to counter the VE’s testimony that you can work at other jobs that require similar skills to those you learned at your past jobs. To challenge the VE's testimony, you'll need to prove to the ALJ that the skills you learned from your past work were different than the VE believes. For information on the details that are important, see our article on correcting the details of your past work.
Don't Glamourize Your Prior Work
When you discuss your work history, don't use a job title for your past position in a way that suggests you had more responsibility than you did, and don't exaggerate your job functions. For example, only use the term "manager" if you supervised other employees. The reason this is important is because the more skilled your past work (managing employees is considered skilled), the easier it is for the VE to say there are jobs you are able to do. In other words, the more skills you have, the more difficult it can be to rule out other jobs. This is why it's important to be careful when you answer the judge's questions about your past jobs.
Challenging the VE's Testimony as to Your Transferable Skills
If the VE or the ALJ is misled due to your job title, your attorney can question you at the hearing so that your testimony reflects the actual skills you learned at the job. This is important for several reasons. For one, if the VE classifies you with the wrong job title, he or she will assume you have skills you don't have. And even if your past job is assigned the correct job title, if you didn't perform certain tasks of the job as generally performed, you didn't gain the skills, and they can't be considered transferable.
In addition, the VE will classify your prior job as skilled, semi-skilled, or unskilled. How your job is classified determines the type of other work Social Security may find you suitable for, as follows:
- If your past work is classified as unskilled, you are unable to do semi-skilled or skilled jobs.
- If your past work is classified as semi-skilled, this means that you cannot do any skilled work, but you can do semi-skilled work, if you have transferable skills.
- If your past work is classified as skilled, you might be able to do semi-skilled or skilled work, if you have transferable skills.
For example, in one disability case, the claimant described her past work as a "quality assurance specialist" at a local factory. Based on this statement, the VE classified her past work as skilled and named several jobs the claimant could perform in the local economy. However, the claimant's attorney questioned the claimant further on her former job and determined that she did not design or implement any inspection techniques, did not review production data, and did not communicate any inspection findings to any other entities either in the company or to third parties. Claimant’s position was, in fact, as a sorter whose primary responsibility was to examine and discard non-conforming products from the packaging line. Based on claimant's testimony regarding her actual job duties, the VE determined that the claimant’s past work was unskilled and that she had no transferable skills. Accordingly, as an older worker she was found to be disabled.
The worker in the above example was deemed disabled because of medical-vocational factors (which include age and job skills). How your prior work and job skills are classified affects where you fall in the medical-vocational grids.
See our articles on when Social Security will consider your skills transferable and how tranfersferable skills are used in the medical-vocational grids for more information.
Medical Limitations Can Negate Transferable Skills
Your impairment(s) can affect the transferability of skills. Even if you learned skills at your old job because you needed them to do certain tasks, if you can no longer do the tasks, the skills can't be transferred to a new job. For example, a repetitive stress injury can prevent you from being able to file, a task required in secretarial jobs. Knowing the skill of how to file isn't going to give you an advantage in getting and doing a secretarial job if you can't file, meaning that Social Security can't count it as a transferable skill you have. Other examples of skilled occupations where an impairment prevents the transferability of job skills include piano tuners with hand tremors and cabinetmakers without eye-hand coordination.
Mental limitations can also affect the transferability of skills. For example, a business executive who experiences a loss of IQ due to a traumatic brain injury may not be able to transfer the skills of managing budgets and identifying risks, and airline flight attendants who suffer from major depression may not be able to transfer the skills of service orientation and dealing with the public.
For more information on and examples of these types of limitations, see our article on non-exertional impairments.
Getting Legal Help
It is extremely helpful to have the assistance of a disability attorney who is trained in effectively cross-examining a VE. Attacking a VE’s testimony can be difficult and risky, and if done incorrectly, it can actually harm your case. To get some help, use our disability attorney locator to find a lawyer to represent you at your hearing.
If you want to know more about how your lawyer can cross-examine the vocational expert, see our article on cross-examining the VE at your disability hearing. Your lawyer can also challenge the VE's testimony about the proposed other work by asking about the number of positions available and the requirements of the other work.