Your disability claim will be denied if Social Security decides you can do your past job or "other suitable work." Fortunately, if the vocational expert (VE) at your disability hearing testifies that you can do either your past work or other work, there are techniques disability lawyers can use to counter the VE's opinion and help you win your claim. These techniques have to do with making sure the VE doesn't describe your past work inaccurately, or doesn't rely on past work that shouldn't count.
Before your appeal hearing, the administrative law judge (ALJ) receives a report that lists all the jobs you have done in the past 15 years and how much you earned in each position. The ALJ will review this report and, at your hearing, will question you about each job.
A vocational expert (VE) at the hearing will use your testimony to determine the skill level of each of your past jobs and the exertional requirements of each job. The VE will also use these details to get a better understanding of your specific job function and whether your job tasks differed from most similar jobs. Ultimately, the VE will use this information to form a opinion on whether you can go back to your past work, and, if not, whether you learned skills at your prior job that you could transfer to other jobs.
It's important that you describe the jobs as accurately as possible so that ALJ and VE understand what type of tasks you did, and more importantly, what types of tasks you didn't do, at your job. Examples of important information to include are:
Don't downplay the responsibilities and physical requirements of your past work to minimize the transferable job skills you have. Remember that ALJs handle hundreds of claims a year and if they perceive that you are less than honest in your testimony it can affect your chances of winning your claim.
You should listen closely when the vocational expert describes your past jobs. Part of the vocational expert's job is to classify your past jobs by skill level and exertion level. To do this, the VE uses the Dictionary of Occupational Titles (DOT). The DOT provides a general description of almost every job in the United States, and these descriptions include the educational, physical, and interpersonal skills, and other requirements needed to do the job as it is generally performed. The DOT also describes the general length of time it takes to learn how to perform the job. The VE will take the description and titles of the jobs you have done, correlate them to the DOT's job listings, and determine the skill and exertion level of each of your past jobs.
You should pay close attention to the job title the VE uses for your past job, the way in which the VE describes the work you did, and how he or she describes the related position as it is listed in the DOT to make sure that the correlation is accurate. If the VE inaccurately characterizes your job as you performed it, you can counter the VE's testimony. For example, say you had a job as a receiving clerk but you were only responsible for unloading packages and signing your name—that is, your job didn't involve any clerical work such as recording deliveries and verifying orders). That means you performed the job of shipping/receiving clerk differently than it is generally performed, and you didn't gain any clerical skills, so you need to make sure the judge knows this.
So if the VE says you can use certain skills used at your past work to do other jobs, you'll want to point out the differences in the jobs from your prior work and the standard description from the DOT, to help show that you don't actually have the skills required by the DOT job. That means you can't do some or all of the jobs that the VE says you can still do. For more information on this, see our article on showing the VE that you don't have skills to transfer to another job.
The VE can use only past relevant work (PRW) when determining what skills you have and what jobs you may be able to perform. To decide whether certain past jobs constitute past relevant work, the ALJ will consider:
If the ALJ questions you about jobs where you were only employed for a short time, worked part-time, or left before the training period was completed, you should advise the ALJ of the facts. The ALJ should not consider these jobs in determining what skills you learned at that job. The ALJ and VE also cannot consider work performed more than 15 years ago.
Likewise, if the VE refers to any of these jobs while testifying as to other work you could do, you should advise the ALJ at the conclusion of the VE's testimony; otherwise, the VE may use these jobs in error.
For more information, see our article on what past work is irrelevant.
After you correct the details of your job requirements and duties, you can move on to proving you can't do your past work or challenging the VE's testimony about other work you can do.
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