I was recently asked what it meant that the Administrative Law Judge did not have a Vocational Expert (VE) testify at an individual’s Social Security hearing.
What happens when the administrative law judge does not call the vocational expert to the hearing. Why would the judge do that?
Well, I can’t tell you “why” the judge didn’t have VE. Some judges use VEs all the time, others do not. A VE provides evidence (testimony) about steps 4 & 5 of the sequential evaluation process.
That is, whether an individual can perform any past work (step 4) or any other type of work (step 5).
Keep in mind that the burden of proof shifts at step 5.
- At steps 1 through 4, the claimant has the entire burden of proving their case.
- If the claimant fails to provide sufficient evidence, Social Security can deny the case without lifting a finger (as it were).
However, if an individual get to step 5, then the burden shifts to the Commissioner of the Social Security Administration to prove that the individual can still work.
From a legal standpoint, if the judge wants to deny an individual at step 5, it helps for the judge to have a VE to provide testimony. Otherwise, there is a potential appealable issue that the judge made a step 5 denial without supporting evidence.
Note: denying an individual at step 5 (being able to do other work) is not automatically appealable error. There are ways this kind of decision can be valid, eg applying the medical vocational guidelines, aka the Grids. The grids a describe various age groups (50 to 54, 55 to 59, 60 to 64) along with educational backgrounds and describe the maximum physical abilities that can still result in a disabled finding. Use of the grids in the decision process does not require a VE.
Why doesn’t a judge always have a VE?
Perhaps the judge feels the case is a slam dunk and there is not need to have a VE present. Perhaps the judge feels the case had serious issues and could be resolved (either by an approval OR a denial).
I don’t want to tease you. However, I just can’t say why some judges do not have VEs. It’s asking me to read the tea leaves without even seeing the tea cup. However, I hope a brief discussion of the impact of not having a VE at the hearing was useful!