Getting Disability: Can You Do the Type of Work You Have Done in the Past? Does it Matter?

The short answer is “maybe.” A lot depends on your age. If you are under age 50, the answer is probably no. All the Judge has to do is show that there are 20,000 or more full-time jobs that you can do, regardless of whether you could ever find that job anywhere near where you live or if anyone would ever hire you for it. If you are over age 50, the work you have done in the past could be the determining factor in whether or not you are found disabled.

At your hearing, the Judge will probably ask hypothetical questions to a vocational expert. I typically tell my clients things like “the vocational expert doesn’t matter” or “the vocational expert is just a technicality.” Your case will likely come down to the Judge’s evaluation of the severity of your medical conditions. Ultimately, the Judge will have to make a finding about what jobs you can do or make a finding about why you can’t do any job. The Judges use the same vocational experts in all these hearings (sometimes the same expert six times in a day) and usually know the answers to all their questions.

Social Security uses a 5-step process to determine whether or not you are disabled. At Step 4, they determine whether you can do your past work, and at Step 5, they determine if you can do “other work.” The reason your age matters is because when you are over age 50 there are many less jobs that the Judge can use to deny you, based on the basic theory that someone who has been a carpenter for 30 years can’t realistically be re-trained to be a receptionist. Apparently, if you’re only 49, you can. If you’re under 50, the Judge can find that you can be an “addresser,” a job that (according to something called the Dictionary of Occupational Titles) involves addressing envelopes or cards by hand or typewriter. Vocational “experts” will say there are hundreds of thousands of these jobs.

The question the Judge will answer at Step 4 is whether you can do your “past relevant work” as it was “actually performed” or as it is “generally performed.” The Judge can deny you if you can do either. How you did the job “as actually performed” is determined by your testimony and the answers you provided in an SSA form such as the “Work History Report.” How a job is “generally performed” is often based on how it is described in the Dictionary of Occupational Titles, a government publication that was last published in 1999. Many of the jobs in the Dictionary were last updated in 1978. The government itself acknowledges that the Dictionary is obsolete. However, this is the information they can use to deny your claim.

What does this mean for you? We’ll use a job as a framer on a construction site as an example. If you were a framer, you may have regularly lifted 75 pounds during your 8+ hour shift, but the Dictionary of Occupational Titles says that a “carpenter” is a “medium” job and only requires the occasional lifting of objects up to 50 pounds. If a carpenter had shown up to any job site you ever worked at and said they could only occasionally lift no more than 50 pounds they may have been laughed at. But, according to the Dictionary of Occupational Titles, that person can be a carpenter.

So, maybe you see the difficulty here; the Judge doesn’t care if you can do your past work as you ever did, or as you have ever seen or heard of anyone doing it. If the Dictionary of Occupational Titles says you can do it (as it was done in 1978), the Judge can deny you.

Let’s assume you can prove to the Judge that you can’t do your past work. The next question is whether you can do “other work.” As I said, if you are under age 50, the Judge can deny you based on Vocational Expert testimony that there are “significant” numbers of jobs in the country, which for the whole country may be as little as 20,000. Think about this: if there are 20,000 jobs you can physically or mentally do (throughout our entire country of over 300 million people), you get denied. The “Addresser” job I mentioned before is used in 10% of all Social Security denials.[1] According to vocational experts, this job requires almost no standing, walking, lifting, or interacting with others. It also only involves using your hands 2/3 of an 8-hour workday and requires a very low level of judgment and reasoning (only the ability to follow “uninvolved” instructions).

Even if you are over age 50 and can’t do your past work, the Judge can deny you if they find that there is other work you can do with the “transferrable skills” you obtained during your work life. Here is an example from a recent hearing of mine: a vocational expert testified that a man who had been a police officer for 35 years could transfer to a job as a gate guard, sitting on a stool in a box and pressing a little button to let someone into their gated community. If you ever supervised anyone, or even acted as a lead worker, they can use this against you to come up with transferrable skills with which to deny you.

Many of these vocational “experts” are actually professional expert witnesses who haven’t done any work other than testifying in these hearings for many years. Many of them merely rely on the same computer program to testify conclusively about how many jobs exist in the national economy.

Proper cross-examination of these witnesses can make the Judge’s denial easy to get overturned on appeal. Proper cross-examination can also make their testimony impossible for a reasonable judge to accept. While I don’t think that most hearings are won or lost by what the vocational expert says about what jobs you can do, I do think most denials can be overturned by proper cross-examination (or error spotting) by a skilled advocate.

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