Let's use an illustration. Jim is a 44 year-old construction worker who specializes in high rise steel-constructed buildings. His job duties included climbing, balancing, lifting up to 50 pounds frequently and over 100 pounds occasionally. He was frequently required to bend, crouch, crawl and kneel. Last May, Jim began experiencing severe and chronic back pain. His orthopedic specialist performed an MRI on his back and discovered two bulging cervical discs along with severe instability of the spine at the L4 on L5 level. Jim's days of working on high rise buildings and lifting up to 100 pounds were over.
Jim filed a Social Security disability claim based on chronic back problems and the fact that he could not perform any of his past relevant work activity. Social Security readily agreed that Jim was not able to perform any of his past work as a construction worker. However, they argued that there was "other work" in the national economy that Jim could perform, even with his spinal impairments. So Social Security denied Jim's claim.
Jim hired a representative and appealed this denial. Eleven months later, Jim and his representative appeared at a hearing before a US administrative law judge. The judge found that (a) Jim was not engaged in any substantial gainful activity or work, (b) Jim had a severe and medically determinable impairment, (c) Jim's residual functional capacity placed severe limitations on his ability to climb, lift, carry, kneel, crawl, crouch, and push or pull.
Next, the judge asked the vocational expert whether Jim could return to any of his "past relevant work" that he had performed during the past 15 years. The expert testified, "No, he cannot do any past relevant work."
Then, the judge asked one final hypothetical question of the vocational expert. "Is there any other work that Jim could perform?" Now, enter the unskilled sedentary job market - where about anything goes. "Well, yes, Jim could perform sedentary unskilled work that required little or no lifting, climbing, bending, etc. Some examples of work that Jim could still do would be telephone solicitor, inside sales representative, bench press operator or table work.
Since Jim can, according to the ever-present vocational expert, perform some jobs that exist in significant numbers in the national economy - and since those jobs require no previous experience or special skills - Jim is not disabled according to Social Security rules.
Here, the representative had better have an answer--or at least a good question--for the vocational expert, or this case is lost. I would want to point out additional limiting factors that restrict Jim's ability to perform even unskilled light or sedentary work. I might point out Jim's level of consistent pain and how it affects his ability to concentrate. I might point out the doctor's opinion that Jim cannot sit for up to 6 hours per day, or up to 2 hours at one time, both requirements of sedentary work. There certainly might be other medical or vocational evidence that would help Jim's case, if it had been prepared before hand.
The bottom line is, the advocate or representative must prepare for a "worse case" scenario in a disability hearing. What happens if the vocational expert testifies that your client cannot do high rise construction work but that he could still perform some easy, cream puff job, of which 240,000 exist in the national economy and 87,000 jobs exists in the state economy? I promise that will happen in 9 out of 10 hearings and we best be prepared to answer. Often, it is not the medical evidence that kills you in a disability hearing, it's the vocational evidence. You must be able to show that the claimant cannot perform any of his past relevant work AND that he cannot perform any OTHER work. That is a high burden of proof to bear and a good reason for hiring a representative who knows how to prepare and argue Social Security disability cases.
The more time the representative has spent with his client, the better he will be prepared to argue the case effectively. Simply talking to a client often gives me a sense of direction for the case - something I might never develop by talking to the client on the phone or reading his file.
Disability advocates perform a vital service in representing their clients and cannot receive a fee for their assistance unless they win the case and get back pay for their clients.
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