New York Court: Social Security Judge Not Required to Consult a Vocational Expert - Colon v. Commissioner of Social Security

February 24,2009
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In reviewing a Social Security disability benefits claim, a Social Security Administration (SSA) Administrative Law Judge (ALJ) often considers the opinions of a variety of individuals, including treating and consulting doctors, people familiar with a claimant’s daily activities and vocational professionals, referred to in the claims process as vocational experts (VEs). In Colon v. Commissioner of Social Security, the District Court for the Northern District of New York considers whether there are certain cases in which the ALJ must consult a VE.
Plaintiff Karissa Colon filed a claim for Social Security Disability Insurance and Supplemental Security Income benefits, asserting that she’s unable to work due to anxiety, depression, gastrointestinal problems and severe back pain. She worked as a cashier, customer service representative, bill collector and sales associate before filing the claim, which the SSA ultimately denied. Following a hearing before an ALJ, it was determined that Plaintiff is not disabled because she retained the residual functional capacity (RFC) to perform sedentary work with no more than three step instructions and limited public contact.
On appeal, the district court granted the SSA’s motion for judgment on the pleadings, finding that the ALJ’s decision was supported by substantial evidence. Specifically, the court rejected Plaintiff’s assertion that the ALJ erred by failing to consult a VE before deciding on the claim.
A VE is a vocation rehabilitation professional that provides advice to an ALJ regarding a disability benefits claimant’s ability to perform any type of work activity, despite his or her physical or mental impairments. Specifically, the VE’s role is to gauge both the claimant’s ability to work in jobs that he or she has performed over the last 15 years as well as the claimant’s residual capacity, or ability to work any other jobs that are available in the national economy. A VE is not required to be present at every administrative hearing; an ALJ can obtain a VE’s opinion by requesting that the VE either testify at hearing or provide answers to written interrogatories.
In reaching its decision, the court ruled that an ALJ may (but is not required to) consult a VE in considering a claimant’s ability to work where the claimant suffers from a “non-exertional” (i.e. non-physical) impairment that significantly diminishes the claimant’s ability to perform a full range of exertional work. In this case, according to the court, “Plaintiff’s greatest non-exertional complaint throughout the record was that she couldn’t work with people.” In turn, the ALJ found that this did not limit the range of exertional work that Plaintiff could perform and, therefore, decided not to consult a VE. As a result, the court determined that the ALJ applied the correct legal standard in reviewing Plaintiff’s disability benefits claim.

Despite the ruling, ALJs regularly seek a VE’s opinion in deciding claims. An experienced Social Security disability attorney can provide vital assistance to a claimant in an administrative hearing before an ALJ, including those in which the ALJ calls on a VE to testify. Specifically, the disability lawyer can gauge the VE’s impartiality, expertise and professional qualifications, cross examine the VE fully on any pertinent matter within the VE’s area of expertise and challenge the VE’s testimony or opinions as necessary.