Vocational Experts and Hypothetical Questioning in Social Security Disability Cases - Sherwood v. Astrue

June 02,2009

A Social Security Administration (SSA) Administrative Law Judge (ALJ) reviewing a disability benefits claim will often call on a Vocational Expert (VE), a vocation rehabilitation professional who provides advice to an ALJ regarding a claimant’s ability to perform any type of work activity, to testify as to the kind of work – if any – that a hypothetical person with the same limitations as the claimant can do. In Sherwood v. Astrue, the District Court for the Middle District of Florida explains that this hypothetical questioning must accurately reflect the claimant’s full range of limitations.
The SSA denied Plaintiff Daniel Sherwood’s disability benefits claim, in which he asserted that he’s unable to work due to depression and mental illness. A high school graduate who previously worked as a grocery store stock clerk and cashier, Plaintiff was 54 years old at the time of his hearing before an SSA ALJ. The ALJ determined that Sherwood was not disabled because, although he suffers from severe impairments in the form of depression and personality disorder, he retained the residual functional capacity (RFC) to perform previous work as a stock clerk.
The ALJ’s decision was based largely on the testimony of a VE who, according to the court, indicated that a “person of Plaintiff’s age, education and work history who has no exertional limits, who can follow simple instructions to complete simple tasks that are repetitive, with no more than frequent interaction with coworkers and supervisors; with any interaction with the public being brief, informational, and superficial, involving no decision making or judgment call authority” could perform his previous job. The VE further testified, however, that “if the [hypothetical] individual had difficulty getting along with others…such that his interaction should be limited to less than occasional, there would be no jobs available.”
On appeal, the District Court reversed the ALJ’s decision, finding that the RFC determination was not supported by substantial evidence. “While the ALJ sought to rely on the testimony of the VE from the hearing, such was offered on a hypothetical that assumed a different set of limitations” than those from applicable to Plaintiff, according to the court. Specifically, the hypothetical questioning that the ALJ posed to the VE assumed that the individual was capable of “frequent” interaction with co-workers and supervisors. Before reaching this questioning, however, the ALJ determined that Plaintiff was capable of only “infrequent” interaction. Accordingly, since the ALJ’s decision was based solely on the VE’s testimony – which was in turn based on an inaccurate hypothetical – the court found that the decision was not supported by substantial evidence.
The court remanded the case back to the ALJ for further proceedings. Improper hypotheticals to the VE are often part of our own Federal Court arguments. but typically we argue that the ALJ used one set of limitations when another more accurately reflects the claimant’s problems. It is rare that the RFC relied upon by the ALJ is as different from what the medical evidence supports as we see here.

An experienced Social Security disability lawyer is vital to a claimant in an ALJ hearing, in which a VE testifies. Specifically, the disability attorney can present information to the ALJ in a way that will shape the hypothetical questions that the ALJ poses to the VE and cross-examine the VE to ensure that his or her opinion is both professionally sound and based on an accurate hypothetical. He can also ask his own questions of the VE if those asked by the ALJ do not accurately reflect the claimant’s limitations and restrictions.