How Will a Vocational Expert’s Testimony Affect My Social Security Disability Claim?

The two primary benefits available to disabled individuals through the Social Security Administration (SSA) are Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). To establish eligibility for SSDI (and for some SSI claims), an applicant must typically establish an inability to earn significant income. Vocational experts provide critical evidence of earning ability.

Social Security Disability Benefits

Disabled individuals with a significant work history (the rough equivalent of ten years of full-time work) are usually “insured” by the Social Security system and are eligible for SSDI if a disability prevents them from working. Like Social Security benefits, SSDI benefits are funded by payroll taxes.

The SSA also makes SSI benefits available to disabled individuals who cannot earn an income through work. Unlike SSDI, eligibility for SSI benefits does not depend on a qualifying work history. And unlike SSDI, applicants for SSI are means-tested. While SSDI is available to most eligible individuals regardless of their savings and other assets, SSI is only available to people who have limited resources.

While the two programs have different eligibility standards, they use a similar definition of “disabled.” Unlike veterans’ benefits or benefits available under workers’ compensation, benefits under SSDI or SSI are available only to people whose disability prevents them from engaging in “substantial gainful activity” because of their health condition.

Substantial Gainful Activity

The phrase “substantial gainful activity” refers to the amount of money that a disabled individual is capable of earning. When the disability is blindness, SSI benefits are payable regardless of the individual’s earning ability. However, an assessment of the ability to engage in substantial gainful activity is always important to SSDI determinations and to all claims for SSI other than claims based on blindness.

The amount of gainful activity that the SSA regards as “substantial” is determined by a formula and can change from year to year. In 2022, substantial gainful activity means an activity that results (or could result) in earned income of $1,350 per month. A full-time job that pays $7.79 an hour would qualify as “substantial gainful activity.” Thus, the ability to work full time for the Florida minimum wage will disqualify most applicants from disability benefits.

Proof of Disability

In SSDI cases, the SSA uses a 5-part analysis to decide whether an applicant meets the legal definition of “disabled.” The first question is whether the applicant is currently working and earning an income that exceeds the eligibility threshold. If so, the applicant is not disabled and the analysis ends.

If the applicant is not working or is earning less than the threshold amount, the SSA asks whether the applicant has a severe impairment. To be severe, the impairment must be likely to last longer than 12 months (unless it will cause death within 12 months). The impairment must also interfere with the ability to work. Physical impairments that affect walking, lifting, and sitting, and mental impairments that affect concentration and reasoning, are among those that might qualify as severe if they prevent the applicant from working.

If the impairment is severe, third step of the analysis requires SSA to decide whether the impairment is on a list of health conditions that make the applicant automatically eligible for SSDI benefits. Only a few conditions are on that list. A fast-growing cancer that almost always causes death is the kind of condition that allows SSA to make a prompt determination that an applicant is disabled.

If the impairment is severe but not one that automatically qualifies the applicant for benefits, the SSA asks whether the applicant can perform the kind of work that the applicant performed before the impairment came into existence. Even if the applicant is not working in that occupation, the ability to do so means that the applicant is capable of substantial gainful activity and does not qualify for SSDI benefits.

Finally, if the applicant cannot work in his or her former occupation, the SSA asks whether there is any work within the national economy that the applicant could perform that would meet the income threshold. If not, the applicant should qualify for SSDI benefits.

Vocational Experts and Substantial Gainful Employment

If an applicant cannot reach the fifth stage of the SSA’s analysis, an award of SSDI benefits is unlikely. Most cases hinge on whether the applicant could perform jobs that are available in the national economy in substantial numbers.

Whether those jobs exist in the community where the applicant lives does not matter to the SSA. The question is whether the jobs exist in the national economy rather than the local economy. 

Applicants and their lawyers rely on medical evidence to establish the existence of a severe impairment. Medical professionals describe and document the impairment in their medical records. They typically perform a functional assessment to establish limits upon certain actions that their patient can perform. Those limitations might include the maximum number of pounds a patient can lift, the number of times a patient can lift lighter objects during a workday, and the length of time the patient can stand or sit.

Using those functional limitations, a vocational expert can use standard references to determine the kinds of jobs that the applicant is capable of performing. The expert will use other standard references, as well as the expert’s own research, to determine whether jobs that the applicant can perform are available in substantial numbers within the national economy.

When a case goes before an administrative judge for a hearing, the SSA may use its own vocational expert. However, that expert may not be aware of the full range of information that affects the applicant’s ability to work. While medical records are important, they might only tell part of the story. A privately retained vocational expert can examine the full details of the applicant’s employment history, psychological issues that impair the ability to work, and other factors that disqualify an applicant from available jobs.

Even if a private vocational expert does not testify at the hearing, the expert can help the applicant’s lawyer prepare to cross-examine the SSA’s vocational expert. Effective cross-examination of the SSA’s expert will often persuade the judge to award disability benefits.