USING A PROBATIONAL WORK PERIOD TO WIN YOUR DISABILITY CLAIM

At your Social Security disability appeal hearing, the two key plays are the administrative law judge (ALJ) and the vocational expert (VE).

After claimant testimony and lawyer's arguments have been made, the judge will take sworn testimony from the vocational expert (VE).  The VE's answer to two questions will crucial in determining whether you win your benefits or not.  These 2 questions are:

1.  Based on the claimant's medical limitations that I have outlined, can he/she perform any past relevant work?  If yes, the claim may be denied.

2.  Are there any other jobs in the national economy that the individual could perform?  If yes, the claim is probably lost.

However, it isn't over yet.  Your attorney will get to grill the vocational witness about her testimony.  In this cross examination, your representative will challenge the VE's testimony about jobs and seek to find reasons that the job(s) really can't be performed.

One often overlooked question for the VE concerns probationary work periods.  A probationary period is a 90 day "trial" where the worker is given a chance to demonstrate that he/she can do a good job.  If so, the job becomes permanent.  If not, the worker is terminated.

Questioning of the VE might go something like this:

"Good morning, Ms. Expert.  Could you explain the usual tolerance for absence in the job of pickle pusher?  (The VE will usually testify that a worker is allowed about 1 day per month of absence; more than that will result in termination).

"Second, Ms. Expert, could you explain how much tolerance employers usually have for workers who are off task?"  (Most VEs will testify that employers will tolerate up to 10 percent off task, but more than that results in termination).

"Ms. Expert, you testified that this individual may be able to perform the job of Pickle Pusher, which you classify as an unskilled, light exertion job.  In your experience, is it likely that a new employee would have to undergo a probationary period or trial period before being hired on a regular basis?  If so, how long is the typical probationary period.  (90 days, usually).  Now, I have some specific questions.

First:  "What is the typical tolerance for absences during the 90-day probationary period?"  (Usually, no absence is tolerated during this period).

"So, if a pickle pusher missed even 1 day of work due to illness during that probationary period, he or she would likely be terminated, is that your testimony?"  (Yes).

"Also, what would the typical tolerance be for off task behavior during the probationary period?"  (No more than 5 to 10 percent, probably). 

"So, if an individual's pain, anxiety, panic attacks (etc.) kept him/her off task 15 percent of the workday, or more, there would be no work as a pickle pusher, is that correct?  (Yes).

Here's the argument.  During the 90 day probationary period, a new employee will have to meet tougher, stricter standards to prove that he/she will be a good fit for the job.  If a new worker cannot meet the higher standards during the probationary period, the normal standards for a pickle pusher job don't really apply.  Thus, the claimant could not keep the job, even if hired.  Thus, the job of pickle pusher is not really available to him/her, based on his or her medical or mental restrictions.  (These restrictions have been introduced into evidence, based on doctors reports/medical records, of course).

I have actually won cases on the basis of this cross examination.  It can certainly create doubt in the judge's mind about whether to believe the VE's testimony or take it with a "grain of salt."  If the claimant is on the fence--a borderline situation--this can tip the scales in the claimant's favor.