Vocational Evaluators and ERISA Disability: How Your Skills and Residual Functional Capacity Shape Your Claim

Welcome to Season 6, Episode 4 of Winning Isn't Easy. In this episode, we'll dive into Vocational Evaluators and ERISA Disability: How Your Skills and Residual Functional Capacity Shape Your Claim.

Understanding how vocational evaluators fit into the ERISA disability process can be the difference between securing the Long-Term Disability benefits you paid for and having your claim unfairly denied. Disability carriers rely heavily on vocational experts, and their assessments often shape claim outcomes - sometimes in ways that don’t accurately reflect a claimant’s true functional abilities. Insurers don’t rely on medical records alone. They analyze residual functional capacity, past job duties, and whether your skills could transfer to other work. If your work history, limitations, or skills aren’t clearly documented, or if your occupation is misclassified, your claim can be delayed, reduced, or denied altogether. Vocational evaluations are especially decisive during the “own occupation” and “any occupation” phases of a claim. Small assumptions or errors in a VE report can have outsized consequences, making it critical to understand how these evaluations work and how they can be challenged. In this episode, we break the process down into three parts: what ERISA claimants need to know about vocational experts and transferable skills, why challenging the carrier’s VE is often essential, and how competing vocational opinions can protect your benefits. By the end, you’ll understand why winning an ERISA disability claim isn’t just about diagnosis - it’s about clearly presenting your functional limits and holding insurers’ experts accountable.

In this episode, we'll cover the following topics:

One - What Every ERISA Policy or Plan Holder Must Know About the Role of a Vocational Expert in Their Disability Insurance Claim

Two - Why You Must Have an Experienced ERISA Disability Attorney Attack the Opinion of the Carrier’s “Liar-for-Hire” Vocational Evaluator in Your Appeal

Three - The Hidden Battle of Experts - Your Vocational Evaluator vs. Theirs

Whether you're a claimant, or simply seeking valuable insights into the disability claims landscape, this episode provides essential guidance to help you succeed in your journey. Don't miss it.


Listen to Our Sister Podcast:

We have a sister podcast - Winning Isn't Easy: Navigating Your Social Security Disability Claim. Give it a listen: https://wiessdpodcast.buzzsprout.com/


Resources Mentioned in This Episode:

LINK TO ROBBED OF YOUR PEACE OF MIND: https://mailchi.mp/caveylaw/ltd-robbed-of-your-piece-of-mind

LINK TO THE DISABILITY INSURANCE CLAIM SURVIVAL GUIDE FOR PROFESSIONALS: https://mailchi.mp/caveylaw/professionals-guide-to-ltd-benefits

FREE CONSULT LINK: https://caveylaw.com/contact-us/


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Please remember that the content shared is for informational purposes only, and should not replace personalized legal advice or guidance from qualified professionals.

Transcript

Nancy Cavey [00:00:10]:
 Hey, I'm Nancy Cavey, national risk and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, I've got to give you a legal disclaimer. This podcast is not legal advice. The Florida Bar Association says I've got to tell you this, but now that I've told you that, nothing will prevent me from giving you an easy-to-understand overview of the disability insurance world the games that disability carriers play, and what you need to know to get the disability benefits you deserve. So off we go. I think this is a crucial episode because vocational evaluators are used in every ERISA disability case, and understanding how they fit into the ERISA disability framework can be the difference between getting your long-term disability benefits or having your claim denied or even benefits terminated. Disability carriers or plans rely heavily on these quote-unquote experts, and their assessments will often work against you rather than reflecting your true vocational abilities.
 
 Nancy Cavey [00:01:06]:
 Carriers aren't just looking at your medical records. They examine your residual functional capacity—what it is you're able to do. They look at the duties of your past occupation and whether your skills could transfer to other jobs. Now, if your documentation or your work history or skills aren't clearly presented, Or if the vocational evaluator misclassifies your occupation, your claim could be denied, benefits could be terminated, or you just might have a lot of difficulty ultimately proving in court that you can't perform your own or any occupation. So what is own or any occupation? Well, under most disability policies or plans, you have insured your inability to do an occupation. And what disability carriers are going to be looking at first is what is the definition of your own occupation? And what is the definition of any occupation? There is no uniform definition, and you've got to understand that definition because that's the definition that the vocational evaluators and the disability carriers or plans will apply. The vocational evaluation will often determine ultimately whether you get your benefits or continue to receive your benefits, and small errors or even assumptions made by the vocational evaluator in their reports can have major consequences. That's why I think it's crucial that you understand their process and understanding why it's important to have your own vocational evaluator in your disability claim if your benefits are being denied or terminated.
 
 Nancy Cavey [00:02:39]:
 So I'm going to break this down into 3 parts. First, we're going to examine what every disability claimant needs to know about vocational experts, including residual functional capacity, dictionary of occupational titles, classifications, and transferable skills. Number 2, I'm going to discuss why challenging a carrier or plan's vocational opinions are crucial and why it's really important to highlight common mistakes and the role of an experienced ERISA disability attorney in an appeal attacking vocational opinions. And then lastly, I'm going to explore the hidden battle of experts, and I'm going to really dive into how your own vocational evaluator can counter the disability insurance company or plan's findings and protect your benefits. So, by the end of this episode, I want you to understand that winning your ERISA disability claim isn't just about your medical condition. It's about presenting your occupational history, your educational history, addressing your functional abilities, your skills, and your limitations clearly so that ultimately the disability insurance carriers' or plans' experts, in quote, are held accountable. Got it? So, 3 things: 1, whatever your ERISA a policyholder, plan holder, has to know about the role of a vocational expert in their claim. Number 2, why I think it's important you have an experienced service and disability attorney help attack the opinion of the liar-for-hire vocational evaluator's opinion in your appeal.
 
 Nancy Cavey [00:04:07]:
 And 3, the hidden battle of experts—your vocational evaluator versus theirs. Let's take a break before we dive in.
 
 Speaker B [00:04:16]:
 Have you been robbed of your peace of mind by your disability insurance carrier? You owe it to yourself to get a copy of Robbed of Your Peace of Mind, which provides you with everything you need to know about the long-term disability claims process. Request your free copy of the book at kvlaw.com today.
 
 Nancy Cavey [00:04:51]:
 Welcome back to Winning Isn't Easy. What every ERISA policy or plan holder needs to know about the role of a vocational expert in their disability insurance claim. Your ERISA disability insurance carrier or your plan doesn't make it easy for you to get your benefits. You might have to file an appeal of a denied claim or terminated benefits, and in many cases, the disability carrier or plan has had your case reviewed by their in-house liar-for-hire vocational evaluators. These people are there for a reason, and that is to create a justification to allow the disability carrier to deny your claim or terminate your benefits. It's a game. So what is the game? Number one, the first question they are going to be asking in their analysis is what is your residual functional capacity? Now, often the carrier or plan's liar-for-hire doctors will disagree with your doctor about your functional restrictions and limitations. That isn't to say your doctor can't help.
 
 Nancy Cavey [00:05:50]:
 I think your residual functional capacity forms are crucial, and they are, in my view, an adjunct to attending physician statement forms. These forms will help address what you can do or not do physically, cognitively, and psychiatrically in the work setting. I think that the carrier plan should be considering all of your medical symptoms in determining your residual functional capacity. That's not often the case. The vocational evaluators are going to be relying on the liar-for-hire doctor's opinion about your residual functional capacity form. I don't think I've ever seen the disability carrier plan give to the vocational evaluator the opinion of the claimant's actual treating physicians. So that's one of the first points of disagreement. What in fact are your functional restrictions and limitations from each one of your medical conditions and then collectively.
 
 Nancy Cavey [00:06:44]:
 Once the, this process is started, the vocational evaluator is going to take whatever residual functional capacity the carrier or plan's adjuster says to use, and then they're going to sort your physical or cognitive or psychiatric restrictions and limitations. Primarily, they're going to start with the physical residual functional capacity form. They're going to sort it into very heavy, heavy, medium, light, and sedentary work. So they're going to say, okay, well, you can do very heavy work. Now we're going to compare that to the strength level of your past occupation. And that is also a point of disagreement. So we've got a disagreement on the level of your post-disability residual functional capacity. Number 2, we have a disagreement about what your occupation might be and a strength level.
 
 Nancy Cavey [00:07:37]:
 And number 3, we have a disagreement as to how that vocational evaluator has classified the nature of your past work and your future capabilities. That leads me to topic number 2: What is the strength level of your past occupation? Now, the disability insurance carrier plan, Social Security Administration, they all use something called the Dictionary of Occupational Titles in their analysis. The DOT, which is published by the United States Department of Labor, is a reference guide that provides detailed information about jobs in the United States. The problem is that the DOT hasn't been updated since the '90s, so you can imagine that it is out of date. But nonetheless, many disability insurance policies or plans will say you got to use the Dictionary of Occupational Titles. How stupid, but it is what it is. Now, for each job, the DOT is going to provide a job title a brief description of the task and duties, the strength level of the job, and the specific vocational preparation it takes to learn that job. The vocational evaluator is going to review your work history and based on your description determine which DOT code most accurately describes the work you did.
 
 Nancy Cavey [00:08:51]:
 So they're going to try to pigeonhole you. Then the VE is going to identify the applicable job title, the strength level based on the DOT, which does address strength level, and specific vocational preparation. And converted into your job into an occupation. Now there's a problem there because how you perform it may not be the same way that the DOT describes it, and that can be a huge issue in these cases. And again, depending on the terms of the policy or the plan, remember you insure your occupation, not your job. And in my view, there's a problem many times with the VE's conversion of a job, quote unquote, into an occupation. The third thing that we want to talk about is what kind of skills you learned in your past occupation. As I've said, the disability carrier plan is going to use the DOT to determine the level and nature of the skills you've learned in your past occupation.
 
 Nancy Cavey [00:09:48]:
 They're going to be classifying your work based on the dictionary of occupational titles. There's unskilled work, semi-skilled work, and skilled work. And the VE, using a computer program, is going to identify the skills and specific vocational preparations required in your past occupation, first to determine if you can still do your past occupation, and then at the any occupation stage, if that's where we're at, whether you can do any other occupation in view of your residual functional capacity as they've determined it and the transferable skills as they've determined it. That's where lots of games are played. Let's say you are at the any occupation stage of the claim. You've been paid own occupation benefits probably for 2 years. Now the definition has changed to an inability to do any occupation. Again, you've got to look at the terms of your disability policy or plan for that definition of any occupation.
 
 Nancy Cavey [00:10:43]:
 Now I'm going to dig into the, the weeds, if you will, a little bit, but bear with me. The DOT, as I've said, will classify occupations or work based on skill level. Semi-skilled work is a job that requires basic training or experience and can be learned in 3 to 6 months. And common examples of this include operating a machine, doing assembly work, or doing routine tasks using hands and feet. A semi-skilled worker can carry out duties without the help of a supervisor and doesn't really require any specialized training. Now, if the carrier plan says that you can do semi-skilled work, as they're denying or terminating your benefits. The question really becomes whether, based on your residual functional capacity, you can really take those skills to other occupations as that term is defined. So let me give you an example.
 
 Nancy Cavey [00:11:32]:
 Let's say you were a machine operator at the time you became disabled, and the question is whether you can do that occupation, the own occupation stage, and then at the any occupation stage, whether you've learned any skills that could be transferred to other work, such as assembly work. In view of your residual functional capacity. Now, if you have transferable skills to semi-skilled work, generally you would not be considered disabled under the terms of most disability policies or plans. Let's talk about skilled work. That refers to jobs that require training or education in a particular field through formal education or on-the-job training. Now, skilled work requires training, uh, involving complex tasks and difficult decisions. So my profession as a lawyer is classified under the Dictionary of Occupational Titles as skilled work because I have an advanced education and my work requires very specific skills. I have to deal with people, facts, figures, analyze situations, present ideas and arguments, and I have to be able to negotiate and stand on my feet and think quickly in a trial setting.
 
 Nancy Cavey [00:12:35]:
 At the own occupation stage, the question would be whether I'm capable of doing my past occupation. As an attorney, but at the any occupation stage, the question is whether I've learned any skills that I could take to any other occupation in view of my residual functional capacity. Now, often the higher the skill, the less likely it is it's going to transfer to other skills. So in my example, I wouldn't necessarily have the skills to be a paralegal. I could supervise a paralegal because what a paralegal does is completely different from what a lawyer does. But I will tell you that is often— this transferability of skills is often a point of disagreement and needs to be raised in an appeal involving denied or terminated benefits. I will tell you that many times disability carriers, liar-for-hire doctors, and liar-for-hire vocational evaluators are applying a cookie-cutter approach. They're not really looking at reality.
 
 Nancy Cavey [00:13:33]:
 Your case is different from everybody else's, and I think that the carrier or the plan should take into consideration all of your medical conditions individually and collectively in determining your residual functional capacity, and then address at the own occupation stage, uh, whether you can do that own occupation. At the any occupation stage, it's the transferability of skills to other occupations I think that is crucial and often where the errors are made. I will tell you that the VE analysis is a cookie-cutter approach, and again, that is really where it should be attacked. Now, I think again that having an experienced ERISA disability attorney is really crucial because obviously this is pretty complex. I don't think this is something, quite frankly, that the average claimant or plan beneficiary can handle. So in our next segment, I'm going to talk about why you need an experienced ERISA disability attorney to address these vocational issues. Remember, if your claim has been denied or benefits terminated, you only have 180 days in which to file an appeal, and that appeal is the trial of your case. Got it? Let's take a break.
 
 Nancy Cavey [00:15:01]:
 Why you have to have an experienced ERISA disability attorney attack the opinion of the disability carrier plan's liar-for-hire vocational evaluator in your appeal. Look, I know that you are frustrated beyond belief and you can't believe that your benefits have been denied or terminated when the definition of disability has changed from an inability to do your own occupation to any occupation. And that's based on some vocational evaluator who's never met you, who's just reviewed what's in the file, and who probably misclassified your occupation, got the material and substantial duties of your occupation wrong. As a result, did a crappy transferable skills analysis, identified occupations that you aren't qualified for, performed an inaccurate and horribly wrong labor market survey, and wage survey. This isn't simple paperwork error. This is a systematic way to minimize or deny benefits. These vocational evaluators, these in-house liars for hires, are there for one reason, and that's to create a reason to deny or terminate your benefits using a cookie-cutter approach rather than a careful review of your actual abilities, skills, and medical limitations. Their conclusions are the foundation of a denial, so challenging them effectively is essential.
 
 Nancy Cavey [00:16:24]:
 So let's talk about the common questions that vocational evaluators are going to be asked by the disability carrier or plan and the mistakes that they make. So the first question the carrier or plan is going to ask is, well, what is this person's occupation? Often I find that the VEs will misclassify your work, reducing its skill or complexity level And that means that they are going to misclassify your occupation and do an analysis of other skills or other occupations that's faulty. The second thing they're going to be asked, certainly, is if you're at the own occupation stage, is can you go back to your own occupation based on the carrier's opinion about your residual functional capacity form? They're going to rely on their liar-for-hire doctor's opinion about your restrictions and limitations. And they may say, just before you transfer, if you will, into any occupation benefits, that, you know, they could go back to their own occupation, and so we're going to deny the claim. We're never even going to get to the question of own occupation benefits. Or they may say, you know, you've been paid those 2 years of own occupation benefits, but we don't think that you meet the definition of any occupation as defined by our policy or plan. And in doing so, they are ignoring medical evidence about the restrictions and limitations that you have. They are mischaracterizing your past duties, and in that case of own occupation, concluding you can do your own occupation.
 
 Nancy Cavey [00:17:56]:
 But they kind of do the same thing when it comes to that transferable skills analysis at the any occupation stage. So again, you need to go back to that definition of what any occupation is, because that's the parameters in which they're going to be allegedly working. And I find that when asked whether the policyholder or plan has transferable skills they could take to any occupation, that many vocational evaluators overstate the transferable skills and also fail to consider the residual functional limitations. So you get an inaccurate any occupation analysis. What I often see is that the vocational evaluator will come up with occupations that they think you could do, and I'm scratching my head saying, really? The VE may suggest jobs that don't exist in your geographic area or require skills you don't possess. And that's great if that's how the definition of any occupation is phrased. So we're starting out again, what's that definition of any occupation? What's the parameters? Has that vocational evaluator's opinion fall within the parameters or boundaries of the definition of any occupation, and what errors have they made? And of course, some disability policies or plans will require that there be a job, that it be available, and that there be wages such that you would not be able to return to your pre-disability before monthly earnings number. Now again, this depends on what's in your policy or plan, but what I find is even if they identify a possible occupation, they will provide misleading information about whether the work is realistically accessible to you based on your physical, cognitive, or psychological restrictions and/or whether it pays a comparable wage.
 
 Nancy Cavey [00:19:45]:
 Any one of these mistakes is going to sink your claim. Under the ERISA law, you've only got 180 days in which to file an appeal, and that appeal is the trial of your case. There is no new evidence that can be added if you have to file a lawsuit. That's why timing and strategy is crucial. So what I do in my practice is we hire a vocational evaluator ultimately to analyze the vocational report for errors and misclassifications. Now, I've done this work long enough, and based on my experience as an ERISA attorney and an experience as a Social Security disability attorney, I can look at the carrier's liar-for-hire doctor's opinions about the restrictions and limitations and the treating physician's opinions. I know where the errors are, but I'm also looking at that vocational report and I can quickly spot the errors. But simply because I spot the errors doesn't mean that's good enough.
 
 Nancy Cavey [00:20:39]:
 I will basically want to challenge all of the things that we just discussed. And the way that I do that is to hire a vocational evaluator. To provide detailed, credible individual evaluation with an analysis of the policy and how that policy vocational terms apply to you. We want to know, do they correctly identify your occupation? Did they correctly identify the transferable skills based on the correct restrictions and limitations? Did they properly apply the definition of any occupation? Did they suggest occupations that are not compatible with your transferable skills or restrictions and limitations? Did they suggest occupations that don't exist in the national economy based on the definition of the policy or the plan, or that would pay a wage based on the policy of the plan that would eliminate their ability to— responsibility to pay your benefits? So I am literally going through all of the checklist items of of the errors that I will see. And then again, I am hiring a vocational rehabilitation counselor, giving them the carrier's file, and asking them specific questions, things I want them to address to rebut that vocational opinion. You can see that a skilled ERISA attorney knows how to pinpoint the errors and build a strong evidence-backed appeal that will overcome the carrier's biased evaluation. Let's take a break.
 
 Speaker B [00:22:10]:
 Are you a professional with questions about your individual disability policy? You need the Disability Insurance Claims Survival Guide for Professionals. This book gives you a comprehensive understanding of your disability policy with tips and to-dos that will assist you in submitting a winning disability application. This is one you don't want to miss. For the next 24 hours, we are giving away free copies copies of the Disability Insurance Claims Survival Guide for Professionals. Order yours today.
 
 Nancy Cavey [00:23:00]:
 At disabilityclaimsforprofessionals.com. Winning isn't easy. Let's talk about the hidden battle of experts, your vocational evaluators versus theirs. In my last segment, I started to talk about that battle of experts, and often that's exactly what ends up in an appeal. We're battling about what your restrictions and limitations are physically, cognitively, or psychiatrically. And then the battle moves into, can you continue to do your own occupation or any occupation? They've got liars for hire at each stage of this, and we need to be able to rebut both the medical issues and the vocational issues. I find that the outcome of these battles is going to determine whether your benefits are reinstated or whether a judge will direct the carrier to reinstate your benefits. Remember, the insurance company or the plans vocational evaluator will never have met you in person.
 
 Nancy Cavey [00:23:58]:
 They're going to base their entire opinion on selective reviews of material given to them by the claims examiner. They generally are not given all of the key medical records. They're given a summary. They rarely are given information about your physician's opinions about your restrictions, limitations. And they also rely on general assumptions rather than detailed understanding of your actual abilities. That I often see will lead to opinions that are unrealistic. Let's contrast that with your own vocational expert who can perform a personalized evaluation, interview you directly, review your treating physician's records, and explain from a vocational standpoint why your residual functional capacity prevents you from working either in your own occupation or any occupation. They can provide insight into the realities of job duties, workplace accommodations, the physical or cognitive demands of potential occupations, and address things that, that they ignore, like pace, production, interaction with others, attendance, off-task, the need for breaks.
 
 Nancy Cavey [00:25:06]:
 I find many times that the liar-for-hire carrier or plan vocational evaluators just ignore all of this evidence. So the purpose here is to challenge the opposing VE's methodology, expose the flaws in their assumptions, and present a credible evidence-based narrative to support your claim. So we want to fight about the inaccurate classification of your past occupation, the inaccurate conclusion about your skills or your job duties. We want to attack the transferable skills analysis. We want to attack that not only vocationally But we want to attack that medically by saying, hey, your VE didn't consider X, Y, and Z medical conditions or the side effects of medication or this or that. And if you had properly considered those things, that would eliminate the dumb jobs you just— or occupations you identified. Also can demonstrate why these quote-unquote other occupations really don't fit within the definition of any occupation in terms of the policy or plan. And so We want to get a very comprehensive vocational evaluation that addresses all of the problems that we commonly see in vocational evaluators' opinions.
 
 Nancy Cavey [00:26:24]:
 And it's not just a paperwork fight, it's about how your ability to work is defined and who gets to define it. I want our doctors to define your functional restrictions and limitations. I want our vocational evaluator to define your vocational limitations and explain why you can't do your own or any occupation, and even can't do your own or any occupation using the VE— the liar-for-hire VE's flawed analysis. So we want to take it on head-on. Now, I think the battle might seem daunting, but with the right attorney, with the right strategy, with a well-documented case, I think you can level the playing field and hold your disability carrier or plan accountable to the law and the facts of your unique personal situation. Got it? That wraps up today's episode of Winning Isn't Easy. Thanks for tuning in. If you found this episode helpful, please take a moment to like our page, leave a review, share it with your family or friends, and subscribe to our podcast.
 
 Nancy Cavey [00:27:26]:
 Join us next week for another insightful episode of Winning Isn't Easy. Thanks for listening.