Free: How to Attack Vocational Testimony

Social security disability attorneys and representatives are often frustrated by the vocational expert who insists that jobs in the thousands are available for the claimant.

Now you can knowledgeably and effectively challenge vocational testimony with the pattern questions and supporting data supplied these chapters from David Traver’s Social Security Disability Advocate’s Handbook. In these chapters you will learn:

How to cross-examine a vocational expert about any data source
When to object
How to use Daubert to keep the VE on track
Have you changed your point of view? Learn a null-hypothesis framework for the next hearing
How to recognize and challenge common undefined variables in hypothetical questions
Is “simple work” really that simple?
How stressful is low-stress work?
Why doesn’t the VE know about part-time work?
How to use the Rulings in your cross examinations about transferability
How to keep the VE from giving the “bottom-line”
How to keep track of VE testimony across hearings
How to work from tried-and-true cross VE cross examinations

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Chapter 1. Introduction

Chapter 2. Standards of Review and Federal Court Remedies

Chapter 3. Topical and Sequential Evaluation Outlines

Chapter 4. SSR 96-1p: Application by the Social Security Administration (SSA) of

Federal Circuit Court and District Court Decisions

Chapter 5. SSR 96-2p: Giving Controlling Weight to Treating Source Medical Opinions

Chapter 6. SSR 96-3p: Considering Allegations of Pain and Other Symptoms in

Determining Whether a Medically Determinable Impairment Is Severe

Chapter 7. SSR 96-4p: Symptoms, Medically Determinable Physical and Mental

Impairments, and Exertional and Nonexertional Limitations

Chapter 8. SSR 96-5p: Medical Source Opinions on Issues Reserved to the

Commissioner

Chapter 9. SSR 96-6p: Consideration of Administrative Findings of Fact by State Agency

Medical and Psychological Consultants and Other Program Physicians and

Psychologists at the Administrative Law Judge and Appeals Council Levels of

Administrative Review; Medical Equivalence

Chapter 10. SSR 96-7p: Evaluation of Symptoms in Disability Claims: Assessing the

Credibility of an Individual’s Statements

Chapter 11. SSR 96-8p: Assessing Residual Functional Capacity in Initial Claims

Chapter 12. SSR 96-9p: Determining Capability to Do Other Work—Implications of a

Residual Functional Capacity for Less Than a Full Range of Sedentary Work

Chapter 13. The Role of Reliable Vocational Information at the Social Security

Administration

Chapter 14. The Dictionary of Occupational Titles, Structure, History, Reliability, and

Validity

Chapter 15. Other Sources of Vocational Data

Chapter 16. Vocational Information and Analysis at Step Four of the Sequential

Evaluation Process

Chapter 17. Vocational Evidence at Step Five of the Sequential Evaluation Process

Chapter 18. Transferability of Skills Analysis

Chapter 19. Attacking Vocational Expert Testimony

Here are the first 10 pages of a 61-page chapter:

Chapter Nineteen

Attacking Vocational Expert Testimony

§1900 Introduction — “Trust But Verify”

§1900.0.1 Sample Post-Hearing Brief Refuting the VE's Testimony Though Verification

§1900.1 How Does the VE Know?

§1900.2 Sample Cross-Examination: How Does the VE Know?

§1900.3 Your Duty to OBJECT!

§1900.4 What Makes a VE an “Expert”?

§1900.4.1 Owning a Laptop With a Computer Program Does Not Make a Person an Expert

§1900.4.2 Work as a “Professional Expert” Does Not Make a Person an “Expert”

§1900.5 Checking the VE’s Résumé

§1900.6 Using a Private Investigator

§1900.7 Work Experience Verification

§1900.8 Criminal Background Check

§1900.9 Sample Brief Attacking VE Testimony — Federal Court

§1900.10 Commissioner’s Duty to Rotate Selection of VE

§1901 Attack the VE’s Testimony, Not the VE

§1901.1 Use a Null Hypothesis Mental Framework

§1901.2 Common Undefined Variables in Hypothetical Questions

§1901.2.1 “Simple Work”

§1901.2.2 Sample Brief Language “Simple Work”

§1901.2.3 “Simple Work” Is Not an RFC Compatible With a Severe Impairment

§1901.2.4 Simple Work Is Not SVP

§1901.2.4.1 Case on Point: Stubbs-Danielson v. Astrue

§1901.2.5 Routine Work

§1901.2.6 Repetitive Work

§1901.2.7 “No Repetitive” and “Repetitive” in the Same RFC

§1901.2.8 “Low-Stress” Work

§1901.2.9 Full-Time Versus Part-Time Work

§1902 Attacking the VE’s Testimony Regarding the Number of Jobs

§1902.1 Do Not Let the VE Give Only the Bottom Line

§1902.1.1 Get the Same Information the VE Has at the Hearing

§1902.1.2 Get the Same Information the VE Has at the Hearing — Sample Letter

§1902.1.3 Getting the Same Information the VE Has at the Hearing — Sample Motion

§1902.1.3.1 Motion for the Issuance of a Subpoena Duces Tecum — Long Form

§1902.1.3.2 Motion for the Issuance of a Subpoena Duces Tecum — Short Form

§1902.1.3.3 Post-Hearing Letter Objecting to Jobs that Don't Exist in the Real World —
Seed Cutters

§1902.1.4 Subpoena — Sample Appeals Council Brief and the Appeals Council's Remand Order

§1902.1.5 ALJ Denies the Motion as Burdensome — Sample Brief to Appeals Council

§1902.2 Questioning the VE’s Methodology

§1902.2.1 Practice Tip

§1902.3 The Developing Case Law Regarding VEs and Numbers

§1902.4 Sidebar: What Is Ipse Dixit?

§1902.4.1 Sample Post-Hearing Letter of Objection to the VE's Testimony

§1902.5 Developing Case Law Regarding VEs and Numbers — ALJ’s Duty to Produce the VE’s
Data — McKinnie

§1902.6 Strict Enforcement of SSR 00-4p by Overman v. Astrue

§1902.7 The Cautionary Tale of the Britton Case

§1903 Sample Cross-Examinations and Letters

§1903.1 Hearing Note Form: Vocational Expert Qualifications

§1903.2 Keeping a Book of Results of Your Questioning for Future Use

§1903.2.1 Form: Checklist of VE Questions

§1903.2.2 Form: VE Profile Memo

§1903.3 Sample Paragraphs for Post-Hearing Letter Brief

§1903.4 Sample Cross-Examination: Vocational Expert’s Knowledge Base — Numbers of Jobs

§1903.4.1 Record of VE Testimony

§1903.5 Vocational Expert Misplaced Reliance Upon Statistical Sources

§1903.5.1 Sample Paragraph in Post-Hearing Letter Brief

§1903.5.2 Record the VE’s Data-Source Answers for Future Use

§1903.6 Unskilled Sedentary Jobs

§1903.6.1 Frequently Encountered Occupation: surveillance system monitor DOT 379.367-010

§1903.6.2 The Unskilled Sedentary Base, The Way it Was in 1991

§1903.7 When the Vocational Expert Offers Testimony at Odds With the Dictionary of Occupational Titles

§1903.7.1 Sample Post-Hearing Letter Brief

§1903.7.2 Sample Brief, Outright Conflicts between VE Testimony and the DOT

§1903.7.3 Appeals Council Remand Language

§1904 The Method in Practice, Checking Everything the VE Says

§1904.1 Sample Section From a District Court Brief

§1900 Introduction — “Trust But Verify”

It is not unusual for a vocational expert (VE) to testify a thousand times or more at disability hearings at the Social Security Administration. It is also not unusual to find attorneys and lay representatives who have spent their entire careers at those hearings without asking a single VE for the exact basis and methodology that would support or falsify the VE’s testimony. After all of those years and all of those hearings, such an attorney has no way of knowing if the VEs gave honest and accurate answers, or if the testimony was made up out of whole cloth.

That traditional and frequently ineffective approach, reflected in thousands of published federal court cases, presumes the VE gives reliable information. So, at the hearing the claimant’s attorney offers alternate hypothetical questions to the VE, and otherwise tries to move the VE’s testimony in a better direction.

While that well-advertised and traditional approach is often buttressed by the use of comprehensive fact-related treating source statements, medical records, and testimony, attorneys and representatives are often flustered by the VE who digs in his or her heels, and with a possible wink and nod to the ALJ, insists that jobs exist in the millions for the claimant.

This chapter provides alternatives to the usual approach. President Reagan said it best: “Trust but verify.”

While being skeptical of the vocational expert and challenging the world of vocational information, the attorney and representative should always be mindful of the most important audience — the Administrative Law Judge at the hearing.

Judge Daniel F. Solomon published a very interesting article for the Fall 1998 edition of the Journal of the National Association of Administrative Law Judges. Giving the view “from the bench,” Judge Solomon’s article is a treasure of detail, insight, and research into the world of vocational expert testimony.

Judge Solomon, who was the first member of NOSSCR before becoming an ALJ, also retains the point of view of the practicing attorney. It is reprinted, with permission, in the appendix.

§1900.0.1 Sample Post-Hearing Brief Refuting the VE’s Testimony Though Verification

The VE cited 3 jobs, Cashier, Gate Guard and Ticket Taker. These jobs and how they would be performed as described by the VE, were provided to (independent VE) on an attachment to the interrogatory questions.

With regard to the Cashier position, (independent VE) opined the sparseness of the duties described would prevent normal productivity levels, in other words, additional duties would be required in order to perform this job on a sustained basis. The DOT does refer to Cashier positions at a self service gasoline station, parking lots, and dining rooms. However, the DOT also lists many other duties a cashier would ordinarily perform, such as selling goods, counting the cash drawer, using peripheral scanning equipment and operating a ticket dispensing machine (lottery and parking tickets). (Independent VE ) opined the hypothetical individual would be unable to perform a cashier position, as described by the VE, without accommodations from the employer. Additionally, the position of parking lot cashier presented additional physical difficulties, since cars approach on the left (a fact the VE failed to initially realize while describing the position). Since one can reasonably assume there would be frequent periods of increased pace with repetitive tasks in an airport (which the VE used as example) the positional challenges would have an even greater impact on productivity. (Independent VE’s) research indicated there were no positions of cashier II, as described by the VE, available in the Atlanta region.

This also applies to the Gate Guard position. The only jobs available in the region also listed additional duties and, if performed as described by the VE, would require an accommodation on behalf of the employer.

The Ticket Taker position described by the DOT does not address the description provided by the VE, to wit: collecting a ticket, examining the ticket and placing it in a bin. The DOT does not discuss how the ticket is handled after confirming its accuracy, however, I am attaching two job descriptions which clearly define this particular aspect of the job.

The first is from the University of Phoenix which stipulates the tickets are punched or torn and one half is returned to the patron. Additional requirements were listed, including preventing entrance to non-ticket holders and directing patrons to their seats, both of which are discussed in the DOT, but not by the VE. Additionally, this job description states, due to irregular hours, many jobs are part-time. This particular position would obviously require bi-manual fine motor skills.

The second is a document from the Rehabilitation Engineering Research Center on Workplace Accommodations from Georgia Institute of Technology, and is germane to (claimant’s) situation. This describes an individual who has no fine motor control of one hand and is a ticket taker at a movie theater (the example used by the VE). The worker was only able to tear one ticket at a time and was unable to efficiently perform her job during peak movie viewing times. In this instance, the worker required an accommodation in the form of a cutting device, however, this device still required the use of both hands.

§1900.1 How Does the VE Know?

A vocational expert’s most important function in a social security disability hearing is to determine which jobs the applicant for disability benefits can do and how many of these jobs exist for the claimant. 20 C.F.R. §§404.1566(b), (e)(2006); Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002); Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (per curiam).

Attacking the VE’s credentials involves confirming whether the VE is a placement specialist and a labor market specialist, and more importantly, how those experiences provide the necessary competencies to assist the ALJ in the adjudicative process. It is typically fruitless to attempt to show the VE does not meet Social Security’s minimum standards to be a VE, as those standards essentially do not exist.

Typically, bare bones answers given by a VE at a hearing leave the listeners in the dark about how the VE knew, the actual basis for the testimony. Ragsdale v. Shalala, 53 F.3d 816, 821 (7th Cir. 1995). Thus, intense focus should be placed on answering the question, “how does the VE know?”

In Donahue, the Court of Appeals “asked the parties at oral argument what makes a vocational expert an ‘expert’ (and where the information in the Dictionary [of Occupational Titles] came from). They did not know. Maybe both the authors of the Dictionary and the vocational expert in this case are talking out of a hat.” Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).

§1900.2 Sample Cross-Examination: How Does the VE Know?

Attorney You testified that there are 7,300 unskilled sedentary spring grinders in Wisconsin, that fit the hypothetical questions given by the ALJ?

VE True.

Attorney How do you know?

VE I have performed job analysis at manufacturers and I have seen the job.

Attorney Where?

VE You want me to tell you where?

Attorney Yes.

VE Answer....

Over the years I have seen many variations of the VE side of this equation. For example:

In one hearing, a VE testified that there were numerous unskilled sedentary security guards in Milwaukee that had no duty to rescue, no duty to stop intruders, no duty to put out a fire, and no duty to assist a person who was being attacked in the lobby. In response to the “Where” question, she said the name of an insurance company down the block. I asked the ALJ to leave the record open for additional evidence, contacted the insurance company, and obtained copies of the job descriptions, and a statement from the director of human resources falsifying the VE testimony. Within the time allowed, I submitted the materials to the ALJ and objected to the basis of the VE testimony.
As another example, a VE refused to give details because they were “work product” and “trade secrets.” I objected that the Commissioner had not established a foundation for her testimony.
Similarly, where the VE testified that jobs existed, and gave a firm name and contact information, I asked for additional firm names and contact information. He only had one. I asked the ALJ to leave the record open, I contacted that employer and determined that such a job did exist, but that there was only one at that company. I wrote to the ALJ and objected that the VE had only established the existence of one job, not 7,300.

§1900.3 Your Duty to OBJECT!

The first words out of your mouth (or pen) in response to bogus or otherwise faulty testimony is “I OBJECT.” Then, provide concise details to show the VE has given bogus or otherwise faulty testimony.

Attorney You testified that there are 7,300 unskilled sedentary spring grinders in Wisconsin, that fit the hypothetical questions given by the ALJ?

VE True.

Attorney How do you know?

VE I have performed job analysis at manufacturers and I have seen the job.

Attorney Where?

VE You want me to tell you where?

Attorney Yes.

VE I will not!

Attorney Your Honor, I object to this witness’s testimony regarding the number of jobs.

Why bother? Donahue, a Seventh Circuit case, explains why:

Rule 702 of the Federal Rules of Evidence provides that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” This substantially codifies the holdings of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), and its successors. Rule 702 does not apply to disability adjudications, a hybrid between the adversarial and the inquisitorial models. See Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). But the idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence. Evidence is not “substantial” if vital testimony has been conjured out of whole cloth. See Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir. 2001); Elliott v. CFTC, 202 F.3d 926 (7th Cir. 2000). Even in court, however, an expert is free to give a bottom line, provided that the underlying data and reasoning are available on demand. Fed. R. Evid. 704(a). That’s what the vocational expert did here. Presented with a statement of Donahue’s abilities and limitations, the vocational expert produced some job titles and numbers. At this point the expert could have been cross-examined (Donahue was represented by counsel) about where these numbers came from, and why the expert’s conclusion did not match the Dictionary’s. Holding out this opportunity is an approach deemed adequate in Richardson v. Perales. Yet counsel did not ask the vocational expert about the genesis of the numbers or the reason for the discrepancy.

What, then, happens when the discrepancy is unexplored? When no one questions the vocational expert’s foundation or reasoning, an ALJ is entitled to accept the vocational expert’s conclusion, even if that conclusion differs from the Dictionary’s — for the Dictionary, after all, just records other unexplained conclusions and is not even subject to cross-examination. If the basis of the vocational expert’s conclusions is questioned at the hearing, however, then the ALJ should make an inquiry (similar though not necessarily identical to that of Rule 702) to find out whether the purported expert’s conclusions are reliable.

Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (emphasis added).

Pay close attention to the highlighted portions of this quotation from Donahue.

Note that Donahue discusses a “‘substantial evidence’ standard.” That is one of the correct standards for federal court review of an ALJ’s decision. However, at the hearing do not argue “substantial evidence. The correct standards there is preponderance.” See §202.

§1900.4 What Makes a VE an “Expert”?

At what point does a person become a “vocational expert” at the Social Security Administration?

Certainly, one cannot become an expert by testifying.

Experience as witness is not a foundation — that a witness has testified in other cases is irrelevant to the determination of whether she is qualified to give testimony in this case. Elcock v. Kmart Corp., 233 F.3d 734, 744 (3d Cir. 2000) citing Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989) (“It would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.”).

So, what makes that person sitting at the end of the table an expert? The Regulations give the following hints about what makes a vocational expert an “expert”:

(e) Use of vocational experts and other specialists. If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.

20 C.F.R. §§404.1566 (e) and 416.966 (e)(2006).

... We may use the services of vocational experts or vocational specialists, or other resources, such as the Dictionary of Occupational Titles and its companion volumes and supplements, published by the Department of Labor, to obtain evidence we need to help us determine whether you can do your past relevant work, given your residual functional capacity. A vocational expert or specialist may offer relevant evidence within his or her expertise or knowledge concerning the physical and mental demands of a claimant’s past relevant work, either as the claimant actually performed it or as generally performed in the national economy. Such evidence may be helpful in supplementing or evaluating the accuracy of the claimant’s description of his past work. In addition, a vocational expert or specialist may offer expert opinion testimony in response to a hypothetical question about whether a person with the physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s previous work, either as the claimant actually performed it or as generally performed in the national economy.

20 C.F.R. §§404.1560 (b) (2) and 416.960 (b) (2)(2006).

Ruling 00-4p explains VEs may be relied upon for guidance, and further notes that Rulings 82-41, 83-12, 83-14, and 85-15 provide examples of the kinds of guidance a VE can provide. However, none of these Rulings explain what makes a vocational expert an “expert.”

See:

SSR 00-4p1
82-412
83-123
83-144
85-155

Early on in the creation of the role of VEs at the social security administration, Rulings 83-14 and 83-15, explained SSA considers the term “VE” interchangeable with “VS.”

The publications listed in sections 404.1566 and 416.966 of the regulations will be sufficient for relatively simple issues. In more complex cases, a person or persons with specialized knowledge would be helpful. State agencies may use personnel termed vocational consultants or specialists, or they may purchase the services of vocational evaluation workshops. Vocational experts may testify for this purpose at the hearing and Appeals Council levels. In this PPS, the term vocational specialist (VS) describes all vocational resource personnel.

Ruling 82-41 gives another hint as to what makes a VE (VS) an “expert”:

This evidence may be VS statements based on expert personal knowledge or substantiation by information contained in the publications listed in regulations sections 404.1566(d) and 416.966(d).

HALLEX I-2-1-30 (A) explains a medical expert becomes qualified when:

Generally, a physician’s qualifications are adequately documented when stationery letterhead or other document identifies his or her medical degree, specialty and Board certification. A mental health professional’s qualifications are generally adequately documented when stationery letterhead or other document identifies his or her mental health degree, licence (sic) and type of practice.

As amazingly sparse as these requirements are for a “medical expert,” the HALLEX gives no similar requirements for VEs. The HALLEX explains each Regional Office (RO) maintains a roster of MEs and VEs who have agreed to provide impartial expert opinion pursuant to a Blanket Purchase Agreement. HALLEX I-2-5-31.6 The ALJs take the name of a VE off of that roster in rotation, except in unusual circumstances. I-2-5-52 (D) and (E).7 However, the roster process also fails to explain what makes a vocational expert, an “expert.”

In 2004, HALLEX I-2-1-30 (A) gave this lead: “For additional information regarding the professional qualifications requirements for MEs and VEs, refer to the Vocational and Medical Expert Programs Operational Manual.” The Vocational Expert and Medical Expert Staff (TAHA3) formulates, develops and oversees the national program for recruitment and use of Vocational Experts and Medical Experts at hearings before Administrative Law Judges.8

That language was eliminated and the September 28, 2005 version of the same HALLEX section now states:

For additional information regarding the professional qualifications requirements for MEs and VEs, refer to the Blanket Purchase Agreement (BPA) and Statement of Work (SOW) for the type of expert. (See also I-2-5-38, Obtaining Medical Expert Testimony; I-2-5-39, The Medical Expert’s Testimony; I-2-5-42, Obtaining Medical Expert Opinion Through Interrogatories; I-2-5-54, Obtaining Vocational Expert Testimony; I-2-5-55, The Vocational Expert’s Testimony; and I-2-5-57, Obtaining Vocational Expert Opinion Through Interrogatories.)

HALLEX I-2-1-30(A) www.ssa.gov/OP_Home/hallex/I-02/I-2-1-30.html.

Discussion with a member of the Vocational Expert and Medical Expert Staff in 2004, revealed the Vocational and Medical Expert Programs Operational Manual is out of date and not used. The standards for VE qualifications (not related to security issues) are set forth in the Blanket Purchase Agreement form, which does not set forth qualifications to be a VE.

Finally, a paragraph of the 42-page Vocational Expert Handbook addresses the issue of how the VE knows:

Criteria for Selection of a VE

A VE must have up-to-date knowledge of, and experience with, industrial and occupational trends and local labor market conditions; the ability to evaluate age, education and prior work experience in light of the residual functional capacity; current and extensive experience in counseling and job placement of adult handicapped people; and knowledge of and experience using vocational reference sources, including the Dictionary of Occupational Titles (DOT), together with any supplements, including Selected Characteristics of Occupations. The VE should have experience in the use of reference sources in developing information about the duties, skills, physical demands and working conditions of jobs; occupationally significant characteristics of jobs; and transferability of skills.

Vocational Expert Handbook, 2d Ed. at 10. (Feb. 2003). See Appendix (disk).

Attacking the VE’s credential then, should reasonably include analysis of the VE’s placement experience, experience performing job analysis for employers, experience conducting personal job surveys for industry and commerce, and the expert’s knowledge of local, state, and regional industrial directories and other resource materials, including government publications listed in 404.1566 and 416.966 (2006). Those publications are:

Dictionary of Occupational Titles, published by the Department of Labor;
County Business Patterns, published by the Bureau of the Census;
Census Reports, also published by the Bureau of the Census;
Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

Therefore, attacking the VE’s credentials involves determining whether the VE is a placement specialist and a labor market specialist, and more importantly, how those experiences provide the necessary competencies to assist the ALJ in the adjudicative process. See Chapters 14–18.

§1900.4.1 Owning a Laptop With a Computer Program Does Not Make a Person an Expert

There is no reason whatsoever to assume that the software on the vocational expert’s computer is valid, reliable, or that the VE has any idea how to use it correctly. See, for example, Kinnaman v. Ford Motor Co., 2000 U.S. Dist. LEXIS 235 *15-*16 (E.D. Mo. 2000) (rejecting unsubstantiated use of Job Quest DOT computer software in the Daubert framework).

In United States EEOC v. Rockwell Int’l Corp., 60 F. Supp. 2d 791, 797 (N.D. Ill. 1999) the court applied the Daubert framework and rejected the testimony of a vocational expert, noting that the witness forgot that his DOT program automatically listed entry level jobs.

In Kinstler v. First Reliance Std. Life Ins. Co., 1997 U.S. Dist. LEXIS 10284 (S.D.N.Y. 1997), the Court noted the failure of the parties to establish the basis for the data in the OASYS software system. Here, the court alluded to a missed opportunity to challenge the vocational testimony.

Also, it is not unheard of for a VE or ALJ to make up a DOT title to fit the situation or to make up a number on the fly at the hearing. See e.g. Burnett v. Commissioner of SSA, 220 F.3d 112, 124 (3d Cir. 2000) (“In this case, the ALJ made up the occupational title of ‘delicatessen clerk.’”) and Clark v. Chater, 1996 U.S. App. LEXIS 5746 (9th Cir. 1996) (“The ALJ’s opinion specifically relied on Dr. Jones’ testimony that Clark could perform the ‘past work of plastic molder foreman, as is described in the Dictionary of Occupational Titles.’ The problem, however, is that the DOT does not list any occupation of ‘plastic molder foreman.’”). It the representative’s job to stop this from happening. It is impossible to stop unless we have the tools to falsify the testimony and the data allegedly relied upon by the ALJ and the “expert.”

This involves always checking the testimony of the VE against the official publications of the Department of Labor, including the Dictionary of Occupational Titles (DOT) and a paper copy of the Selected Characteristics (SCO). Also, cross-check the reporting of the VE’s testimony in the ALJ’s decision and check all of the vocational data given in the ALJ’s decision that allegedly comes from other sources.

§1900.4.2 Work as a “Professional Expert” Does Not Make a Person an “Expert”

Keep in mind that an expert does not become an “expert” by testifying in court or at hearings. Consider these non-social security cases on point:

Experts also run the risk of becoming “nothing more than an advocate of policy before the jury” In re Air Crash Disaster, 795 F.2d at 1233. The evidence as stated to the Court is to the effect that Mr. Alterman for years had testified as an expert in at least 15 different areas. Those areas of alleged expertise include construction safety; scaffolding; bulk oil terminals; bridges; cargo waterfront terminals; high rise construction; construction of highways; construction of race tracks; the field of construction management; and construction drainage problems; amongst other areas of alleged expertise. Thus he is more a professional witness than an expert in crane defects. The Court understands that such a practice in effect makes the proposed witness an expert only for the party which employs him, rather than an objective expert witness. An expert witness should never become solely one party’s expert advocate nor a “gun for hire.” Rather, an expert witness should be an advocate of the truth with testimony to help the jury and the Court reach the ultimate truth in a case, which is the basis of any verdict.

As the Fifth Circuit has noted, the professional expert is a commonplace phenomenon in modern litigation. In re Air Crash Disaster, 795 F.2d at 1234. The fact that a person spends substantially all of her time consulting with attorneys and testifying in trials is not a disqualification, but it is not an automatic qualification guaranteeing admission of expert testimony. Experts whose “opinions are available to the highest bidder have no place testifying in a court of law, before a jury, and with the imprimatur of the trial judge’s decision that she is an ‘expert[,]’” and the trial judge must decide whether the signs of competence and of the contribution of the proposed expert will aid in clearly presenting the dispute. Id. at 1234. Further, this court refuses to join the many other judges that give into “the temptation to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it ‘the weight it deserves.’” In re Air Crash Disaster, 795 F.2d 1230, 1233 (5th Cir. 1986).

Tokio Marine & Fire Ins. Co. v. Grove Mfg. Co., 762 F. Supp. 1016, 1018 (D.P.R. 1991).

Although it would be incorrect to conclude that Gordon’s occupation as a professional expert alone requires exclusion of her testimony, it would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.

Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989).

We note that the mere fact that Copemann was previously admitted as an expert witness qualified to give testimony on vocational rehabilitation is irrelevant to the determination whether he is qualified to give such testimony in this case. See Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989) (“It would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.”). Moreover, while any expertise he may have gained in performing vocational rehabilitation assessments in these cases would be relevant, the crucible of litigation makes for a poor classroom.

Elcock v. Kmart Corp., 233 F.3d 734, 744 n.5 (3d Cir. 2000).

§1900.5 Checking the VE’s Résumé

HALLEX I-2-6-74 (B) requires that a VE’s qualifications be a part of the hearing record, “After administering the oath or affirmation, the ALJ must qualify the VE by eliciting information regarding his or her impartiality, expertise, professional qualifications, etc.” Typically, this includes putting the VE’s résumé into the record prior to the hearing. If this is not done for you, you may move that the ALJ place the résumé or vita in the record pursuant to a Motion for the Issuance of a Subpoena Duces Tecum. See Appendix — Instant Exhibits.

It is reasonable and necessary to check the accuracy of the vita or résumé. For example, I was walking into a hearing a few years ago while an attorney I knew was walking out of the hearing room with her client. She mentioned in passing that the vocational expert was claiming a Doctorate in Philosophy of Religion from “UCL” in addition to college-level vocational training. My friend said, “There is no UCL.”

At the hearing the VE testified under oath that she attended classes at the Universal Life College (UCL) for two years on a part-time basis and wrote a dissertation to earn her Ph.d. I asked the ALJ to leave the record open and did a little investigation. A private investigator later confirmed for me that my investigation was correct. The VE purchased her “Doctorate” for $100.00 from Universal Life Church in Modesto, California in 1997 and there is no “UCL.”

The VE paid her money, read a book, and answered 20 true/false questions to earn her “Doctorate.” Why she insisted on defending this degree with made-up testimony about attending classes and writing a dissertation that never existed is bewildering. While this apparent lie did not disprove her other valid vocational qualifications, it was potent proof of dishonesty under oath, which reasonably discredited all testimony given by this alleged “expert.”

Before the record closed, I obtained an audio copy of the hearing tape by going to OHA and recording the tape on my own tape recorder. I then had it transcribed by my secretary. I continue to use that transcription and the VE’s inaccurate vita from that case in similar cases where the VE testified to show her propensity for dishonesty.

§1900.6 Using a Private Investigator

It is important to note that I had a licensed private investigator complete an investigation of the above mentioned VE’s alleged academic credentials and prepare a report. Social Security proceedings are inquisitorial rather than adversarial. See Richardson v. Perales, 402 U.S. 389, 400-401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Yet, even in this informal setting, an attorney or representative should never testify as a fact witness in the case.

There is no requirement that the witness conducting the background check is a licensed private investigator. However, the report and testimony will carry more weight at the Social Security Administration and federal court if the witness you choose to perform investigations and prepare reports has unimpeachable credentials, a proven track record of investigational ability, the capacity to testify clearly and accurately in court, and a credential from your State which ensures that a background check has been performed, such as a PI license.

Another dimension of the VE’s educational history is the nature of the coursework completed. So, get a copy of the VE’s transcript, or the course outline for the program of study completed by the VE. Most, if not all, master’s programs in vocational rehabilitation include little more than one course in occupational analysis, with a brief discussion of various vocational resources. Many rehabilitation counseling programs offer no vocational evaluation or job analysis courses. It is highly unusual to find a VE who has completed a course in statistics or survey methodology. I have never seen a VE who completed a single course that would support an inference that she was capable or qualified to perform labor market surveys.

Some universities have programs in vocational evaluation. These provide training in Department of Labor approved methods of job analysis and employment testing. However, these courses are aimed at one-job-at-a-time analysis, with a single employer, and do not include instruction in national employment surveying.

Careful questioning of the VE, under oath, is required to determine if the VE has indeed completed relevant coursework in job placement, “doing job analysis for employers, conducting personal job surveys for industry and commerce,” and has comprehensive knowledge of “local, state, and regional industrial directories and other resource materials, including government publications listed in 404.1566 and 416.966.” See Vocational Expert Handbook, at 39. Obtaining the exact name of the courses that provided instruction in these areas can be very helpful.

Once the testimony is in the hearing record, verify its accuracy before the record closes by asking:

Question: Will you provide supporting academic credentials, including a transcript?

The VE may explain he or she has no transcript. For the convenience of the VE you may wish to go online before the hearing and obtain a transcript request form from the VE’s college or university. Give it to the VE at the hearing and have a copy put into the hearing record. However, many colleges and universities release undergraduate and/or graduate transcripts by simple written request including name, student number, and the date or semester last attended. HIPPA requirements do not apply to college transcripts requested by the student.

If the VE does not have the necessary education, that person might not be an expert. Object to the ALJ before the record closes. See §1900. Finding that an alleged university does not exist (as in the preceding example) or that the transcript does not support the testimony should also be a basis for strong written objection to the VE’s appearance as an “expert.”

§1900.7 Work Experience Verification

There are two dimensions to checking the VE’s work experience. First, ensure that the VE told the

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