Attacking the Vocational Expert’s Testimony
on the Number of Jobs
Social security lawyers should ask for specific page and edition citations, and get copies of the resources used by the VE into the record.
by David F. Traver
Excerpted from Social Security Disability Advocate’s Handbook
The Social Security Administration uses the sequential evaluation process to evaluate disability claims. At step five of the sequential evaluation process, the SSA often uses a vocational expert. When the VE gets to the part of the testimony about “specific jobs” and especially “numbers of jobs” the VE may start making everything up. This is a sad fact, given that in 1999, government payments to VEs totaled $21.6 million to 1,337 VEs. Memorandum from Inspector General, SSA to Acting Commissioner Larry Massanari, Aug. 21, 2001.
This is the endpoint of most of the testimony at
disability hearings, and it is the most critical. Do not walk away from the
hearing with thousands of unchallenged jobs on the table unless you have a
strategy in place, such as attacking the jobs in a post-hearing memorandum to
the ALJ and the record has been left open for that purpose.
§1902.1 Do Not Let the
VE Give Only the Bottom Line
The essence of an attack on the VE’s testimony at the hearing is
insistence on understanding how the VE knows what the VE says he or she knows.
Don’t settle for the allegation that “25-years experience” gives the VE an
intuitive grasp that there are 12,432 unskilled, one-armed, illiterate,
sedentary inspectors locally or nationally.
The null hypothesis starts with the assumption that
the VE has no idea what the quantities of the alleged jobs might be, if any.
It puts the burden on the VE to convince you of the reliability of the testimony.
Work in your cross-examination to determine if the VE actually has a reliable
data source and methodology, and that the VE has properly applied established
vocational principles and methods to the facts of the case.
§1902.1.1 Get the Same
Information the VE Has at the Hearing
Do not let the VE give only the bottom line. If the VE
rattles off 1, 2, or 20 alleged resources (such as the often improperly used
United States Publishing Unskilled Quarterly Reports or Census Reports),
get exact copies of those alleged resources into the record. See
Chapter 15 Other Sources of Vocational Data.
Ask the VE to put the relevant pages, including the cover
pages, into the record or buy those resources and submit them to the
Administrative Law Judge (ALJ). Insist the VE be specific on the record
about which edition of which report he or she used and the page number relied
upon for the information to make sure you have the right documents. If
“census codes” are used, get them into the record. If “DOT codes” are
used, get those into the record also.
§1902.1.2 Get the Same
Information the VE Has at the Hearing – Sample Letter
I was at a hearing and a VE testified his numbers came from the
Wisconsin Career Information System. He had the allegedly relevant book with
him at the hearing, and I asked him to turn to the page which supported his
testimony, and give us the page number, and to repeat it so I was certain there
would be no misunderstanding. I then asked for the name, publisher, and date of
publication.
I asked the ALJ to leave the record open, purchased the
book, and then discovered (no surprise here) that the VE made up the answer out
of thin air. I asked the judge to allow me to listen to the hearing tape to make
sure my notes were accurate, and they were. The VE had simply fabricated an
answer. I filed a timely objection to the ALJ, and the case was paid.
Download the Sample Letter in Microsoft Word.
Leave the record open, study the resources, and figure out
what the alleged sources have to offer. If you are not convinced by the
VE’s data source and alleged methodology, be sure to object on the record to
bring the problem to the attention of the ALJ.
David F. Traver has represented hundreds of claimants at SSA and over 200 claimants in U.S. District Courts. He has bachelor and master degrees in vocational rehabilitation, and is the author of Social Security Disability Advocate’s Handbook, from which this article is excerpted.
Updated 11/22/11
