The Importance of Vocational Expert (VE) Testimony at Your Disability Hearing

 

Learn How to Use Vocational Expert Opinion to Win Your Social Security Disability Claim

 

The Social Security Administration (SSA) uses a five step analysis to determine if a person is disabled. This analysis applies to claims for both Social Security Disability Insurance (SSDI) benefits and Supplemental Security Income (SSI).

 

The administrative law judge (ALJ) presiding over your disability hearing may obtain Vocational Expert (VE) testimony to make a decision at Step 4 and Step 5 of the analysis. At Step 4 the ALJ must determine whether you have the physical and mental capacity to return to any of the jobs you performed in the fifteen years before you filed for disability benefits. And at Step 5 the SSA has the burden of demonstrating that jobs exist in significant numbers in the national economy that you can perform in light of your age, education, acquired job skills, and physical and mental limitations.

 

This article’s purpose is to discuss the role of the vocational expert in Social Security Disability hearings. It explains:

 

  • What a vocational expert is.
  • What training a VE must have to testify for the SSA.
  • Who decides that vocational expert testimony is necessary to determine whether you’re disabled.
  • When the ALJ will obtain VE opinion.
  • Who selects the specific VE assigned to your case.
  • What information the vocational expert will review before your disability hearing.
  • Whether your attorney or the ALJ can talk to the VE before your hearing.
  • Whether the vocational expert has to testify live at your disability hearing.

 

If you have questions about the Social Security process, or are looking for help from a top-rated Richmond disability attorney and Newport News SSDI lawyer, call me for a free consultation: 804-251-1620 or 757-810-5614. I help disabled adults throughout the state get approved.

 

What is a Vocational Expert?

 

A vocational expert is a vocational professional whose job is to provide evidence at disability hearings before an ALJ.

 

Specifically the VE is supposed to provide impartial expert opinion about (1) jobs you held during the fifteen-year period before you filed for disability benefits and (2) your current vocational abilities.

 

The SSA will consider a VE impartial if he or she avoids having off-the-record discussions with the ALJ and your attorney before the case and has had no past professional contact with you.

 

Though rare, it’s possible to have had past professional contact with the vocational expert. This is because some of them work for employers and insurance carriers part-time and provide vocational rehabilitation to injured employees receiving workers compensation benefits. So if your Social Security Disability claim resulted from a work-related injury for which you filed for workers comp, you may have worked with the vocational expert assigned to your SSD claim before.

 

The VE’s testimony is not binding. Rather, it is just another piece of evidence the ALJ may use to decide your claim.

 

What Training Must a Vocational Expert Have?

 

At a minimum the vocational expert at your Social Security Disability hearing should have:

 

  • Knowledge of industrial and occupational trends.

 

  • Knowledge of local labor market conditions, especially in the state and region where you reside.

 

  • Experience placing individuals, especially those with disabilities and restrictions, in the labor market.

 

  • An understanding of the SSA’s five step analysis for deciding disability claims.

 

  • Education and training in vocational counseling and rehabilitation.

 

  • Knowledge of the SSA’s Rules and Regulations.

 

  • Knowledge of and experience using the following books and manuals: The Dictionary of Occupational Titles (DOT), the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO); Census Reports; The Occupational Outlook Handbook published by the Bureau of Labor Statistics; and, SSA Occupational Analyses.

 

Who Decides That a Vocational Expert’s Testimony is Necessary?

 

The ALJ decides whether a vocational expert is necessary.

 

When Will the ALJ Obtain Vocational Expert Opinion?

 

An ALJ may obtain vocational expert testimony if:

 

  • The ALJ needs to determine if your medical impairments keep you from performing your past relevant work.

 

  • The ALJ needs to know if you acquired any transferable job skills in your previous employment.

 

  • The ALJ needs to know if your medical impairments keep you from performing any other work that may exist in significant numbers in the national economy and the Medical-Vocational Grid Rules do not apply because: (a) your residual functional capacity (RFC) falls between two exertional levels, (b) you have only nonexertional limitations because of mental illness, or (c) you have a combination of both exertional and nonexertional limitations.

 

An ALJ must obtain vocational expert testimony if:

 

  • The Appeals Council or Federal District Court directed the ALJ to obtain a vocational expert’s opinion.

 

In my experience most ALJs will ask a vocational expert to testify at a disability hearing if the claimant is an adult. Vocational experts are not needed for childrens’ disability claims.

 

Who Selects the Vocational Expert?

 

Unfortunately you and your attorney do not get to chose the vocational expert.

 

Each Social Security Administration Regional Office maintains a roster of VEs who have agreed to provide opinion testimony.

 

The ALJ is supposed to select a VE from the roster in rotation. This means that when a VE is picked, he or she goes to the bottom of the list. The VE will not be picked again until all other VEs are called to testify at hearing.

 

What Information Will the VE Receive Before the Hearing?

 

The ALJ will often provide the vocational expert with relevant documents from your case file, which includes the Work History Report the SSA asks you to complete soon after you file your initial application for benefits.

 

This is why it’s so important to take your time and to complete the Work History Report completely and accurately. Do not leave out any tasks – including physical, mental, and supervisory (hiring/firing). The Work History Report is often the basis for the VE’s testimony about your past work.

 

Will the ALJ Talk to the VE Before My Hearing?

 

All ALJ contact with a VE about your case must be in writing or at the disability hearing.

 

And all letters to and from the VE are made part of the evidentiary record. This means you get to review them.

 

Similarly, neither you nor your attorney should contact the VE outside of the hearing.

 

In What Manner Will the Vocational Expert Testify at Hearing?

 

The ALJ decides the manner in which VE testimony is given: in person, by phone, by video, or by responding to written interrogatories. Live testimony is the preferred method, but ALJs may use written interrogatories.

 

I handle many disability hearings in Richmond, Norfolk, Roanoke, and Charlottesville. Often the vocational expert testifies in person at these locations.

 

But I also handle disability hearings in Falls Church, VA, where the vocational expert often testifies by phone.

 

The Vocational Expert Testimony

 

ALJs use vocational experts to help them decide whether a claimant can do his or her past work or other work that exists in numbers in the national economy. The vocational expert, therefore, must be able to testify regarding:

 

  • The skill level and physical (exertional) and mental (non-exertional) requiremnts of occupations, including jobs you’ve had in the past fifteen years. This includes the amount of lifting, carrying, pushing, and pulling required by the job, as well as reaching, handling, fingering, bending, squatting, kneeling, crawling, crouching, and vision requirements. It also includes the amount of time it takes someone to learn the job and the frequency with which supervision is allowed.

 

  • Characteristics of work settings, such as whether a certain occupation will expose you to frequent interaction with supervisors, co-workers, and the general public or whether it will expose you to hazards such as loud noise, dust, fumes, chemical irritants, and heights.

 

  • What jobs exist in the national economy and the number of each of those jobs that exist both nationally and in your state.

 

  • Whether you acquired skills in your past work and, if so, whether those skills are transferable to jobs at lower physical exertion levels.

 

Before the Hearing

 

Often the vocational expert prepares a written summary of your past relevant work just before the hearing.

 

If so, your attorney should review it with you to make sure it accurately describes the work you have performed and the skills you have acquired.

 

If it does then the ALJ may not want to hear testimony from you regarding your past relevant work. If, however, the VE’s report is wrong then it is important to testify why it’s wrong during your hearing.

 

At the Start of the Hearing

 

The ALJ must tell you why vocational expert testimony is necessary.

 

During the Hearing

 

Depending on the ALJ presiding over your case, the VE may attend the entire disability hearing. But this is not required.

 

Questioning the VE

 

If the VE was not present during the hearing the ALJ should summarize your testimony as well as that of any witnesses you called to testify on your behalf.

 

Then the ALJ will elicit vocational expert testimony.

 

Usually the vocational expert testimony has three parts.

 

First the ALJ will ask the vocational expert about his or her qualifications to testify as an expert and whether the vocational expert has talked about the case with the ALJ, you, or your attorney.

 

The ALJ will ask your attorney whether you have any objections to the VE’s testimony. In my experience the ALJ will overrule your objection regarding the VE’s qualifications no matter what, but you should still make an objection if appropriate.

 

Second the ALJ will ask the VE to classify your past relevant work. This means the VE will provide the following for each job you’ve had in the past fifteen years:

 

  • Job Title according to The Dictionary of Occupational Titles

 

  • The DOT number for the job, in case you or the ALJ want to look it up to verify the VE’s testimony after hearing. If the VE misclassifies your past work and this results in a denial, you have a basis for appeal.

 

  • The physical exertional level of each job, both as you performed it and as generally performed in the national economy. Often a disability claimant performed a job at a higher exertional level than what is given in the DOT.

 

  • The skill level of each job. This relates to how long it takes to learn the job and perform it at a high level. Generally a job is considered either skilled, semiskilled, or unskilled.

 

Finally the ALJ will ask the vocational expert to respond to a series of hypothetical questions.

 

The hypothetical question begins with your age, education, and past relevant work. Then it adds specific functional limitations.

 

After stating the hypothetical the ALJ will ask the VE the following:

 

  • Is the claimant capable of returning to any past relevant work, either as actually performed, or as it is generally performed?

 

  • Does the claimant have any transferable skills to a lower exertional level? There are special SSA Rules and Regulations that dictate the answer in some situations, regardless of what the VE thinks.

 

  • Are there any other jobs the claimant can perform given the limitations stated in the hypothetical. If so, the ALJ will ask the VE to list the job by DOT number and occupational title. The ALJ will also ask the VE to provide the number of each job that exists in the national economy or local region.

 

Usually the ALJ will build on the first hypothetical by adding additional limitations. On average the ALJ will ask anywhere from three to six hypothetical questions. Usually some find work and others don’t so that the ALJ has evidence to either award or deny your claim.

 

After asking hypothetical questions the ALJ must ask whether there are conflicts between the VE’s testimony and the information found in the DOT and SCO. If there are the ALJ must obtain a reasonable explanation for the conflict. And then put how the conflict was resolved in your written decision.

 

What Areas Are Outside the Scope of a Vocational Expert’s Testimony?

 

The VE is not permitted to do the following:

 

  • Provide a medical opinion

 

  • Determine whether you are disabled under the Social Security Act

 

  • Determine whether you are credible and telling the truth about your limitations

 

  • Provide an opinion about whether the number of jobs that exist nationally or in the state are significant. That is a legal conclusion reserved for the ALJ.

 

  • Consider whether you would be hired based on your appearance or criminal record.

 

  • Find that you can perform a job with accommodations. If you need accommodations to perform a specific job then you are unable to perform that specific job under the SSA’s Rules and Regulations.

 

Either you or your attorney should object or move to strike if the vocational expert offers testimony regarding these issues.

 

Cross-Examining the Vocational Expert at Your Disability Hearing

 

Vocational expert testimony at Social Security disability hearings is problematic for several reasons.

 

First, vocational experts are supposed to be impartial. They do not work for the SSA. Unfortunately some seem to forget this and think that their role is to please the ALJ and find jobs no matter what. Perhaps this is because testifying at disability hearings is a significant percentage of the VE’s income and he wants the ALJ to continue to select him.

 

Second, vocational experts often have a difficult time justifying the underlying data on which their testimony is based. This is a problem that disability attorneys have long known about but that just recently got the attention of the U.S. Supreme Court. Oral argument in Biestek v. Berryhill took place in December 2018. When it issues its opinion the U.S. Supreme Court will address whether a vocational expert’s testimony can constitute substantial evidence of “other work” that exists in significant numbers in the national economy when the expert is unable to provide the underlying data on which his or her testimony is based.

 

These problems provide several areas for possible cross-examination of the VE. Your attorney should question:

 

  • Whether the VE assumed facts not included in the ALJ or attorney’s hypothetical when finding that jobs exist in the national economy.

 

  • What percentage of the VE’s time is spent testifying at disability hearings as opposed to actually placing handicapped and disabled people in jobs. In my opinion a person cannot be a vocational expert if they spend all or most of their time testifying at hearings and not out in the field.

 

  • When the VE last placed anyone in a job.

 

  • When the VE last placed anyone in the specific jobs offered in response to hypotheticals from the ALJ or attorney. If the VE placed someone in that specific job, your attorney should question whether that person had the same limitations as you. He should also ask for the name of the employer so that he can investigate whether the VE is telling the truth.

 

  • How much time the VE spends visiting work sites.

 

  • Whether the VE’s testimony is consistent with the Dictionary of Occupational Titles and other government issued publications.

 

  • What method the VE used to determine the number of jobs available for a specific occupation.

 

  • What materials the VE used to determine the number of jobs available.

 

  • Why the materials or data the VE used are reliable. This is important where the VE is using a source published by a private company whose data your attorney is unable to verify.

 

When cross-examining the vocational expert at a disability hearing your attorney’s goal is to either (1) demonstrate that the VE’s testimony that you are capable of performing a specific job is wrong because it is based on incorrect facts or (2) demonstrate that the VE’s testimony is not credible because it is based on underlying data that cannot be verified or because the VE does not have enough experience to offer a valuable opinion.

 

Ask Your Own Hypothetical Questions of the VE

 

Every thing you do at hearing, including the testimony offered, should have two purposes: (1) to help you win your claim and (2) to help you prepare your claim for appeal if the ALJ issues an unfavorable decision.

 

Your attorney should ask questions of you that develop favorable evidence regarding specific limitations. This includes how long you can sit, stand, and walk. Whether you need to change positions frequently. If you have swelling in your legs that requires you to elevate them. Whether you experience fatigue. Whether you have trouble with concentration, memory, and getting along with others. And more.

 

Then your attorney should use your hearing testimony, along with the opinions from your treating medical providers, to ask hypotheticals of the VE. These hypotheticals should all result in a finding of no work. Or they should result in a finding that you are disabled under Social Security’s Grid Rules based on your age, education, and past work.

 

These hypothetical questions can serve as the basis for filing a Request for Review to the Appeals Council or a lawsuit in federal district court.

 

Special Situations Involving Vocational Expert Testimony at Disability Hearings

 

Below is an explanation of three situations that may happen between the ALJ and vocational expert at your disability hearing and what they mean for your case.

 

The ALJ Calls a Vocational Expert to Testify at Your Disability Hearing But Asks No Questions 

 

If the ALJ has asked a vocational expert to testify at hearing but doesn’t ask him or her any questions, this is either a very good or a very bad thing.

 

In my experience it means that the ALJ has determined that you either meet the criteria for a medical condition found in the Listing of Impairments or that you have a residual functional capacity (RFC) that would lead to you being found disabled under the Medical – Vocational Guidelines based on your age, education, and pas work experience. Of course either of these scenarios is a good thing because you would receive a favorable decision from the Social Security Administration.

 

There is, however, a possibility that the ALJ has decided not to ask the vocational expert any questions because he or she has found that you do not have a severe medical impairment or that you can return to your past relevant work. If you’ve hired an experienced Social Security lawyer then he or she will have a good idea of whether this is a concern. It depends on the ALJ hearing your case, whether you have any opinion statements from your treating medical providers, and the exertional and SVP levels of your past work.

 

The ALJ Asks the Vocational Expert Just One Hypothetical Question 

 

In my experience it is a good thing if the ALJ asks the vocational expert just one hypothetical question. Because usually the one question leads to an answer that you cannot work.

 

If this happens your attorney should not ask the vocational expert any questions. It is the Social Security Administration’s burden to prove that there is other work you can perform based on your residual functional capacity assessment, age, education, and past work experience.

 

You Are Closely Approaching Advanced Age or Have Reached Advanced Age 

 

The Social Security disability evaluation changes when a claimant reaches age 50 and again when the claimant reaches age 55. If you are over the age of 50, limited to unskilled sedentary work, and the vocational expert testifies that you have no transferable skills and are unable to return to any of your past relevant work, then you win. There are similar situations where you win at age 55 or older.

 

Your attorney should not ask the vocational expert any questions that try to exclude work at the sedentary level (if you’re age 50 to 54) or light level (if you’re 55 or older) if the vocational expert has testified that you cannot perform past work. This is because a “yes” answer from the vocational expert would still lead to a finding that you’re disabled under the Medical-Vocational Guidelines, also called the Grid Rules.

 

Get Help Winning Your SSDI Hearing

 

You have a lot on the line with your application for SSDI or SSI benefits.

 

And VE testimony may stand in the way of you receiving monthly benefits, thousands in back pay, and medical coverage.

 

Get help presenting your case at the disability hearing and handling the vocational expert.

 

All you have to do is call me: 804-251-1620 or 757-810-5614. Your consultation is free.

 

I represent disabled adults throughout Virginia, North Carolina, and Maryland including those in Richmond, Fredericksburg, Hampton, Newport News, Raleigh, Charlotte, Greensboro, Baltimore, and Hagerstown.

Corey Pollard
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