Understanding the Vocational Expert Witness in Your Social Security Disability Hearing
A VE Will Likely Testify at Your Hearing. Learn What to Expect and How to Use the Vocational Expert’s Testimony to Your Advantage
As a practicing Social Security Disability attorney who has represented thousands of claimants before Administrative Law Judges in the Mid-Atlantic, I’ve cross-examined hundreds of vocational experts (VEs). VE testimony influences the majority of Step 5 determinations in disability cases. This article draws from my courtroom experience to help you understand and challenge VE testimony that could determine whether you receive disability benefits, improving your chances of approval.
After you finish testifying at your Social Security Disability hearing, the administrative law judge (ALJ) says, “Now, let’s turn to our vocational expert witness.” You want to know who this person, often called the “VE,” is, and what role they have in your disability claim.
Here’s the short answer: Testimony from the vocational expert witness can make or break your disability claim. And cross-examining the VE effectively is one of the most critical tasks for a Social Security Disability lawyer.
This article explains the role of a vocational expert witness in Social Security Disability cases, whose testimony introduces unpredictability into the proceedings because the answers to the same hypothetical questions can vary from one vocational expert to the next.
I hope you’re reading this article before your hearing, so you know what to expect and how to counter any unfavorable testimony from the VE. However, this information should be helpful even if your hearing has occurred and you are awaiting a decision. You can object to the VE’s testimony and submit a written argument to the administrative law judge up until the date they issue a decision in your case.
So, keep reading. Then call Corey Pollard Law at 804-251-1620. My firm represents claimants in Virginia, Maryland, West Virginia, Pennsylvania, DC, North Carolina, Delaware, and Florida.
What Exactly is a Vocational Expert?
A vocational expert witness is an individual hired by the Social Security Administration (SSA) to provide “impartial expert opinion evidence that an ALJ considers when making a decision about disability.”
To qualify as a VE, a person must have expertise and current knowledge of the physical demands and working conditions of occupations, the transferability of skills from one job to another or one industry to another, knowledge of the existence and numbers of jobs at all physical exertion levels in the national economy, and involvement in or knowledge of placing adult workers with disabilities into jobs.
As I explain later in this article, you or your lawyer should consider cross-examining the vocational expert witness on each of these items. You may find that the VE hasn’t placed people into jobs in decades.
Where Does a Vocational Expert Witness Fit in the Social Security Disability Process?
The Social Security Administration uses a five-step sequential evaluation process to decide disability claims.
As the person seeking SSDI or SSI benefits, you have the burden of proof for the first four steps. However, at step five, the burden shifts to the SSA to show that you can perform some other work that exists in significant numbers in the national economy, considering your age, residual functional capacity (RFC), education, and acquired job skills.
The SSA has two ways to meet its burden at this step: (1) by denying your claim using the Medical-Vocational Guidelines at 20 CFR pt. 404, subpt. P, app. 2 (“the Grid Rules”), or (2) by the testimony of a vocational expert witness.
As the U.S. Supreme Court stated in Biestek v. Berryhill, 139 S.Ct. 1148 (2019), ALJs “often seek the views of ‘vocational experts’.” That’s been my experience as well. ALJs obtain VE testimony at almost every hearing for an adult seeking disability benefits, with other publications saying VEs testify in more than 90 percent of hearings.
What Can the VE’s Testimony Cover?
The vocational expert’s testimony usually falls into six categories:
First, the ALJ will ask the VE questions about their professional qualifications, ability to remain independent and impartial despite receiving payment from the Social Security Administration, whether the CV or resume in the file is up to date and accurate, and if the vocational expert has spoken to the ALJ, you, or your attorney about the case (the answer should be no).
Second, the VE will identify your past relevant work for the ALJ using the classification system found in the Dictionary of Occupational Titles (DOT), a U.S. Department of Labor publication last revised in the 1990s. At a minimum, this identification should include the job title, DOT code, physical exertion level, non-exertional requirements (including skill level), and the specific vocational preparation (SVP) required. Additionally, the VE should testify whether you performed the work as generally performed in the national economy, or at higher or lower exertional levels.
Third, the vocational expert will testify about any transferable skills you may have obtained in your past work, and whether these skills transfer to unskilled jobs.
Fourth, the VE testifies as to what jobs you can do, given your residual functional capacity assessment, and the availability of those jobs in the national economy. The vocational expert witness does this by translating the factual scenarios from the hypothetical questions posed by the ALJ “into realistic job market probabilities.” This answer should include an estimate of the number of positions that exist for the particular job testified to by the VE. Then, the ALJ determines whether the number of jobs counts as “significant numbers.”
A word of warning – the jobs cited by the vocational expert witness are usually obscure positions that you have never heard of.
Fifth, the vocational expert explains the data sources and methods used to determine the existence of jobs in the national economy and their numbers.
Sixth, the VE says whether their testimony differs from the DOT.
Common Types of Vocational Expert Testimony
Favorable Testimony for Claimants
It’s not all bad news. Sometimes, vocational expert testimony actually supports your disability claim:
No Past Relevant Work: If your work history doesn’t meet SSA’s duration or earnings requirements for substantial gainful activity (SGA), the VE may testify that you have no past relevant work, potentially simplifying your case. The ALJ must get vocational expert testimony because it cannot deny your claim at step four of the sequential evaluation process.
Inability to Perform Past Work: When your medical limitations prevent returning to previous employment, the VE’s testimony establishes this crucial finding.
No Transferable Skills: For older workers or those with limited education, the VE might testify that your skills don’t transfer to other occupations within your physical limitations.
Insufficient Job Numbers: Even when jobs theoretically exist, the VE might acknowledge that the actual numbers fall below the “significant numbers” threshold required by law.
Challenging the VE’s Testimony
Some VEs think their job is to find available jobs in significant numbers for the ALJ, no matter what, which means their testimony will be harmful to your claim.
When this happens, you should challenge the vocational expert during cross-examination. You will find that many vocational experts struggle to handle even the smallest amount of questioning and often lose their temper, which undermines their credibility.
Potential areas to attack the VE’s credibility or obtain favorable testimony include the following:
Pose different hypothetical questions: At least one, if not all, of the ALJ’s hypothetical questions may overstate your abilities. This overstatement of what you can do may lead to the VE finding jobs. I recommend that you pose hypothetical questions with additional limitations supported by your hearing testimony and medical reports, so that you receive VE testimony that excludes jobs. Then, if the ALJ denies your claim, you can argue on appeal that the testimony relied on did not consider all of your functional limitations.
Ask when the vocational expert last placed a disabled person in the jobs they say you can do: Time and time again, VEs testify about jobs they have never put a completely healthy person in, let alone someone with severe medical impairments and limitations. Cross-examine the vocational expert witness on their familiarity with these jobs.
Challenge the data sources: None of the job data sources recognized by the Social Security Administration provides the number of jobs for unskilled work. Nowadays, many vocational experts rely on software from third-party vendors to testify about job numbers (Job Browser Pro from SkillTran, for example). I have a problem with this. The VE has no clue what data the vendor used to come up with those job numbers. And, as I’ve pointed out during many cross-examinations, the occupational data software may combine full-time and part-time positions for a job. And part-time jobs do not count as competitive employment under the Social Security Regulations.
Frequently Asked Questions About Vocational Experts
Can I Challenge a Vocational Expert’s Qualifications?
Yes.
During your hearing, either toward the beginning or just before taking VE testimony, the ALJ will ask you or your attorney if you stipulate to the vocational expert’s qualifications.
I have objected to the VE’s qualifications many times, especially when their curriculum vitae (CV) or resume shows their recent employment is limited to testifying at Social Security hearings. But an ALJ has yet to sustain that objection and disqualify the vocational expert.
You should still object to the vocational expert’s qualifications if you have a basis to do so. However, you should not expect to win. The SSA has made an implicit determination that the VE is qualified by entering into a contract with them.
Stipulating to qualifications does not stop you from attacking the foundation for the vocational expert witness’s testimony if that testimony is unfavorable to your case.
What Happens If the VE Makes an Error?
Vocational expert errors provide grounds for appeal that overturn an unfavorable decision.
Common VE mistakes include:
-
- Misclassifying past work
- Testimony that conflicts with the Grid Rules
- Testifying that you acquired work skills that transfer to other jobs, but not identifying the specific skills or jobs they transfer to
- Testimony that conflicts with the Dictionary of Occupational Titles
- Using jobs that the Social Security Administration has determined are obsolete due to technological changes.
- Giving incorrect job numbers
And although this error usually falls on the ALJ, you can attack a VE’s response to a hypothetical question offered by the ALJ if that question did not include all of your functional limitations supported by the record.
Do I Need My Own Vocational Expert?
Maybe.
Hiring a vocational expert to review the VE’s testimony and provide a rebuttal can help you win your case. But it will be expensive. And there is no guarantee that the ALJ will find your vocational expert witness more persuasive or credible than the testimony given by the SSA’s VE.
How Much Weight Do Judges Give VE Testimony?
This question is hard to answer because most ALJs pose multiple hypothetical questions to the VE. Some of the questions will lead to VE testimony that significant jobs exist that you can perform despite your limitations; other hypotheticals will result in the vocational expert testifying that you cannot perform competitive employment with said limitations.
So, if you receive an unfavorable decision, you can count on the VE’s testimony playing a significant role in the ALJ’s written decision. But it is often the ALJ’s determination of your residual functional capacity that leads to the poor outcome.
When is Vocational Expert Witness Testimony Mandatory?
Federal courts have the power of judicial review over final decisions of the Social Security Administration.
These federal judicial opinions explain when it constitutes reversible error for an ALJ to deny a claim without obtaining testimony from a vocational expert. For example, a failure to obtain VE testimony may be reversible error if you need to use an assistive device (cane, crutch, walker, wheelchair) for walking or balance, require a sit/stand option, have manipulative limitations affecting your ability to use your hands for gross or fine manipulation, have restrictions that limit you to the sedentary exertional level, or have significant nonexertional limitations from pain or mental impairments that limit you to unskilled, simple work, cause interruptions or intermittent absences, or prevent you from frequent interaction with the public, coworkers, or supervisors.
Can the VE Question Me?
Yes, but only for the limited purpose of clarifying how you performed past work.
What Evidence Does the Vocational Expert Review Before the Hearing?
The VE has access to your earnings records and information you provided about your work history, but not your medical records.
Taking Action on Your Disability Claim
Understanding vocational expert testimony is just one aspect of successfully navigating the Social Security disability process. If you’re facing a disability hearing where vocational expert testimony will play a role, don’t attempt to handle this complex area of law alone.
My colleagues or I have likely handled multiple hearings with the VE assigned to your case, allowing us to know what to expect and prepare accordingly.
Contact our office today for a free consultation about your Social Security disability claim. Your financial security and access to healthcare benefits depend on getting your disability claim right the first time.
