Attacking Vocational Expert Testimony

• Author: David Traver/David Ferrari
• Pages: 647-740

ATTACKING

VOCATIONAL EXPERT

TESTIMONY

19-1

CHAPTER 19

Attacking Vocational Expert Testimony

§1900 INTRODUCTION  RECOGNIZING THE ESSENTIAL PROBLEMS

WITH VOCATIONAL TESTIMONY AND WHAT TO DO ABOUT IT

§1900.1 Our Initial Framework for Attacking Vocational Expert Testimony

§1900.2 Sample Brief from 1999

§1900.3 The Cautionary Tale of the Donohue Case — The Attorney’s Duty to Fight

§1901 CASE STUDY  COPPERNOLL

§1901.1 Pre-Hearing Preparation

§1901.2 Argument to the ALJ and Brief to the Appeals Council

§1901.3 District Court, Coppernoll I

§1901.4 The Second Denial by an ALJ

§1901.5 The District Court Order in Coppernoll II

§1901.6 Returning to the Hearing after the District Court Order in Coppernoll II

§1901.7 Practice Tip: Attack the VE’s Testimony, Not the VE

§1902 SSR004P, RESOLVING CONFLICTS BETWEEN THE DOT AND VE TESTIMONY 

BUT THAT DOES NOT ADDRESS THE DOT’S “WHOLE CLOTH” PROBLEM

§1902.1 Strict Enforcement of SSR00-4p by Overman v. Astrue

§1903 THE DEVOLUTION OF THE DOT AND VOCATIONAL TESTIMONY BY THE SSA

§1903.1 Sample Brief — Bursting the Bubble of Administrative Notice of the

Dictionary of Occupational Titles with Hermann

§1904 HOW DOES THE VE KNOW?

§1904.1 Sample Cross Examination: How Does the VE Know?

§1904.2 Your Duty to OBJECT!

§1904.3 Instant Exhibit: Objection to the Vocational Witness

§1905 WHAT MAKES A VE AN “EXPERT”?

§1905.1 Sample Introductory Brief Section: What Makes a VE an “Expert”?

§1905.2 Sample Objection to the Witness Testifying as an Expert

§1905.3 Sample Objection to the VE’s Improper Reliance Upon the

Dictionary of Occupational Titles and the U.S. Department of Labor

§1905.4 Owning a Laptop with a Computer Program Does Not Make a Person an Expert

§1905.5 Practice Tip

§1905.6 Checking the VE’s Resume

§1905.7 Using a Private Investigator

§1905.8 Work Experience Verif‌ication

ATTACKING

VOCATIONAL EXPERT

TESTIMONY

Social Security Disability Advocate’s Handbook 19-2

§1905.9 Criminal Background Check

§1905.10 Sample Brief Attacking VE Testimony — Federal Court

§1905.11 Commissioner’s Duty to Rotate Selection of VE

§1906 USE A NULL HYPOTHESIS MENTAL FRAMEWORK

§1907 COMMON UNDEFINED VARIABLES IN HYPOTHETICAL QUESTIONS

§1907.1 “Simple Work”

§1907.2 Sample Brief Language “Simple Work”

§1907.3 “Simple Work” Is Not RFC Compatible with a Severe Impairment

§1907.4 Simple Work Is Not SVP

§1907.5 Case on Point: Stubbs-Danielson v. Astrue

§1907.6 Routine Work

§1907.7 Repetitive Work

§1907.8 “No Repetitive” and “Repetitive” in the Same RFC

§1907.9 “Low-Stress” Work

§1907.10 Full-Time Versus Part-Time Work

§1908 VE’S TESTIMONY REGARDING THE NUMBER OF JOBS

§1908.1 Do Not Let the VE Give Only the Bottom Line

§1908.1.1 Get the Same Information the VE Has at the Hearing

§1908.1.2 Get the Same Information the VE Has at the Hearing — Sample Letter

§1908.1.3 Getting the Same Information the VE Has at the Hearing — Sample Motion

§1908.1.3a Getting Better Information than the VE into the Record — Addresser

§1908.1.3.1 Motion for the Issuance of a Subpoena Duces Tecum — Long Form

§1908.1.3.2 Motion for the Issuance of a Subpoena Duces Tecum — Short Form

§1908.1.3.3 Post-Hearing Letter Objecting to Jobs that Don’t Exist in the

Real World — Seed Cutters

§1908.1.4 Subpoena — Sample Appeals Council Brief

and the Appeals Council’s Remand Order

§1908.1.5 ALJ Denies the Motion as Burdensome — Sample Brief to Appeals Council

§1908.2 Questioning the VE’s Methodology

§1908.3 The Developing Case Law Regarding VEs and Numbers

§1908.4 Sidebar: What Is Ipse Dixit?

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

§1908.5 Developing Case Law Regarding VEs and Numbers — ALJ’s Option to Produce the VE’s

Data — McKinnie and Biestek

§1909 SAMPLE CROSSEXAMINATIONS AND LETTERS

§1909.1 Hearing Note Form: Vocational Expert Qualif‌ications

§1909.2 Keeping a Book of Results of Your Questioning for Future Use

§1909.2.1 Form: Checklist of VE Questions

§1909.2.2 Form: VE Prof‌ile Memo

§1903.3 Sample Cross-Examination: Vocational Expert’s Knowledge Base — Numbers of Jobs

§1903.3.1 Record of VE Testimony

§1909.4 Vocational Expert Misplaced Reliance Upon Statistical Sources

§1909.4.1 Sample Paragraph in Post-Hearing Letter Brief

§1909.4.2 Record the VE’s Data-Source Answers for Future Use

§1909.4.3 A District Court Brief and Decision Supporting Objections to VE Testimony

§1909.5 Unskilled Sedentary Jobs

§1909.5.1 Frequently Encountered Occupation: Surveillance System Monitor Dot 379.367-010

§1909.5.2 The Unskilled Sedentary Base, The Way it Was in 1991

§1909.6 When the Vocational Expert Offers Testimony at Odds With the Dictionary of Occupational Titles

§1909.6.1 Sample Post-Hearing Letter Brief

ATTACKING

VOCATIONAL EXPERT

TESTIMONY

19-3 Attacking Vocational Expert Testimony

§1909.6.2 Sample Brief, Outright Conf‌licts Between VE Testimony and the DOT

§1909.6.3 Appeals Council Remand Language

§1910 THE METHOD IN PRACTICE, CHECKING EVERYTHING THE VE SAYS

§1910.1 The Method in Practice, Comprehensive Post-Hearing Brief

§1910.2 Sample Section from a District Court Brief

§1910.3 Sample Section from a District Court Brief: Applying SSR 00-4p and Sit/Stand Option

§1910.4 Sample Section from a District Court Brief: Claimant Unrepresented at Hearing —

The “Nuclear Option”

§1911 BIESTEK V. BERRYHILL NO CATEGORICAL RULE TO OBTAIN VE NOTES, BUT YOU CAN