Attacking Vocational Expert Testimony
| Author | Thomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken |
| Pages | 585-629 |
19-585
Chapter 19
Attacking Vocational Expert Testimony
§1900 Introduction — “Trust But Verify”
§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 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
§1902.3 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 Cross-Examination: Vocational Expert’s Knowledge Base — Numbers of Jobs
§1903.3.1 Record of VE Testimony
SOCIAL SECURITY DISABILITY COLLECTION 586
§1903.4 Vocational Expert Misplaced Reliance Upon Statistical Sources
§1903.4.1 Sample Paragraph in Post-Hearing Letter Brief
§1903.4.2 Record the VE’s Data-Source Answers for Future Use
§1903.4.3 A District Court Brief and Decision Supporting Objections to VE Testimony
§1903.5 Unskilled Sedentary Jobs
§1903.5.1 Frequently Encountered Occupation: surveillance system monitor DOT 379.367-010
§1903.5.2 The Unskilled Sedentary Base, The Way it Was in 1991
§1903.6 When the Vocational Expert Offers Testimony at Odds With the Dictionary of Occupational Titles
§1903.6.1 Sample Post-Hearing Letter Brief
§1903.6.2 Sample Brief, Outright Conflicts Between VE Testimony and the DOT
§1903.6.3 Appeals Council Remand Language
§1904 The Method in Practice, Checking Everything the VE Says
§1904.1 The Method in Practice, Comprehensive Post-Hearing Brief
§1904.2 Sample Section From a District Court Brief
§1904.3 Sample Section From a District Court Brief: Applying SSR 00-4p and Sit/Stand Option
§1904.4 Sample Section From a District Court Brief: Claimant Unrepresented at Hearing — The “Nuclear Option”
587 ATTACKING VOCATIONAL EXPERT TESTIMONY §1900
§1900 Introduction — “TrustBut Verify”
It is not unusual for a vocational expert (VE) to testify a thousand
times or more at disability hearings at the Social Security Administra-
tion. 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. Presi-
dent 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.
§1900.1 How Does the VE Know?
A vocational expert’s most important function in a Social Secu-
rity 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) (2013); Donahue v. Barn-
hart, 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 competen-
cies 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 ar-
gument 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 un-
skilled 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 al-
lowed, 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 addition-
al 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 regard-
ing 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,
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