Attacking Vocational Expert Testimony

• Author: David Traver
• Pages: 163-241

19-1

Chapter Nineteen

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

Social Security Disability Advocate’s Handbook 19-164

§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

§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”

19-165 Attacking Vocational Expert Testimony §1900

§1900 Introduction — “Trust

But Verify”

It is not unusual for a vocational expert (VE) to

testify a thousand times or more at disability hear-

ings at the Social Security Administration. 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 ap-

proach, reflected in thousands of published federal

court cases, presumes the VE gives reliable informa-

tion. So, at the hearing the claimant’s attorney offers

alternate hypothetical questions to the VE, and oth-

erwise tries to move the VE’s testimony in a better

direction.

While that well-advertised and traditional ap-

proach is often buttressed by the use of comprehen-

sive fact-related treating source statements, medical

records, and testimony, attorneys and representa-

tives 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. President Reagan said it best: “Trust but

verify.”

While being skeptical of the vocational expert

and challenging the world of vocational informa-

tion, 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 Administra-

tive 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 Security 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 confirm-

ing 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. Rags-

dale 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 par-

ties at oral argument what makes a vocational expert

an ‘expert’ (and where the information in the Diction-

ary [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 un-

skilled sedentary spring grinders in Wis-

consin, that fit the hypothetical questions

given by the ALJ?

VE True.

Attorney How do you know?

VE I have performed job analysis at manufac-

turers and I have seen the job.

Attorney Where?

VE You want me to tell you where?