LAW FIRM BLOG
Vocational Experts Explained
September 08, 2019
An Administrative Law Judge (ALJ) usually requests a Vocational Expert (VE) to testify in person, by phone, by video, or by responding to written interrogatories at a Social Security disability hearing. A VE's testimony plays a important role as it provides unbiased information and impartial opinions concerning:
(1) jobs you held during the fifteen-year period before you applied for disability benefits (called your past relevant work). The VEs will classify each individual job and testify about the skill, physical and mental demands required to perform them and whether or not there are any transferrable skills to lower exertional levels. The vocational expert will tell the judge what type of exertion level was involved in your past work and that can range anywhere from sedentary to very heavy. Then the VE will state what skill level was required. Was it an unskilled, a semi-skilled, or a skilled job? Usually, this information is from the Dictionary of Occupational Titles (DOT), which describes the exertional requirements and skill demands of a particular job, the Occupational Outlook Handbook (OOH), which describes various types of work as it is performed in the national economy and the VEs own personal experience in the field and
(2) your current vocational abilities and the functional and vocational requirements of different types of work, your educational background and the extent to which you have acquired skills that might transfer to occupations other than what you have performed in the past. They then testify as to the availability of jobs regionally or in the national economy that might be available for someone such as you based on your particular age, eductional and vocational background and work-related physical or mental functional limitations.
Who Are They
A VE is hired and paid by the Social Security Administration (SSA). But VEs are not employees or agents of the SSA even though the SSA compensates them for their appearance. They are independent contractors.
What Training Must a Vocational Expert Have?
VEs are vocational rehabilitation professionals educated, trained, and skilled in job placement of injured persons and knowledgeable about labor market conditions both regionally (where the claimant resides) and in the national economy, who meet the qualifications of the SSA. VE’s are supposed to be knowledgeable about the physical and mental demands of various jobs as well as an expert able to provide data and proof of lost ability to complete or perform common household tasks or activities of daily living.
Social Security’s Vocational Expert Handbook indicates the VE’s responsibilities, providing that they are expected to have knowledge, training and experience with:
•The skill level and physical and mental demands of occupations.
•The characteristics of work settings.
•The existence and incidence of jobs within occupations.
•Transferable skills analysis and SSA regulatory requirements for transferability of work skills.
•Current industrial and occupational trends.
•Regional and national labor market conditions.
•Placing individuals, especially those with disabilities and restrictions, in the labor market.
•The SSA’s five step analysis for deciding disability claims.
•The SSA’s Rules and Regulations.
•The DOT, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO); Census Reports; The OOH; and, SSA Occupational Analyses.
Vocational Expert at Hearing
Upon initial questioning by ALJ, the VE will asked if the VE is familiar with these publications and that they have reviewed the file material relevant to your vocational background and past relevant work. They will be instructed to testify as to the types of work you have performed in the past, and will be asked to cite the related job title from the DOT (along with the exertional level and skill level of this work). The vocational expert also may use observations of the applicant as well as any other testimony during the hearing to make his or her assessment about the applicant's abilities. The ALJ inquires about the number of jobs in the local or national economy that the claimant could theoretically work given certain factors like his or her age and transferable skills. Factors that a vocational expert may consider when giving testimony include:
The physical and mental demands of various jobs.
The characteristics of work settings.
The availability of certain jobs within certain industries.
The ability for claimants to transfer certain job skills.
Upon doing so, the ALJ will provide a hypothetical or series of hypothetical questions that would include your age, education and past work experience along with a set of physical and/or mental health limitations that would impact your ability to function in a work environment. This individual is meant to mirror your situation, without making it specific to you. The ALJ will then ask the VE whether, given the hypothetical, you are deemed capable of performing any of your past relevant work, or any other jobs that exist in the national economy and to cite such jobs using the DOT code numbers and provide the prevalence of such jobs in one’s local economy or in the national economy.
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 after a VE is selected, he or she goes to the bottom of the list and the VE will not be picked again until all other VEs are called to testify at hearings. However, vocational expert testimony at Social Security disability hearings is sometimes problematic. Vocational experts are supposed to be impartial. Unfortunately, some try to 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 so they may feel pressured to testify in a way they think the ALJ wants them to for fear of not receiving additional assignments.
All too often the VEs testifying at disability hearings rely on outdated or inaccurate job numbers, or simply do not have the training or experience to accurately calculate those numbers. In addition, VEs sometimes rely on job descriptions that date from the 1970s or 1980s. Given the outsourcing of manufacturing jobs and the increasing reliance on technology in the workforce, many of the jobs the VEs identify are now much more complicated or no longer exist at all in today’s economy.
Cross-Examination of Vocational Expert
When cross-examining the vocational expert 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 meaningful opinion.
Vocational experts often have a difficult time justifying the underlying data on which their testimony is based. 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.
•Whether the VE’s testimony is consistent with the DOT and other government issued publications.
•What materials and method the VE used to determine the number of jobs available for a specific occupation.
•Why the data the VE used is reliable. This is important where the VE is using a source published by a private company whose data your attorney is unable to verify.
In addition, you or your attorney will have an opportunity to ask the VE their own hypotheticals at the disability hearing. Often your attorney will include limitations that the judge may have left out. The objective here is to eliminate the jobs that the VE stated that a hypothetical person with your certain limitations could do. When questioned about the added limitations, the goal is to get the VE to say that there are no jobs available that you can do.
At your hearing, you will testify about your disability and your work history including your job titles and the types of tasks that you performed. Afterward, the ALJ will ask the VE to classify your past work based on your testimony during the hearing and the work history report you competed as part of your application to determine whether someone with your impairments could still perform any of your prior jobs and, if you are unable to do that kind of work, which skills you have that can be transferred. The judge will then ask a series of questions to the VE about your condition and what work you might be able to do. These are called "hypotheticals."
Here’s an example: In the case of a person with a back injury, the judge might ask: “What jobs, if any, could a person of the same age, education, and with the same work history as the claimant be able to do if he or she could lift no more than 10 pounds on a regular basis, could stand no more than 30 minutes, and needed to lay down periodically throughout the day.” in the general area where you live and the national economy.
What Will the Hypothetical Questions Be About?
The hypothetical questions posed to the VE will include functional limitations that the judge has either found cited in or reasonably inferred by the medical evidence, or alleged by the claimant in the hearing testimony. They will contain a number of variables about specific job opportunities of a person based on their age, education, background, work experience, and medical condition that usually begin fairly light allowing for the claimant’s past or other work to be performed. The VE will then give the associated national and regional figures and with the skill, physical and mental demands for each mirroring their earlier testimony on the claimant’s past work. If the VE states that you cannot do your past work, the judge and your attorney will ask more questions of the VE to determine if you can do any other kind of work. At that point, the VE will testify as to what jobs, if there are any, that a claimant with those work-related limitations can do. If the VE believes that there are jobs that the claimant can do, then those job titles, codes, and the number of those jobs in the general area where you live and the national economy will be stated. The ALJ will then usually increase the restrictions and limitations on subsequent hypotheticals until the VE testifies there is no work, past or other, a person suffering from that symptomatology can perform.
VE's Opinion on What Jobs You Can Do
Recent government statistics show that claimants are approved for benefits less often when there is a VE at the hearing (80% as often as claimants without a VE at the hearing.)
The Vocational Expert Testimony
The VE must be able to testify regarding:
•The skill level and physical (exertional) and mental (non-exertional) requiremnts of occupations. 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.
•Whether you acquired skills in your past work and, if so, whether those skills are transferable to jobs at lower physical exertion levels. •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, and in what number and in your state.
Vocational Expert Prohibitions
The VE is not permitted to:
•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.
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. The ALJ will ask your attorney whether they have any objections to the VE’s testimony. 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 DOT.
•The DOT number for the job, in case you or the ALJ want to look it up to verify the VE’s testimony.
The physical exertional level of each job, both as you performed it and as generally performed in the national economy.
•The skill level of each job, either skilled, semi-skilled or unskilled. This relates to how long it takes to learn the job and perform it at a high level.
Finally, the ALJ will ask the VE to respond to a series of hypothetical questions. The question begins with your age, education, and past relevant work. Then the Judge adds specific functional limitations. After stating the hypothetical, the ALJ will ask the VE: If the claimant is capable of returning to any past relevant work? Does the claimant have any transferable skills to a lower exertional level? 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 ask anywhere from three to six hypothetical questions building on the first hypothetical by adding additional limitations. 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 their written decision.
What it Means
The testimony of a vocational expert is critical because the VE’s opinion about your ability to work can be the determining factor in your case. It is important to note that when an ALJ asks the VE for examples of jobs that can be performed, it does not always mean you have lost your case as many ALJs work their way through various hypotheticals until no jobs are available for the claimant. But just because a question and answer suggest that you are able to work does not mean the outcome will be negative for the hearing. And conversely, “no jobs” testimony from the VE does not guarantee you will win. The VE’s testimony is not binding. Rather, it is just another piece of evidence the ALJ may use to decide your claim.