What if a Vocation Expert at a Social Security disability hearing is full of it

By Tomasz Stasiuk, June 13th, 2011 | 3 Hearings | 7 Comments

A reader asked:

How can a vocational expert have any say on my disabilities and limitations? I mean I dont get a VE slip to give to my boss when I’m sick.

That’s true. If a Vocational Expert (VE) says that a particular limitation should not prevent someone from being able to perform the duties a hypothetical job, does not help that person find an employer who will tolerate that limitation in the real world.

However, that is not the VE’s job. The VE only provides testimony about which jobs an individual is still able to perform (if any) despite their limitations. Also, the VE tempers the often out-of-date evidence in the Dictionary of Occupational Titles with more recent job treatises and personally performed surveys of real-world jobs as they are actually performed.

However, if the VE says I can still do a job that is inconsistent with my limitations, what can I do?

If the VE’s testimony is out of sync with reality, well… When there is a discrepancy between a claimant’s experience with a job and what the VE testifies to (often as to duties or which limitations would be tolerated in a job), that can be brought up during the cross examination of the VE. For example, the VE can be asked about their experience with the particular job:

• Have you personally done a survey of the job?
• How long ago?
• For how long?
• Was the survey for this particular job title?
• Who was the employer and what was the nature of the job? This is to verify that the job cited and the job surveyed are actually one and the same.

The VE can also be asked questions such as:

• Don’t these jobs require… (production minimums, constant sitting, no unscheduled breaks, etc)?
• Don’t these jobs limit… (restroom breaks, standing, moving about the work area, not remaining at the work station, standing and stretching, etc)?
• Would the following limitations… interfere with… (production requirements, call-time limits, etc)?

These are just some examples. The questions have to be suited to the situation. However, I hope to give you some idea of possible questions that can be asked.

Keep in mind that you may not necessarily get the VE to change their mind. Each question attacking the VE’s testimony about whether a hypothetical employer will tolerate certain limitation may be met with a rejection and an affirmation of the original testimony.

However, if you present a good argument, you may end up convincing the ALJ that the VE’s responses are not credible. In which case, the VE’s testimony may be thrown out even though you never get the VE to change what they say.

Note: this is only one method of attacking VE testimony. There are others including having your own VE at the hearing (which you will have to foot the bill for), or providing a supplemental VE report after the hearing (ditto).

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.