Questioning the VE's Testimony About Other Work at a Disability Hearing
To win disability, challenge Social Security on the requirements and number of proposed jobs available to you.
If your disability claim is denied because Social Security says there is "other work" you can do (rather than your past work), you'll need to request an appeal hearing in front of an administrative law judge (ALJ).
Vocational Expert's Testimony About Other Work
At your disability hearing, if the vocational expert (VE) states you can no longer do your past work, the ALJ will ask the VE a series of questions based on your medical record and your testimony to determine if there are other jobs that you can do. Your disability claim may be denied again if the vocational expert at your hearing names other jobs you can do.
If the VE testifies that there is suitable other work you can do, he or she must give the title of the job, provide the number of the job positions in your area, and provide the number assigned to the job in the Dictionary of Occupational Titles (DOT). The jobs cited by the VE must exist in “significant” numbers in the local and national economy and be based on the use of any work skills you acquired from past jobs.
The administrative law judge (ALJ) and your attorney (if you have hired one) should then question the VE about how your documented limitations would affect the ability to perform the named jobs. Your attorney’s goal is to elicit testimony from the VE that you cannot, in fact, perform any of the named jobs in light of your impairments.
Challenging the Requirements of Suitable Other Work
Your attorney should ask the vocational expert to explain in detail the physical requirements of the jobs he or she named to see if any of the jobs can be eliminated based on your specific symptoms and limitations. In describing the named other work, the VE may leave out some requirements that are listed in the Dictionary of Occupational Titles. Your attorney should be able to spot any omitted requirements in the job description that make the job unsuitable for you due to your physical limitations.
For example, in one disability case, although the VE testified that that the claimant could no longer do his past job as a truck driver because of his spinal stenosis and back pain, the VE testified that he could do a job such as conveyor tender or operator (a.k.a. assembly line operator). The VE testified that this job required the operator to push a button to start the conveyor, observe movement of materials on the conveyor, and notify the supervisor of equipment malfunction. However, the VE failed to add that the operator must also at times dislodge jams by moving objects on the conveyor belt.
The claimant’s attorney questioned the VE on all of the specific physical requirements of the conveyor tender position, and the VE stated that it did require the ability to handle and move objects. According to the claimant’s testimony and medical record, he experienced intermittent numbness in his arms and hands due to nerve compression. The claimant’s attorney then asked whether someone with numbness in the upper extremities would be able to work as a conveyor tender or operator as the job was generally performed. The VE testified that the claimant could not perform the work because the numbness could cause inability to handle and move objects.
This elimination of possible jobs is done by way of hypothetical questions posed to the VE by both the ALJ and your attorney. (For more information, see our article that discusses how disability judges use hypotheticals.)
Challenging the Number of Positions of Suitable Other Work
When a vocational expert names an alternative job that he or she thinks the disability claimant (applicant) can do ("suitable other work"), the VE must also state the number of positions in the local and national economy for that job. The job must exist in significant numbers in either the national or local economy (this refers to both filled and unfilled positions, not just job openings) for it to be considered as work you could do.
Neither the Social Security nor any other court of law has ever defined the term “significant numbers,” so it's difficult to challenge a VE on whether the number of jobs in the local and national economy constitutes a “significant” number. However, there are many court cases where claimants have won on this challenge, so it is a technique worth trying. For example, in one case, a VE testified that there were 12,500 assembler jobs in the national level, but only 110 assembler jobs in the local economy. The ALJ agreed that these numbers were “significant” and denied the claim. The claimant appealed the denial and the appellate court agreed with him, finding that the 12,500 jobs in the national economy were not “significant.” Although this type of challenge generally occurs at the Appeals Council or in federal court -- that is, after a claim has been denied at the hearing level -- your lawyer can still question the VE at the hearing as to how he or she determined the number of jobs to be “significant.” This will, at the very least, provide some testimony from the VE that can be attacked in a further appeal.
Another way your attorney can challenge the number of jobs cited by the VE is to ask where in the nation the jobs are located. This is because the number of jobs must be from multiple regions in the country. If the job numbers cited by the VE come from only one or two regions, the ALJ should not consider them to be “significant” in the local or national economy.
Unfortunately, it is also not uncommon for a VE to cite job numbers that have no factual basis, or are based on outdated reports. Therefore, one tactic is for your attorney to challenge the VE’s basis for arriving at the number given.
Your lawyer (or you, if you are not represented) can ask the VE the following questions to determine the accuracy of his or her statements:
- What source did you use to determine how many of these positions there are in the area?
- Can you please show me the source of your data? (If you don’t have it here, I would like the record to be kept open so I can review the data once it is given to me.)
- If the source is not the Dictionary of Occupational Titles, is your testimony consistent with the Dictionary of Occupational Titles?
- Did you use the most recent data to determine the job numbers?
- What companies do you know of personally where these jobs exist?
If you are denied disability after the hearing based on your ability to do other jobs, you should review the jobs named by the VE and research whether the positions, in fact, exist in significant numbers at either the national or local level. You can do this research at the Bureau of Labor Statistics website. Although not every judge will overturn a denial based on this, it is worth the effort, because Social Security judges generally do care that there is a factual basis for their decisions. Indeed, in a recent federal court case, the judge overturned a decision based on doubts about the number of jobs available; for more information, see our article about the disability case that was overturned due to the vocational expert's job numbers.
Challenging Other Work Because of Lack of Skills
Another way to eliminate jobs named by the VE is to show that you didn't learn the required job skills at your prior jobs. You do this by correcting the VE's understanding of what you did at your prior work. In addition, if you can prove that your impairment doesn't allow you to perform a certain skill, Social Security can't say that you could use an acquired job skill at another job. For more information, see our article on ruling out your ability to do work due to lack of skills.
Should I Get a Disability Attorney?
Most disability claims are won at the hearing level. Although you are not required to hire an attorney to represent you at your hearing, an experienced disability attorney has the unique skills and resources needed to be able to successfully cross-examine the VE on the spot -- for instance, after hearing the VE name some other jobs that you can do. In truth, the above recommendations are a summary of the ways you can challenge a vocational expert, but the actually questioning is much more involved. To find a local disability lawyer, you can use our disability attorney locator.