Questioning the VE's Testimony About Other Work at a Disability Hearing

Being able to challenge a VE's proposed jobs at a disability hearing is key to winning your claim.

By , Attorney · Seattle University School of Law
Updated 10/04/2022

One of the most important steps in winning your claim for disability benefits is being able to show that you're unable to perform not only your past work, but any other work in the national economy. If the Social Security Administration thinks that enough jobs exist in significant numbers that you can currently perform, your application for benefits will be denied.

Most disability applicants ("claimants") aren't awarded benefits until after they have a hearing in front of an administrative law judge (ALJ). At the hearing, the ALJ will ask a vocational expert two or three hypothetical questions. Hypothetical questions are "what if" scenarios where the ALJ asks if a claimant with a particular set of restrictions can perform any type of job.

Does the Vocational Expert Decide Whether I'm Disabled?

Ultimately, the ALJ decides whether you're disabled. But because ALJs aren't experts in employment statistics and job requirements, they often need an opinion about these topics from a vocational expert (VE). The VE knows more about job duties and employment data than the ALJ does, so their answers to the judge's hypothetical questions can affect the outcome of your case.

Does the ALJ Always Agree With the Vocational Expert?

Disability attorneys are used to hearing "Why did the VE say I could do 2 jobs?" from their clients after a disability hearing, or "But the VE said I couldn't do any jobs!" when the client has received an unfavorable decision. But talking about whether the ALJ agrees or disagrees with the VE isn't quite accurate, because the VE isn't testifying directly about your abilities.

The judge decides what your residual functional capacity (RFC) is and uses the information from the VE testimony to determine whether you're disabled under Social Security's rules and regulations. Your RFC is a set of restrictions that reflects the ALJ's opinion—based on your medical records—about the most you're capable of doing, physically and mentally, within a work environment.

During VE testimony, judges often ask a range of questions that reflect your potential RFC, often starting with the least amount of restrictions and ending with the most restrictions. When questioned about an RFC with only a few restrictions, the VE might name two or three jobs that someone with that RFC could do. The most restrictive RFCs often end with the VE stating that "no jobs would be available for somebody with those limitations."

For example, the ALJ can ask the VE if any work exists for somebody who can lift only 10 pounds. The VE might respond with two or three jobs, like mail clerk, assembler, or lens cleaner. If the ALJ thinks you can lift 10 pounds, you'll get an unfavorable decision stating that you can perform those representative jobs. But if the ALJ decides that you can't lift more than 5 pounds and the VE says that limitation would rule out all work, the ALJ will write a favorable decision stating that no jobs exist that you can do.

How Do I Challenge the VE's Testimony?

You have the right to ask the vocational expert follow-up questions in a process known as cross-examination. While it can feel strange to have the ALJ and the VE talk about you in hypothetical terms as if you aren't sitting in front of them, resist the temptation to interject during that part of the hearing. When the VE begins listing jobs in response to the ALJ's hypothetical, don't blurt out "I can't do that job" or bicker with the VE. Knowing when and what to ask the VE on cross-examination can help increase your chances of getting your disability claim approved.

Challenging the Requirements of Suitable Other Work

The most common—and most successful—method of challenging VE testimony is by arguing that you can't perform the mental or physical requirements of the suggested jobs.

Vocational experts use a Department of Labor publication known as the Dictionary of Occupational Titles that classifies every job according to how demanding the work is physically (the "exertional level") and mentally (the "skill level"). Each job is assigned a specific number called the DOT code.

A VE will provide the names, exertional levels, skill levels, and DOT code of any jobs that fit the requirements of the judge's hypothetical RFC. Additionally, the VE will tell the judge the estimated number of jobs that are available nationally for a specific DOT code. For example, the VE might say "cashier II, DOT code 211.462-010, light exertional level, skill level 2, approximately 200,000 jobs in the national economy."

After the ALJ has finished asking all hypothetical questions, you (or your representative) will have the opportunity to question the VE about the jobs they identified. Attorneys often use this time to attempt to rule out any jobs that the VE listed by including some limitations that the judge didn't mention.

Here's an example of how an attorney might rule out the cashier job:

Sometimes, additional restrictions may rule out some of the jobs that the VE mentioned, but not all of them. If this is the case, you or your representative should be ready with additional limitations—backed up by medical evidence—that would eliminate all work.

For more information, see our article on how disability judges use hypotheticals at a hearing.

Challenging Other Work Due to Lack of Transferable Skills

If Social Security previously denied your claim because the agency mistakenly thought you learned skills from your past job that would help you perform a different job (called "transferable skills"), you can use the VE to correct the mistake.

Whether you have transferable skills plays an important role in your disability claim if you're over the age of 50 and might be able to take advantage of the medical-vocational grid rules ("the grid" for short).

You can show that your past work experience didn't provide you with transferable skills in a few ways:

  • your past work as you performed it was "unskilled"
  • your past work doesn't qualify as substantial gainful activity
  • you didn't work long enough at that job to obtain any skills, and
  • you acquired skills, but your medical condition prevents you from using them.

Make sure that, for each of your past jobs, the VE knows the specific job duties that you performed and how long you performed them for. Job titles alone aren't always sufficient. For example, describing your job as "manager" doesn't reflect whether you managed a coffee shop or a warehouse, or if you were a "working manager" who was on the floor instead of in an office off-site. These distinctions can make the difference between having transferable skills or not.

For more information, see our article on ruling out your ability to do work due to lack of skills.

Challenging the Number of Positions of Other Work

Social Security's definition of "other work" means work that exists in significant numbers in the national economy. The ALJ can't find you disabled if the only jobs you could perform are too rare or regional (like breeding sled dogs in Alaska.)

When the VE identifies jobs in response to an ALJ's hypothetical, they must include the number of full-time positions in the national economy for that job. What constitutes a "significant number" of jobs is difficult to define, but broadly speaking, if the VE states that fewer than several thousand jobs exist nationally, you might want to ask the VE for the source of those numbers.

Common sense and intuition can play a large role in knowing when to question the VE on the number of positions. For example, if the VE lists seasonal jobs such as election clerk, school bus driver, or even tanning bed operator in response to a hypothetical RFC, you or your representative should follow up and ask if those jobs are truly full-time. You might get the VE to reduce the number of available jobs below the amount of what the ALJ considers significant.

For more information, see our article on how challenging the VE's number of jobs as insignificant can lead to being found disabled.

Should I Get a Disability Attorney?

Most disability claims are won at the hearing level. You're not required to hire an attorney to represent you at your hearing, but there are many advantages to having one.

An experienced disability lawyer will know how to phrase hypotheticals and have the skills needed to successfully cross-examine the VE on the spot. VE cross-examination is often not as clear cut as the above examples—the questioning can become much more involved, and sometimes even contentious.

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