When the vocational expert (VE) at your disability hearing agrees that you can no longer do your customary work, the VE may name alternative jobs that he or she thinks you can do. These alternative jobs are known as "suitable other work." The VE will state the number of positions in the local and national economy there are for that job. For instance, the VE might say the claimant could do the job of "sorter," of which there are 120,000 jobs in the national economy. But if the job doesn't exist in significant numbers (this refers to both filled and unfilled positions, not just job openings), it can't be considered an alternative job that you could do—because you couldn't be expected to find a job opening.
Social Security hasn't defined the term “significant numbers of jobs” (SNOJ), so it can be 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 an appeal based on the VE's using an insufficient number of other jobs, so it is a technique worth trying.
For example, in one case, the judge found that 5,160 jobs nationally was not enough and stated that "numbers of jobs in the ballpark of 10,000 to 11,000 nationwide have been held significant." (Hamilton v. Colvin, 105 F.Supp. 3d 223 (N.D.N.Y. 2015).)
In another case, the VE testified that someone with the claimant's restrictions could do the job of surveillance systems monitor, a very common job for VEs to cite in the past. The VE testified, however, that there only were 135 positions regionally and 1,680 positions nationally, and the federal appeals court found that this was not a significant number of jobs. (Beltran v. Astrue, 700 F.3d 386 (9th Cir. 2012).)
Finally, in a third case, the VE testified that there were 12,500 assembler jobs at the national level, but only 110 assembler jobs in the local economy. The ALJ agreed that these numbers were “significant” and denied the disability claim. But the disability claimant appealed the denial and the federal district judge disagreed with the ALJ, finding that the 12,500 jobs in the national economy was not a significant number. (Byrd v. Astrue, Case No. C11-0014-JCC (2012).)
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 either from the region where the claimant lives or from multiple regions in the country (the "national economy"). 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:
It is an open question whether vocational experts have to produce data to support their professional opinions. The U.S. Supreme Court will hear a case on this very issue in 2018 (Biestek v. Berryhill, Docket No. 17-1184) and is expected to render a decision by June 2019.
If you are denied disability after the hearing based on your ability to do other jobs, and you don't have a lawyer, you can 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 a recent disability case that was overturned due to the vocational expert's job numbers.
Previous Work Must Also Exist in Significant Numbers
The significant number of jobs test also applies to whether you can do your previous work, although the issue comes up much less often. In a Supreme Court case from 2003, the claimant worked as an elevator operator until her job was eliminated, at which point she applied for disability due to heart disease and cervical and lumbar radiculopathy. The ALJ at her hearing said that she could still do her job as elevator operator and that it didn't matter that it no longer existed in significant numbers. The Supreme Court disagreed, and found that previous work must exist in significant numbers if Social Security is to deny disability based on the ability to do previous work. (Barnhart v. Thomas, 540 U.S. 20 (2003).)
By Melissa Linebaugh, Contributing Author