When the Number of Other Jobs Proposed by the VE Is Not Significant

Most people who are approved for disability benefits from the Social Security Administration (SSA) qualify because they've shown that, as a result of their medical conditions, no jobs exist that they can do. Usually, this means being able to rule out jobs at a disability hearing by successfully cross-examining a vocational expert.

What Is a Vocational Expert?

A vocational expert (VE) is an independent contractor hired by Social Security to aid the agency in getting a better understanding of the job market. VEs usually have a master's degree and a background in vocational rehabilitation—helping people enter or return to the workforce. Many VEs have worked with veterans and other government agencies, such as workers' compensation.

At a disability hearing for SSDI or SSI benefits, the vocational expert has several roles. The VE helps the administrative law judge classify your past relevant work, answers questions about the kinds of jobs somebody with your residual functional capacity could perform, and lets the judge know whether any available jobs exist in significant numbers.

What Is a Significant Number of Jobs?

If a job doesn't exist in significant numbers in the national economy, the judge can't use your ability to perform that job to deny you disability benefits. Unfortunately, the exact amount needed to be considered "significant" isn't defined. However, there are court cases where disability applicants have won on appeal because the VE said they could do jobs that don't exist in significant numbers. For example:

• 9,046 jobs available nationally was considered to be a significant number in Sanchez v. Berryhill (336 F.Supp.3d 174, W.D.N.Y. 2018).
• Numbers "in the ballpark of 10,000 to 11,000 nationwide" have been held significant, but 5,160 jobs are not (Hamilton v. Colvin, 105 F.Supp. 3d 223 (N.D.N.Y. 2015).
• 12,500 was not considered a significant amount in Byrd v. Astrue, Case No. C11-0014-JCC (2012).

These exact numbers can vary by jurisdiction, but it's fairly safe to say that if the VE finds that at least 50,000 jobs are available, that job will be said to exist in significant numbers. When responding to questions about job numbers, most vocational experts will choose commonly widespread jobs such as cashier, small parts assembler, or food and beverage server.

Why Did the VE Say I Could Do Three Jobs at the Hearing?

Part of the reason why a vocational expert is present at your hearing is to answer hypothetical questions from the judge. Hypothetical questions are "what if" scenarios designed to let the judge know what kinds of jobs somebody with certain physical or mental restrictions can do. If the hypothetical restrictions don't rule out all work, the VE will respond with several (usually three) representative jobs that exist in significant numbers nationally.

VEs tend to pick three jobs that cover a broad range of career fields and are widely available so that, if the judge uses their testimony as the basis for a decision, that decision is legally sound. For example, the judge might ask the VE if there are any jobs available for somebody who is limited to medium, unskilled work. The VE could then respond with the job titles of hand packager, laundry worker, and hospital cleaner, along with the approximate number of those positions available in the United States.

What Happens When the Vocational Expert Says There Are No Jobs I Can Do?

Judges tend to ask vocational experts several hypothetical questions ranging from least restrictive to most restrictive. The least restrictive questions have fewer work-related limitations, so it's more likely that the VE will come up with several jobs as a response. More restrictive questions can result in the VE answering that there are no jobs available that somebody with those limitations could perform full-time.

For most disability applicants, the VE will respond with jobs for some questions and that no jobs exist for other questions. This is normal. After the hearing, the judge decides which hypothetical set of restrictions best describes your ability to work. If the judge chooses restrictions that the VE says allow you to work, you'll receive an unfavorable decision. If the judge chooses restrictions that, according to the VE, rule out all jobs, you'll get a favorable decision awarding you benefits.

How Should I Get the Vocational Expert to Say There Are No Jobs I Can Do?

The most frequent—and often, most effective—way to get the VE to say "no jobs" in response to a judge's hypothetical is to show that you're physically or mentally unable to perform any work. For example, if the VE says you can do the job of administrative assistant but you have carpal tunnel syndrome that limits the amount of typing you can do, you can (and should) point to evidence in your medical records that shows difficulty moving your hands.

A less well-known tactic involves challenging the number and source of other jobs quoted by the VE. Your best chance at using this approach successfully is by hiring an experienced disability lawyer, because it can get very technical (and, when done incorrectly, could irritate the judge). But it's useful to have an idea of the questions your attorney may ask the VE about potential jobs—after all, it is your hearing.

Challenging the Numbers of Other Jobs

Sometimes the numbers the VE provides don't pass the smell test. Job numbers are supposed to reflect the amount of available full-time employment, so seasonal, part-time, or temporary positions shouldn't be included in the numbers. Common sense and intuition play a role here—if the VE is listing jobs like snow plow driver, lifeguard, or election clerk, make sure the numbers truly reflect the amount of year-round work available.

You (or your representative) can also ask the VE where the jobs are mostly located. VEs are supposed to state the amount of positions available in the entire country, so if the numbers come from only one or two regions— like pineapple picker in Hawaii, sled dog trainer in Alaska, or alligator guard in Florida—they shouldn't be considered significant.

Bizarre or obsolete jobs aren't usually cited for current employment statistics, but because vocational experts mostly use the outdated Dictionary of Occupational Titles for job descriptions, one might sneak in. For example, it's unlikely that there are significant numbers of elevator operator positions today, so don't let the VE testify that it's a representative job without commenting on it.

Challenging the Basis of the Numbers

Digging a bit deeper might reveal that the vocational expert doesn't have a solid basis for arriving at the number of available jobs. Your lawyer can ask the VE the following questions to determine how accurate the given numbers are:

• What source did you use to determine how many of these positions exist in the nation?
• Did you use the most recent data to determine the job numbers?
• When was the last time you saw this job performed?
• What companies do you know of personally where these jobs exist?

Vocational experts should produce data to support their professional opinions, but if they don't divulge their sources at the hearing, that doesn't necessarily mean their numbers aren't credible. The U.S. Supreme Court decided a case on this issue in 2019 (Biestek v. Berryhill, Docket No. 17-1184), finding that, in certain circumstances, a qualified vocational expert might have a good reason not to present the underlying data.

Appealing a Disability Hearing Denial When the Vocational Expert Says There Are Jobs Available

You can appeal an unfavorable decision following your hearing by requesting review from the Appeals Council. The Appeals Council can review the vocational expert testimony and determine whether the judge made a mistake in finding there are significant numbers of jobs you can do.

In your letter to the Appeals Council, you can discuss the jobs listed by the VE and include any research you've done (using the Bureau of Labor Statistics website) to determine whether those jobs do, in fact, exist in significant numbers nationally.

The Appeals Council doesn't always buy this argument, but it's worth the effort—especially because you'll need to have your case reviewed by the Council before you can go to federal court, where many decisions about what constitutes a "significant amount of jobs" are made (and you might get another chance at a disability hearing).