The Importance of Vocational Expert Testimony at a Disability Hearing

Social Security disability benefits (SSDI and SSI) are awarded to people who have medical conditions that prevent them from working full-time. Most people who apply for benefits have their best chances of getting disability at a hearing with an administrative law judge (ALJ). While ALJs are familiar with the regulations that determine who is considered disabled, they usually need help when it comes to knowing what types of jobs somebody with specific functional limitations might be able to perform.

This is where the vocational expert (VE) comes in. Vocational experts are professionals who have studied employment trends, performed on-site evaluations of job duties, and often help disabled people return to work through rehabilitation programs. ALJs typically need to ask the VE questions about the current labor market and what skills are needed to perform certain jobs in order to see if you’re disabled. It’s important to know what to expect from the VE so that you aren’t surprised by their testimony and can effectively rebut any unfavorable statements.

What Is a Vocational Expert In an SSDI or SSI Disability Hearing?

VEs are people who have professional knowledge, education, and training to interpret data about the number of jobs available (and what tasks are involved in performing them). Although VEs are paid by Social Security, they aren’t agency employees, and must take an oath when being sworn at the hearing that they will provide an impartial opinion when asked. (SSR 24-3p). VEs usually have advanced degrees in relevant fields, like social work or ergonomics, and often work (or have worked) for related government agencies such as workers’ compensation.

Why Is the Vocational Expert Testimony Important?

Ultimately, the ALJ—not the VE—decides whether you’re disabled. But to do that, the judge needs to ask the vocational expert about the impact your residual functional capacity (RFC) has on your ability to work. Your RFC is a set of limitations that describes the most you’re capable of doing, physically and mentally, in a work environment.

ALJs have a general understanding of which limitations in an RFC rule out all jobs, but may need to consult a VE to get more specific information that’s tailored to the facts of the case in front of them. Because VEs know more about job duties and employment data than ALJs do, their opinion about whether any jobs exist that somebody with your RFC could perform can determine the outcome of your case.

What Does a Vocational Expert Do?

As expert witnesses, vocational experts play two main roles—classifying your “past relevant work” and answering the judge’s set of “hypothetical RFC questions.”

Your past relevant work refers to any jobs you've had in the last five years that you held for at least 30 days, and that you held for long enough to learn the job, if it was a semi-skilled or skilled job. Hypothetical RFCs are simply “what ifs” about restrictions that a person might have in the work environment.

Classifying your Past Relevant Work

Usually, the VE will review yourwork history report before the hearing and classify your past work using a Department of Labor publication known as the Dictionary of Occupational Titles (DOT). The DOT categorizes jobs according to their physical demands (the “exertional level”) and their mental demands (the “skill level”). Each job is assigned a specific number called the DOT code.

The judge will ask the VE to provide the DOT codes for your past jobs using information from your work history report as well as any new details you provided during the hearing. Depending on how comprehensive your work history report is, the VE may ask you directly to clarify the details of your job duties.

Here’s an example of a common exchange during vocational expert testimony about past work:

Along with the DOT, the VE has additional software tools (OccuBrowse and Job Browse Pro are the most popular programs) that help determine the number of jobs available under a particular DOT code. Because judges need to decide if jobs exist in significant numbers that a claimant can do, consulting the VE to get these numbers is key.

Answering the Judge’s Hypothetical RFC Questions

Judges ask hypothetical RFCs in order to determine whether any jobs exist that you can do despite your current limitations. Nearly all hypotheticals begin the same way: “Assume an individual of the claimant’s age, education, work experience, and the following limitations.” The ALJ then lists some functional limitations that the judge thinks might best reflect your limitations according to your testimony and your medical record. After describing a set of limitations, the ALJ will ask the VE “Can an individual with those restrictions perform the claimant’s past work?”

The VE compares the hypothetical RFC with the RFC that’s required to perform your past work and answers either yes or no. The judge will then ask “Can an individual with those restrictions perform any other job in the national economy?” The vocational expert either provides names and DOT codes of jobs that fall within the abilities of that RFC, or tells the judge that no jobs exist for somebody with those limitations.

Judges often ask several hypotheticals of the VE because they need to find out how a particular set of limitations affects employability. Here’s an example:

Because of the technical nature of VE testimony, this part of the hearing tends to be more of a conversation between the VE, the claimant’s representative, and the ALJ. Input from claimants is rarely needed.

Vocational Expert Cross-Examination

Don’t be too worried if, during the hearing, the VE lists several jobs in response to an ALJ hypothetical question. At this point, the hypothetical questions are still just “what-ifs.” When writing the decision, the ALJ will choose which hypothetical RFC best represents your limitations. If you have an RFC that rules out all work, the judge will write a favorable decision (an approval).

You still can—and should—challenge the VE testimony at the hearing in a process called cross-examination. If you have a representative, your attorney will be allowed to ask the VE follow-up questions after the ALJ has finished. Your attorney will try to rule out any jobs that the VE listed in response to the ALJ’s hypotheticals, often by including some limitations that the judge left out.

Here’s an example of how your attorney might cross-examine a VE:

Conducting a successful cross-examination as a claimant is very difficult. You need to know how to combine multiple impairments under Social Security law and have experience with disability hearings to ask questions that will successfully rule out all the jobs the VE said you could do.

Conflicts Between Vocational Testimony and the DOT

VEs are required to discuss any discrepancies between how the DOT classifies jobs and their own opinion on how the job is performed in actuality, rather than theoretically. For example, many hypothetical RFCs involve a “sit-stand” option to relieve pain, which isn’t discussed in the DOT. If the VE were to take the DOT description at face value, that means many hypothetical jobs would be available to people who are unable to perform the required movements, resulting in unfair denials to those who are expected to do jobs beyond their RFC.

As part of the VE testimony, most ALJs ask the VE to explain any part of their testimony that conflicts with the DOT. Because the DOT job descriptions can be quite outdated, it’s generally acceptable for VEs to state on the record that they’ve resolved the conflicts based on their education, experience, and training. This typically involves the VE’s observations on how employees perform the job, as well as occupational surveys.

What Happens When the Vocational Expert Says No Jobs Are Available?

Many disability claimants who’ve received unfavorable decisions after a hearing are confused about getting the denial, pointing to the fact that the VE said that “no jobs are available” in response to an ALJ hypothetical. Practically speaking, the vast majority of hearings will result in multiple hypothetical questions, some of which result in jobs and some of which don’t.

Remember that the VE’s testimony at the hearing stage is still responding to a “what if” scenario from the judge. ALJs usually ask a wide range of hypothetical questions, so that they have multiple options to choose from when they make a decision on your case. (Perhaps additional medical evidence comes in after the hearing that supports a more restrictive RFC, for example.) Just because the VE says that no jobs exist in one situation doesn’t mean that the judge will agree that the situation applies to you, so don’t put too much stock into a favorable response to one hypothetical question.

That said, there are times when the VE saying that no jobs are available is a good sign for your claim—namely, if the judge asks a single hypothetical question and the VE responds that no jobs exist that somebody with those limitations could perform. In that case, the ALJ probably already thinks that these limitations best describe your current health impairments and therefore doesn’t need to ask additional hypothetical questions.

Do I Need an Attorney With Me at the Hearing?

You aren’t required to get a lawyer, but it’s a wise move—especially if you have a complicated work or medical history that requires extensive VE testimony and cross-examination. To avoid losing your hearing based on the VE's testimony, consider getting legal help with your Social Security claim. Disability attorneys work on contingency (meaning they don’t get paid unless you win) and many offer free consultations, so don’t hesitate to ask around to find a lawyer who’s a good fit for your needs.