In December 2022, a Washington Post article recounted the story of a man who was denied Social Security disability benefits based on vocational expert testimony that he would still be able to perform work as a nut sorter, dowel inspector, and egg processor despite his limitations.¹ None of those jobs exist in the national economy, as is the case for many other jobs routinely cited by vocational experts to deny claims.²

It is safe to say that during the past decades, technological advances and a shifting American economy have revolutionized the labor market.³ The recent COVID-19 pandemic then dramatically changed it once again. So why is the Social Security Administration (SSA) continuing to use job titles from the 1990s to deny claims?

Since the Social Security Act was enacted in 1935, amendments have been made to further its purpose of providing a safety net to millions of Americans unable to work due to old age or disability.⁴ These include creating Social Security disability insurance (SSDI) and supplemental security income (SSI) cash benefit programs. However, the meaning of disability is not how we colloquially or even medically understand the term.

Social Security regulations define “disability” as “the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”⁵ In operation, a claimant meets this definition of disability if she has a medical impairment or a combination of impairments at a level of severity described in the regulations. This happens infrequently.⁶

More often, after the claimant seeking SSDI or SSI benefits proves she no longer has the residual functional capacity to do relevant past work due to medical impairment, the SSA — or the administra tive law judge at the hearing on appeal — will find the claimant disabled only if there are no other jobs that exist in significant numbers in the national or local economy the claimant can still do.⁷ Thus, proving there are still jobs out there is the SSA’s burden to bear.

In recent years, meeting that burden has often taken the form of testimony from a vocational expert hired by the SSA to address this decisive question at hearings.⁸ Vocational experts (VEs) are professionals with educational training and work experience often in, or related to, the field of vocational rehabilitation. However, limitations to vocational expert testimony beg the question of whether VEs actually provide valuable data to administrative law judges making Social Security determinations or whether, in most cases, VEs simply create the illusion that the SSA has met its burden in proving job exists for the claimant.

PROBLEMS WITH EXPERT TESTIMONY

Flawed and outdated Dictionary of Occupational Titles

VEs are required to use the Dictionary of Occupational Titles (DOT) when rendering opinions, among other resources.⁹ The DOT — a collection of occupations published by the U.S. Department of Labor with descriptions of their duties, exertional and educational requirements, the amount of training required, and more¹⁰ — was last updated between 1977 and 1991.¹¹ In many instances, jobs no longer exist, have different requirements, or are done differently altogether. Although the Department of Labor replaced the DOT with a new system called O*Net, Social Security regulations still use the DOT.¹² In recent years, the SSA has been developing a new occupational information source known as the Occupational Information System. Its launch date is unknown.

No prior knowledge of expected testimony

In addition to outdated jobs information, VE testimony often varies from expert to expert and is difficult for attorneys to challenge at hearings due to the lack of prior knowledge of what the expert will say. In most instances, there is no opportunity to depose a VE prior to the hearing. Instead, practitioners must risk asking questions that may result in unfavorable testimony. Often, the only way to know in advance what the expert will say — and thereby giving an attorney a window to a question without hurting their client’s case — is familiarity with the VE from past cases.

Lack of foundation for expert testimony

It is unclear whether there is an informed science behind VE testimony relating to the numbers of jobs in the economy for an occupation, particularly those from the DOT that are nearly obsolete. Through their education and work experience, VEs generally have expertise in assessing vocational opportunities. However, they must rely on other sources for information regarding employment statistics. The best source of job data is the Bureau of Census and Bureau of Labor Statistics, and yet VEs often do not use them or use them incorrectly.¹³

HOW CAN PRACTITIONERS MEET CHALLENGES?

Given the challenges created by VE testimony, competent representation of Social Security claimants requires the knowledge and skill to effectively cross-examine these expert witnesses. So, how does one do so? While effective cross-examination is situation-specific, here are some other common strategies to consider.

Modify the hypotheticals

The administrative law judge first conducts a direct examination of the VE by presenting a series of hypotheticals on which the VE renders an expert opinion. The VE is asked to consider a hypothetical person with the claimant’s residual functional capacity and vocational background and opine whether there are jobs such a person may still perform. Customarily, there are three main hypotheticals with either an ascending or descending number of physical limitations; the hypotheticals may then be further modified to account for non-physical limitations.

“There are no jobs” is the desired testimony. Short of this testimony, the VE warrants cross-examination to fully develop the record since there is no certainty about which hypothetical the administrative law judge will find most representative of the claimant based on the record. Listening intently to the judge’s hypothetical is a critical first step to developing effective cross-examination questions.

What to listen for? Listen for whether limitations are supported by the record and whether additional limitations should be included. Listen for the severity of a limitation; perhaps the record supports finding that the claimant can only lift with her dominant hand occasionally whereas the hypotheticals indicate frequent lifting. Adding a limitation that is not initially included or adjusting its severity may be all that is needed to get the desired VE testimony.

Move beyond leading questions

To seasoned civil litigators, effective cross-examination entails a thorough understanding of the witness’s anticipated testimony before the hearing. Then, by default, any questions asked on cross-examination are framed as leading questions to control that witness’s testimony. In a Social Security practice, it is unlikely the claimant or counsel would have an opportunity to depose the VE prior to the hearing, so deviating from leading questions may be wise. This is particularly true when the VE testifies on jobs that are unfamiliar or unexpected. In those instances, targeted questions that put the VE to task — such as asking about job duties and its non-exertional demands — may uncover inconsistencies on cross or yield details that can be used to fact-check the VE’s test-imony post-hearing. Should counsel discover issues during her fact check, they may provide the basis for a post-hearing memorandum from the judge or an appeal.

Ask about non-exertional limitations

The VE must ensure her testimony is consistent with the DOT and note any deviations from it with the reasoning for the deviations.¹⁴ The DOT largely fails to account for the mental and cognitive demands of listed occupations; in relying on the DOT alone, the VE’s testimony primarily accounts for the physical demands of a job. This may be sufficient in circumstances in which the claimant’s medical impairments are strictly physical in nature, but it is inadequate when mental and/or cognitive conditions also play a role in the claimant’s life.

For instance, a claimant may have difficulty maintaining concentration, persistence, and pace in completing tasks. Another example is a claimant with poor short-term memory that makes it difficult for them to follow even simple oral instructions. Therefore, cross-examining the VE to inquire about a job’s mental and/or cognitive demands may take that job off the table if the claimant is unable to meet those demands.

Consider postural accommodations

Though the DOT considers many exertional limitations of described occupations, it is not exhaustive; specifically, it does not address the ability to accommodate postural limitations. One example is the need for a sit/stand option. Some claimants who suffer from physical ailments may not be able to sit for 6-to-8 hours with only standard scheduled breaks as required by a sedentary job. Rather, the claimant may need the flexibility to stand and change from a seated position for a variety of reasons, such as avoiding muscular or joint stiffness or spasms. The opposite could also be true for a job in which someone could do light work and a fair amount of standing and walking, but the claimant needs more opportunities to sit down and perform their work in a seated position to lessen the effects of fatigue. Still others, particularly those with back or spine conditions, may need to be in a reclined position during most of the day to help alleviate pain. Cross-examining the VE to assess a job and the ability to accommodate postural flexibility may expose barriers to successful employment.

The impact of being off task and absenteeism

An implied component to a disability determination is that the claimant not only has the capability to successfully meet the demands of a job on any given day but can do so competitively for eight hours a day, five days a week, and week after week.¹⁵ Remaining on task and performing work at a pace acceptable to the employer is an important consideration. Being off task could be for any number of reasons, such as more frequent restroom breaks for those with gastrointestinal illnesses, snacking and testing breaks for those with poorly controlled diabetes, or drowsiness caused by opioid pain medication.

Related is the issue of absenteeism, which could result from either physical or mental factors. An individual with cancer experiencing the effects of chemotherapy may be too fatigued to get out of bed in the days following treatment. Similarly, a claimant suffering from severe depression may have a few bad days during the month that keep them bedbound. Some VEs have testified that employers in a competitive job market may tolerate as little as one absent day a month, while others have testified to no more than two absences. Cross-examining the VE to establish on the record these employer expectations could sway the administrative law judge’s decision to approve a disability claim. Regardless of the types or number of jobs a VE may testify that the claimant can physically or mentally perform on a given day, the claimant must be able to sustain the work and meet minimum employer expectations regarding reliability and work pace.

CONCLUSION

Vocational expert testimony often determines whether claimants receive government benefits they so desperately need while managing the disabling effects of their health conditions. Despite the gravity of the outcome, a fair disability determination is hindered by a flawed system that prejudices the claimant.