Vocational experts are called to testify far more often than medical advisors. The foundation of their testimony is also far less scientific, or at least verifiable, and therefore subject to far more challenges. Space and time constraints prohibit complete coverage of this topic, but I will try to point out some of the more fruitful areas for VE cross examination.
You will see below the great utility of DOT numbers. There are many cases where DOT numbers are useless, but I have never wanted to kick myself for getting the number. When you need it, you REALLY need it.
The VE’s testimony can harm your client by stating that the exertional requirement of the claimant’s past work is within his alleged limitations, or within a physician’s opinion as to limitations, or at a level which the ALJ might conclude you client can perform. Of course, he may also testify your client (or a hypothetical individual) can perform his past relevant work, or that he can perform other work. If there is evidence that you are confident will convince the ALJ the claimant cannot perform his past relevant work, the burden shifts to the government to produce evidence of specific jobs the claimant can perform. If the ALJ does not meet this burden, you do not want to provide this for him.
4. Always assure that the VE has testified regarding the effect of the claimant’s alleged limitations, if found credible. If they are separable, and/or of varying supportability, ask questions about each limitation, or various combinations.
5. Where you have several medical opinions which would preclude work, ask the VE about each one individually. Sometimes it helps to ask about them in many combinations.
Beware of “composite” jobs, or splitting one job into multiple job titles. This examination requires a detailed description of the job by your client. The work must meet the requirements of recency, duration, and substantial gainful activity. 20 C.F.R. §404.1565, SSR 82-61, SSR 82-62.
Your goal is to assure that the VE notes the presence of all factors of this type which your client can no longer tolerate. Be sure to elicit testimony from the claimant about the heaviest exertion. Do not overlook the fact that constant exertion jumps up an exertional category or two. “Negligible” constant lifting is Light work, even if the lifting never reaches 10 pounds.
VEs often confuse worker traits with skills. A skill “gives a person a special advantage over unskilled workers in the labor market.” SSR 82-41. Skills are acquired ONLY in the performance of a job at the skilled or semi-skilled level. To acquire a skill, the job must be performed long enough to be considered substantial gainful activity. To be considered acquired, the individual must have done the job long enough to acquire average ability at the task. SSR 82-62.
Make sure the VE does not assume the claimant acquired skills from tasks he did not perform. Even if the job, as generally performed, requires performing a task which develops a skill, the claimant must have the skill before the transferability can be established.
If the claimant cannot perform the exact position he held, but can perform the job as generally performed, his claim can be denied at step four. So it is critical to assure the correct job is identified. The ALJ cannot rely on VE testimony that the past work is less strenuous than specified in the DOT. SSR 82-61. Since the focus of this finding is the way the job is performed in the national economy, any testimony by the VE contradicting the DOT can rigorously examine the source of the VE knowledge of the national economy, and his survey techniques can be compared to those used in the preparation of the DOT.
While complete similarity of all the regulatory factors mentioned in 20 C.F.R. §404.1568(d) is not required, all the factors must be considered.
Skill levels of jobs are defined in terms of the time required to learn the job and the complexity of the tasks performed. 20 C.F.R. §404.1568. Both of these elements are included as components of each DOT job description. This makes it vital that you have DOT numbers for jobs identified by vocational experts.
Two elements of the DOT job description help determine the skill level. The SVP, and the worker function ratings.
The SVP, or Specific Vocational Preparation, refers to the training or experience required to perform the job. The DOT defines the SVP levels as follows:
Short demonstration only
Anything beyond short demonstration up to and including 1 month
Over 1 month up to and including 3 months
Over 3 months up to and including 6 months
Over 6 months up to and including 1 year
Over 1 year up to and including 2 years
Over 2 years up to and including 4 years
Over 4 years up to and including 10 years
Over 10 years
The Social Security regulations divide work into three skill levels: unskilled (up to 30 days training), semi-skilled (usually considered SVP 3 and 4), and skilled (SVP 5 and up). SSR 82-41.
Lower level semi-skilled jobs (SVP=3) usually do not give rise to transferable skills. SSR 82-41.
The other part of the skill puzzle is the worker function ratings, which are also part of the DOT description. The worker function rating is denoted by the middle three digits of the DOT number for the job. For these three digits, lower numbers mean greater skills are required for that function. They are interpreted as follows:
0 Setting Up
1 Precision Working
Where a VE testifies that the claimant has skills which would transfer, verify that the worker function ratings are not greater in any digit in the job to which the skills may purportedly transfer.
The worker function ratings may also be useful to demonstrate that work the VE describes as unskilled is at least semi-skilled. A rating of 5 or lower may provide a basis for arguing that the “unskilled” job is semi-skilled. If your claimant has not skills, you should argue he cannot perform this job. On the other hand, if the VE says skills would transfer to a given job, verify that the worker function ratings describe activities of sufficient complexity to make use of skills. If not, you can argue that skills cannot transfer to unskilled work.
The tools and machines used in the job are generally found in the text of the DOT job description. I have reviewed a training manual in wide use at OHA to train ALJ’s in the use of vocational experts, and can find no reference to the requirement that the same or similar tools and machines be used. Nevertheless, I have successfully cross-examined a VE who said my client could transfer skills to a job and demonstrated that the skills cannot transfer because the tools and machines are not similar. I am not aware of any law on this question, so use your imagination.
The similarity of raw materials, products, processes or services can be determined by reference to the MPSMS codes of the respective jobs. These are listed and defined in the Revised Handbook for Analyzing Jobs, published in 1991 by the U. S. Department of Labor. The classifications given to jobs in the DOT, and the list of categories in which jobs are placed, can be found in the Classification of Jobs, Fields and Field (4th Ed., 1992). In most cases where I have used this argument, it has been rather intuitive, but it helps to have a specific numerical classification when arguing that the jobs are not the same in terms of materials, products, processes or services.
Careful reference to the introductory language in the Grid should be made to assure that the VE does not ignore the limitations on transferability presented by advancing age. Refer to Grid rules 201.00(c), (e), (f); 202.00(c), (e), (f); 20 C.F.R. §404.1563(d); and SSR 82-41. The greatest assistance from these rules comes for individuals 55 and older who are limited to sedentary work. Transferability can only be found if there is very little vocational adjustment. Note that age means chronological age, except in the Eleventh Circuit. AR 88-1(11) permits physical condition to be used to demonstrate reduced vocational adaptability consistent with aging, requiring a determination of the effective age of the claimant. In the case on which the ruling was based, Diabetes and carpal tunnel syndrome which reduced manual dexterity were found to require the application of the next higher age category (the claimant was 49 years old at the time).
At times, medical factors can interfere with the transferability of skills. For example, failing vision might preclude the use of blueprint interpretation, carpal tunnel syndrome might preclude word processing, etc. The highly individualized nature of this type of evidence makes it essential that you obtain thorough testimony about the specific skills which are allegedly transferable, and the specific way they will give the worker an advantage in the job to which they are transferred.
Mental limitations can have an even more dramatic effect on the ability to transfer skills than physical limitations. For example, the loss of IQ due to a stroke might prevent transfer of supervision skills, the irritability due to depression may prevent an experienced nurse from being a medical receptionist, etc.
When a VE testifies that your client can perform other work, the most critical task you must perform is to get a DOT number which describes the job. The DOT number is your key to a vast amount of information about the physical, educational and mental requirements of the other work, as well as information about the numbers. The DOT’s job description, SVP and worker function ratings, and the MPSMS (Mips) code have already been discussed. A great deal of specific information about the job functions is available in the various publications of which the Administration takes administrative notice. 20 C.F.R. §404.1566(d). Much of this data is collected and cross-referenced in the Classification of Jobs, Fields and Fields (4th Ed., 1992). (See Exhibit D, attached, for an example). The physical demands are collected for all jobs from the Selected Characteristics of Jobs (SCOJ), published by the U.S. Department of Labor. The physical demands of work are given in some detail, along with the environmental conditions prevailing in the job, and the education required, all taken from the DOT and SCOJ, and the aptitudes required for the job taken from the Guide for Occupational Exploration (GOE). The aptitudes are especially important, as the intelligence required for the job will often exceed that of disability claimants. In the attached example, Cashier II requires intelligence in the middle 1/3 of the population (see Exhibit J). In a recent case I noted that my client’s IQ score of 89 was in the 23th percentile, clearly below what is required for the job.
A thorough review of the COJ may not be possible during the hearing, but can provide a strong post-hearing argument, or support for a post-hearing report from your own expert.
Vocational experts are permitted to give testimony about the existence of named jobs in the national economy with scant foundation for their testimony. If you research it, you will find that even witnesses of whom you have a high opinion testify to job numbers which are easily disproven. In many cases, you will find that ALJ’s will simply ignore the fact that the numbers are disproven and that the witness is impeached. Still, it can be a fun exercise, and if you are lucky, the ALJ will care whether his decision is based upon a pure fabrication. So I highly recommend a job numbers analysis after every hearing where other jobs are described.
I recently filed a brief on behalf of a claimant whose claim was denied based upon VE testimony. The following two sections, quoted from the court brief, illustrate how to use some of the tips given above. The exhibits attached to the brief, and referred to in the sample argument, are attached to this paper.
The ALJ’s decision found that the claimant could perform work as an order clerk, a weave defect clerk and a charge account clerk in reliance on the vocational expert testimony. All three of these jobs have physical demands which exceed the ALJ’s findings according to the DICTIONARY OF OCCUPATIONAL TITLES and SELECTED CHARACTERISTICS OF JOBS (referred to together as the DOT), and the OCCUPATIONAL OUTLOOK HANDBOOK (OOH). These publications are among those of which the Administration has taken administrative notice. 20 C.F.R. §404.1566(d). Vocational Expert testimony regarding jobs a claimant can do is not substantial evidence where it is in conflict with the DOT description of those jobs. Williams v. Shalala, 997 F.2d 1494, 1500 (D.C. Cir. 1993); Campbell v. Bowen, 822 F.2d 1518, 1523 n.3, 1524 (10th Cir. 1987); Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir. 1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984); Rosser v. Chater, 1995 U.S. Dist. LEXIS 10866 (E.D.Pa. 1995).
The DOT descriptions of the three jobs listed by the ALJ are attached. The order clerk job requires that the worker’s motor coordination, finger dexterity and manual dexterity be above the bottom 10% of the population (Exhibit A). And the OOH states that this job involves writing down orders received by telephone or intercom, which seems to require both hands, and states that workers in this job need “good manual dexterity” (OOH p. 236). Yet the ALJ accepted that the claimant’s left hand could not be used at all for any fine manipulation (TR 48). Indeed, it is universally noted by the examining physicians that the claimant has essentially no use of the left hand for these activities. The description states that this job requires frequent reaching, handling and fingering, yet the ALJ stated that the claimant was moderately restricted in reaching, and cannot use his left hand for handling or fingering (TR 47-48). While the undersigned expects that the Commissioner will argue that the vocational expert considered the claimant’s limitations, the testimony of the vocational expert does not reflect that he understood that he was straying from the confines of the DOT. As noted above, several courts have held that the VE may not contradict the DOT. Even if he could, he certainly would be required to explain his deviation and provide support for it.
The second job listed by the ALJ, charge account clerk, similarly excludes the bottom 10% of the population in motor coordination, finger dexterity and manual dexterity, and requires frequent reaching, handling and occasional fingering (Exhibit B). The third job, weave-defect-charting clerk is even more demanding, requiring constant reaching, handling and frequent fingering (Exhibit C).
In assessing the importance of the apparent contradictions in the vocational expert’s testimony, it is important to keep in mind that many claimants who can work are eligible for Social Security disability insurance benefits. The Social Security Act and Regulation define eligibility in terms of the inability to perform a significant number of jobs.
An individual (except a widow, surviving divorced wife, widower, or surviving divorced husband for purposes of section 402(e) or (f) of this title) shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy … . For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
4. U.S.C. §423 (d)(2)(A)(3) (1987) (emphasis supplied). This means that the omission of even the weave-defect-charting clerk job, which requires constant reaching and handling, and frequent fingering, may reduce the available jobs below a significant number. This point is extremely important with respect to the following paragraph as well.
In addition to contradicting the DOT and OOH, the VE testimony contradicts Census Reports data, of which the Administration has also taken administrative notice. 20 C.F.R. §404.1566(d). The ALJ found that there were 557,000 order clerk jobs (TR 21), based upon the vocational expert testimony (TR 48). The Employment Statistics Quarterly contains Census reports on the prevalence of jobs organized by Census codes. The code under which the order clerk job is reported is 276. CLASSIFICATION OF JOBS, FIELD & FIELD; Elliott & Fitzpatrick, Inc. (4th Ed. 1992), p. 1-33 (copy attached as Exhibit D). The Census Reports data does indeed report about 550,000 jobs in this category (copy attached as Exhibit E). But the Census numbers are not all jobs which meet the ALJ’s sedentary unskilled requirements. The number given is for jobs with an SVP (Specific Vocational Preparation) of 3 or less. So some of these jobs are not unskilled, as the vocational expert testified that unskilled work is SVP 1 or 2 (TR 51). More importantly, the category which includes 559,456 sedentary jobs encompasses 21 DOT job titles (Exhibit E), so the number of jobs reported by the VE and adopted by the ALJ is dramatically and vastly over reported.
The numbers the VE and ALJ give for the other two jobs are over-reported for the same reasons. The charge-account clerk job (Census code 316, Exhibit F) was stated to represent 42,000 jobs (TR 21), but it was not acknowledged that this number includes 10 different job titles, some of which are semi-skilled (Exhibit G). The Weave-defect-charting clerk job (Census code 363, Exhibit H) total of 26,000 jobs (TR 21) includes 55 job titles going into the semi-skilled range (SVP=3) (Exhibit I).
The ALJ may not rely upon vocational expert testimony which is contradicted by data of which the Administration has taken administrative notice.
Continue to USING YOUR OWN VE’S AND MA’S.
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