Attacking Vocational Expert Testimony

What Makes a Vocational Expert an “Expert”?

attacking vocational expert testimonyAt what point does a person become a “vocational expert” at the Social Security Administration?

Certainly, one cannot become an expert by testifying.

Experience as witness is not a foundation — that a witness has testified in other cases is irrelevant to the determination of whether she is qualified to give testimony in this case. Elcock v. Kmart Corp., 233 F.3d 734, 744 (3d Cir. 2000) citing Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989) (“It would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.”).

So, what makes that person sitting at the end of the table an expert? A paragraph of the 42-page Vocational Expert Handbook addresses the issue of how a VE is selected:

Criteria for Selection of a VE

A VE must have up-to-date knowledge of, and experience with, industrial and occupational trends and local labor market conditions; the ability to evaluate age, education and prior work experience in light of the residual functional capacity; current and extensive experience in counseling and job placement of adult handicapped people; and knowledge of and experience using vocational reference sources, including the Dictionary of Occupational Titles (DOT), together with any supplements, including Selected Characteristics of Occupations. The VE should have experience in the use of reference sources in developing information about the duties, skills, physical demands and working conditions of jobs; occupationally significant characteristics of jobs; and transferability of skills.

Vocational Expert Handbook, 2d Ed. at 10. (Feb. 2003).

Attacking the VE’s credential, then, should reasonably include analysis of the VE’s placement experience, experience performing job analysis for employers, experience conducting personal job surveys for industry and commerce, and the expert’s knowledge of local, state, and regional industrial directories and other resource materials, including government publications listed in 404.1566 and 416.966 (2011). Those publications are:

  1. Dictionary of Occupational Titles, published by the Department of Labor;
  2. County Business Patterns, published by the Bureau of the Census;
  3. Census Reports, also published by the Bureau of the Census;
  4. Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
  5. Occupational Outlook Handbook, published by the Bureau of Labor Statistics.

Therefore, attacking the VE’s credentials involves determining whether the VE is a placement specialist and a labor market specialist, and more importantly, how those experiences provide the necessary competencies to assist the ALJ in the adjudicative process.

 

Excerpted from the free eGuide Attacking Vocational Expert Testimony, by David Traver. Download the full eGuide for ways to attack the Vocational Expert’s credentials and testimony at your next Social Security disability hearing.

David Traver has Bachelor’s and Master’s degrees in vocational rehabilitation with an emphasis in vocational evaluation. He began practicing disability law in 1992, and has represented hundreds of claimants at the Social Security Administration. Mr. Traver is also the author of the book Social Security Disability Advocate’s Handbook, a comprehensive guide to help you effectively challenge expert testimony, and hosts Social Security Advice CONNECT, at ssaconnect.com.