A Brief Introduction to Vocational Expert Testimony

Selections from Social Security Disability Advocate's Handbook, Chapter 19

Social Security Disability Advocate's Handbook

A vocational expert’s most important function in a Social Security disability hearing is to determine which jobs the applicant for disability benefits can do and how many of these jobs exist for the claimant. 20 C.F.R. §§ 404.1566 (b), (e) (2011); Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002); Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (per curiam).

Attacking the VE’s credentials involves confirming 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. It is typically fruitless to attempt to show the VE does not meet Social Security’s minimum standards to be a VE, as those standards essentially do not exist.

Typically, bare bones answers given by a VE at a hearing leave the listeners in the dark about how the VE knew, the actual basis for the testimony. Ragsdale v. Shalala, 53 F.3d 816, 821 (7th Cir. 1995). Thus, intense focus should be placed on answering the question, “how does the VE know?”

In Donahue, the Court of Appeals “asked the parties at oral argument what makes a vocational expert an ‘expert’ (and where the information in the Dictionary [of Occupational Titles] came from). They did not know. Maybe both the authors of the Dictionary and the vocational expert in this case are talking out of a hat.” Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002).

. . .

Why bother? Donahue, a Seventh Circuit case, explains why:

Rule 702 of the Federal Rules of Evidence provides that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” This substantially codifies the holdings of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), and its successors. Rule 702 does not apply to disability adjudications, a hybrid between the adversarial and the inquisitorial models. See Richardson v. Perales, 402 U.S. 389, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). But the idea that experts should use reliable methods does not depend on Rule 702 alone, and it plays a role in the administrative process because every decision must be supported by substantial evidence. Evidence is not “substantial” if vital testimony has been conjured out of whole cloth. See Peabody Coal Co. v. McCandless, 255 F.3d 465 (7th Cir. 2001); Elliott v. CFTC, 202 F.3d 926 (7th Cir. 2000). Even in court, however, an expert is free to give a bottom line, provided that the underlying data and reasoning are available on demand. Fed. R. Evid. 704(a). That’s what the vocational expert did here. Presented with a statement of Donahue’s abilities and limitations, the vocational expert produced some job titles and numbers. At this point the expert could have been cross-examined (Donahue was represented by counsel) about where these numbers came from, and why the expert’s conclusion did not match the Dictionary’s. Holding out this opportunity is an approach deemed adequate in Richardson v. Perales. Yet counsel did not ask the vocational expert about the genesis of the numbers or the reason for the discrepancy.

What, then, happens when the discrepancy is unexplored? When no one questions the vocational expert’s foundation or reasoning, an ALJ is entitled to accept the vocational expert’s conclusion, even if that conclusion differs from the Dictionary’s — for the Dictionary, after all, just records other unexplained conclusions and is not even subject to cross-examination. If the basis of the vocational expert’s conclusions is questioned at the hearing, however, then the ALJ should make an inquiry (similar though not necessarily identical to that of Rule 702) to find out whether the purported expert’s conclusions are reliable.

Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (emphasis added).

Pay close attention to the highlighted portions of this quotation from Donahue.

Note that Donahue discusses a “‘substantial evidence’ standard.” That is one of the correct standards for federal court review of an ALJ’s decision. However, at the hearing do not argue “substantial evidence. The correct standards there is preponderance.” See §202.

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§1900.4.2 Work as a “Professional Expert” Does Not Make a Person an “Expert”

Keep in mind that an expert does not become an “expert” by testifying in court or at hearings. Consider these non-Social Security cases on point:

Experts also run the risk of becoming “nothing more than an advocate of policy before the jury” In re Air Crash Disaster, 795 F.2d at 1233. The evidence as stated to the Court is to the effect that Mr. Alterman for years had testified as an expert in at least 15 different areas. Those areas of alleged expertise include construction safety; scaffolding; bulk oil terminals; bridges; cargo waterfront terminals; high rise construction; construction of highways; construction of race tracks; the field of construction management; and construction drainage problems; amongst other areas of alleged expertise. Thus he is more a professional witness than an expert in crane defects. The Court understands that such a practice in effect makes the proposed witness an expert only for the party which employs him, rather than an objective expert witness. An expert witness should never become solely one party’s expert advocate nor a “gun for hire.” Rather, an expert witness should be an advocate of the truth with testimony to help the jury and the Court reach the ultimate truth in a case, which is the basis of any verdict.

As the Fifth Circuit has noted, the professional expert is a commonplace phenomenon in modern litigation. In re Air Crash Disaster, 795 F.2d at 1234. The fact that a person spends substantially all of her time consulting with attorneys and testifying in trials is not a disqualification, but it is not an automatic qualification guaranteeing admission of expert testimony. Experts whose “opinions are available to the highest bidder have no place testifying in a court of law, before a jury, and with the imprimatur of the trial judge’s decision that she is an ‘expert[,]’” and the trial judge must decide whether the signs of competence and of the contribution of the proposed expert will aid in clearly presenting the dispute. Id. at 1234. Further, this court refuses to join the many other judges that give into “the temptation to answer objections to receipt of expert testimony with the shorthand remark that the jury will give it ‘the weight it deserves.’” In re Air Crash Disaster, 795 F.2d 1230, 1233 (5th Cir. 1986).

Tokio Marine & Fire Ins. Co. v. Grove Mfg. Co., 762 F. Supp. 1016, 1018 (D.P.R. 1991).

Although it would be incorrect to conclude that Gordon’s occupation as a professional expert alone requires exclusion of her testimony, it would be absurd to conclude that one can become an expert simply by accumulating experience in testifying.

Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 800 (4th Cir. 1989).

We note that the mere fact that Copemann was previously admitted as an expert witness qualified to give testimony on vocational rehabilitation is irrelevant to the determination whether he is qualified to give such testimony in this case. See 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.”). Moreover, while any expertise he may have gained in performing vocational rehabilitation assessments in these cases would be relevant, the crucible of litigation makes for a poor classroom.

Elcock v. Kmart Corp., 233 F.3d 734, 744 n.5 (3d Cir. 2000).