The 4th and 5th Steps of the 5-Step Sequential Disability Determination Process: Part 1 - The VE




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Attorney licensed in Indiana
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At the fourth of the five-step sequential disability determination, the Administrative Law Judge ("ALJ") relies on VE testimony on a limited basis; at the fifth step, however, the SSA relies heavily on testimony from the VE who forms his or her opinion after reviewing the disability claimant's records and data in the DOT. This testimony is crucial because neither the ALJ nor the claimant possess the ability to analyze the exertion or skill required by particular employment positions, because the categories in the DOT are organized in an exceedingly technical fashion.  Thus, VE testimony serves as the foundational building block of the SSA disability determination process, because, without it, a complete, accurate, and reasonable decision would not be possible.
1. The Vocational Expert
A VE is a consultant who specializes in employment placement and occupational requirements.  Although a VE is hired by the SSA, a VE is neither the SSA's nor the claimant's witness, but rather renders an impartial opinion based on evidence presented at a hearing and the claimant's assigned RFC.  Because a VE bases his opinion on prehearing documentation and oral testimony of the claimant and others, the VE is normally the last witness to testify. The VE's role is to provide an opinion regarding the skill and exertion levels of various jobs, the transferability of the claimant's skills, and the employment positions that the applicant for disability benefits can or cannot perform. The basis of a VE's authority is the VE's credentials. Thus, the SSA holds that an ALJ is authorized to defer to a proposed VE on the ground that the VE has good credentials in a vocational field that is categorized as atypical and complex. The broad deference afforded to a VE is limited by only two safeguards. First, while attempting to strike a balance between fairness and the implementation of an efficient, informal adjudication process, courts have held that VE testimony supporting a Social Security disability proceeding "is not 'substantial' if [that] vital testimony has been conjured out of whole cloth."  The other example of a check on VEs testimony is that if a contradiction exists between the VE's testimony and the data contained in the DOT, the ALJ shall make an inquiry (similar to Rule 702 of the Federal Rules of Evidence ("Rule 702")), to determine whether the VE's testimony is reliable. After a VE testifies and the ALJ asks whether the VE's testimony is in accordance with the DOT, if the claimant does not question the VE's reasoning (even if that reasoning contradicts the data contained in the DOT), then the claimant's right to later question the reasoning is waived. This means that the claimant's attorney needs to be well-versed in the intricacies of the DOT and understand the methodologies used by VEs to form their conclusions.
On appeal, if a claimant wishes to challenge the VE's testimony by arguing that the same claimant did not receive a fair hearing, the claimant must show that the ALJ's behavior, in the context of the whole case, was so extreme as to display clear inability to render a fair judgment.  This is a strict requirement to overcome and does not allow the claimant to attack the reliability of the VE's testimony; rather, the claimant is forced to establish that the ALJ's conduct is of such an extreme nature that a fair judgment is not possible. As mentioned above, the VE's testimony is based on the oral testimony of the claimant, the claimant's RFC for work, and any of the claimant's pre-hearing documentation. The VE takes into account all of this information and then places the assigned limitations into categories within the DOT to determine the types of jobs the claimant is able to perform. Thus, the DOT and the VE's testimony are intricately linked, and because the DOT is the main source upon which the VE's conclusion is based, familiarity with this reference is essential.

Additional Resources

To read more, please follow the below link to my article published in the Valparaiso University Law Review.

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