Social Security Disability Hearings: How the Vocational Expert Can Affect Your Case

During a Social Security disability hearing, vocational experts routinely assist the Social Security Administrative Law Judge in determining whether there is work available in the national economy which

a particular disability claimant can perform. The disability attorney will also use the vocational expert in an attempt to show that the disability claimant's severe restrictions prohibit his or her ability to engage in competitive employment.

The federal district courts have noted that vocational experts are persons who have, through training and experience in vocational counseling or placement, an up-to-date knowledge of job requirements, occupational characteristics and working conditions, and a familiarity with the personal attributes and

skills necessary to function in various jobs. In providing their testimony, vocational experts rely in part upon the Dictionary of Occupational Tables which is a reference published by the U.S.Department of Labor that lists and describes various jobs. Its use in the disability review process is authorized by regulation 20 C.F.R. § 404.1566(d.).

One of the issues that many disability attorneys have with the disability hearing process is with the testimony provided by the vocational experts regarding the number of jobs available in the national or regional economy. The jobs identified by vocational experts during the disability hearing a lot of time simply do not exist. Specifically, there apparently is no data,updated on a regular basis, available through either a public or private source that reports numbers of jobs by DOT code number.

Some federal district courts have recognized this criticism and noted the fundamental with the structure of the social security regime. See Jon C. Dubin, Overcoming Gridlock: Campbell After A Quarter-Century and Bureaucratically Rational Gap-Filling in Mass Justice Adjudication in the Social Security Administration's Disability Programs, 62 Admin. L. Rev. 937, 966 (2010) (“[T]here are no prescribed standards for job incidence or non-DOT job characteristics evidence and this evidence is often produced through questionable job data and unreliable methodologies.”); Nathaniel O. Hubley, The Untouchables: Why A Vocational Expert’s Testimony in Social Security Disability Hearings Cannot Be Touched, 43 Val. U. L. Rev. 353, 393

(2008)(“With the seemingly high degree of deference given to the ALJ with regard to evidentiary matters and the relatively broad credibility granted to the VE’s testimony, the question bound to arise is whether an adequate level of fairness is afforded disability claimants.”).