I see this question a lot: How to cross-examine a Social Security Vocational Expert? Especially when the claimant decided to go to a hearing without an attorney.
The main reason I tell my readers to hire an attorney is because of how tricky it can be to cross-examine a vocational expert (let’s call him “VE“- and I will use “he” for easier reading).
There are nuances from the behavior, words, gestures and other statements the VE does that only an experienced attorney can pick up. It takes dozens of hearings for a new disability attorney to become “good” at cross-examining the VE.
The rules of civil procedure are slightly different at these disability hearings.
Most attorneys starting on this practice have to learn to ditch a lot of their knowledge about Civil Procedure to adapt to this “new system” of cross-examination.
I consider myself a smart person, but it took me a while to learn to “read” VEs properly. It was tricky to know when to say something and when to just “shut up“. Or know when the VE’s words were actually helping my client.
So imagine how tricky it can be for an unrepresented claimant to try to do that when seeing a VE for the first time?
Without any experience on what to do and what to ask you will never know if you are hurting your claim with the things you are saying or asking.
But who exactly is a Vocational Expert? What is he there for?
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The Vocational Expert is a “neutral” person hired by Social Security to conduct an impartial analysis of a person’s ability to work.
His analysis is based on the medical and functional capacity evidence presented to him prior to and at the hearing.
If you wish to learn more about medical records, please read my posts about medical records to learn more about improving them for a winning claim. You would be surprised by how many claimants have severe diagnosis only to find out their records don’t show any of that on paper.
Anyway, the VE is typically a professional specialized in “job placement”.
He is usually familiar with vocational rehabilitation and with locating jobs for people with and without disabilities. His function is to provide expert opinion as to a claimant’s functional capacity based not only on the records provided but also based on a claimant’s testimony at the hearing.
He will use the “Dictionary of Occupational Titles” (or DOT Code) to locate the jobs you performed in the previous 15 years before you stopped working. And he will also try to find potential jobs you could do with your current limitations.
How does the VE know what jobs I did in the past?
Remember the “Work History Report” form you completed when you first filed your claim?
That’s where the VE gets that information. Then he will use the DOT Code to find those job titles you listed, locate their assigned DOT number and pinpoint their physical, mental exertional level.
That same job title will also indicate the level of education required to perform that job and the transferability of skills.
The whole purpose of that is to see if you can do any of your old jobs or something else with the skills use learned from those jobs.
The VE will do that for each job you listed in your Work History Report.
How does the VE find new jobs I can do?
Once the VE figures out what your current limitations are, he will match those limitations against jobs available in the national economy to find jobs you could potentially do.
Say you were a nurse.
You had a lot of heavy-duty work: lifting patients, moving beds, long hours standing, lots of charting to do, calculating medication dosages etc. But you listed in your Work History Report that before becoming a nurse you were a receptionist in a medical office.
Now, let’s say you have a bad back and a hurt shoulder and now you are in front of the VE and he is analyzing your records and your current physical abilities. He may find in the DOT Code that you can do the receptionist job you used to do before. Or he can also find that you could be a “triage nurse”.
Those jobs are much easier and potentially sedentary and will not require all the lifting and heavy-duty physical requirements of your job as a nurse.
Unless, you can skillfully cross-examine the VE and demonstrate that “there is no way” you can do even those easier jobs, the judge may find that you are not disabled.
All because he will learn from the expert, that there are jobs you can do even with your physical limitations.
How the Judge Cross-examines the Vocational Expert
After taking your testimony and asking all the questions he had for you, the judge will then turn to the VE to ask questions about your ability to work.
The judge usually starts with “scenarios” where he describes a person with certain characteristics, abilities, and limitations to see if the VE will find jobs that the person can do.
These scenarios are based on functional limitations found throughout your medical records.
He will also use the functional capacity reports created by those Social Security doctors you visited in the earlier stages of your claim. If you obtained Residual Functional Capacity Reports (RFC) completed by your doctor(s), he will also use those to ask questions to the VE.
In his “scenarios” he will use the word “individual”. And that’s where things get confusing for an unrepresented claimant.
Even when represented, a claimant has no idea what is going on in this part of the hearing.
The difference is, that claimant has an attorney who knows exactly what’s up and who is trained to sift through all the “gibberish” and “alarming” things the claimant is hearing at that moment.
I can see in the face of my clients (and you can never prepare them for this) the look of confusion when they hear all the jobs the VE is initially proposing.
All because they don’t know how this part of the hearing works. I usually assure them that it is part of the process but it is still scary for them.
So, How do these scenarios really work?
The judge will start with the least restrictive scenario to see if an “individual” with those restrictions can work (notice he doesn’t use the claimant’s name).
The judge will often start with the RFC created by the consultative examiners from Social Security (or CEs) when you were examined.
The judge’s questions usually sound like this:
“An individual who is 46 years old and who can sit for 6 hours in an 8 hour day and who cannot kneel, walk up stairs and has a lifting limitation of no more than 10lbs. Can that individual perform any previous activities performed by the claimant??
Note that even though the judge won’t use your name, he will use your age and information from the Work History Report and the RFC by the CE for that first scenario.
The VE in this situation often comes back with some jobs that the person can do because these restrictions are not that, well, restrictive.
Usually, the VE will find a job you used to do in the old days if you did other jobs within the last 15 years before filing. Other times, he will find jobs you never did but where your skills could transfer to those jobs because of your education and training.
This is the moment most claimants panic because they hear that there are jobs they can do but don’t realize this is just a “what if” scenario to establish restrictions.
An untrained claimant will often start talking and interrupting the judge, sometimes causing him to tell the claimant to stop talking.
That tends to irritate the judge and that is never a good thing.
This is the moment where a trained attorney would know to “shut up” and this is the moment when represented claimants think their attorney did nothing for them.
Because they are not trained in the “art” of doing disability hearings, some claimants will interpret the attorney’s silence as “incompetence“.
That’s far from reality!
Have you heard the expression “know when to hold’em and know when to fold’em”?
Yup, your attorney is doing just that and waiting for the right time to talk.
This is where the judge will use the same “individual” and same age and will use some of the restrictions he finds in the medical records. He will often use Scenario 1’s facts but will add more restrictions here to see if the VE will still find jobs.
“An individual who is 46 years old and who can sit for 4 hours in an 8 hour day and who cannot kneel, walk up stairs and has a lifting limitation of no more than 10lbs and will need two 10 minute bathroom breaks every hour. Can that individual perform any previous activities performed by the claimant?”
If your old jobs listed in the Work History Report were such that too many bathroom breaks would not matter, the VE may find some jobs for you.
Now, if he is using transferable skills instead, he may not find any jobs or may find one job.
The VE will then have to show that there are enough of that particular job in the “national economy” to prove that this job is an option for you. If the job is such that there are only 10 jobs available in the entire country, then the VE will likely say, “no jobs“.
That’s the moment you see the attorney’s face lighten up a bit and the claimant is still looking puzzled.
It is the most stressful part of the hearing because the attorney is hoping to hear those magic words: “No jobs”.
And the claimant is still wondering what that all means.
Just because I am listing a third scenario, it doesn’t mean that all cases will have a third scenario. Sometimes the judge and the attorney are satisfied with only two scenarios.
But often times the third scenario (sometimes, the second) is where the judge will use the RFC provided by the claimant’s doctors. Those will be the “real deal” when it comes to restrictions.
That’s because most restrictions from the CE reports are based on a one-time visit.
And we all know that no doctor can know if a claimant is disabled based on one visit and a limited set of records.
So when the judge is using your own doctor’s RFC forms, that means these reports come from a doctor who has been treating you for a long time. They should carry more weight because your doctor knows about you a lot. Though sometimes judges will ignore that too if your records don’t match the restrictions found in the RFC.
If you managed to get your doctors to complete your RFC forms, the judge will then add to his first scenarios all the limitations imposed by your doctor.
“An individual who is 46 years old and who can sit for 2 hours in an 8 hour day and who cannot kneel, walk up stairs and has a lifting limitation of no more than 5lbs. That individual will also need to have his legs elevated above the heart for at least 4 hours a day and will require at least a 2-hour break every other hour and will need to take a nap for at least 2 hours before returning to work. Can that individual perform any previous activities performed by the claimant?”
Very likely the VE will come back with “no jobs“. Though some VEs can be a little too excited and come back with one crazy job a person can do.
“Envelope Stuffer” comes to mind (oy!)
See the difference?
In this instance, we attorneys are still waiting our turn to say something. But since we see that the judge is asking everything we wanted to ask, there is no reason to ask anything yet.
But most people who are unrepresented won’t know to “shut up” because the scenario may not contain all the restrictions the doctor put in the forms.
They feel cheated just because the judge forgot about the need to use a cane or a walker to ambulate. Yet, they don’t recognize that the VE’s responses are actually helping them.
Once again, “know when to hold’em and know when to fold’em”.
This is also one of those things that cause claimants to say: “But my attorney didn’t say a word when the VE said there were jobs!“.
They still don’t realize there are moments that silence is a legal strategy.
The attorney’s turn
Now that the judge has asked all the questions he was required to ask, the judge often asks the attorney if he has anything else for the VE.
Most attorneys, if they see that in most scenarios given, the VE said “no jobs“, we usually stay quiet then say: “we have nothing else, your honor“.
But when the judge chooses to stop at the first scenario or leaves something important from your doctor’s RFCs out, that’s when we pounce and we start crossing the VE with additional restrictions and limitations until the VE says “no jobs“.
We have to be careful not to repeat limitations or give convoluted scenarios.
I once asked a VE about “What if my client has to go to the doctor every 2 days and it takes him 3 hours to go, visit the doctor and return? “Will an employer put up with those absences?”
It’s a valid question.
But depending on the judge or the VE, they may see that as a convoluted question even though it’s pretty clear that if my client is always at the doctor’s office, no employer is gonna like all those absences.
While the VE may find jobs, the claimant may not be able to “keep” those jobs. This is another way to demonstrate the claimant is disabled.
The claimant’s turn
Occasionally, the judge will ask the claimant if he or she has anything to add to the VE.
When represented, most claimants will stare at their attorney looking for guidance. The attorney can then ask questions to his client to bring to light what the client is hoping to ask the VE or to add to the limitations.
Occasionally, the attorneys will ask the claimant about skills the VE was not aware of and which were not really asked in the Work History Report.
The VE comes back saying that you can still do your job as an Ultrasound Tech because in the job description for those jobs, the tech is usually not required to move an Ultrasound machine.
Those things can be pretty heavy depending on which machine you were using.
Yes, I’m aware there are portable ones. But I am using an example of a specific job a claimant did that does not fit the normal definition in the DOT Code.
So if at the hearing the VE says you can still do that, it is up to you or your attorney to add this additional physical requirement to that job description.
Then you have to ask the VE:
“knowing this individual’s physical limitations (for example, lifting no more than 10lbs), can the claimant do his previous job as an Ultrasound tech if his job required him to push a 300lb machine around the office?”
The VE will likely say no.
So it is always a good idea to go over your work history and the physical requirements of the job to ensure that the VE’s version of your job is the same as yours.
And if not, then you must add that to your line of questioning to make sure the VE has the entire picture of your job before he makes a final assessment that you can work your old job or jobs.
Preparing for your hearing
It is important to prepare for the Vocational Expert questions.
If you are going to your hearing unprepared, you will feel like you were put in a blender and will only stop spinning after you left the hearing room. You won’t have any idea what just happened.
Be sure to get a copy of your Work History Report.
If you are unrepresented, usually the hearing office will send you a CD where you will find a copy of the report you submitted earlier in your claim.
Take a close look at it to make sure you completed it fully and described exactly what you did in your job.
Print a copy so you can bring it to your hearing.
Go online and figure out the DOT Code for each of your own jobs (https://www.onetonline.org/crosswalk/DOT/).
Simply type the name of your job and a list will pop up. Find the job title that is closest to your job description and print everything there is about that job. Physical, mental abilities, education etc.
You will be so far ahead of the game if you do that.
Now at the hearing, you will not have online access. Unless you have an attorney and he has the DOT Code on his laptop to check the codes given by the VE.
That’s another good reason to have an attorney too.
They can hear the “other jobs” the VE is proposing, check what physical or mental requirements for those jobs on the spot and question the VE if a person with your XYZ limitations can really do that job.
Oftentimes, the VE has to admit “no jobs” when he is told about those limitations.
Since you won’t have that ability to check those other jobs at the hearing, you must write down the numbers for the jobs the VE is saying you can do.
Save those numbers for later.
And if you see that at the hearing the VE is finding jobs no matter which restrictions you add to the scenario, you will need to ask the judge to keep the record open for a week or so before you leave the hearing room.
That way you can go online after the hearing is over and check the jobs proposed by the VE. Then you can send a letter to the judge objecting to the jobs proposed by the VE and explaining specifically why each one would not be a possibility because of your XYZ limitations.
Be sure to observe any deadlines the judge gives you to complete that task.
It is not foolproof, but it is a chance to add more testimony to the “hearing record” in case you get a denial and you have to appeal.
This post contains only a limited amount of possibilities that can occur at the hearing.
But it will give you some idea what to expect so you don’t get “put in the blender” at such an important time in your life.
Ideally, if you are reading this before your hearing date has been set, there is still time to find an attorney in your area to represent you at the hearing.
The VE cross-examination is one of the toughest points at a hearing. A lot of things can go wrong at that point.
But if you are still confident you want to go solo, please check my other posts about preparing for a hearing:
The “What to wear and what to expect edition” and the “Hearing questions and arguments edition“.
Finally, you can also check my Disability Claim Courses, where you can learn how to read your medical records and learn what you should do to fix them before it’s too late.
You can also check my tutorial about the Residual Functional Capacity Report with forms (see ad above).
You just learned why it is so important to have these at your hearing. So why not come prepared?
Don’t forget to join my Exclusive Facebook Group where you can ask questions about the disability process.
Until next time,