Mark Zakhvatayev, Esq. Lecture at AAJ Conference 2018
Memorandum Regarding Objection to Vocational Experts
Checklist for possible objections to Vocational Expert qualifications and testimony:
VE Qualifications Objections:
- We cannot stipulate to a VE’s qualifications because Social Security has not defined what the qualifications of a vocational expert are. Social Security has set no requirements for training, knowledge, supervision, education, or credentialing that apply to VEs.
- Because VEs are required to rely on an outdated Dictionary of Occupational Titles (DOT), and because there is no logical connection between the numbers of jobs derived from the Census/ DOL/OES and/or the Standard Occupational Classification (SOC) systems and the DOT, we object to VE testimony as unreliable and not relevant. In fact, Commissioner’s own regulations indicate that job information that is older than 15 years is outdated. 20 C.F.R. §§ 404.1565(a), 416.965(a) (“A gradual change occurs in most jobs so that after 15 years it is no longer realistic to expect that skills and abilities acquired in a job done then continue to apply.”). See also Cunningham v. Astrue, 360 Fed. Appx. 606, 614-616 (concluding that DOT listings are outdated and remanding the case for a determination as to whether outdated DOT descriptions for the document preparer and surveillance system monitor jobs were reliable given that the Government now uses a more current database called O*NET).
- Occupational Information Development Advisory Panel (OIDAP), created by the Commissioner in 2008, determined in July, 2012, that the DOT is outdated and is replacing the DOT with the Occupational Information System.
- The VE does not have an advanced degree and only has a BA degree, or lacks any degree in the field of vocational rehabilitation.
- The VE does not have more than 4 years & up to 10 years experience in Vocational Rehab, as required in DOT 094.117-018 (Voc Rehab Consultant) or 045.107-042 (Voc Rehab Counselor), SVP 8.
- The VE lacks knowledge on the formula used to extrapolate numbers of jobs.
- The VE never took a statistics course.
- The VE never took a survey research methods course.
- The VE is not a placement specialist.
- The VE is not a labor market specialist, as set forth in the VE handbook.
- The VE has a history of being adjudicated guilty of crimes and/or fraud. (If Applicable)
- The VE lacks the knowledge of the methods utilized by Job Brower Pro or OASYS.
- The VE in the past has not been able to provide a foundation for his/her opinions.
- The VE testified he/she relied on surveys but could not identify or describe the method the survey data was collected, could not describe how the survey design instruments were created, what population the survey was sampled from, what the response rate or error rate was, did not know whether the sampling strategies were “probability (simple, random, systematic, stratified, multistage cluster) or non-probability (purposive, convenience and snowball)” methods.
- The VE relied on data that the ALJ cannot take administrative notice of, e.g., Occupational Employment Quarterly (OEQ). 20 C.F.R. § 404.1566(d). We particularly object to the use of the OEQ as it claims to rely on data from Occupational Employment Statistics (OES) but often demonstrates significant divergence in numbers from the OES. The OEQ also employs a fallacious assumption to divide the job numbers provided by census code into individual DOT occupations; they simply divide the number of jobs in a single occupational group evenly across all DOT jobs within that group.
- The VE does not have an MA degree as required by Com. Rehab Counselor Certification (CRCC).
- The VE has not visited job sites in the past year.
- The VE has not analyzed different jobs in the past year.
- The VE does not have a degree in Vocational Rehabilitation Counseling.
- The VE is not certified by any of the following: CRC Certified Rehab Counselors; CDMS Certified Disability Management Specialist; ABVE American Board of Vocational Experts; CVE Certified Vocational Evaluator.
- The VE has no publications, articles, or treatises.
- The VE has not attended any continuing education courses in Voc. Rehab in the past 3 years.
- The VE’s CV does not provide dates of work experience for each job listed.
- The VE lacks knowledge of the Vocational Expert Handbook published by ODAR.
- The VE’s knowledge and experience is not up-to-date with regard to industrial and occupational trends and local labor market conditions.
- The VE lacks knowledge of the SCO (Selected Characteristics of Occupations) and the SOC (Standard Occupational Classification – Bureau of Labor Statistics.
VE Testimony Objections:
- When a VE testifies based on his/her experience, knowledge, reports, studies, or surveys, but fails or refuses to produce all documentary evidence upon which they rely.
- When a VE’s evidence is peer-reviewed, but the review is not produced and entered as an Exhibit.
- When another qualified VE’s testimony contradicts the VE opinions.
- When a VE’s identification of numbers of jobs do not pertain to the region where the claimant lives.
- When a VE’s testimony conflicts with the DOT and the conflict is not explained in sufficient detail.
- When a VE refuses to provide the names of employers where they placed individuals in jobs.
- When a VE testifies that DOT Temperaments do not apply when doing transferable skills analysis.
- When the VE relies exclusively on the outdated Dictionary of Occupational Titles
- When the VE is biased. For example, all income or the majority of the VE’s income comes from working for the Social Security Administration and/or ODAR offices.
- When the VE is biased because he/she lacks experience working for private sector attorneys, and only has experience working for insurance companies or the SSA/ODAR.
- The VE has testified she/he relies on inferences, deductions, speculation, and uses unverified, unreliable, and non-scientific extrapolation techniques.
- The VE lacks a basic understanding of Sequential Evaluation process at steps 4 and 5. Or, lacks knowledge of the definitions of past relevant work, other work in the nation, composite job, substantial gainful activity, unsuccessful work, work accommodations, and/or other relevant social security laws.
- The VE testifies that more than one day a month absence will be tolerated by most employees.
- The VE testifies the commuting distance is more than 30 minutes.
- The VE is not familiar with the region where the claimant lives.
- The VE works for the Division of Vocational Rehabilitation and the claimant has applied for Voc. Rehab benefits.
- The VE was not present during the claimant’s testimony about her past relevant work and the ALJ did not summarize the testimony to the VE.
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