George Piemonte, NOSSCR Past President

Do Your Job: Effective Cross-Examination of the Vocational Expert

Vocational expert testimony frequently determines whether a claim is won or lost at steps four and five of the sequential evaluation. Yet vocational cross-examination is often either underutilized, misused, or foregone altogether—attorneys either waive their opportunity entirely or launch scattershot attacks that fail to undermine the testimony in any legally meaningful way.

This article is designed as a practical guide for Social Security disability practitioners who want to conduct focused, effective, and appeal preserving cross‑examinations of VEs. The unifying principle is simple: develop the record, challenge unreliable testimony, and preserve error, without doing unnecessary harm to an otherwise favorable case.

I. First Principles: Know When to Speak, and When Not To

At step five, the Commissioner bears the burden. If the vocational testimony supports a fully favorable decision, restraint is often the best advocacy. Ill‑considered questioning can rehabilitate weak testimony or introduce evidence the agency did not previously have. Remember the burden is on the Commissioner at Step 5, so if you get the VE to concede that a stated job(s) does not fit the hypothetical, DO NOT ASK IF THERE ARE OTHERS THAT DO! Don’t do the ALJ’s job for them.

That said, claimants’ representatives are entitled to fully question the VE on any matter within the VE’s area of expertise. HALLEX I‑2‑6‑74(C) explicitly recognizes this right. When testimony is material, implausible, or unsupported, developing the record is not optional; it is essential.

A few foundational rules should guide every vocational cross:

• Clarify before you attack. Undefined terms and sloppy assumptions are often the VE’s greatest weaknesses.
• Ridicule is not a rebuttal. Demonstrating that testimony is “ludicrous” does not create contrary evidence.
• Hypothetical questions are not cross-examination. They may shape the record, but they do not test credibility or reliability.
• Uncontradicted vocational fabrication can become substantial evidence. If the record is silent, you may need affirmative vocational evidence.

Just as important: do not stipulate to the VE’s qualifications. Stipulating forecloses any later challenge to expertise, at the hearing level and on appeal.

II. Voir Dire the VE: Qualifications Matter

Vocational testimony is only as good as the expert giving it. Practitioners should routinely conduct a brief but pointed voir dire to assess whether the VE actually meets the standards set forth in the SSA’s Vocational Expert Handbook.

Key lines of inquiry include:

• Familiarity with the current VE Handbook and the requirement to cite, explain, and furnish sources
• Whether those sources have been brought to the hearing
• Whether the VE has current knowledge of occupational trends
• Whether the VE has personally placed disabled workers into competitive employment, and how recently
• Academic and professional credentials (graduate education, certification as a rehabilitation counselor)
• Any training or qualifications as a labor market statistician

These questions serve two purposes: they test credibility and preserve appellate issues if unsupported testimony is later credited.

III. “Occasional” Interaction with Supervisors: A Common Logical Problem

ALJs frequently ask VEs to assume that a claimant can “interact appropriately with supervisors occasionally.” This phrasing is deceptively problematic.

“Occasionally” means up to one-third of the workday. But supervision is not an optional function of employment. In real-world work environments:

• All jobs involve supervision and training.
• New workers must receive instructions, corrections, and feedback.
• Workers are expected to respond appropriately to supervision 100% of the time.

Effective cross-examination exposes the logical gap:

• All jobs require some supervision, correct?
• New employees must be told what to do?
• They must be corrected when they do something wrong?
• Would an employee remain employed if they responded inappropriately to supervisors two-thirds of the time?

The goal is not theoretical purity; it is practical realism.

IV. “I Know From My Experience”: Ipse Dixit Is Not Evidence

One of the most common and dangerous forms of vocational testimony is the unsupported assertion, “I know from my experience.”

This is classic ipse dixit: an unverified conclusion offered without data. Memory is fallible, unreviewable, and often conflated with informal observation. Many VEs describe casual impressions as “job surveys” despite having no written records at all.

Effective responses include two parallel strategies:

A. Attack the Data

Most VEs are not statisticians. Asking even basic questions about sampling methodology can reveal that their conclusions are mathematically meaningless:

• With the number of jobs you cited, how large would a sample need to be for a 95% confidence interval?
• How many jobs did you actually study?
• Would that sample be sufficient to predict job requirements nationwide?

B. Attack the Memory

If no data is produced, probe the reliability of recollection:

• When and where did you study this occupation?
• Which employers?
• Who supervised the work?
• What observations did you document?
• Did you make any written record? If so, where is it?
• How do you avoid confusing this job with others you’ve studied?

The more specific the questions, the more apparent the unreliability becomes.

V. Refusal to Provide Sources and Biestek v. Berryhill

When a VE refuses to provide underlying data or an ALJ prohibits inquiry, Biestek v. Berryhill becomes central. The Supreme Court held that VE testimony may fail to constitute substantial evidence when the VE refuses to provide supporting data without good reason, and when the testimony otherwise lacks indicia of reliability.

Moreover, the Solicitor General expressly endorsed the VE Handbook’s requirement that VEs be able to explain the resources they used and how they arrived at their conclusions, and confirmed that claimants may submit rebuttal evidence.

Effective questions include:

• Why can’t you provide the sources?
• How many pages are involved?
• What confidential information is included?
• Have you ever provided this data before? To whom?
• How was the data collected and verified?
• How did you apply it to reach your opinion?

If the record reveals opacity rather than expertise, reliability is in serious doubt.

VI. Absenteeism Testimony: The Real World Matters

VEs frequently testify that employers tolerate two or more absences per month. This claim often collapses under minimal scrutiny.

There is no federal requirement that employers provide sick leave. Unskilled jobs are easily replaced. And empirical data show that U.S. workers average far fewer absences per year than vocational testimony suggests.

Useful questions include:

• Why would an employer hold an unskilled job open for repeated absences?
• What law requires employers to allow this?
• What is your specific source for that absenteeism tolerance?
• What is the actual average number of sick days taken annually?

Supplementing the record with employer statements or vocational rebuttal evidence can be particularly powerful here.

VII. “Transferable Skills” That Aren’t Skills

Driving, answering phones, talking to people, and making change, these are often cited as transferable skills. They are not.

A skill must be learned through past work. If it was acquired through school, daily life, or basic adulthood, it is not a vocational skill under SSA regulations.

Cross-examination should focus on acquisition:

• Where and when did the claimant learn this skill?
• Was there formal training?
• How long did it take to learn?
• Was it specific to the past job?

Without job-specific training, “transferability” collapses.

VIII. Sedentary Jobs and Morbid Obesity

When a claimant weighs 300 pounds or more, vocational testimony often ignores physical realities.

Standard office chairs are not designed for that weight. Bariatric chairs are specialized equipment. Providing special equipment is an ADA accommodation, and SSA may not rely on accommodations to support a denial.

Key lines of inquiry include:

• What is the tested capacity of standard chairs?
• Are bariatric chairs commonly provided?
• Isn’t special seating an accommodation?
• Can extreme obesity interfere with reaching a workstation?

The goal is to establish that the job, as generally performed, is not realistically available.

IX. Job Numbers and Methodology

Always identify the source of job numbers. If SkillTran is used, ask whether the VE manipulated the data. If not, confirm that the unaltered numbers can be independently verified. For other sources, demand a clear explanation of methodology.

Opaque math is not substantial evidence.

X. Building a Record for Appeal at Steps Four and Five

Finally, vocational cross is not only about winning at the hearing, but it is also about preserving error.

At step four:

• Develop detailed testimony about past relevant work
• Obtain DOT codes
• Establish composite jobs where appropriate, citing POMS DI 25005.020(B)

At step five:

• Modify the ALJ’s hypothetical, one limitation at a time
• Tie each modification directly to record evidence
• Create a clear foundation for appeal if the decision is adverse

Conclusion

Effective vocational cross-examination is not performative; it is disciplined, targeted, and grounded in the real world. When done correctly, it exposes unreliable testimony, protects the integrity of the record, and positions the case for success at the hearing level or on appeal.

Doing your job means doing it with purpose.

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The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.