Piemonte’s Perspective
December 18, 2025
George Piemonte, NOSSCR Past President
2025 Year-End Summary: SSR 24‑3p Makes VE Cross‑Examination Mission‑Critical
Summary
In 2025, our NOSSCR Forum series built a practical playbook for hearings under SSR 24‑3p: force specificity, demand sources, expose unreliability, preserve the record, and, when blocked, submit rebuttal and post‑hearing briefs. The throughline is simple: unchallenged vocational assertions become substantial evidence; your cross‑examination ensures they do not remain unchallenged.
What SSR 24-3p Changed—And What it Requires
• Case‑specific, reliable vocational evidence.
SSR 24‑3p raises the quality bar: ALJs may rely on DOT or other accepted sources, but testimony must be specific to the case and anchored in reliable occupational data.
• Your duty is to question the VE thoroughly.
HALLEX I‑2‑6‑74(E) confirms your right to question the VE on any pertinent matter thoroughly. When constrained, say on the record that you are being prevented from fully developing vocational evidence as SSR 24‑3p requires, and request a supplemental hearing.
• Preservation for appeal.
If VE sources/methods are opaque, note your exception, then document and rebut post‑hearing. Courts look askance at the obstruction of the development of vocational evidence.
Uncontradicted fabrications by the VE are substantial evidence.
Five Hearing-Room Myths Confronted in 2025
Myth 1: Employers accept two absences per month in unskilled work.
BLS data shows average annual absences are far below 24 days/year. Press the VE for statutes, employer policies, and business rationale; none exists for unskilled labor.
Myth 2: “Low‑production” or “non‑production pace” work is a viable competitive setting.
All competitive jobs have production expectations. Force the VE to state who sets targets and what happens when workers cannot meet them; answers typically eliminate jobs.
Myth 3: Sedentary work always fits morbid obesity.
Standard office chairs are tested to ~275 lbs (BIFMA). Bariatric seating and workstation changes are ADA accommodations SSA cannot consider; practical feasibility matters.
Myth 4: “I know it from my experience” is enough.
Biestek v. Berryhill and the VE Handbook require sources and methods. Ipse dixit is an assertion without proof; demand data and reproducibility.
Myth 5: The grids are the only path.
Use the six favorable rules aggressively, but when grids don’t fit, layer proof and lock the VE into testimony that proven limitations preclude all competitive work.
Practical Cross-Examination Frameworks
Sources & Reproducibility:
Make the VE list every dataset/tool (OEWS, ORS, O*NET, Job Browser Pro, U.S. Publishing) with versions/dates; state each manipulation; confirm that a competent replication yields the same numbers.
Attendance in Unskilled Work:
Ask for statutes/policies permitting ≥2 monthly absences; confront with BLS incidence; require citations to employer practices, not anecdotes.
Productivity/Pace:
Identify the production metrics and termination thresholds for the named jobs; determine whether routine sub‑average pace is competitive or sheltered work.
Responding to Supervision:
Under SSR 85‑15 and POMS DI 25020.010(B)(2)(c), elicit that verbal abuse, walking away, or emotional outbursts are not tolerated in competitive employment.
Transferability (Grids Context):
Pre‑pull MPSMS and Work Field codes; have the VE state codes and mapping for alleged target jobs; expose overbroad or mismatched transfers.
Morbid Obesity at Sedentary:
Establish chair capacity and workstation constraints; confirm that bariatric seating/reconfiguration is an ADA accommodation SSA cannot consider.
Building the Record & Rebuttal Under SSR 24-3p
If cross-examination is restricted, state your exception and request a supplemental hearing. Post‑hearing, file a brief documenting incomplete or non‑replicable VE testimony, attach your replication, and submit rebuttal opinions and/or data as needed.
Authority: Biestek v. Berryhill; VE Handbook (Jan 2025); APA (5 U.S.C. §556(d)); SSR 96‑9p fn. 8; 81 Fed. Reg. 90987 (Dec. 16, 2016); HALLEX I‑2‑6‑74(E).
Ready-to-Use Checklists
Pre‑Hearing
• Identify material limitations you can prove from the record; draft targeted cross-examination tied to those limitations.
• Pre‑pull OEWS/ORS/O*NET, Job Browser Pro/U.S. Publishing outputs and SOC mappings.
• Prepare MPSMS/WF codes for past work and alleged transfer targets.
In‑Hearing
• Force source disclosure and method steps; confirm reproducibility.
• Confront attendance and productivity myths with business reality.
• Elicit zero‑tolerance for supervision breakdowns where evidence supports it.
If Blocked
• State your exception tying the restriction to SSR 24‑3p and HALLEX I‑2‑6‑74(E).
• Request a supplemental hearing to complete the VE cross.
Post‑Hearing
• File a brief with transcript cites, method replication, and rebuttal opinions.
• Cite APA §556(d), SSR 96‑9p fn. 8, and 81 Fed. Reg. 90987 to preserve rebuttal rights.
Spotlight: Responding Appropriately to Supervision
Use multi‑source proof (claimant testimony; medical opinions; lay witnesses) to show irritability, outbursts, walking away, or crying spells. Then ask the VE to confirm that competitive employment does not tolerate these behaviors on a sustained basis.
Authority: SSR 85‑15; POMS DI 25020.010(B)(2)(c).
Selected Data Points & Authorities
• BLS absenteeism: average annual absences are roughly 1.7–3.2 days, far below 24 days/year; challenge the “two absences per month” testimony, especially for SRRTs.
• BIFMA chair testing ~275 lbs: bariatric seating is an ADA accommodation SSA cannot consider (SSR 11‑2p §II(D)(1)(e)).
• SSR 83‑11: Educational testing can override years completed; illiteracy means the inability to read or write.
Closing: A Call to Action for 2026
Under SSR 24‑3p, VE cross‑examination is the hinge on which many cases turn. Be fearless, prepared, and persistent: force data, lock in concessions, preserve issues, and rebut aggressively. The goal is simple: replace bogus testimony with evidence.
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.
