George Piemonte, NOSSCR 11th Circuit Board Representative

By now, everyone is aware that SSA has issued SSR 24-3p. I am going to share some of my preliminary thoughts. This is not surprising, given that SSA’s response when they continually lose on an issue in court is to change the rules. (See the demise of the treating physician rule, considering VA ratings, etc.) SSR 24-3p is SSA’s attempt to impose issue exhaustion on vocational issues at the hearing level.

SSA is putting you on notice to do what I have been saying to you for years—DO YOUR JOB. You are going to have to cross-examine vocational witnesses at the hearing. But the ruling implicitly tells ALJs to stop any questioning that is more than superficial. So, how do you handle vocational testimony when the Ruling takes effect in January?

You need to learn about vocational issues. You need to know more about vocational issues than the alleged “expert.” The Ruling opens the door for using the Occupational Requirements Survey and the O*Net (I contend that has always been the case. See 20 CFR § 404.1566(d)), so learn how to use them. Be ready to pull them up during the hearing.

You must cross-examine. SSR 24-3p is essentially designed to shut down post-hearing evidence and argument. That is at odds with 5 U.S.C. § 556(d), SSR 96-9p, the Supreme Court, and SSA’s brief in Biestek v. Berryhill. All of this will play out in the courts. So, for now, if you don’t cross-examine, you have essentially waived any challenges to vocational testimony and have done your client a disservice. They didn’t hire you not to cross-examine the vocational witness; they can do that themselves.

If the ALJ tries to shut down your cross, cite HALLEX I-2-6-74(C), which states you have the right to fully question the VE on any pertinent matter within the VE’s area of expertise. If the ALJ still does not let you proceed, note your exception on the record that the ALJ is not allowing you to conduct cross-examination as required for a full and true disclosure of the facts.

Some ALJs will try to intimidate and/or bully you. You must stand up to them respectfully and professionally. Even if the ALJ ultimately does not let you conduct a meaningful cross-examination, there is a very good chance the court will not take kindly to that and remand your case.

You will have to cross-examine vocational witnesses at the hearing. If you are not willing to do that, please do not take Social Security Disability cases; refer them to someone who will. Your client is depending on you to zealously represent them, and you have an ethical obligation to do so.

Mark your calendars for January 14 at 3 pm Eastern for a virtual deep-dive into SSR 24-3p. Registration will open soon!

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.