What to Do When the VE Fails to Provide the Sources of Their Testimony

When the VE offers clearly bogus testimony, for example, that there are 100,000 people working as addressers (as defined in the DOT), in your cross examination, you will need to ask the VE for their sources of that testimony. But then the VE says they cannot provide their sources or the ALJ prevents you from asking for them.

What is the problem here? Biestek v. Berryhill, 139 S.Ct. 1148 (2019), says VE testimony may not be substantial evidence if the VE has no good reason to fail to produce the data, and the testimony lacks other markers of reliability. The inability to provide the sources of their testimony would certainly lack markers of reliability.

The Vocational Expert Handbook June 2020 version on page 3 states, “At all hearings, you should be prepared to cite, explain, and furnish any sources that you rely on to support your testimony.”

The Solicitor General of the United States in its brief in Biestek endorses the 2017 VE Handbook statement that VEs “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.”

So, what can you do to deal with this? You can still ask for the sources and an explanation of how they used them. Ask why they cannot provide them if they won’t.

• How many pages are there? What confidential information is included? How many places is it found? Have you ever provided the information to anyone? Who? When?
• How did you collect the data? When?
• What did you do to verify that the data is correct? Has anyone else verified it?
• How did you use the data to come to your testimony?

And if the ALJ bars you from questioning the VE point out you have the right to fully question the VE on any pertinent matter within the VE’s area of expertise per HALLEX I-2-6-74(C) and what sources they relied on to form their opinion would certainly qualify. You can also point out the VE Handbook, Biestek, and the Solicitor General’s statement in its brief in Biestek. If the ALJ still will not let you question the VE note your exception on the record and submit a post-hearing brief. This will preserve the issue for appeal.

This piece is a recurring guest column, provided by a NOSSCR member. Any views, opinions, or analysis presented in this column represent the views of the author alone.