I Object to the Vocational Expert's Testimony -- Overruled

The vocational expert responds to a hypothetical question that assumes a limited education, unskilled work experience, limited to sedentary work with occasional superficial contact with coworkers and supervisors.  The vocational expert trots out the usual suspects of occupations aggregating to a million jobs because if you don't want to have to think, well 300,000 here, 200,000 there, and 500,000 in the last one just makes it easy and what the hell, the ALJ doesn't care and 95% of the representatives out there don't know enough to make a peep.  A million jobs  The 48-year old claimant loses.  But you happen to be in the 5%.

1.  Objection, the vocational expert doesn't have training in numbers of jobs.

That objection belongs before the vocational expert testified, not after.  And the truth of the matter is that vocational experts perform labor market surveys and look at employment numbers.  They know more than the public about work.  Their opinion is probative even under the inapplicable strict standards of evidence in court.  Objection overruled.

2.  Objection, the vocational expert testimony lacks foundation, has no support, is unreliable, and pulled out of thin air.

None of those are objections to the admissibility of evidence.  Those are arguments as to weight.  If the vocational expert's testimony is a feather and no evidence exists to counter the vocational expert testimony, the feather outweighs the vacuum by a factor of infinite progression.  That doesn't mean that the ALJ will accept uncontradicted evidence from an agency selected expert.   But the ALJ probably will.  Objection overruled.

3.  Objection, the vocational expert's testimony identifies work that is no longer unskilled or no longer exists.

This is a variation of objection #2.  It does not go to admissibility, it goes to weight.  Present some evidence that weighs more.

4.  Objection, the vocational expert's testimony assumes an accommodation with a sit-stand option.

Now that is an objection because agency policy does not permit consideration of an accommodation in making the assessment at step five of the sequential evaluation process.  SSR 00-1c.  The truth of the matter is that some work permits a sit-stand option as the work exists in the national economy.  Security guards is an example:

Series ID: ORUP1000000000000139

Not seasonally adjusted

Series Title: % of all workers; sitting vs. standing/walking at will is allowed

Requirement: Physical Demands

Occupation: all workers

Estimate: sitting vs. standing/walking at will is allowed

Year	Period	Estimate
2017	Annual	37.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUP1000000000000139

But the ORS does not list any discernible group that contains unskilled work as having that sitting versus standing/walking at will data field.  The absence of data should be read as not allowed not license to make things up.  SSA recognizes that unskilled work requires maintaining body posture to maintain productivity.  SSR 83-12. 

These examples make clear that there is generally not an objection to the vocational expert testimony.  Admissibility is a low bar.  Weight is the correct focus.  Arguing weight requires that the claimant present additional evidence.  Setting that stage requires a set of preliminary questions:

1.  Is your testimony with the data published by the Department of Labor?

a. The Occupational Outlook Handbook
b. The Occupational Information Network
c. The employment projections
d. The occupational employment statistics
e. The current population survey 

2.  Is your testimony consistent with the the data published by the Census Bureau?

a. County Business Patterns

3.  Is your testimony consistent with the DOT industry designations?

4.  Is your testimony consistent with the data fields not contained in the printed SCO but published in the electronic versions of the DOT/SCO (Job Browser Pro, West Law, etc.)?

The response from the ALJ or the vocational expert that the witness relies on experience is this:

5.  How does your experience as a rehabilitation consultant compare to the data gathering capacity and reporting of the Department of Labor or the Census Bureau?

The best tactic is to avoid the use of the "objection."  It is not the right procedure.  The only procedure that has a chance of winning is the introduction of new evidence and then the demand tha that the ALJ resolve the conflict in the evidence.  See question 5:  how does the VE's local and anecdotal experience compare to the statistical prowess of the Department of Labor and the Bureau of Labor Statistics?  They are not in the same league.