Vocational "Experts"

A vocational "expert" testifies at a hearing. The witness has the education and experience as a rehabilitation counselor. The ALJ asks about past work from the E exhibits and the claimant's testimony. The ALJ then poses a hypothetical question followed by two more questions that the ALJ typically does not intend to adopt, just to let the client know that "I heard you." The witness states an opinion about past work as actually and generally performed relying on the work history report and/or testimony. The witness offers up other work based on either a DOT code or a SOC code, or both. Either as part of direct or later as redirect, the ALJ asks for a statement of the general methodology explored. 

Some ALJs will allow cross-examination to dig deep. Others will not. The results frequently depend on the quality of the cross-examination. Most ALJs will rely on the witness testimony and reject the concessions made on cross-examination, the disconnect with objective data, and the vacuous nature of the generally described methodology. 

A vocational witness has a masters, placed people with limitations in jobs, conducted job analyses on site, and made phone calls to represent a labor market survey. A minority know the difference between a standard deviation and a standard error. Most know nothing about reading, interpreting, and understanding statistical data. Yet, the cases have case a cloak of reliability on the people donning the name "vocational 'expert.'" 

A vocational witness uses Job Browser Pro but does not know how it functions. That is OK. Purdy v. Berryhill. A vocational witness uses the Occupational Employment Quarterly, confesses that it uses equal distribution, claims that it is the only thing available, and without more in the record, that is substantial evidence. Leisgang v. Kijakazi. The failure to rebut the vocational expert at the hearing is the root cause of claimants losing their cases. 

Representatives cannot rely on sheer unbelievability. 

They must do their job AT THE HEARING. SSR 24-3p. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Vocational "Experts", California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

From the Supremes to the District Court

 Last week, we discussed the two sedentary occupations identified in Biestek. Today, we peer into a 2025 district court decision, Ashley DK v. Dudek. The vocational witness is anonymous in the court decision. In response to a residual functional capacity for sedentary work, sitting six hours, and limited to routine tasks (a non-vocational term, not used in the DOT, SCO, O*NET, or ORS), the witness identified:

• Nut Sorter (DOT 521.687-086, 1991 WL 674226),

• Table Worker (DOT 739.687-182, 1991 WL 680217), and
• Staffer (DOT 731.685-014, 1991 WL 679811). 

The reference to staffer is a typo. Elsewhere in the decision, the court discusses stuffer. 

Nut sorter does not exist in significant numbers. We covered this in Biestek. SkillTRAN says 2,370 jobs. The OEWS says maybe 20,000 jobs but more likely 10,000 jobs in 14 sedentary unskilled DOT codes resident in inspectors, testers, sorters, samplers, and weighers (SOC 51-9061). Let me add one more erosive factor to our analysis from Biestek, sitting. A limitation to sitting six hours in a day does not mean the full range of sedentary work. Sedentary work requires standing/walking occasionally, from very little up to one-third of the day. Some sedentary work requires very little standing/walking, some sedentary work requires standing/walking a third of the day, and the rest fall somewhere in between. OccuCollect reports the ORS datasets:

51-9061 - Inspectors, Testers, Sorters, Samplers, and Weighers

Occupational Requirements – sitting, standing (including walking)	2018	2023	2025
choice of sitting or standing is allowed	31.8	30.1	34
choice of sitting or standing is not allowed	68.2	69.9	66
Percent of Day sitting is required (50th percentile - median)	-	20	20
Percent of Day sitting is required (75th percentile)	62.5	50	50
Percent of Day sitting is required (90th percentile)	90	85	75

 The two final datasets report sitting more than  75% of the day (six hours in a full-time day). Inspectors have some choice in a minority of jobs to choose when to  do the standing/walking required. The assumption that 10,000 jobs as a nut sorter do not require more than six hours of standing/walking is not tenable on the data. The 2025 data set uses that magic 75%. That data set does report standing at the 10th percentile at 25%. We must also remember that nut sorter is on the extra explanation required list. EM-24027 REV. 

Sedentary unskilled nut sorters that sit not more than six hours in a day in an age of automation do not represent a significant number of jobs. 

Table worker is in the same SOC group of inspectors, testers, sorters, samplers, and weigher (SOC 51-9061). Whatever sedentary unskilled jobs we discern from a OEWS-SOC analysis, that conclusion covers table worker as well. The 2025 data set reports 10.9% of inspector jobs require sedentary exertion.

SkillTRAN estimates 1,201 table worker jobs in the nation. SkillTRAN assumes that table worker exists in the plastic product (NAICS 326100) and the rubber product (NAICS 326200) manufacturing industries. Those industries employ 26 and 33 DOT codes, respectively, including table worker. The SOC-NAICS crosswalk form the Employment Projections and OEWS confirm the SkillTRAN mid-point:

51-9061 - Inspectors, testers, sorters, samplers, and weighers
31-33 - Manufacturing

NAICS	INDUSTRY	EP 2024 #'s	OEWS 2024 #'s
TE1000	Total employment	598,000	591,180
TE1000	Self-employed workers	8,100	No Data
TE1000	Total wage and salary employment	589,800	No Data
326000	Plastics and rubber products manufacturing	35,000	34,930
326100	Plastics product manufacturing	29,400	29,300
326200	Rubber product manufacturing	5,600	5,630

The industry selection by SkillTRAN is too broad. Table worker inspects linoleum tiles, flooring. That specific part of the economy is a small part of all other plastics product manufacturing (NAICS 326199) according to the NAICS Manual entry for the NAICS code and the alphabetical index. Using the plastic product industry group is too broad and the rubber product industry group does not apply when comparing the DOT industry and narrative statements to the NAICS Manual. County Business Patterns 2023 reports jobs in all occupations:

3261 - Plastics product manufacturing

NAICS	Industry Title	Jobs
3261	Plastics product manufacturing	677,305
32619	Other plastics product manufacturing	410,729
326199	All other plastics product manufacturing	392,611

Less than 60% of inspectors work in the industry studied in compiling the DOT. The number of table workers just got smaller. 

And finally, the infamous stuffer. The DOT is clear, this occupation exists in the toy-sports equipment industry. Toy stuffer belongs in the  packaging and filling machine operators and tenders (SOC 51-9111). SkillTRAN assumes this occupation works in the other miscellaneous manufacturing industry group (NAICS 339900). SkillTRAN estimates 265 jobs for stuffer. 

The straight OEWS-ORS calculator from OccuCollect estimates less than 924 jobs. The calculator gets there by assume less than 0.5% of jobs require sedentary exertion. The 2023 ORS accounts for 99% of jobs in light, medium, and heavy work. The ORS leaves open the possibility of less than 5% requiring heavy exertion and 0.5% requiring sedentary exertion. Both are less than statements. Less than means less than the number stated. 

51-9111 - Packaging and Filling Machine Operators and Tenders

Job Number Calculations
# of Jobs (OEWS 2024)	% Full-Time (O*NET 30.0)	# Full-Time
383,860	88%	337,797
# of Jobs	% Unskilled (ORS 2023)	# Unskilled
337,797	54.7%	184,775
# of Jobs	% Sedentary (ORS 2023)	# Sedentary
184,775	<0.5%	<924

SkillTRAN counts eight DOT codes at the SOC-NAICS intersection. Stuffer gets one-eighth of the jobs at that intersection. Applying the ORS to that intersection, stuffer should get less than 0.3% (54.7% unskilled x <0.5% sedentary). That application would reduce the SkillTRAN number of jobs from 265 to 6. 

I would be remiss if we avoided the SOEUQ. 

• Nut Sorter (DOT 521.687-086) -- 5,539 jobs, 92.2% full-time. 

• Table Worker (DOT 739.687-182) -- 4,430 jobs, 92.2% full time 

• Stuffer (DOT 731.685-014) -- 21 jobs, 93.5% full-time. 

Because the SOEUQ has an opaque methodology, I give the low numbers reported little weight. There are not a significant number of jobs in sedentary, simple, little or no judgment jobs in the national economy. Not in these occupations or any of the other 137 svp 1 and 2 sedentary occupations. 

End the farse through thoughtful rebuttal evidence to the ALJ. 

___________________________

Suggested Citation:

Lawrence Rohlfing, From the Supremes to the District Court, California Social Security Attorney (April 24, 2026)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Interacting with Others -- Another Look

How important is interacting with others in the scope of performing work activity? According to many vocational witnesses, a limitation to occasional interactions with others does not cause a lot of erosion. According to the ORS (2023 and 2024) less than 40% of jobs require basic people skills, the rest require more than basic people skills. If we accept the ORS as authoritative, workers must have at least basic people skills in every job. SSA policy, the basic mental demands of competitive, remunerative, unskilled work includes responding appropriately to supervision, coworkers, and work situations. POMS DI 20520.010 A.3.a. The critical requirements of unskilled work include:

f. sustain an ordinary routine without special supervision.

g. work in coordination with or proximity to others without being (unduly) distracted by them.

j. ask simple questions or request assistance.

k. accept instructions and respond appropriately to criticism from supervisors. 

l. get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

POMS DI 20520.010 B.3. 

This is standard stuff on the tool belt of many representatives. 

What is missing from the POMS fleshing out the "such as" list from 20 CFR § 404.1545(c) is a temporal restriction. The regulations and the DOT define exertion by constant, frequent, and occasional lifting, sitting, or standing. But the vocational literature does not permit the person to occasionally play well with others. POMS lays out the criteria, the worker either does not does not work with others, ask of others, accept direction, or get along with others or the worker does not. The worker is either pleasant or neutral or the worker is sometimes irritable. How often does a coworker or supervisor have to interact negatively with others in order to invoke progressive discipline? 

 Harassment, discrimination, insubordination, violence, or threats fall into the serious misbehavior category and can result in immediate termination. It is not occasional, it is one and done

Minor issues can invoke progressive discipline. Those steps can include:

Coaching/counseling

Verbal warning

Written warning

Suspension/demotion

Termination

A person that can occasionally tolerate interaction with others, as an unskilled worker, does not get to pick and choose when they will interact with coworkers or supervisors. Work happens when work needs to happen whether the impaired person is ready or not. The wide range of misconduct that does not warrant immediate termination may include:

Attendance Issues

Occasional or chronic tardiness

Taking extended or unauthorized breaks

Unexcused absences or failure to notify a supervisor when absent

Performance Issues 

Producing subpar or incomplete work

Failing to meet established productivity standards or deadlines

Conduct Issues

Minor dress code violations.

Minor incidents of unprofessional language or an inappropriate tone during discussions.

Gossiping or badmouthing colleagues.

Conducting personal business during work hours.

Unauthorized or excessive use of company equipment, such as telephones or computers, for personal use.

A generally negative attitude or unwillingness to work collaboratively.

Minor insubordination or a one-time refusal to follow a non-critical instruction

We need an example. Vocational witnesses have identified marker (DOT 209.587-034) as an occupation with a large number of jobs. The O*NET addresses the concerns of interacting with others.

Communicating with supervisors, peers, or subordinates is very important.

Getting information is very important.

Face-to-face discussions with individuals within teams is daily.

Occasional or less contact with others exists in 4% of jobs.

Working with a group or team in not important in 4% of jobs.

Dealing with external customers or the public is not important in 3% of jobs.

Working without close physical proximity exists in 11% of jobs.

The proposition that unskilled work exists for people with limitations in dealing with coworkers and supervisors is spurious at best.

One comment is in order as a concession. If a person needs more than seldom or occasional contact with supervisors after the initial training period, that person needs special supervision and is unemployable in competitive work.

Press the envelope.

 ___________________________

Suggested Citation:

Lawrence Rohlfing, Interacting with Others -- Another Look, California Social Security Attorney (April 25, 2026)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

Expert Witnesses that Don't Provide Services to Both Sides of the Aisle

 The ALJ qualifies the witness that they can be fair and impartial despite the fact that Social Security Administration is paying the fee. Oh yes, I can be fair and impartial. 

I call BS. I am done with this clear fiction. How many vocational experts will testify, answer interrogatories, or otherwise help a representative in a Social Security disability case? Do you know any switch hitters, that hit from both sides of the plate? I do not. 

Here's why testifying for both sides is important:

Expert witnesses who testify for both plaintiffs and defendants in different cases are highly valued for their perceived impartiality, deep understanding of both sides' strategies, and enhanced credibility in the eyes of judges and juries. By working with a mix of clients, these experts avoid appearing biased, often providing more objective, nuanced testimony that can better withstand cross-examination.  Of course experts testify for the prosection, plaintiffs, and defendants. It shows that they lack bias. Those experts are not wedded to one side or the other for their income as a professional witness.

Key Advantages of Balanced Expert Testimony:

• Increased Credibility: An expert who has represented both sides is often viewed as impartial and trustworthy, rather than a "hired gun" for a specific side.
• Strategic Insights: Having worked for both sides, these experts understand the arguments and, tactics of opposing counsel, allowing them to help attorneys prepare more effectively.
• Comprehensive Perspective: They can provide a more well-rounded view of the case, understanding the nuances of how both plaintiffs and defendants approach technical or legal issues.
• Enhanced Objectivity: Their experience helps them focus on the scientific or technical facts rather than just advocating for a specific outcome, which is crucial for influencing court decisions.
• Improved Rebuttal Testimony: They are often better equipped to anticipate opposing arguments and formulate strong rebuttals because they have previously argued those same points.

Of course experts testify for the prosection, plaintiffs, and defendants. It shows that they lack bias. Those experts are not wedded to one side or the other for their income as a professional witness. As of FY 2023, SSA paid vocational experts:

§  Study:                      $51.23

§  Remand Study:        $76.85

§  Hearing:                   $55.82

§  Interrogatory:           $45.81 

In 2016-2018, the rates were lower:

§  Service                           3/2016      3/2017     3/2018

§  Study                              $44.00      $44.00      $44.00

§  Remand Study                $66.00      $66.00      $66.00 

§  Interrogatory                   $39.00      $39.00      $39.00 

§  Additional Evidence       $33.00      $33.00      $33.00 

§  First Appearance             $77.00      $77.00      $77.00

§  Other Appearance           $39.00      $39.00      $39.00 

§  Discussion                 $55.00       $55.00           $55.00

SSA paid 1,004 vocational experts $72M in 2018. That’s an average of $66,500 per vocational expert. Averages are generally meaningless. Outliers can and do skew an average. The median, which is significantly more meaningful, is $71,800. In 2018, a vocational expert appears at five hearings in a day, gets paid for five reviews, one first appearance, and four other appearances. Assuming five hearings, the vocational expert made $453 per day. The median vocational expert on the list appeared on 158 days making $453 per day. The median vocational expert is devoting 158 of 250 workdays in a year. The typical (median) vocational expert testifies Monday to Thursday 40 weeks per year. The rest of the time has to be devoted to that paid review of the E section of the file. That person does not have time to risk that gig testifying or opining for the claimant’s bar.

If we assume that people are primarily motivated by self-interest, what reasonable person would risk that gig by testifying for the “wrong” side of the aisle? If we assume that some ALJs have an idea of when to expect no or very few jobs, what reasonable person would risk being removed from the panel? I don’t assume that vocational experts are any different than anyone else. I don’t expect them to work for the claimant’s bar or to cut against what they assume is the expectation from the payer.

Let’s assume an easy example: advanced age, high school education, medium work, six hours of standing/walking. Are their a significant number of unskilled medium jobs for a person limited to six hours of standing/walking? No. Will most witnesses identify work on that hypothetical? Yes. Will they back-off if we ask if that worker can sit two hours per day every day while on the clock? Most will not. Why did the witness identify medium work in the first instance? They thought it was six hours each, they thought is was a weekly average, they overlooked it. The excuses are numerous. But we, as the representatives, must do a better job.

Go after them.

___________________________

Suggested Citation:

Lawrence Rohlfing, Expert Witnesses that Don't Provide Services to Both Sides of the Aisle, California Social Security Attorney (April 25, 2026)  https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.