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.

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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.