All experts should have some foundational source upon which to base their empirical conclusions. For Vocational Experts ("VEs") in SSA disability proceedings, this foundational source is, among other occupational sources, the DOT. However, as mentioned previously, the DOT is outdated and obsolete; indeed, relying on this source and its methodology is hardly reliable.
The idea that VEs should use reliable methods is not necessarily grounded in Rule 702; rather, it is based in the SSA's process that requires every decision to be supported by substantial evidence. If the VE's testimony has been conjured out of "whole cloth[,]" then it is not substantial and should be attacked by the claimant.
The SSA anticipated these problems and responded by enacting S.S.R. 00-4p, which mandates that when the VE provides evidence about the requirements of a job, the ALJ is obligated to ask about any possible conflict between that evidence and the information provided in the DOT.
Although this response adds a much needed safeguard and heightens the evidentiary standard pertaining to VE testimony, this solution is only a superficial band-aid on a gaping wound because the reliance on the DOT could hardly be considered good science in the courtroom and would in many instances be rejected as unreliable evidence under Daubert. Thus, the SSA's attempt to self-regulate by implementing S.S.R. 00-4p seems superficial.
One of the weaknesses of S.S.R. 00-4p is that most ALJs rely on the vocational expert's conclusion because the ALJ obviously lacks the knowledge, expertise, or education in making conclusions relating to the claimant's ability to perform jobs that exist in significant numbers in the economy. If the ALJ was an expert in the vocational field, there would be no need for the VE to participate in the disability determination process. To rely on the ALJ to investigate whether the VE's conclusion is reliable defeats the purpose of protecting the claimant from extrapolations that are merely ipse dixit.
Furthermore, to require that the claimant raise an objection to the conclusions of the VE at the disability hearing seems contradictory to the purpose of S.S.R. 00-4p, which assigns this task to the ALJ. Thus, courts have held that when the VE's reasoning is not questioned, the ALJ is entitled to accept the VE's conclusion.
Taking into consideration multiple methodologies adopted by VEs that purport to offer data about the number of jobs that exist in the economy, these implications (e.g., that VEs lack the necessary education, knowledge, or experience), if not resolved, will greatly undermine the integrity of the SSA's disability proceedings.
In addition, the court in Donahue held that a VE is free to give a bottom-line conclusion, provided that the underlying occupational data and reasoning are available on demand. This holding grants even broader authority to the VE, which is bound to give rise to a VE failing to come to the hearing with documentation and underlying occupational data to support his conclusions.
Moreover, the court in McKinnie v. Barnhart held that the ALJ erred in not requiring the VE to produce the data and evidence that supported the VE's extrapolations, where the VE failed to substantiate her conclusions with a written report or other documentation forming a basis for her conclusions. Indeed, it is clear that S.S.R. 00-4p has eroded as an administrative check on the broad credibility granted to VEs.
The problem revolves around proper standards regarding VEs, their methodologies, and the sources upon which they base their conclusions. If the standard regarding VEs was heightened, the number of occasions that a VE who is not qualified to perform occupational analysis would be reduced. If these occasions were reduced, then the fear of the VE's testimony adversely affecting the level of fairness afforded the claimant would be greatly diminished.
Employment / Labor Attorney