When "Verbal Recording" Isn't Enough

You know who gets genuinely excited about a good transferable skills analysis? This girl right here. And let me tell you, I've got a fresh-off-the-press Tenth Circuit remand that deserves a permanent spot in your Social Security litigation toolkit.

The Case: Morgan v. Commissioner, SSA, No. 24-8085 (10th Cir. Oct. 9, 2025)

Meet Rose Morgan. She spent 14 years as a buyer for the Wyoming Department of Transportation—not exactly a walk in the park. Her job involved soliciting bids, managing contracts, meeting with vendors, and training end-users on the department's procurement platform. After developing fibromyalgia, rheumatoid arthritis, degenerative disc disease, memory issues, and migraines, she applied for disability benefits.

At her hearing in September 2023, the vocational expert classified her past work as a "purchasing agent" (skilled work). When the ALJ asked about hypothetical limitations, the VE testified that someone with those restrictions couldn't continue as a purchasing agent but could transfer skills to three semi-skilled jobs: receptionist, appointment clerk, and order clerk.

Then came the critical question. The ALJ asked: "What are the skills that the Claimant acquired at her past work as a purchasing agent, that would transfer to the three jobs that you just identified?"

The VE's answer: "Well, verbal recording, record keeping would be the ones that would transfer directly to those jobs."

And that was it. The ALJ accepted this testimony without asking what "verbal recording" actually meant or how Morgan's work history demonstrated she'd acquired this skill. Case closed, benefits denied.

Except... not quite.

What the Tenth Circuit Said (And Why It Matters)

The court took a hard look at both alleged skills, and here's where things got interesting:

Recordkeeping: The court found this reasonably supported. After all, 14 years in procurement—soliciting competitive bids, managing contracts, handling RFPs—clearly involves recordkeeping. The court could reasonably discern from the record that Morgan would have picked up these skills. No issues there.

Verbal recording: This is where the entire case fell apart. As Morgan's counsel put it rhetorically: "Verbal recording of what? Who is doing the verbalizing?"

The court noted that nothing in the record defines this skill. The VE didn't cite anything showing Morgan's past work taught her this skill. The ALJ didn't ask for clarification. And the government couldn't point to any documentation supporting it on appeal.

Here's the critical legal principle: the agency bears the burden of proof at Step 5. Dikeman v. Halter, 245 F.3d 1182, 1184 (10th Cir. 2001). And Social Security Ruling 82-41 explicitly states that findings on transferability of skills "should be supported with appropriate documentation."

The government argued that the VE's opinion alone constitutes substantial evidence. The Tenth Circuit wasn't buying it. The court noted it was "unaware of any case" holding that an expert's opinion alone—without supporting documentation in the record—qualifies as substantial evidence on skills transferability.

Could the Error Be Harmless?

You might be thinking: "But what about recordkeeping? If that skill alone supports the finding, isn't the verbal recording error harmless?"

The Tenth Circuit addressed this head-on. While courts can uphold administrative decisions when an agency gives two independent reasons and only one is valid (Zzyym v. Pompeo, 958 F.3d 1014, 1033-34 (10th Cir. 2020)), that principle only works if the valid reason independently supports the conclusion.

Here's the problem: nothing in the record suggested that recordkeeping by itself would qualify Morgan for those three jobs. The VE testified to both skills as transferable. The ALJ relied on both. Nobody separated out which skill supported which job or whether one skill alone would suffice.

The Result

Reversed and remanded to the agency for further proceedings. The court refused to award benefits outright (Morgan had requested this), finding that relief inappropriate on the current record.

What This Means for Your Practice

This case hands us several powerful practice points:

1. Challenge vague skill identifications. When a VE throws out technical-sounding terms like "verbal recording," don't let them slide by. Ask: What does that mean? What specific tasks does it include? How does the record show my client performed those tasks?

2. Demand documentation. SSR 82-41 requires appropriate documentation for skills-transferability findings. A VE's bare assertion isn't enough. Push for specific citations to the record showing where your client actually performed the identified skill.

3. Don't let multiple-skill findings go unchallenged. If a VE identifies multiple transferable skills, ask which skill supports which job. If the ALJ relies on all the skills collectively, and even one lacks support, the entire Step 5 finding may fail—and harmless error won't save it unless the record clearly shows the remaining skills independently support the conclusion.

4. The burden is on the agency. At Step 5, it's not your job to prove your client can't do the work. It's the Commissioner's burden to prove they can. If the VE can't point to record evidence of a skill, that skill can't be used to deny benefits.

5. Object at the hearing. While Morgan ultimately won on appeal, imagine how much stronger this case would have been if counsel had objected in real-time: "Your Honor, I'd like to ask the VE to clarify what 'verbal recording' means and to identify where in the record Ms. Morgan performed this task." Get it on the record. Make the ALJ and VE do their homework before the decision is written.

The Bigger Picture

This case is a beautiful example of why we can't let procedural steps become rubber stamps. Step 5 isn't just a formality—it's where the agency has to prove, with substantial evidence, that alternative work exists that the claimant can actually perform with their skills and limitations.

When VEs use vague terminology or make unsupported assertions, our clients lose opportunities they're entitled to. This decision reminds us that "because the expert said so" isn't good enough. Not at Step 5. Not when someone's livelihood is at stake.

Bookmark This One

Morgan v. Commissioner is now in my permanent Step 5 toolkit, and it should be in yours too. Whether you're preparing for a hearing, drafting a brief to the Appeals Council, or litigating in district court, this case gives you the ammunition to demand that skills-transferability findings rest on something more than a VE's say-so.

The Tenth Circuit just reminded everyone that when it comes to transferable skills, show your work. If you can't point to where in the record the claimant actually learned and used that skill, you can't use it to deny benefits.

And honestly? That's exactly how it should be.