Friday, November 18, 2016

How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

I addressed the issue of superficial contact with supervisors and coworkers earlier this year.  A transcript from a real case pending in federal court provides context and illustrates the methodology.

BY THE ADMINISTRATIVE LAW JUDGE:

Q So what he would be limited to would be a light level of work. Occasional posturals, and avoiding hazards which would be working at heights, or operating dangerous, moving machinery. And visually would be according to doctor, he has -- his vision is corrected by glasses but he certainly would have
distance problems if he did not wear his glasses. So he has a visual limitation but again, correctable by glasses.

In terms of his non-exertional limitations, he suffers from a disorder that would limit him to simple, routine instructions, and also would limit him to brief and superficial contact with the public, the supervisors and the co-workers. Now with those limitations, [vocational expert], can you identify some jobs that would exist, if there are any jobs that would exist, that exist in the national environment?

[colloquy and clarification of the exertional limitations]

A Okay. All right. Well, thank you, Your Honor. At the sedentary level, sedentary, unskilled, SVP 2 work, would be hand sorter of small fruits and vegetables, nuts, food products. The DOT is 521.687-086, approximately 3,000 jobs nationally.

[colloquy about the nut sorter jobs]

A Okay. And then, Your Honor, the other would be assembler, hand assembler and that would be 726.684-050, sedentary, unskilled. It's touch up assembler, excuse me. And also approximately 3,000 jobs nationally.

Q Okay.

A And then, Your Honor, another would be production bear with me. You said superficial contact with others?

Q Yes.

A Okay. I would leave it there, Your Honor.

BY THE ATTORNEY:

Q [...] in terms of brief and superficial contact with supervisors, that would also include criticism, work instructions, training. Are all of those brief and superficial?

A That's a very good question. It depends upon the level -- you're describing a situation that's going to vary also according to the level of work performance which would elicit
greater or lesser interaction with supervisors regarding instruction and supervision.

Q Do you consider the ability to accept and respond appropriately to criticism from supervisors to be critical to performing unskilled work?

A Yes, yeah.

Q Okay. So if the person can only tolerate brief and superficial contact, and the ability to accept instructions and respond appropriately to criticism from supervisors is critical to performing unskilled work, how can those two marry?

A Excuse me. You lost me on -- you're jumping from one to the other, so --

Q Okay.

A -- my understanding of your question was is it critical being able to accept criticism, and -- okay, I see what you're saying. Repeat the hypothetical again, please?

Q Well, it's not a hypothetical, it's an observation. If the person can only tolerate brief and superficial contact with supervisors, and we agree that the ability to accept instruction and respond appropriately to criticism from supervisors is critical to performing unskilled work, how could such a person
that can only tolerate brief and superficial contact also tolerate and accept criticism from supervisors?

A All right. You -- correct. There would be a conflict there. I don't believe it would be possible.

Q So would you agree that a person can tolerate only brief and superficial contact from supervisors could not engage in competitive employment?

A As presented right now, yes.

The ALJ went on to reject the testimony on cross-examination as somehow changing the hypothetical question.  The court will get to review that assessment.  But this is an example of the "how" of cross-examining a vocational expert on superficial contact with others. 



Saturday, November 12, 2016

Is the Attorney Representative All that AND a Bag of Potato Chips?

So here are some questions to ask:

1.        Does the attorney know the file better than the medical expert in every case?  That requires hours of case review per file and some files exceed 5,000 pages.  Did the attorney read and annotate the file before the hearing … every time?
2.       Does the attorney act like the potted plant at the hearing?
a.       Was there meaningful cross of the medical expert about unfavorable and unsupported parts of the ME testimony?
b.       Was there meaningful cross of the vocational expert?
3.       Does the attorney have a theory of the case that pertains to the facts of the case?
a.       Does the claimant fit inside of a favorable grid rule?
b.       Does the claimant have a non-exertional impairment that wipes out work at an or several exertional levels?
c.       Does the attorney ask questions tailored to the theory of the case?
                                                               i.      Do you have good use of your hands?
                                                             ii.      If no, tell the judge what you mean by “no.”
                                                           iii.      Can you open jars with ease?  Explain.
                                                           iv.      Can you manipulate a zipper with ease?  Explain.
                                                             v.      Can you type?  How fast?  How many errors?  For how long? 
                                                           vi.      Can you use a mouse?  Which hand?  For how long?
                                                          vii.      Cooking, scissors, etc. 
d.       Does the attorney have record citations that back up the theory of the case?
4.       Does the attorney permit the vocational expert to go unchecked – the potted plant syndrome?
a.       Can the attorney cross the VE on the provisions of the DOT and its companion publications including temperaments, aptitudes, environmental requirements, physical requirements?  Does the attorney know the DOT better than the VE?
b.       Can the attorney cross the VE based on the rulings?  See POMS DI 25025.030 for a list of the rulings about the significance of impairments on the exertional bases. 
c.       Can the attorney cross the VE based on mental limitations.  See POMS DI 25020.010 for a list of the critical and strictly enforced requirements of unskilled work. 
                                                               i.      Is a 10% reduction in productivity meaningless but a 15% reduction preclusive of all work?
                                                             ii.      Is superficial contact with supervisors a limitation that permits a wide swath of work? 
                                                           iii.      Is working in relative isolation OK?
                                                           iv.      What does SSR 00-4p say about testimony inconsistent with agency policy?
                                                             v.      What does SSR 13-2p include in the statements of agency policy?
d.       Does the attorney have a working knowledge of the scope of administrative notice?  See 404.1566(d) and 416.966(d)
                                                               i.      Can the attorney challenge the VE on jobs within a specific industry?  See County Business Patterns. 
                                                             ii.      Can the attorney challenge the VE on the educational requirements for work as described in the OOH and the O*NET?
                                                           iii.      Does the attorney know the difference between Current Population Survey and Occupational Employment Statistics?
                                                           iv.      Does the attorney know the difference between SOC, OES, O*NET, and Census code reporting of job numbers?  The first three are the same for our purposes, the last one isn’t?
                                                             v.      Does the attorney know how to use the BLS employment projections?
                                                           vi.      Does the attorney know how to cross on a transferability of skills issue?  See POMS DI 25015.017 TSA
1.       GOE codes
2.       MPSMS codes
3.       Work Fields
4.       Occupational Group
5.       Industry Designation

Friday, November 11, 2016

The Treating Physician Rule Will Die, Now What?

The treating physician rule will likely die according to the Notice of Proposed Rule Making (NPRM).  I believe in the treating physician rule and argued for its extension to disability plans covered by ERISA.  See Black & Decker Disability Plan v. Nord.  Writing for the unanimous Court, Justice Ginsburg explained that plan administrators "may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician."  As to ERISA claims, the treating physician rule died that day.  

The Commissioner of Social Security's NPRM suggests that the agency discard the treating physician rule:
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. 
20 CFR § 404.1520c(a).  (20 CFR § 416.920c is the SSI counterpart).  Before the claimant's bar runs off screaming that the sky is falling, they ought to examine the paragraphs directed by the predicted demise of the treating physician rule.  

First things first, the burden to articulate the weight given to the evidence remains, for the most part.  20 CFR § 404.1520c(b)(1).  Gone is the obnoxious practice of simply selecting between two equally weighted opinions.  20 CFR § 404.1520c(b)(3).  Retained and expanded is the obligation to articulate how the agency addressed non-accepted medical source opinion evidence.  Chiropractors, nurse practitioners, and other non-doctors just got a regulatory boost in status.  

The Commissioner retains the weight for supportability and consistency.  20 CFR § 404.1520c(c)(1) and (2).  The Commissioner keeps as a weight factor the relationship to the claimant -- examining better than non-examining; length of the relationship; frequency of examinations; purpose of the treatment relationship; and extent of the treatment relationship.  20 CFR § 404.1520c(c)(3).  In sub-paragraphs (i) through (v), the Commissioner gives back with the left hand what the right hand had taken away.  All things being equal in terms of supportability and consistency with the record, the longitudinal treatment relationship will cause SSA to give more weight to the opinions of the treating physician than that of an examining or non-examining physician.  The label of treating physician rule has died but the commonsense notion that the treating physician knows the patient better than the one-time consultative examiner or the non-examiner survives.  

The practical effect of the change will amount to not much.  A lack of support in the record and a lack of consistency with the record have long provided SSA with adequate grounds to reject the opinions of the treating physician.  Those cases are legion.  But the tie goes to the runner -- the treating physician -- and will continue to favor the claimant.  When the examining physician opines that the claimant can stand or walk for six hours and the treating physician states that four hours is more likely and sustainable for a particular patient, the treating physician opinion should prevail under current law and under the NPRM.  

To answer your question -- no, I am not concerned about the death of the treating physician rule.  I experienced that pain long ago and it didn't kill me.  The regulations as drafted keep the key elements of the doctrine alive and discharged to thrive.  Long live the weight given to a treating source when it is supported and consistent.  

Tuesday, October 25, 2016

How Did You Do on the Test?

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?

Answer 1:  A person can receive a period of disability and disability insurance benefits only if the person is both fully insured and currently insured.  42 USC sec. 416(i)(3).  The statute defines fully insured status as
one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage
42 USC sec. 414(a)(1).

Our claimant was born in 1954.  She turned 21 in 1975.  Counting 33 years, one for each quarter, takes us to 2008.  The year before the claimant becomes disabled or dies is 2008.  She is fully insured to 2009.

The statute defines currently insured status as:
The term “currently insured individual” means any individual who had not less than six quarters of coverage during the thirteen-quarter period ending with (1) the quarter in which he died, (2) the quarter in which he became entitled to old-age insurance benefits, (3) the quarter in which he became entitled to primary insurance benefits under this title as in effect prior to the enactment of this section, or (4) in the case of any individual entitled to disability insurance benefits, the quarter in which he most recently became entitled to disability insurance benefits, not counting as part of such thirteen-quarter period any quarter any part of which was included in a period of disability unless such quarter was a quarter of coverage, and who satisfies the criterion specified in subsection (c).
42 USC sec. 414(b).

Our claimant has 20 quarters accumulated between 2003 and 2009.  She has at least one in 2003 and at least one in 2009.  She is missing eight quarters of coverage during those seven years.  Her currently insured status extends 12 more quarters, to December 31 2012.

The claimant must have both, fully insured status and currently insured status.  Her date last insured for disability purposes is December 31, 2009. 

Question 2:  When this person turns 62 in 2016, can she collect a RIB?

No.  She doesn't have 40 quarters of coverage to be fully insured for RIB or early RIB.  Telling the claimant that lacks 40 quarters of coverage to take a RIB of any kind is below the standard of care.

Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

This is the math problem.  The period for assessing past relevant work is 15 years before the date last insured.   20 CFR sec. 404.1560.  Counting back 15 years is not 2009 minus 15.  That would include 1994.  One year prior to December 31, 2009, is January 1, 2009.  Counting back 15 years is January 1, 1995.

Bonus Question:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

No.  Work performed in 1994 is legally irrelevant under the regulations defining the relevant period.  Some may quibble that the period reaches to December 31, 1994.  Now meet the substantial gainful activity test of $500 per month in earnings with that day alone.  Can't be done.  It isn't relevant.

Assume that an attorney obtains a remand from the USDC to reassess the RFC.

Why does that help?  The ALJ found an inability to perform work after 1994, just the past work performed in 1994.  The first bonus question did not assume the ability to perform work done in 2003 to 2009.  Don't assume facts not in the question and not in evidence.  The correct issue is the lack of past relevant work.  In 1999, the person was 55 years of age.  She just needs a light residual functional capacity to "grid" out.

I left a lot out of the question.  The focus of the question is the technical issue -- calculating the date last insured and the period of the past relevant work.  If you got the date last insured right but counted the work done in 1994 as relevant, give yourself a B.  If you thought the date last insured was other than December 31, 2009, i.e. 2012 or some other date, give yourself a C.  If you got the date last insured correct as well as excluded the work in 1994 as irrelevant, give yourself the A.  You earned it. 

How Did You Do on the Test?

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?

Answer 1:  A person can receive a period of disability and disability insurance benefits only if the person is both fully insured and currently insured.  42 USC sec. 416(i)(3).  The statute defines fully insured status as
one quarter of coverage (whenever acquired) for each calendar year elapsing after 1950 (or, if later, the year in which he attained age 21) and before the year in which he died or (if earlier) the year in which he attained age 62, except that in no case shall an individual be a fully insured individual unless he has at least 6 quarters of coverage
42 USC sec. 414(a)(1).

Our claimant was born in 1954.  She turned 21 in 1975.  Counting 33 years, one for each quarter, takes us to 2008.  The year before the claimant becomes disabled or dies is 2008.  She is fully insured to 2009.

The statute defines currently insured status as:
The term “currently insured individual” means any individual who had not less than six quarters of coverage during the thirteen-quarter period ending with (1) the quarter in which he died, (2) the quarter in which he became entitled to old-age insurance benefits, (3) the quarter in which he became entitled to primary insurance benefits under this title as in effect prior to the enactment of this section, or (4) in the case of any individual entitled to disability insurance benefits, the quarter in which he most recently became entitled to disability insurance benefits, not counting as part of such thirteen-quarter period any quarter any part of which was included in a period of disability unless such quarter was a quarter of coverage, and who satisfies the criterion specified in subsection (c).
42 USC sec. 414(b).

Our claimant has 20 quarters accumulated between 2003 and 2009.  She has at least one in 2003 and at least one in 2009.  She is missing eight quarters of coverage during those seven years.  Her currently insured status extends 12 more quarters, to December 31 2012.

The claimant must have both, fully insured status and currently insured status.  Her date last insured for disability purposes is December 31, 2009. 

Question 2:  When this person turns 62 in 2016, can she collect a RIB?

No.  She doesn't have 40 quarters of coverage to be fully insured for RIB or early RIB.  Telling the claimant that lacks 40 quarters of coverage to take a RIB of any kind is below the standard of care.

Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

This is the math problem.  The period for assessing past relevant work is 15 years before the date last insured.   20 CFR sec. 404.1560.  Counting back 15 years is not 2009 minus 15.  That would include 1994.  One year prior to December 31, 2009, is January 1, 2009.  Counting back 15 years is January 1, 1995.

Bonus Question:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

No.  Work performed in 1994 is legally irrelevant under the regulations defining the relevant period.  Some may quibble that the period reaches to December 31, 1994.  Now meet the substantial gainful activity test of $500 per month in earnings with that day alone.  Can't be done.  It isn't relevant.

Assume that an attorney obtains a remand from the USDC to reassess the RFC.

Why does that help?  The ALJ found an inability to perform work after 1994, just the past work performed in 1994.  The first bonus question did not assume the ability to perform work done in 2003 to 2009.  Don't assume facts not in the question and not in evidence.  The correct issue is the lack of past relevant work.  In 1999, the person was 55 years of age.  She just needs a light residual functional capacity to "grid" out.

I left a lot out of the question.  The focus of the question is the technical issue -- calculating the date last insured and the period of the past relevant work.  If you got the date last insured right but counted the work done in 1994 as relevant, give yourself a B.  If you thought the date last insured was other than December 31, 2009, i.e. 2012 or some other date, give yourself a C.  If you got the date last insured correct as well as excluded the work in 1994 as irrelevant, give yourself the A.  You earned it. 

Monday, October 17, 2016

Test Your Knowledge of How the Disability Insurance Benefit Program Works

Assume an individual born in 1954. 

This person has 33 quarters of coverage total in her lifetime. 
This person has 20 quarters of coverage in the period of 2003 to 2009. 
The other 13 QC occurred prior to 2003. 

Question 1:  What is the date last insured for disability purposes, if ever?
Question 2:  When this person turns 62 in 2016, can she collect a RIB?
Question 3:  If she is insured for DIB, define the period for assessing past relevant work?

Bonus questions:

Assume a the ALJ finds light residual functional capacity for work performed in 1994.  Is that a legally sustainable finding of fact?

Assume that an attorney obtains a remand from the USDC to reassess the RFC. 

I will post the answers this week.  If you want to play at anytime without looking at the answers, post them on the Law Offices of Lawrence D. Rohlfing facebook page.   

Saturday, October 15, 2016

Chiclets, Poverty, and Policy

I spent two weeks in Mexico recently and had the opportunity to see first-hand how the socialist government of Mexico treats its disabled.  As an attorney representing the disabled for nearly 31 years, I have a perspective and foundation to look at and compare the treatment of the disabled in the United States and Mexico. 

1. They Call Him BinLaden

Mostly because of his scraggly appearance.  This man is gaunt, unshaven, and unbathed.  He walks the beaches of Mazatl├ín with a box of chiclets gum.  He sells the individual pieces for 5 pesos.  Under current exchange rates, each pack of two pieces of gum costs 25 cents.  The locals tell me that this man goes downtown and buys the box of gum for 35 pesos, about $1.75.  If he sells the box, he grosses 250 pesos.  But he has to keep 35 pesos for tomorrow and as far as I can tell, he doesn't sell out everyday.  He lives on $10 a day.

This man doesn't speak.  He kind of grunts, holding out the box of gum.  He doesn't walk well, stiff legged with little if any flexion of the knees.  Did I mention that he walks on the beach?  He holds the box of gum with his open right hand and takes money with his open left hand.  I never saw him make a fist or touch his palm with any of his fingertips.  I am not a doctor but I pretend to be one in court and before SSA.  I suspect that he is palsied and that it happened at birth.  So this man has struggled his entire life. 

I luxuriated on the patio of the hotel.  Bin walked by.  He spotted Maggie and I -- recognized the faces as people that always overpaid for the chiclet.  Don't get too excited, we paid 10 pesos for each piece of gum  The 50 cents means nothing to us and a lot to him.  Paint me as not proud. 

I waved Bin off.  We were in a conversation that was serious.  Bin cocked his head to the side and rubbed his abdomen with his left hand.  He was hungry.  I gestured him to come over and bought some gum.  Paint me as shamed. 

2. Mexico's Social Safety Net

I contemplated leaving this entire section blank.  There isn't one.  Bin gets nothing in terms of housing assistance.  He is homeless as far as I could tell.  He gets nothing in terms of food assistance.  I know this from speaking with locals and asking questions.  Bin survives on the sale of chiclets gum mostly to tourists, most of whom don't want to be bothered by this unkempt mess.  The social safety net does not exist for Bin and others like him. 

I understand that Mexico does have an aged pension program.  It is meager.  Everyone gets old or older but most do not get palsied at birth or disabled during life.  In the industrialized world, that happens to 5% to 10% of the population. 

3.  The United States Safety Net

If Bin lived in the US, he would get nothing.  Not a citizen and not here before August 1997.  He would get nothing.  Bill Clinton signed that into law cutting off permanent residents that did not have 40 quarters of coverage in the family unit. 

If Bin were born in the US or got citizenship, he would get SSI.  That welfare component of the Social Security Act has a federal benefit rate of $733 for an individual and $1100 for a couple.  California provides a supplement, folding the food stamps into the monthly SSI check, $156.40 per month.  Bin is homeless so in California he would get $240.40 as the supplement. 

4.  The Pros and Cons of the Policy Choices

In Mexico, Bin has to go downtown (El Centro, or the center), buy the gum, and go back to the beach to sell.  He has to plan for the 35 pesos tomorrow.  He has to interact with people to the extent able and find something to eat.  It rains a lot in Mazatl├ín, or at least compare to Los Angeles -- but then again everywhere gets more rain than LA.  Bin has to manage life and has to ambulate. 

But it isn't just about Bin.  It is about me ... and you.  We have to or get the opportunity to see Bin everyday while on vacation.  But for the grace of God, there goes me.  I was born into the wealth of the United States and had a physician deliver me with forceps that prevented birth brain injury.  But for the grace of God, there goes me.  I get slapped in the face with the proposition of my incredible blessing of a well-functioning mind, body, and resources.  Paint me as humbled. 

In the US, we would give Bin SSI benefits.  When his parents died, retired, or became disabled, we would give him benefits on his parents' earnings record.  SSI would give him Medi-Cal or Medicaid.  The disabled adult child would get Medicare. 

Bin would not have to go to El Centro.  He would not have to hobble through the Playa (beach).  He would not have to sell chiclets to get something to eat.  Bin would not have to get the physical exercise and would not have to interact with people in order to survive.  And that would be my loss.  I would not have the reminder that but for the grace of God there goes me.  I would not have the reminder of the blessing of being born in the US.  I would not have the reminder that this well-functioning mind, body, and access to resources arise from nothing that I did.  They are gifts of happenstance; I was born here.  But that is what we do to the disabled in the US.  We give them enough money to stay home -- to stay out of sight.  We can't be bothered with the messiness of the disabled and disfigured.  Paint me as cursed. 

5.  The Choice

Under the guise of largesse, do we shutter away the aged and disabled so we don't have the guilt of not doing more?  Under the guise of indifference, do we force the Bins of our own little corner of the world to struggle mightily just to eat enough to barely survive and claim -- the exercise is good for him.  Is there another solution, a middle ground? 

Part of the problem rests on the proposition that in the micro, I can use compassion and discernment to pick the Bins.  In the macro, I use sterile standards to pick and choose.  The people that effectuate policy bring their own bag of bias with them.  And then there is fraud and waste.  I have no solution, just observations based on a short vacation in Mexico and a deep desire to understand the human condition.