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. 



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