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