Thursday, October 12, 2017

Cross-Examination on Occasional Contact with Supervisors

A fairly common limitation for a claimant with moderate impairments in social functioning -- assume that the person can tolerate up to occasional contact with supervisors.  This limitation does not preclude the vast majority of jobs.  As the great Scott Elkind has been heard to say, "If I think about you when I wake up three times and we are not sleeping together, you are fired."  Workers, especially unskilled workers, should not need ongoing and direct supervision more than the lower range of occasionally.  The limitation is an illusion with the appearance of consideration of the impairment without ever impacting the world of unskilled work.

Or so it would seem.  There does exist a period of time when an employee needs and must have more than occasional supervision -- during the first 30 days of training.  That fact constitutes a barrier to employment.  The line of inquiry focuses on whether the claimant can overcome that barrier with the limitation posed in the hypothetical question.
Assume that the person cannot tolerate more than occasional contact with supervisors and coworkers in the first 30 days of employment -- during orientation, training, and gaining proficiency in performing the work function.  Can that person perform the jobs identified here today?
The answer from the vocational expert should be, "No."  An employee performing work never before performed must have the ability to tolerate more than occasional contact with supervisors and other personnel training that new employee.  The economic barrier of entry into the marketplace of unskilled work is that training period, up to 30 days, of regular and ongoing contact with supervisors.

The other angle worth pursuing focuses on the other two-thirds of the day.  A claimant that can tolerate occasional contact with supervisors cannot tolerate contact with supervisors frequently during the day.
Assume that the person will frequently not be able to accept instruction or respond appropriately to criticism from supervisors.  Can that person perform the jobs identified here today?
The answer is, "No."  Taking the minimalist approach:
Assume that the person is rarely reacts inappropriately to supervisors, once or twice per month.  Would that person be subjected to progressive discipline and eventually terminated?
The answer to that question is, "Yes."

Focusing on the first 30 days of training or the long-term effects of a social impairment, the inability to get trained and the inability to respond appropriately to criticism from supervisors will lead to termination.  The person cannot sustain substantial gainful activity. 

See also POMS DI 25020.010 Mental Limitations.  Paragraph B.3 lists the functions critical to performing unskilled work.  

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