Friday, November 3, 2017

Using Objective Findings as a Basis for Cross-Examination

"Counsel, you must frame your questions in vocationally relevant terms."

If a representative has cross-examined vocational experts, the representative has heard that admonition from the ALJ.  Sometimes it is just a bully tactic; sometimes it is because the representative is not asking questions that lead to useful information or are hopelessly vague.  Use of objective findings can provide a useful basis for extending the cross-examination into areas that lead to opinion testimony of no jobs. 

The client testifies to limited ability to bend and stoop.  The consultative examiner finds 45 degrees of forward flexion and opines that the claimant can occasionally bend and stoop.  The state agency doctor parrots the CE -- the claimant can occasionally bend and stoop.  The treating physician does not address the question.  Occasional stooping does not significantly impact the ability to perform light or sedentary work.  Social Security Ruling 85-15; Social Security Ruling 83-10.  Is the claimant toast or can the representative do more? 

Tiengo pregunta ... I have a question:
If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend or stoop beyond 45 degrees.  That means the person cannot bend or stoop enough to even put their hands below their knees.  Can that person perform any of the work that you described here today?  
The same mantra applies to limited flexion of the neck.  In my experience 25 degrees -- half the range of motion in the neck -- will wipe out the ability to perform unskilled production and clerical work. 
If we assume the same person described in the ALJ's first hypothetical question -- do you need me to repeat that question for you, no, ok -- and add to that question that while the person can occasionally bend and stoop, the person can never bend the neck beyond 25 degrees.  That means the person cannot look straight down; he/she has lost half of the ability to look down and can only flex the head and neck down to 25 degrees occasionally during the day.  Can that person perform any of the work that you described here today?  
When a representative doesn't know how to frame a question, the representative should resort to reciting the objective findings contained in the medical evidence.  If the ALJ starts the "vocationally relevant terms," the representative must back up and ask the vocational expert:
As part of your education, training, and experience, did you study ergonomics?
Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as essential job functions? 
Did that study of ergonomics include consideration of the frequency but also the amount of body motion required to perform job duties as bona fide occupational qualifications - how the job is typically performed?
If I ask you to assume not only a frequency but also a specific amount of motion in a particular joint(s) of the body, is that relevant to your education, training, and experience?
If the answer to those questions is "no," the VE isn't qualified and move to strike all testimony.  If the answer to those questions is "yes," ask the limited motion question again whether that question involves the back, neck, wrist, elbow, or other joint of the body.  I have not had an ALJ challenge this line of questioning ... yet. 


1 comment:

  1. Now you are speaking my language, Larry. Thank you for your always informative blog.

    Objective medical evidence is critical to step five hypos. The tactic is to know the medical evidence cold, then get favorable testimony from the VE that is tied to that medical evidence. For exactly, for a claimant who claims lower extremity swelling, you should know exactly how many times a claimant exhibits lower extremity swelling on exam, then frame a hypothetical that incorporates the need to elevate one's legs, ask the question, get the response, then, in closing, cite for the ALJ all the precise F section pinpoint citations to swelling. This makes it tough to discredit the claimant's testimony regarding that medical condition, and now, the hypo is directly tied to objective medical evidence of record. If the ALJ won't give it to you, someone up above should take notice.

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