Saturday, December 23, 2017

Defining Terms - Critical to Proving Disablity

Moderate, simple, routine ... these are just some of the terms that we read and hear in medical records and testimony.  I know what I mean when I use those words, but I am not sure what anyone else means when they use what are essentially terms of art.  The rescinded SSR 96-5p cautioned agency adjudicators against assuming that they know what witnesses meant when using banal terms like light.  The Commissioner promises to provide guidance later on that issue:
However, we are not revising our rules to add text about considering context or to provide examples because we intend to further clarify and provide examples, as appropriate, in our subregulatory instructions.

This draws into focus the need for the representative to demand that medical and non-medical sources define their terms.  Objective phrases need no definition -- 20 pounds.  Periodicity terms have context.  In California workers' compensation, occasional means up to 25% of the day; intermittent means up to 50% of the day; and frequent means up to 75% of the day.  Under that same regulation, a slight pain causes some handicap and a moderate pain causes a marked handicap in the activities percipitating the pain.  The terms have different meanings even though they sound the same that requires a great deal of care in assessing and ascertaining what the doctors meant.  I wrestled with this 20 years ago in Desrosiers v. Secretary of HHS.  The enduring concept of context and that context matters a great deal endures.  

The context bringing the matter to a boil today occurs in a hearing with an awful ALJ from San Francisco.  The ALJ calls a psychiatric medical expert.  ALJs call medical experts to either lock down a denial or to provide a basis to pay and the inherent bias of that ALJ dictates the reason.  The ALJ is looking for a way to deny.  The medical expert testifies to the conclusion that the person could perform simple, repetitive tasks.  If he had left it there, the claimant would have lost on SRT sedentary work.  That work doesn't exist anymore but it takes a Shaibi analysis to prove it.  

But this ALJ really wanted to lock it down, not knowing that he tied his own rope.  
By simple, repetitive tasks, do you mean one and two steps for unskilled work or do you mean three and four steps for semiskilled work?
The medical expert does not respond with unskilled.  The medical expert defines simple, repetitive tasks as one and two steps.  This took the case from eliminating reasoning level 3 work under Zavalin to eliminating reasoning level 2 work under Rounds.  Maybe not eliminating, but at least requiring a reasonable explanation.  Vocational experts rarely confess their deviation and cling to the idea that the DOT is soft and that anything other than a sit-stand option requires no explanation.  After all, "I have 30 years of experience."  

Here the ALJ in one question disclosed his patent bias and latent misunderstanding of the world of work.  I already knew he was a low paying, ready to deny, not a nice guy of an ALJ.  But now I know that he thinks that unskilled work is one- and two-step instructions and that anything beyond that is semi-skilled.  He hasn't read the DOT, is unaware of the world of work, and wants to deny anyone limited to one- and two-step work with identification of cashiers, furniture clerks, and others.  

This colloquy between an ALJ and medical expert racing down the track to hurry up and deny the claim reinforced the need to define the terms and just how important our job is to disabuse those ALJs of their misunderstanding of work and disability.  

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