Thursday, July 12, 2018

The Claimant May Need a Cane for Long Distances

Look at enough ALJ decisions or go to enough hearings and we eventually see/hear/read a finding and hypothetical question that includes "may" and/or "long distance."  I have no idea what "may need a cane for long distances" means in the context of a complete residual functional capacity finding or hypothetical question to a vocational expert. 

MAY:

"I may use a cane today."  That means that I may not use a cane today.  When the ALJ directs the vocational expert that the claimant "may" need a cane or "may" need to engage in a certain activity, that "may" permits the ALJ to have the position of having considered the limitation and permits the vocational expert to assume that it never happens or happens so rarely as to be insignificant.  Tell the ALJ that you "may" attend the hearing tomorrow.  Right, "may" means nothing and sucks all meaning out of everything that follows. 

Q:  What does "may" need a cane mean to you?
A:  That may or may not need to use a cane.
Q:  Assume that the person will need to use a cane occasionally when walking is required on the job.  Does that change your answer?
A:  Of course it does.  I identified medium work. 
Q:  Needing a cane occasionally during the walking required of a medium job would eliminate that kind of work, right?
A:  Yes. 
Q:  And it eliminates light work that involve walking as well, right?
A:  Yes. 

Now you have to work on the stationary jobs that require no walking, if they indeed exist. 

LONG DISTANCE:

Q:  How far can you walk?
A:  Not a long distance.
Q:  I don't know what that means.  How far is a "long distance" for you?
A:  About a half block. 

Or the claimant might testify that a long distance is a mile -- about a 20 minute walk for a healthy person.  We would not let our client get away with vague testimony.  We drill down to the specific.  That's our job. 

When the ALJ asks the witness to assume something with "long distance" in the question, the ALJ puts on the cloak of having considered the testimony of a half-block and the vocational expert can assume that the phrase means over an hour of continuous walking. 

Q:  When the ALJ asked you to assume "no long distance" walking, what did you think that meant in time and distance?

The ALJ may interrupt and clarify with some intermediate distance.  But we now get clarity. 

Q:  The ALJ defined long distance as more than 15 minutes or two blocks.  Is that what you thought it meant? 
A:  Oh yes, of course I did. 
Q:  How did you know that "long distance" meant 15 minutes or two blocks?
A:  Experience.
Q:  Assume that the person needs a cane occasionally when walking 15 minutes or more in an hour.  Does that change the answers that you gave here today?
A:  Yes. 

Vagueness is the empowering facet of unfettered discretion.  Concreteness and clarity strip away the ability of the ALJ to exercise that unfettered discretion. 

2 comments:

  1. I have one particular VE that testifies that a person can do light with a cane because they can carry the weight with one arm. How do I counter testimony like that?

    ReplyDelete