Have You Assumed Anything Not Stated in the Hypothetical Question?

 This is a question that I see in transcripts handled by non-attorney representatives.  I assume it comes from a training seminar at NADR.  It is the right type of question and should be the first question that is asked in any case where the vocational expert has given any testimony that does not prove the inability to perform past work or other work.  

The question is overbroad though.  It should be limited to the medical-vocational profile and includes the vocational expert summary of past relevant work.  

Have you assumed any facts about the claimant's medical-vocational profile not stated in the hypothetical question?

Something more like that.  This eliminates the assumption that a limitation to light/medium work incorporates a further limitation to standing/walking six hours in an eight-hour day.  This eliminates the assumption that a limitation to sedentary work incorporates a sitting limitation to six hours in an eight-hour day.  See SSR 83-10.   We know that the understanding of six of eight is a misreading of the ruling and a misstatement of the world of work.  Most unskilled light and medium jobs require standing/walking all or almost all of the workday; most unskilled sedentary jobs require sitting all or almost all of the day.  

Asking the "other assumptions" question is not the last stop in questioning the vocational expert.  We must ask for the foundation for the testimony -- the reliable methodology for extrapolating local experience to the national economy.  And we must submit rebuttal evidence from reliable government and private sources.  Government sources include the examples in the administrative notice regulation:  the Occupational Outlook Handbook and County Business Patterns.  Government sources include unlisted examples:  employment projections (EP), occupational employment and wage statistics (OEWS), occupational information network (O*NET OnLine), and occupational requirements survey (ORS).  

If we do not ask the assumption and foundation questions, if we do not submit rebuttal evidence to the ALJ, then we are doing a disservice to our clients.  It has come to my attention that there is an attorney that takes cases where the hearing/AC level representative does not take the case to federal court.  That attorney files two actions:  (1) a complaint for review of the COSS final decision; and (2) a complaint for malpractice and other causes of action against the representative(s).  Don't get sued, or don't lose; ask the right questions and submit the rebuttal evidence.  

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Suggested Citation:

Lawrence Rohlfing, Have You Assumed Anything Not Stated in the Hypothetical Question?, California Social Security Attorney (September 7, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/09/have-you-assumed-anything-not-stated-in.html