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. 

Is the Attorney Representative All that AND a Bag of Potato Chips?

So here are some questions to ask:

1.        Does the attorney know the file better than the medical expert in every case?  That requires hours of case review per file and some files exceed 5,000 pages.  Did the attorney read and annotate the file before the hearing … every time?

2.       Does the attorney act like the potted plant at the hearing?

a.       Was there meaningful cross of the medical expert about unfavorable and unsupported parts of the ME testimony?

b.       Was there meaningful cross of the vocational expert?

3.       Does the attorney have a theory of the case that pertains to the facts of the case?

a.       Does the claimant fit inside of a favorable grid rule?

b.       Does the claimant have a non-exertional impairment that wipes out work at an or several exertional levels?

c.       Does the attorney ask questions tailored to the theory of the case?

                                                               i.      Do you have good use of your hands?

                                                             ii.      If no, tell the judge what you mean by “no.”

                                                           iii.      Can you open jars with ease?  Explain.

                                                           iv.      Can you manipulate a zipper with ease?  Explain.

                                                             v.      Can you type?  How fast?  How many errors?  For how long? 

                                                           vi.      Can you use a mouse?  Which hand?  For how long?

                                                          vii.      Cooking, scissors, etc. 

d.       Does the attorney have record citations that back up the theory of the case?

4.       Does the attorney permit the vocational expert to go unchecked – the potted plant syndrome?

a.       Can the attorney cross the VE on the provisions of the DOT and its companion publications including temperaments, aptitudes, environmental requirements, physical requirements?  Does the attorney know the DOT better than the VE?

b.       Can the attorney cross the VE based on the rulings?  See POMS DI 25025.030 for a list of the rulings about the significance of impairments on the exertional bases. 

c.       Can the attorney cross the VE based on mental limitations.  See POMS DI 25020.010 for a list of the critical and strictly enforced requirements of unskilled work. 

                                                               i.      Is a 10% reduction in productivity meaningless but a 15% reduction preclusive of all work?

                                                             ii.      Is superficial contact with supervisors a limitation that permits a wide swath of work? 

                                                           iii.      Is working in relative isolation OK?

                                                           iv.      What does SSR 00-4p say about testimony inconsistent with agency policy?

                                                             v.      What does SSR 13-2p include in the statements of agency policy?

d.       Does the attorney have a working knowledge of the scope of administrative notice?  See 404.1566(d) and 416.966(d). 

                                                               i.      Can the attorney challenge the VE on jobs within a specific industry?  See County Business Patterns. 

                                                             ii.      Can the attorney challenge the VE on the educational requirements for work as described in the OOH and the O*NET?

                                                           iii.      Does the attorney know the difference between Current Population Survey and Occupational Employment Statistics?

                                                           iv.      Does the attorney know the difference between SOC, OES, O*NET, and Census code reporting of job numbers?  The first three are the same for our purposes, the last one isn’t?

                                                             v.      Does the attorney know how to use the BLS employment projections?

                                                           vi.      Does the attorney know how to cross on a transferability of skills issue?  See POMS DI 25015.017 TSA. 

1.       GOE codes

2.       MPSMS codes

3.       Work Fields

4.       Occupational Group

5.       Industry Designation

Social Security Rulings 16-3p and 96-7p

The Commissioner rescinded SSR 96-7p when she published SSR 16-3p.  The banner headline across SSR 96-7p says it all -- Superseded.

The demise of one of the Process Unification Rulings -- the 96 series.  The rulings that sought to bring harmony between the initial, reconsideration, hearings, and review processes.  With the demise of SSR 96-7p, the Commissioner changes the interpretation of the stable regulation.  So, what was wrong with SSR 96-7p?

The first thing wrong with the old ruling was its title, emphasizing credibility.  It is not that the person has general credibility, but rather whether the symptoms of a medically determinable impairment could cause the limitations described.  The Commissioner phrases it:

Rather, our adjudicators will focus on whether the evidence establishes a medically determinable impairment that could reasonably be expected to produce the individual's symptoms and given the adjudicator's evaluation of the individual's symptoms, whether the intensity and persistence of the symptoms limit the individual's ability to perform work-related activities.

 The Commissioner keeps the two-step process of first establishing the medically determinable impairment.  That keeps with the statutory mandate that every disabling impairment get proved by clinically accepted laboratory or diagnostic techniques.  Then the adjudicator assesses the subjective perception of pain -- are the symptoms within the range of reasonable?

The practical effect of the ruling is to remove certain cards from the adjudicators deck of reasons to reject the complaints of limitation.  If it isn't about credibility, then criminal history should not matter.  The Commissioner explains:

our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation

 Nor should the dearth of a work history matter in terms of evaluating symptoms.  There in paragraph 2.b, the Commissioner tells the adjudicator to consider "prior work record."  So we can't get too excited about the death of the credibility finding.  Most of these cases turn on the residual functional capacity analysis.  To that point, the Commissioner directs the adjudicators:

We consider the individual's symptoms when determining his or her residual functional capacity and the extent to which the individual's impairment-related symptoms are consistent with the evidence in the record.

 SSR 16-3p changed the lay of the excess pain analysis.  Credibility is not the focus but some of the factors will continue to have a credibility flavor.  Shed a tear for the death of 96-7p and hail the new regent, SSR 16-3p.

Just in case you were wondering -- yes, SSR 16-3p probably applies to pending cases.  The application of a new interpretation to a stable regulation (20 CFR secs. 404.1529 and 416.929) applies unless the claimant would be prejudiced by application of the new interpretation.  Montgomery Ward & Co. v. FTC. Other circuits have their own variation of the retroactivity analysis.  This is the California Social Security Attorney blog.