Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi

We are back in Shawver v. Kijakazi looking at the limitations to superficial and brief contact with coworkers. We return to the district court decision in Misti Jo. S. v. Comm'r of Soc. Sec. for the residual functional capacity and occupations. In relevant part:

lift 20 pounds occasionally and 10 pounds frequently; stand/walk for up to 4 hours a day with ordinary breaks [...] The claimant is limited to simple, routine and repetitive tasks with occasional detailed work, only ordinary production requirement, and superficial and brief contact with coworkers and general public.

Resulting in: 

Routing Clerk, a Mail Routing Clerk, and a Marking Clerk.

We discussed the limitation to standing/walking for four hours yesterday. That exercise eroded routing clerk and mail clerk while eliminating marker. Vocational cross is a no quarter expedition, we seek to eliminate all jobs. The more common version of this genre of limitation is occasional contact or interaction with others. Superficial and brief is a separate classification having more to do with the quality of interaction, teamwork. 

Superficial and brief contact with others is not a vocationally relevant phrase. A person can have constant superficial and brief contact, nothing is in depth. Because it is conceivable and not classified by the data, the vocational witness gets carte blanche to pontificate. 

Routing clerk (222.687-022) is a shipping, receiving, and inventory clerks (SOC 43-5071) (shipping clerks) occupation. Shipping clerks have no or occasional contact with others in 0% of jobs according to the O*NET. A mere 1% do not coordinate or lead others. Dealing with external customers is "not important at all" in 4% of jobs. Never resolving conflict occurs in 16% of jobs. Working with a group or team is not important in 1% of jobs. 

Mail clerk (209.687-026) is a mail clerks and mail machine operators, except postal service (SOC 43-9051) (mail clerks) occupation. Mail clerks have no or occasional contact with others in 8% of jobs according to the O*NET. Coordinating or leading others is not important in 15% of jobs. Dealing with external customers is "not important at all" in 10% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 0% of jobs. 

Marker (209.587-034) is a stockers and order fillers (SOC 53-7065) (stockers) occupation. Stockers have no or occasional contact with others in 4% of jobs according to the O*NET. Coordinating or leading others is not important in 6% of jobs. Dealing with external customers is "not important at all" in 6% of jobs. Never resolving conflict occurs in 29% of jobs. Working with a group or team is not important in 4% of jobs. 

In order to make this type and quality of evidence probative, we have to ask. 

    1. Is "contact with others (face-to-face, by telephone, or otherwise) in order to perform it" superficial and brief?

    2. Is "coordinate or lead others in accomplishing work activities in this job" superficial and brief?

    3. Is fairly important ability to "work with external customers or the public" superficial and brief?

    4. Is the encounter of "conflict situations" on the job superficial and brief?

    5. Is the ability to "work with others in a group or team" as fairly important superficial and brief?

It becomes a matter of extracting concessions from the witness. The follow up question is whether an occupation that required those five workplace requirements or expectations (BFOQ), would you agree that the work required more than superficial and brief contact with coworkers and the public?

When we allow a vocational witness to wax on about the existence of work without exploring the range of available data, we allow the witness and ALJ to take from our clients the benefits that were promised in the Social Security Act. We become a party to a breach of the social contract. 

Forge onward. 

___________________________

Suggested Citation:

Lawrence Rohlfing, Another Missed Opportunity -- Superficial and Brief Contact with Coworkers in Shawver v. Kijakazi, California Social Security Attorney (October 18, 2023)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

Surprise and the Post-Hearing Brief

I discussed the issue of the five-day rule for the submission of evidence.  I did so as a break from the consistent drone of vocational issues.  Today, we see those two concepts get married.

The intrepid representative receives a notice of hearing containing a statement that a vocational expert will testify at the hearing.  A separate notice to the vocational expert gives that person's name and address.  The exhibit file will eventually contain a copy of the person's professional resume, or curriculum vitae.  Does the representative know what the person will say in response to any hypothetical question?  Does representative know what the hypothetical question will be as framed by the ALJ?  If the representative does not know, then any testimony given by the vocational expert constitutes SURPRISE!

HALLEX addresses supplemental and continued hearings.

I-2-6-80.Continued or Supplemental Hearing

Last Update: 9/2/05 (Transmittal I-2-64)

Citations:

• 20 CFR §§ 404.944, 416.1444.
  

Circumstances may require an ALJ to adjourn a hearing in progress and continue it at a later date, conduct a supplemental hearing, or reopen the record to receive additional evidence. If testimony at a hearing leaves unanswered questions, the ALJ may supplement the hearing record with additional oral testimony, a deposition, or additional documentary evidence.
A continuance or supplemental hearing is appropriate when:

• certain testimony or a document adduced at the hearing has taken the claimant by surprise, is adverse to the claimant's interest, and presents evidence that the claimant could not reasonably have anticipated and to which the claimant is not prepared to respond;
  

The vocational expert testimony has taken the claimant by surprise, is adverse to the claimant, and the claimant could not reasonably anticipate the content of the vocational expert testimony.

The right to a continued or supplemental hearing, or rather the right to request one, includes lesser remedies.  A lesser remedy to a continued her supplemental hearing is the submission of post-hearing evidence in the form of a request for administrative notice.  Administrative notice constitutes evidence of fact without the introduction of testimonial evidence.  Since the claimant does not want to take further of live testimony, but rather prove the existence of conflict between the vocational expert testimony and matters of administrative notice, whether the ALJ actually convenes a continued her supplemental hearing is irrelevant to the disposition that the claimant should have the right to submit a post-hearing brief that attaches, proffers, or otherwise introduces matters of administrative notice.

The matters of administrative notice include private and governmental sources of job data.  The examples provided in the regulations include the Dictionary of Occupational Titles, County Business Patterns, and the Occupational Outlook Handbook.  Because these are examples, other types of administrative notice exist.  This includes the O*NET OnLine, the Occupational Requirements Survey, and private publications.  Private publications include products published by SkillTran and U.S. Publishing.

Request an submit a post-hearing brief on vocational issues adverse to the claimant's testimony.  Be thorough and complete.