Friday, March 25, 2016

Vocational Experts Will Say Anything

Woman is closely approaching retirement age, limited education, and past relevant work as a sample maker in the garment industry -- light as generally performed and medium as actually performed.

Q. Assume an individual this lady's age, education, and past work history, and let's say she could -- she is literate, not fluent in English and she could perform at a reduced range of light, in that she can only stand and walk up to four hours in an eight-hour day, she can only occasionally bend, stoop, squat, kneel. No crawling, or ladders, or scaffolds. Would that preclude the past work?

A.  No, it should not.

Q. At least. as it's typically performed, I gather?

A. As it's typically performed, yes.

Q. Okay, thank you.

A. Because there's going to be -- obviously, there's -- a sample makers doing multiple functions, but clearly, they are doing a lot of sewing. So, clearly, there would be standing four hours. Could be standing four hours, sitting four hours.

What's Wrong?

The vocational expert affirmatively testified that the claimant could perform work as the occupation is typically performed.  Check that box, the claimant loses at step four of the sequential evaluation process.  20 CFR 404.1520.  But did the witness hold that line?

Clearly there would be standing four hours.  Clearly at least or clearly at most?  Just to make sure that the witness did not walk it back, check the next sentence.  "Could be standing four hour, sitting four hours."  Really?  Could be?

As I say when I travel in Mexico and with Spanish speaking friends and relatives, yo tiengo una pregunta para ti.  I have a question for you.

All the time four and four?  Everyday four and four?  Some days exceed four hours of standing and walking?  One day a week/month/semi-monthly as typically performed more than four hours of standing and walking?  DOT 785.361-018 --
sewer; sample tailor Marks and cuts out material and sews parts of new style garments, following patterns, sketches, and design specifications, to prepare sample garments: Selects garment parts and threads, according to design specifications. Positions and aligns parts of sample garment together, following markings on parts, sketches, and patterns. Sews parts and attaches accessories and ornamentations, using needle and thread or sewing machine. Drapes garment on model form, examines fit and hang of garment, and marks garment to indicate position of fasteners and trimmings, such as sashes, belts, and emblems.

And the claimant is not fluent in English. This occupation requires Language level 3. DOT Appendix C:
Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.
Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech.
Speak before an audience with poise, voice control, and confidence, using correct English and well-modulated voice.
Perhaps the employer arranged work for a claimant that was not fluent in English and part of that trade-off is the greater exertion, medium instead of light.  But the question did not call for the ability to read, write, and speak in English according to the DOT protocol.  See Pinto v. Massanari

Vocational experts will say just about anything.  An opinion that does not withstand scrutiny.  Equivocated and failed to explain the language problem. 

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