Friday, November 18, 2016

How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

I addressed the issue of superficial contact with supervisors and coworkers earlier this year.  A transcript from a real case pending in federal court provides context and illustrates the methodology.

Q So what he would be limited to would be a light level of work. Occasional posturals, and avoiding hazards which would be working at heights, or operating dangerous, moving machinery. And visually would be according to doctor, he has -- his vision is corrected by glasses but he certainly would have distance problems if he did not wear his glasses. So he has a visual limitation but again, correctable by glasses.

In terms of his non-exertional limitations, he suffers from a disorder that would limit him to simple, routine instructions, and also would limit him to brief and superficial contact with the public, the supervisors and the co-workers. Now with those limitations, [vocational expert], can you identify some jobs that would exist, if there are any jobs that would exist, that exist in the national environment?

[colloquy and clarification of the exertional limitations]

A Okay. All right. Well, thank you, Your Honor. At the sedentary level, sedentary, unskilled, SVP 2 work, would be hand sorter of small fruits and vegetables, nuts, food products. The DOT is 521.687-086, approximately 3,000 jobs nationally.

[colloquy about the nut sorter jobs]

A Okay. And then, Your Honor, the other would be assembler, hand assembler and that would be 726.684-050, sedentary, unskilled. It's touch up assembler, excuse me. And also approximately 3,000 jobs nationally.

Q Okay.

A And then, Your Honor, another would be production bear with me. You said superficial contact with others?

Q Yes.

A Okay. I would leave it there, Your Honor.


Q [...] in terms of brief and superficial contact with supervisors, that would also include criticism, work instructions, training. Are all of those brief and superficial?

A That's a very good question. It depends upon the level -- you're describing a situation that's going to vary also according to the level of work performance which would elicit
greater or lesser interaction with supervisors regarding instruction and supervision.

Q Do you consider the ability to accept and respond appropriately to criticism from supervisors to be critical to performing unskilled work?

A Yes, yeah.

Q Okay. So if the person can only tolerate brief and superficial contact, and the ability to accept instructions and respond appropriately to criticism from supervisors is critical to performing unskilled work, how can those two marry?

A Excuse me. You lost me on -- you're jumping from one to the other, so --

Q Okay.

A -- my understanding of your question was is it critical being able to accept criticism, and -- okay, I see what you're saying. Repeat the hypothetical again, please?

Q Well, it's not a hypothetical, it's an observation. If the person can only tolerate brief and superficial contact with supervisors, and we agree that the ability to accept instruction and respond appropriately to criticism from supervisors is critical to performing unskilled work, how could such a person that can only tolerate brief and superficial contact also tolerate and accept criticism from supervisors?

A All right. You -- correct. There would be a conflict there. I don't believe it would be possible.

Q So would you agree that a person can tolerate only brief and superficial contact from supervisors could not engage in competitive employment?

A As presented right now, yes.
The ALJ went on to reject the testimony on cross-examination as somehow changing the hypothetical question.  The court will get to review that assessment.  But this is an example of the "how" of cross-examining a vocational expert on superficial contact with others.

Saturday, November 12, 2016

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

Friday, November 11, 2016

The Treating Physician Rule Will Die, Now What?

The treating physician rule will likely die according to the Notice of Proposed Rule Making (NPRM).  I believe in the treating physician rule and argued for its extension to disability plans covered by ERISA.  See Black & Decker Disability Plan v. Nord.  Writing for the unanimous Court, Justice Ginsburg explained that plan administrators "may not arbitrarily refuse to credit a claimant's reliable evidence, including the opinions of a treating physician."  As to ERISA claims, the treating physician rule died that day.  

The Commissioner of Social Security's NPRM suggests that the agency discard the treating physician rule:
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources. When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (7) of this section, as appropriate. 
20 CFR § 404.1520c(a).  (20 CFR § 416.920c is the SSI counterpart).  Before the claimant's bar runs off screaming that the sky is falling, they ought to examine the paragraphs directed by the predicted demise of the treating physician rule.  

First things first, the burden to articulate the weight given to the evidence remains, for the most part.  20 CFR § 404.1520c(b)(1).  Gone is the obnoxious practice of simply selecting between two equally weighted opinions.  20 CFR § 404.1520c(b)(3).  Retained and expanded is the obligation to articulate how the agency addressed non-accepted medical source opinion evidence.  Chiropractors, nurse practitioners, and other non-doctors just got a regulatory boost in status.  

The Commissioner retains the weight for supportability and consistency.  20 CFR § 404.1520c(c)(1) and (2).  The Commissioner keeps as a weight factor the relationship to the claimant -- examining better than non-examining; length of the relationship; frequency of examinations; purpose of the treatment relationship; and extent of the treatment relationship.  20 CFR § 404.1520c(c)(3).  In sub-paragraphs (i) through (v), the Commissioner gives back with the left hand what the right hand had taken away.  All things being equal in terms of supportability and consistency with the record, the longitudinal treatment relationship will cause SSA to give more weight to the opinions of the treating physician than that of an examining or non-examining physician.  The label of treating physician rule has died but the commonsense notion that the treating physician knows the patient better than the one-time consultative examiner or the non-examiner survives.  

The practical effect of the change will amount to not much.  A lack of support in the record and a lack of consistency with the record have long provided SSA with adequate grounds to reject the opinions of the treating physician.  Those cases are legion.  But the tie goes to the runner -- the treating physician -- and will continue to favor the claimant.  When the examining physician opines that the claimant can stand or walk for six hours and the treating physician states that four hours is more likely and sustainable for a particular patient, the treating physician opinion should prevail under current law and under the NPRM.  

To answer your question -- no, I am not concerned about the death of the treating physician rule.  I experienced that pain long ago and it didn't kill me.  The regulations as drafted keep the key elements of the doctrine alive and discharged to thrive.  Long live the weight given to a treating source when it is supported and consistent.