Friday, May 18, 2018

Anatomy of a Cross-Examination - Using All the Tools

Court remand followed by a partially favorable decision that gave the client SSI, for which he no longer qualified, followed by an Appeals Council remand to explore mental and job numbers.  The mental symptoms that would be disabling occur after the date last insured.  The claimant is a younger individual with  sedentary residual functional capacity, limited education, and limited to simple, repetitive tasks.  ALJ defines SRT as SVP, Reasoning, and Language level 2.  Can he win?

In the opening dialog, the ALJ asks how the claimant can win that doesn't throw away the grids, which he cannot do.  I point out that 52 of the 137 sedentary unskilled occupations are inside of production workers, all other; that the OOH states that they need a high school education, and now require moderate training making them semi-skilled.  the ORS states that these occupations require standing four hours per day at the 10th percentile.  The rest of the sedentary base is clerical in nature and this person lacks the education or they are reasoning level 3.  The ALJ asks if the case centers on the vocational. Yes, let's go. 

ALJ asks the hypothetical question:  sedentary (sit six, stand/walk two), limited education, and limited to simple, repetitive tasks, SVP, Reasoning, and Language level 2.  Vocational expert identifies:

Addresser – 209.587-010 – 6,026 in the nation; 96 in the region  defined as Riverside-San Bernardino-Ontario
Document preparer – 249.587-018 – 46,532 in the nation; 413 in the region.
Call out operator – 237.367-014 – 6,460 in the nation; 26 in the region. 
ALJ turns over cross to me.  I focus on the DOT first.  
Does call out operator require reasoning level 3?
Does document preparer require reasoning level 3?
ALJ asks why that matters.  The hypothetical question asked for reasoning level 2.  That's right.  The ALJ asks for two more occupations.  The VE warns that they are smaller in numbers.  Just tells the VE to proceed.
Table worker – 739.687-182 – 2,316 – 23 in the region
Press clipping cutter and paster – 249.587-014 – 3,840 in the nation; 34 in the region. 

I ask the ALJ if he wants to proceed.  We are sitting on a little over 12,000 jobs and that isn't significant.  ALJ says to proceed. 
Cutter and paster of press clippings – does that still exist?
 After a colloquy and establish that a limited education does not come in with computer skills, The vocational expert concedes that about 30% of the jobs identified would still be unskilled and sedentary.  Mark that 3,840 down to 1,300. 

Without getting into the numbers game, I can't do much with table worker.  I do want to set the stage for post-hearing submissions so I confirm the SOC (51-9061) and NAICS codes (326100 and 326200).  Moving up the ladder now to addresser, a consistent thorn. 
I have read from professionals in the industry that this occupation no longer exists as described.  How do you respond to that assertion?
Vocational expert sings and dances about small companies have more duties but large companies have dedicated addressers and even if they use a computer, that use is show-and-do, still sedentary and unskilled.  The VE would not budge off the numbers. 
Is this occupation in Word Processors and Typists, SOC 43-9022?
Yes, it is. 
Does the OOH classify the occupational group as requiring a high school or equivalent education?
I would have to look that up.  
I instruct the VE to look in the "OOH, data for occupations not covered in detail."  The VE wallows surfing the internet (he's on the phone).  The ALJ asks to look at my screen, is convinced that I represented the OOH properly, and asks for the next question. 
The O*NET states that 90% of word processors and typists sit continually or almost continually during the workday.  Is that consistent with sitting six of eight hours?
Well, the worker has to stay productive and maintain posture [...] no, it isn't consistent.  
ALJ says he has heard enough and offers praise at a well-constructed cross. 

We used the OOH and ORS to pollute the VE not to go to the production workers list.  We used the DOT to knock out two occupations.  We used commonsense to cut another down to a third.  We used the OOH to bring into question the numbers of the elephant in the room.  And we used the O*NET to steal home plate.  The only took not used was the SCO.  I had my advance copy of OccuCollect open to help me locate the data quickly during the hearing. 

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