Tuesday, May 1, 2018

Keeping the Theory of the Case in Mind During VE Cross

A claimant has a hearing.  She is 57, high school plus education, and a skilled background performing work as a court clerk (DOT 243.362-010).  She worked in covered employment. 

ALJ asks the vocational expert to assume that vocational background and a limitation to sedentary work with occasional use of the right dominant hand for gross and fine manipulation.  The SCO classifies the occupation as requiring occasional reaching, handling, and fingering.  At this point, the case is looking at a step 4 denial -- the claimant can return to her past relevant work.  The VE testifies to that. 

The record contains a good medical source statement.  That statement describes the claimant as able to use the right hand minimally.  The claimant had multiple surgeries on the hand and wrist which developed into reflex sympathetic dystrophy or regional pain syndrome.  This is a solid opinion based on good objective findings.  The representative asked the VE to assume less than occasional  of the right hand. 

This is a bad question.  We should use the MSS words whenever possible.  When we translate medical source opinions because we are trained not to plagiarize, we play the telephone game.  The meaning gets lost because less than occasional means something different than minimal.  If we think that minimal is ambiguous, we can offer a reasonable explanation.  Minimal does not mean zero.

Minimal implies less than the full range of occasional.  The SCO defines occasionally as up to a third of the time.  It includes one.  In the world of physical activity, we cannot use negative numbers so there is literally no less than occasional.  What does minimal mean in these circumstances?  We should offer definitions that fit the facts of the case and the context of the doctor's report -- we could offer the definition of rarely, or quantify it to the lower half of the occasional range, 0-16% of the day

The VE responds to the bad question with a response that eliminates the past relevant work.  The representative asked if other work was available.  STOP.  We have an obligation to represent the claimant, not sustain the Commissioner's burden of proof.  We should not ask that question -- unless we know that the answer is none

The VE responds with our favorite sedentary unskilled occupation, surveillance systems monitor. The SCO describes SSM as having no reaching, handling, and fingering.   The representative then proceeded to ask questions about the incidence of this occupation and whether it had changed.  STOP.  This claimant grids out under rule 201.06.  We do not want to confuse the record, the ALJ, or a reviewing court with a colloquy about SSM and whether it exists in significant numbers and whether the occupation had changed.  We must keep the theory of the case in mind and know the structure of the grids. 

It is that last question that forms the heart of consternation.  Had the occupation of SSM changed since the date last update?  Change that question to: has the occupation of court clerk changed since the date last updated in 1977?  Those are computer-based jobs.  Ask that question.  The ALJ in this case asked a question that leads to a step four denial; rip that concept to shreds. 

Another tact appears.  The court clerk occupation requires average motor coordination, finger dexterity, and manual dexterity per the SCO.  Ask that question, assume a person that has below average dexterity or can tolerate minimal dexterity demands, can that person perform the work of a court clerk either as actually performed or as generally performed? 

Dexterity is rated in the SCO electronic files.  It is listed in WestLaw for each DOT code as well as the SOS Manual from US Publishing and the products from SkillTran.  Dexterity is an SCO component.  Dexterity is part of the agency's regulatory consideration of work. 

The representative gets a point for reading the treating doctor's MSS.  He loses a point for using an inappropriate definition of the words used by the doctor; loses another point for asking about other work; loses another point for chasing the unskilled sedentary occupation down the rabbit-hole; and loses five points for failing to chase the nature of the past work up the tree.  The representative failed the claimant and now the case is in federal court.  We have to do better. 

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