Vague Hypothetical Questions - Defining Temperature and Hazards

ALJs ask questions that contain vague terms and do not always define them.  There are circumstances where the vagueness does not present a material question.  In other circumstances, resolving vagueness will mean the difference between a favorable and an unfavorable decision.  

No exposure to temperature extremes is one of the limitations that arises.  The Selected Characteristics of Occupations defines exposure to extreme cold and extreme heat in Appendix D:

2. EXTREME COLD
Exposure to nonweather-related cold temperatures. In Part A, the rating for the Extreme Cold component appears second in the Environmental Conditions column under the vertical heading Co.

3. EXTREME HEAT
Exposure to non weather-related hot temperatures. In Part A, the rating for the Extreme Heat component appears third in the Environmental Conditions column under the vertical heading Ho.  

What are the measurements for extreme?  These are vocational factors that should not be left to silent definition by the vocational witness.  The Occupational Requirements Survey Collection Manual (found in the downloads section of www.occucollect.com) defines extreme cold (non-weather only) as:

40 degrees or below when exposed 2/3 or more of the time, or
32 degrees or below when exposed up to 2/3 of the time

Collection Manual, page 134.  Examples that meet one of those criteria are a meat cutter working in a 40 degree cooler more that 3/4 of the day or a freeze tunnel operator that wears protective clothing and enters that tunnel for short periods in -34 degree temperature.   Page 137.  Not included is the worker that shovels snow in the winter because it is weather related, a forklift operator that works in a non-temperature controlled warehouse as weather related, or the restaurant waiter that retrieves supplies from the freezer for the cook or food preparation staff when those workers are busy as incidental  

We defined our terms but now have other ambiguities.  The question asked about exposure to temperature extremes and the vocational witness relied on the SCO to identify jobs.  But the question did not permit exposure to weather related cold/heat.  Nor did the question permit incidental exposure to temperature extremes for the food server.  If the ALJ used the phrase temperature extremes, or the longer equivalent expression, the representative should question the witness when it matters.  

We find the same ambiguity in exposure to hazards, such as moving mechanical parts and unprotected heights.  We resort back to the SCO, App. D for the starting point definition:

8. PROXIMITY TO MOVING MECHANICAL PARTS
Exposure to possible bodily injury from moving mechanical parts of equipment, tools, or machinery. In Part A, the rating for the Proximity to Moving Mechanical Parts component appears eighth in the Environmental Conditions column under the vertical heading MP

The phrase such as typically precedes the examples.  The Collection Manual defines what Labor means by proximity to moving mechanical parts and high, exposed places:  the exposure must present a risk of bodily injury.  Collection Manual, page 134.  The presence of an environment where momentary loss of attention could result in bodily injury from the machine or falling, for example, represents a broader range of workplace prohibitions.  The Collection Manual provides examples of moving mechanical parts that could result in bodily injury:

• A deli worker operates a slicer to cut meats and cheeses. Even with required safety guards in place, injury is possible.
• A landscaper uses a chipper/shredder to mulch branches and tree debris.
• A worker who removes products from a machine or conveyor belt works close and could be injured while off-loading when machine is in motion.
• Mechanics working on running engines and moving vehicle parts while performing repairs.

An accountant using a crosscut shredder, use of a knife, the conveyor belt at the grocery store, using hand tools, or operating a taxi cab do not meet the threshold of a dangerous work environment.  Clearly the lethal weapon of a motor vehicle that could result in injury or death from a loss of concentration or focus but the ORS is more concerned with moving mechanical parts inside the vehicle.  

When addressing environmental limitations, the important part of cross-examination may turn to defining the terms.  One way to uncover the ambiguity of a hypothetical question is to object on vagueness.  The more subtle approach is the ask the vocational expert to state his/her understanding of the key terms.  

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SUGGESTED CITATION:

Lawrence Rohlfing, Vague Hypothetical Questions - Defining Temperature and Hazards, California Social Security Attorney (May 30, 2020) 
https://californiasocialsecurityattorney.blogspot.com/2020/05/vague-hypothetical-questions-defining.html