Saturday, October 30, 2021

Why We Should Not Ask Leading Questions

 Lawyers take evidence.  It is a required class and every state tests evidence as part of the bar exam.  FRE 611(c) sets out the general lay of the leading question problem:

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

In general, we should avoid asking our clients leading questions except as necessary to develop the witness's testimony but not allow that exception to swallow the rule.  In addition to allowing the client to tell his/her own story instead of having the attorney tell the story and ask for affirmation as a more powerful presentation, we discuss a problem with leading questions that is fraught with danger.  

The medical evidence shows vision problems for the claimant.  The medical expert testifies to difficulty with small objects.  The Selected Characteristics rates near acuity (clarity of vision at 20 inches or less) as a requirement of work.  The ALJ seeks to lock down and out certain aspects of near acuity and asks the claimant:
So you have problems with small print?

The claimant affirms that leading question. The representative cross-examines the vocational expert about near vision (should have used the vocational term of near acuity). The ALJ interrupts, "where did you get that from?"  Aside from acting as an interruption, the claimant is allowed to explore the underpinnings of the witness's testimony.  In this case, the medical expert testified to difficulty with small objects.  The occupations identified all require at least occasional near acuity per the SCO.  In this case, the representative had a clear and reasonable factual basis for the question.  

The ALJ denies the case.  The ALJ writes that the claimant did not identify small objects, just small print, as a potential problem with work.  That's a problem with leading questions.  

 The ALJ asked about small print.  Small print is a subset of small objects.  If a person has difficulty in seeing small objects as a class and the ALJ asks if that person has difficulty with small print, the only truthful answer is "yes."  But it is clear in the nature of how people communicate that affirming an example does not exclude the broader class of the subject.  

Let's imagine a witness says that a crowd gathered.  On cross-examination, the defense attorney asks if the witness saw women. The witness affirms that statement.  The testimony on cross-examination does not exclude men because no one asked that question.  The closing argument that the male defendant was not there as shown by the statement that there were women is frivolous. The ALJ in our case asking about small print and then concluding that the claimant excluded threading a needle fails to present a logical and rational basis for decision-making.  

If the representative asked that leading question about small print, that creates a different problem.  The claimant has the burden of proof and the case in chief is now suggesting small print as the scope of limitation without taking into account the medical opinion evidence.  The diligent examination goes something like this:

 Q.  Can you describe for the ALJ your ability to see clearly at 20 inches or less, near acuity?

A. I don't see things close up very well.  I really struggle to read. 

Q.  Do you have any other examples of difficulty seeing things close up?

A.  I can't see small objects ...

By allowing the client to list reading and then clarifying that this is an example, we avoid the box that the ALJ put around this case.  Suggesting answers implies lists, not examples.  My personal favorite method of asking yes/no questions seeks a "no" so that the claimant can disabuse me of the wrong idea.  

Q.  Do you seek small objects clearly?

A.  No.  

Q.  Can you describe examples of that for the ALJ?

A.  [let the claimant give some examples].  

We don't need to ask leading questions except in very limited circumstances.  Leading questions dampen the persuasive value of the claimant's testimony.  Leading questions on direct or re-direct (since the ALJ asked questions first) has dangers of turning examples into lists.  Reject the Nike slogan on leading questions.  Don't do it.  


Suggested Citation:

Lawrence Rohlfing, Why We Should Not Ask Leading Questions, California Social Security Attorney (October 30, 2021)

Saturday, October 16, 2021

Sedentary, Simple Repetitive Tasks Equals No Significant Work

 The title of this piece sets forth the foundation and conclusion.  It does not matter whether the person is 21 years with a Ph.D. in astrophysics from MIT awarded at the age of 18.  Sedentary with simple repetitive tasks equals no significant number of jobs.

Here is the hypothetical from a real case:
Q And the first hypothetical I'd like you to consider is where the individual could perform a full range of sedentary work as it's defined in regulations. And can understand, remember and carry out simple routine tasks for up to two-hour periods of time; with only occasional interaction with the general public. There should be no fast-paced production or assembly line type work, and only minimal changes in workplace setting or routine. Given these limitations would this individual be able to perform any of the work that the claimant has performed in the past?
A No, Your Honor.
Q Would there be other work that such an individual could perform, and if so can you provide me with three examples?
A Yes. Surveillance system monitor, sedentary, SVP 2, the DOT is 379.367-010, approximately 150,000 full-time jobs in the national economy which I would erode by 50 percent down to 75,000 jobs based upon the DOT designating it, that precludes the government positions. Sedentary SVP 2, the job is assembler, the DOT is 734.687-018, approximately 125,000 full-time jobs in the national economy. And sedentary SVP 2, the job is table worker, the DOT is 739.687-182, approximately 40,000 full-time jobs in the national economy.
Q All right. Let me give you a second hypothetical, and this is adding on to the first. If the individual required at least one unscheduled break of 15 to 20 minutes in addition to regular breaks and lunch in an eight-hour workday, due to chronic pain, side effects with medication and/or possibly psychological symptoms, would that preclude those jobs that you identified in response to hypothetical number one?

A Yes.

Q Would there be any other work at that level?

A No. That would, that would call for an accommodation.

Q Is your testimony consistent with the Dictionary of Occupational Titles?

A It is.
There are so many things wrong with this vocational testimony that a representative might feel overwhelmed by the force of experience and administrative momentum.  Clearly the second hypothetical question is the opioid slipped to the claimant to make him/her think that he/she was finally heard and will win the case.  We know that the feel good will disappear when the hearing decision comes.  Advocate it all you want, but we know better.  The anecdotal experience that one time the ALJ went that way is just that, anecdotal lightning in a bottle.  

It is incumbent on the responsible representative to go after the vocational expert.  We discussed this before, "what is your methodology for determining the number of jobs as a surveillance systems monitor, assembler, and table worker?"  Lock that down.  If the vocational expert gives the opaque black box testimony, leave it there and move on.  This is not a time to argue, it is a time to allow the witness to hang him/herself.  

Regardless of the methodology the vocational expert regurgitates, present conflicting evidence. 

1. Job Browser Pro
a. Job Browser Pro assigns SSM to two occupational groups.  JBP currently states that that OEWS/SOC group of school bus monitors and protective service workers, all other (33-9098) represents in the aggregate 144,310 jobs.  Gaming surveillance officers and gambling investigations  (33-9031) represents 8,340 jobs.  Those two occupational groups together represent about 10,000 jobs attributed to SSM. 

b. JBP assigns assembler to production workers, all other (51-9199) representing 194,360 jobs in 1,528 occupations. Assembler identified by the vocational expert represents an estimated 17 jobs in the nation.  

c. JBP assigns table worker to inspectors, testers, sorters, samplers, and weighers (51-9061)representing 549,200 jobs in 782 occupations.  Table worker identified by the vocational expert represents an estimated 962 jobs.  
The ALJ must resolve the conflict in the evidence with a logical and rational basis.  Administrative notice is the preferred method of estimating job numbers.  20 CFR 404.1566(d).  Testimony answers questions that notice cannot answer.  20 CFR 404.1566(e).  Create the conflict and submit the JBP reports for the OEWS Group and the DOT Employment Estimate.  JBP considers industry and the vocational expert did not.  

2. Occupational Data
a. SSM is a reasoning level 3 occupation and therefore has an apparent conflict with simple repetitive work.  The OOH states that gambling officers and investigators are semi-skilled and skilled.  The O*NET OnLine states that gambling officers and investigators do not deal with the public as an important or fairly important job function in 34% of jobs.  The O*NET resource center states that gambling officers and investigators have on-the-job training not exceeding one month in 16.8% of jobs.  Gambling officers and investigators sit 90% of the day or more in all jobs according to the ORS.  Neither the ORS nor the O*NET provide data for school bus monitors and protective service workers, all other.  

b. Assembler is a reasoning level 1 occupation.  It is simple with little changes.  Assembler does require constant use of the hands for reaching, handling, and fingering.  That creates a conflict with no fast paced work.  The OOH states that production workers are semi-skilled and skilled representing 203,600 jobs.  The ORS states that production workers engage in unskilled work in 28.7% of jobs.  Production workers stand 90% of the day or more at every reported percentile.  Production workers engage in medium work in 68.9% of jobs.  

c. Table worker is a reasoning level 1 occupation.  It is simple with little changes. Table worker requires working on a conveyor belt.  That creates a conflict with no assembly line type of work.  The OOH states that inspectors are semi-skilled and skilled representing 557,900 jobs.  The O*NET OnLine states that inspectors do not deal with the public as an important or fairly important job function in 18% of jobs.  The ORS states that inspectors engage in unskilled work in 21.3% of jobs.  Inspectors engage in light work in 53.6% of jobs and medium work in 28.1% of jobs.  Inspectors sit 75% (six hours) at the 75th percentile and 90% of the day at the 90th percentile.  Assuming 20% of the jobs are sedentary  and 20% of those jobs are unskilled (a combined 4%) results in fewer than 40,000 jobs claimed by the vocational expert.  The industries that would employ table workers (plastic and rubber products manufacturing) employ 30,200 inspectors.  Applying the 4% for sedentary and unskilled to that job number results in 1,200 jobs.  That's more than what JBP estimated but reasonably close.  
Competent representation presents either JBP or occupational data to the ALJ post-hearing.  Good representation presents both.  Be good.


Suggested Citation:

Lawrence Rohlfing, Sedentary, Simple Repetitive Tasks Equals No Work, California Social Security Attorney (October 16, 2021)