Interrogatories to a Examining or Non-Examining Medical Source

The claimant has moderate limitation in detailed and complex tasks and in interacting with supervisors, coworkers, and the public.  That is the general framework of limitations that are set forth by examining psychologists/psychiatrists and part of the work sheet portion of the mental residual functional capacity assessment made by state agency psychologists/psychiatrists.  Moderate limitations are ambiguous.  The claimant, representative, and the ALJ have no idea what moderate means.  If we had a case worth a half a million dollars, we would resolve that ambiguity before trial.  Many time, we have exactly that, a half a million dollar case.  Every Social Security disability case, whether involving disability insurance or supplemental security income is a big case by standards applicable to other legal endeavors.  To the client, it isn’t big, it is everything.  So let’s propound interrogatories to the examining and non-examining psychologists/psychiatrists based upon POMS DI 25020.010 and the Dictionary of Occupational Titles, Appendix C.  

Be judicious and ask the questions reasonably related to the opinions expressed.  For instance, a psychiatrist that opines that the claimant with low average or borderline intellectual functioning can do complex work, it is reasonable to ask about reasoning level 4.  Other reasoning levels apply when the claimant has a skilled background and a colorable mental impairment, even non-severe.  

INTERROGATORIES TO <NAME OF PSYCHOLOGIST/PSYCHIATRIST>

1.    Did you examine (review the record for) <client name> on <date of evaluation>?

__________________________

2.    Is the document attached as exhibit <exhibit no.> a true copy of your report of findings and opinions?

__________________________

3.   In the <functional assessment title>, you describe <client name> as having moderate limitations in <designate the functional limitation>.  Can <client name> sustain of a full-time regular work schedule (mark all that apply) where the employer treats the function as critical to performing work:

A.   Memory Functions

o Remember work-like procedures (locations are not critical).

o Understand and remember very short and simple instructions.

o Carry out very short and simple instructions.

o Apply principles of logical or scientific thinking to a wide range of intellectual and practical problems. Deal with nonverbal symbolism (formulas, scientific equations, graphs, musical notes, etc.) in its most difficult phases. Deal with a variety of abstract and concrete variables. Apprehend the most abstruse classes of concepts.

o  Apply principles of logical or scientific thinking to define problems, collect data, establish facts, and draw valid conclusions. Interpret an extensive variety of technical instructions in mathematical or diagrammatic form. Deal with several abstract and concrete variables.

o  Apply principles of rational systems to solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, oral, diagrammatic, or schedule form.

o Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

o Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.

o Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.

B.   Concentration, Persistence and Pace Functions

o Maintain attention for extended periods of 2-hour segments (concentration is not critical).

o Maintain regular attendance and be punctual within customary tolerances. (These tolerances are usually strict.) Maintaining a schedule is not critical.

o Sustain an ordinary routine without special supervision.

o Work in coordination with or proximity to others without being (unduly) distracted by them.

o Make simple work-related decisions.

o Complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)

C.   SOCIAL FUNCTIONS

o Ask simple questions or request assistance.

o Accept instructions and respond appropriately to criticism from supervisors.

o Get along with coworkers or peers without (unduly) distracting them or exhibiting behavioral extremes.

D.  ADAPTATION FUNCTIONS

o Respond appropriately to changes in a (routine) work setting.

o Be aware of normal hazards and take appropriate precautions.

I declare under penalty of perjury that the foregoing are my true and correct opinions. 

Executed this ___ day of ___________, ____, at _____________, _________. 

<signature block> 

Be aggressive in using interrogatories, your client's entitlement to benefits may depend on it.

Light Work Does Require More than Six Hours of Standing/Walking

Marian Marracco testified at a hearing yesterday.  Marracco has a bulk provider agreement to testify before the Social Security Administration as a vocational expert.  She was in New Jersey.  Now she works out of Desert Hot Springs.  She is prolific.

The ALJ directed Marracco to assume an ability to perform light work as defined in the regulations with other limitations.  Marracco identifies three occupations:  night cleaner; mail clerk; and garment sorter.  On cross-examination, the question turns to the medical expert's testimony: six hours of standing and walking in an eight-hour day.  Marracco says no change because the DOT defines light work as six hours of standing/walking in an eight-hour day.  Marracco further testifies that no light work ever requires more than six hours of standing/walking in a day; no light work requires standing/walking throughout the day; and Labor does not have data to the contrary.

We start with the DOT, Appendix C definition of light work:

Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.

Walking or standing to a significant degree does not cap those activities at six hours nor preclude eight hours of standing/walking.  We move to the regulatory definition of light work:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

A good deal of walking or standing does not cap those activities at six hours nor preclude eight hours of standing/walking.  That leaves the non-law description of light work in Social Security Ruling 83-10:

the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.  Sitting may occur intermittently during the remaining time.

We check the description of medium work:

A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time.

We start with six hours and calculate the remaining time; that leaves two hours.  Sitting occurs "intermittently during the remaining time."  Intermittently modifies the phrase during the remaining time to mean some of the time, not all of the remaining time.  Read in context and giving meaning to the words of the ruling, light and medium work require standing/walking six hours per day and intermittently during the remaining time with intermittent sitting during that same period.  Intermittent is a broad word that runs from seldom to half the day.   Merriam-Webster defines intermittent as coming and going at intervals: not continuous and synonymous with occasional.  M-W provides other synonyms of continual, on-and-off, periodic, periodical, recurrent, and recurring.  Antonyms include constant, continuous, incessant, and unceasing.

Reading the ruling as capping standing/walking at six hours with no standing/walking during the remaining time is linguistically wrong.  Reading the ruling as redefining the DOT (which SSA does not get to construe) and the regulation (by adding a limitation that is inconsistent with the plain language of the regulation) may be binding on the ALJ but it is not binding on the claimant and not entitled to deference by a court.  SSR 83-10 is plainly erroneous and inconsistent with the regulation by imposing a six-hour cap in standing/walking and inconsistent with the DOT.

It is safe to assume that some light work does not require more than six hours of standing/walking in a day.  But that is a contextual inquiry, which we take up in the next three pieces on this blog.