Is the Attorney Representative All that AND a Bag of Potato Chips?

So here are some questions to ask:

1.        Does the attorney know the file better than the medical expert in every case?  That requires hours of case review per file and some files exceed 5,000 pages.  Did the attorney read and annotate the file before the hearing … every time?

2.       Does the attorney act like the potted plant at the hearing?

a.       Was there meaningful cross of the medical expert about unfavorable and unsupported parts of the ME testimony?

b.       Was there meaningful cross of the vocational expert?

3.       Does the attorney have a theory of the case that pertains to the facts of the case?

a.       Does the claimant fit inside of a favorable grid rule?

b.       Does the claimant have a non-exertional impairment that wipes out work at an or several exertional levels?

c.       Does the attorney ask questions tailored to the theory of the case?

                                                               i.      Do you have good use of your hands?

                                                             ii.      If no, tell the judge what you mean by “no.”

                                                           iii.      Can you open jars with ease?  Explain.

                                                           iv.      Can you manipulate a zipper with ease?  Explain.

                                                             v.      Can you type?  How fast?  How many errors?  For how long? 

                                                           vi.      Can you use a mouse?  Which hand?  For how long?

                                                          vii.      Cooking, scissors, etc. 

d.       Does the attorney have record citations that back up the theory of the case?

4.       Does the attorney permit the vocational expert to go unchecked – the potted plant syndrome?

a.       Can the attorney cross the VE on the provisions of the DOT and its companion publications including temperaments, aptitudes, environmental requirements, physical requirements?  Does the attorney know the DOT better than the VE?

b.       Can the attorney cross the VE based on the rulings?  See POMS DI 25025.030 for a list of the rulings about the significance of impairments on the exertional bases. 

c.       Can the attorney cross the VE based on mental limitations.  See POMS DI 25020.010 for a list of the critical and strictly enforced requirements of unskilled work. 

                                                               i.      Is a 10% reduction in productivity meaningless but a 15% reduction preclusive of all work?

                                                             ii.      Is superficial contact with supervisors a limitation that permits a wide swath of work? 

                                                           iii.      Is working in relative isolation OK?

                                                           iv.      What does SSR 00-4p say about testimony inconsistent with agency policy?

                                                             v.      What does SSR 13-2p include in the statements of agency policy?

d.       Does the attorney have a working knowledge of the scope of administrative notice?  See 404.1566(d) and 416.966(d). 

                                                               i.      Can the attorney challenge the VE on jobs within a specific industry?  See County Business Patterns. 

                                                             ii.      Can the attorney challenge the VE on the educational requirements for work as described in the OOH and the O*NET?

                                                           iii.      Does the attorney know the difference between Current Population Survey and Occupational Employment Statistics?

                                                           iv.      Does the attorney know the difference between SOC, OES, O*NET, and Census code reporting of job numbers?  The first three are the same for our purposes, the last one isn’t?

                                                             v.      Does the attorney know how to use the BLS employment projections?

                                                           vi.      Does the attorney know how to cross on a transferability of skills issue?  See POMS DI 25015.017 TSA. 

1.       GOE codes

2.       MPSMS codes

3.       Work Fields

4.       Occupational Group

5.       Industry Designation

Vocational Experts Will Say Anything

Woman is closely approaching retirement age, limited education, and past relevant work as a sample maker in the garment industry -- light as generally performed and medium as actually performed.

Q. Assume an individual this lady's age, education, and past work history, and let's say she could -- she is literate, not fluent in English and she could perform at a reduced range of light, in that she can only stand and walk up to four hours in an eight-hour day, she can only occasionally bend, stoop, squat, kneel. No crawling, or ladders, or scaffolds. Would that preclude the past work?

A.  No, it should not.

Q. At least. as it's typically performed, I gather?

A. As it's typically performed, yes.

Q. Okay, thank you.

A. Because there's going to be -- obviously, there's -- a sample makers doing multiple functions, but clearly, they are doing a lot of sewing. So, clearly, there would be standing four hours. Could be standing four hours, sitting four hours.

What's Wrong?

The vocational expert affirmatively testified that the claimant could perform work as the occupation is typically performed.  Check that box, the claimant loses at step four of the sequential evaluation process.  20 CFR 404.1520.  But did the witness hold that line?

Clearly there would be standing four hours.  Clearly at least or clearly at most?  Just to make sure that the witness did not walk it back, check the next sentence.  "Could be standing four hour, sitting four hours."  Really?  Could be?

As I say when I travel in Mexico and with Spanish speaking friends and relatives, yo tiengo una pregunta para ti.  I have a question for you.

All the time four and four?  Everyday four and four?  Some days exceed four hours of standing and walking?  One day a week/month/semi-monthly as typically performed more than four hours of standing and walking?  DOT 785.361-018 --

sewer; sample tailor Marks and cuts out material and sews parts of new style garments, following patterns, sketches, and design specifications, to prepare sample garments: Selects garment parts and threads, according to design specifications. Positions and aligns parts of sample garment together, following markings on parts, sketches, and patterns. Sews parts and attaches accessories and ornamentations, using needle and thread or sewing machine. Drapes garment on model form, examines fit and hang of garment, and marks garment to indicate position of fasteners and trimmings, such as sashes, belts, and emblems.

STRENGTH: L GED: R4 M3 L3 SVP: 6 DLU: 77.

And the claimant is not fluent in English. This occupation requires Language level 3. DOT Appendix C:

03 LANGUAGE DEVELOPMENT
Reading:
Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work.
Writing:
Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech.
Speaking:
Speak before an audience with poise, voice control, and confidence, using correct English and well-modulated voice.

Perhaps the employer arranged work for a claimant that was not fluent in English and part of that trade-off is the greater exertion, medium instead of light.  But the question did not call for the ability to read, write, and speak in English according to the DOT protocol.  See Pinto v. Massanari. 

Vocational experts will say just about anything.  An opinion that does not withstand scrutiny.  Equivocated and failed to explain the language problem.