Superficial Contact in Normal Work Duties

We addressed the issue of superficial contact with supervisors as incompatible with reacting appropriately to criticism from a supervisor.  We separately address the question on qualitative versus quantitative contact with supervisors and coworkers.  This typically engenders a re-definition of terms by the ALJ or the ALJ just ignores the cross-examination that in turn leads to a lengthy appeal.  In this piece, we address a method that uses vocationally recognized and relevant terms for which we have hard data.  We start with the assumption in the hypothetical question to occasional superficial contact with the public, coworkers, and supervisors.  The vocational expert identified three occupations representing a significant number of jobs.  It is now time for cross-examination. 

Q. Do you consider coordinating with other people to be superficial?
Q. Do you consider factual information exchange to be superficial?
Q. Do you consider gentle persuading to be superficial?

Coordinating with other people and persuading other people fall outside the superficial box.  Those two questions should get a "no."  That leaves factual information exchange to be the focal point of potentially superficial.  We used office clerks, general (SOC 43-9061) in the most recent articles, so we continue to use them as illustrative here. 

43-9061.00 (office clerks, general)

Series ID: ORUC1000075800001030

Not seasonally adjusted

Series Title: % of office clerks, general; type of interaction with regular contacts is factual info exchange

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: type of interaction with regular contacts is factual info exchange

Year	Period	Estimate
2017	Annual	30.7

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001030

Series ID: ORUC1000075800001036

Not seasonally adjusted

Series Title: % of office clerks, general; type of interaction with other contacts is factual info exchange

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: type of interaction with other contacts is factual info exchange

Year	Period	Estimate
2017	Annual	51.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001036

As between the two types of contacts, interacting with regular contacts is limited to factual information exchange in a smaller percentage of jobs -- general office clerks coordinate or persuade in the majority of jobs. 

Series ID: ORUC1000075800001031

Not seasonally adjusted

Series Title: % of office clerks, general; type of interaction with regular contacts is coordinating

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: type of interaction with regular contacts is coordinating

Year	Period	Estimate
2017	Annual	62.8

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001031

Series ID: ORUC1000075800001032

Not seasonally adjusted

Series Title: % of office clerks, general; type of interaction with regular contacts is gentle persuading

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: type of interaction with regular contacts is gentle persuading

Year	Period	Estimate
2017	Annual	6

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001032

Having suspected and then confirmed the inference, we can confidently state that the data shows that 30.7% of general office clerks are limited to factual information exchange as an expected part of the job performance.  We now turn to frequency.  

Series ID: ORUC1000075800001050

Not seasonally adjusted

Series Title: % of office clerks, general; frequency of contact with regular contacts is continuous

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: frequency of contact with regular contacts is continuous

Year	Period	Estimate
2017	Annual	21.6

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001050

Series ID: ORUC1000075800001051

Not seasonally adjusted

Series Title: % of office clerks, general; frequency of contact with regular contacts is more than once per hour

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: frequency of contact with regular contacts is more than once per hour

Year	Period	Estimate
2017	Annual	53.4

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001051

Series ID: ORUC1000075800001052

Not seasonally adjusted

Series Title: % of office clerks, general; frequency of contact with regular contacts is more than once per day

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: frequency of contact with regular contacts is more than once per day

Year	Period	Estimate
2017	Annual	21.5

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001052

The data change the terminology.  Continuous translates over to constant easily.  More than once per hour is the corollary for frequent and more than once per day is the corollary for occasional.  If we use contact with other contacts, we get the phrase for seldom or never:

Series ID: ORUC1000075800001048

Not seasonally adjusted

Series Title: % of office clerks, general; frequency of contact with other contacts is no more than once per day, including never

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: frequency of contact with other contacts is no more than once per day, including never

Year	Period	Estimate
2017	Annual	31.9

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001048

Getting to that definition has the serendipity of providing a hold on how many general office clerks have no contact with the public -- other contacts.

Now we get to the point where commonsense controls. Who is more likely to have contact with coworkers and supervisors to coordinate activity, unskilled or skilled workers? Who is more likely to have their work checked by a coworker or supervisor regularly during the workday, unskilled or skilled workers? This is our last data point for this discussion:

Series ID: ORUC1000075800001075

Not seasonally adjusted

Series Title: % of office clerks, general; work review is more than once a day

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: work review is more than once a day

Year	Period	Estimate
2017	Annual	32.2

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001075

Series ID: ORUC1000075800001076

Not seasonally adjusted

Series Title: % of office clerks, general; work review is once per day

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: work review is once per day

Year	Period	Estimate
2017	Annual	29.8

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001076

Series ID: ORUC1000075800001077

Not seasonally adjusted

Series Title: % of office clerks, general; work review is at least weekly

Requirement: Cognitive And Mental Requirements

Occupation: office clerks, general

Estimate: work review is at least weekly

Year	Period	Estimate
2017	Annual	24.7

https://beta.bls.gov/dataViewer/view/timeseries/ORUC1000075800001077

Less than a quarter have their work checked less than daily; less than a third have their work checked daily; and a third get checked more than daily.  We have three competing assumptions to make about the world of work:

1. Unskilled workers have less contact with coworkers and supervisors compared to skilled or semi-skilled workers.
2. Unskilled workers have more contact with coworkers and supervisors compared to skilled or semi-skilled workers.
3. Unskilled workers have about the same contact with coworkers and supervisors compared to skilled or semi-skilled workers.

Absent a statistical basis for an assumption, the default has to be #3.  We go back to the OOH for the raw job numbers:

43-9061 Office clerks, general

Typical Education Needed	High school diploma or equivalent
Work Experience in a Related Occupation	None
Typical On-The-Job Training Needed to Attain Competency	Short-term on-the-job training
2016 Employment	3,117,700

We broke down the skill level based on ORS data to get to 1,100,548 unskilled jobs as a general office clerk.  We broke those numbers down to light and sedentary jobs and those with less than or equal to six hours of sitting.  Putting those conclusions together with today's data and we get:

43-9061.00 (office clerks, general)

# of Jobs	% Unskilled	# Unskilled
3,117,700	35.3%	1,100,548
# Unskilled	% Fact Info Ex.	# Fact Info Ex.
1,100,548	30.7%	337,868
# Fact Info Ex.	% > Daily	# > Daily
337,868	21.5%	72,642
# Unskilled	% Light	# Light
72,642	41.0%	29,783
# Light	% ≤ 6 hour sitting	# ≤ 6 hour sitting
29,783	25.0%	7,446
# Unskilled	% Sedentary	# Sedentary
72,642	32.8%	23,826
# Sedentary	% ≤ 6 hour sitting	# ≤ 6 hour sitting
23,826	25.0%	5,957

If we have an occasional superficial contact with others with either a sedentary or light residual functional capacity, the number of jobs drops below 30,000  in both exertion levels.  Imposing a limitation to six hours of sitting and the number of jobs becomes insignificant in most circuits.  

How to Cross-Examine a Vocational Expert on Superficial Contact with Supervisors

I addressed the issue of superficial contact with supervisors and coworkers earlier this year.  A transcript from a real case pending in federal court provides context and illustrates the methodology.

BY THE ADMINISTRATIVE LAW JUDGE:

Q So what he would be limited to would be a light level of work. Occasional posturals, and avoiding hazards which would be working at heights, or operating dangerous, moving machinery. And visually would be according to doctor, he has -- his vision is corrected by glasses but he certainly would have distance problems if he did not wear his glasses. So he has a visual limitation but again, correctable by glasses.

In terms of his non-exertional limitations, he suffers from a disorder that would limit him to simple, routine instructions, and also would limit him to brief and superficial contact with the public, the supervisors and the co-workers. Now with those limitations, [vocational expert], can you identify some jobs that would exist, if there are any jobs that would exist, that exist in the national environment?

[colloquy and clarification of the exertional limitations]

A Okay. All right. Well, thank you, Your Honor. At the sedentary level, sedentary, unskilled, SVP 2 work, would be hand sorter of small fruits and vegetables, nuts, food products. The DOT is 521.687-086, approximately 3,000 jobs nationally.

[colloquy about the nut sorter jobs]

A Okay. And then, Your Honor, the other would be assembler, hand assembler and that would be 726.684-050, sedentary, unskilled. It's touch up assembler, excuse me. And also approximately 3,000 jobs nationally.

Q Okay.

A And then, Your Honor, another would be production bear with me. You said superficial contact with others?

Q Yes.

A Okay. I would leave it there, Your Honor.

BY THE ATTORNEY:

Q [...] in terms of brief and superficial contact with supervisors, that would also include criticism, work instructions, training. Are all of those brief and superficial?

A That's a very good question. It depends upon the level -- you're describing a situation that's going to vary also according to the level of work performance which would elicit
greater or lesser interaction with supervisors regarding instruction and supervision.

Q Do you consider the ability to accept and respond appropriately to criticism from supervisors to be critical to performing unskilled work?

A Yes, yeah.

Q Okay. So if the person can only tolerate brief and superficial contact, and the ability to accept instructions and respond appropriately to criticism from supervisors is critical to performing unskilled work, how can those two marry?

A Excuse me. You lost me on -- you're jumping from one to the other, so --

Q Okay.

A -- my understanding of your question was is it critical being able to accept criticism, and -- okay, I see what you're saying. Repeat the hypothetical again, please?

Q Well, it's not a hypothetical, it's an observation. If the person can only tolerate brief and superficial contact with supervisors, and we agree that the ability to accept instruction and respond appropriately to criticism from supervisors is critical to performing unskilled work, how could such a person that can only tolerate brief and superficial contact also tolerate and accept criticism from supervisors?

A All right. You -- correct. There would be a conflict there. I don't believe it would be possible.

Q So would you agree that a person can tolerate only brief and superficial contact from supervisors could not engage in competitive employment?

A As presented right now, yes.

The ALJ went on to reject the testimony on cross-examination as somehow changing the hypothetical question.  The court will get to review that assessment.  But this is an example of the "how" of cross-examining a vocational expert on superficial contact with others.

Minimal or Superficial Contact with Coworkers and Supervisors -- A Debilitating Limitation

The ALJ finds a limitation to simple, repetitive tasks with limited or no contact with the public, coworkers, or supervisors.  Can that person work?  The answer is "no."

According to the Social Security Administration's regulations, a basic work function includes responding appropriately to supervision, coworkers, and usual work situations.  20 CFR §404.1521(b)(5).   So far we have a severe impairment, this person cannot tolerate and cannot respond appropriately to supervisors or coworkers according to the residual functional capacity assessment described by the ALJ.   The Commissioner of Social Security specifically recognizes that limitations in the amount of supervision a person can tolerate constitutes an important part of the rating of the ability to perform the social requirements of work activity.  20 CFR §404.1520a(c)(2).   The ability to respond appropriately to supervision and coworkers is also at the core of a residual functional capacity assessment.  20 CFR §404.1545(c).

So in this hypothetical situation, the ALJ finds a person cannot tolerate coworkers or supervisors, or at most can tolerate limited contact with coworkers or supervisors.  People engaged an unskilled work, or anyone who acts as an employee, must have the ability to interact with coworkers and supervisors unless that person works alone.   The Social Security Administration has a published policy that describes the ability to respond appropriately to supervision, coworkers, and work situations as a basic mental demand of competitive, remunerative, unskilled work activity.   POMS DI 25020.010 ¶ A.3.   Later, the policy memorandum states that mental abilities for performing unskilled work includes the ability to work in coordination with our proximity to others without being unduly distracted by them; asking simple questions or requesting assistance; accepting instruction and responding appropriately to criticism from supervisors; getting along with coworkers were peers without unduly distracting them or exhibiting behavioral extremes; and responding appropriately to changes in a routine work setting.   POMS DI 25020.010 ¶ B.3.

A common theme of this log has stressed that vocational experts will testify to pretty much anything depending on the identity of the person asking them the question.  I call that professional prevarication.

The Social Security Administration deals with the problem of a vocational experts testifying contrary to agency policy.  Social Security Ruling 00-4p.   An ALJ can accept vocational expert testimony that contradicts the DOT or other sources of administrative notice for any reasonable articulated basis.  However, no Social Security Administration adjudicators may accept testimony that is based on underlying assumptions or definitions that are inconsistent with regulatory policies.  Evidence That Conflicts with SSA Policy.   The regulatory policies are explained in POMS.   Social Security Ruling 13-2p.

The forewarned, the ALJ or the attorneys representing the agency before a court will claim that the vocational expert has special expertise that permits them to point to jobs and occupations that do not require interacting with coworkers or supervisors on any significant level.  We do not leave commonsense at the door to the hearing office.  The Social Security Administration adjudicates nearly 3 million disability claims every year.  Based upon that vast experience, the agency publishes POMS and sets out agency policy that an individual who cannot tolerate direction and criticism from supervisors, ask questions of supervisors, or get a passing grade in the "plays well with others" requirement of work activity — that person cannot engage in a function that is critical to performing unskilled work.  A vocational expert may be entitled to her opinion, but she is not entitled to her own national economy.