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Vocational Cross-examination

3:45 p.m.-5:15 p.m.

Presented By

8th Circuit Social Security Disability

Wednesday, August 19, 2015

Michael J. Haller, Jr. Haller Law 3717 Harney ST Omaha NE 68131 Phone: 402-544-4773

Timothy C. Harlan Harlan, Harlan & Still 315 Cherry St. Ste 300 Columbia MO 65201 Phone: 573-874-2402

Andrew Kinney Address: Hoglund, Chwialkowski & Mrozik, PLLC 1781 County Road B Roseville, MN 55113 Phone: 651-628-4001

Melinda Stahr, MS, CRC Stahr and Associates, Inc. 809 Wheeler Street Suite 6-340 Ames, Iowa 50010 Phone: 515-450-1037

Vocational Issues

Goal: My goal is to share with you how I use a software program

before, during, and after an ALJ hearing to try to educate the

Judge about the vocational facts for my client and cross-

examine the Vocational Expert.

Disclosure: I am not employed by SkillTRAN. Power-Point slides for this

presentation were provided by the owner, Jeff Truthan, from a

presentation he made in Colorado.

Job Browser Pro1 is the software program that I will be speaking

about today. It is one of many on the market and the one I am familiar with.

I don’t profess to be an expert or know all the answers to the program or

how to use it. What I can say is that it has been extremely valuable in my

practice and well worth the price. This talk isn’t only about this software; it

is about being prepared as practitioners. What tools are you using to do

the best job possible for your clients?

At a recent hearing and after the ALJ completed his hypothetical, the

Vocational Expert (“hereinafter VE”) identified PRODUCTION

ASSEMBLER as his answer. As he was reaching for his over-sized, well-

worn, hard-back, heavy edition of the DOT, I typed those words into my

program to reveal:

1 http://www.skilltran.com/index.php/products/pc-based-solutions/job-browser-pro The license allows my copy to be on my desktop at work and on my laptop. Updates can be obtained online.

http://www.skilltran.com/index.php/products/pc-based-solutions/job-browser-pro

After what seemed like 5 minutes (I’m sure it was less than 1 or 2), he

identified the DOT code. A few clicks and I easily accessed the following:

Significant from the information above is that this “Census Group” has

1,526 unique DOT codes. Although the issue didn’t call for it in cross-

examination, the “estimated # employed in the DOT code” using the

program was 629 in the U.S. The VE testified to 50,858!

Please note Exhibit 1 is attached to my materials. It is a document

titled “SkillTRAN Process for Estimating DOT Employment Numbers.” It

provides the foundation and methodology for the employment numbers for

DOT numbers. It is a white paper that comes with the program.

At the time these materials were prepared, the price of the program

was $549.00. The annual renewal price for me this year was $149.

Thank you for your attendance today and the work that you do for the

poorest of the poor. It is a calling.

SkiiiTRAN PROCESS FOR ESTIMATING DOT EMPLOYMENT NUMBERS


There is an overwhelming and urgent need for sound foundations to build reliable vocational opinions. This document explains the new SkiiiTRAN methodology for estimating DOT employment numbers using existing government labor information sources. This new technology is deployed in SkiiiTRAN's Job Browser Pro software- Version 1.6.

The new SkiiiTRAN methodology is the result of 20+ years of discontent with the "generally accepted practice" among many vocational experts - often built on the faulty assumption that all DOT occupations occur with equal frequency within a given Census or OES Statistical Group. This assumption can lead to gross overestimates of the number of jobs for some DOT occupations, and underestimates of the number of jobs for other DOT occupations.

PROBLEMATIC POPULAR METHOD

The problem can best be explored by considering a commonly cited occupation: 211.462-010 Cashier II. Using self-reported Census data or employer-reported Occupational Employment Statistics (OES), the assumption is made that all DOT occupations within a Census or OES occupational group occur equally frequently. Since there are 19 DOT occupations in this Census group (18 DOTs in the OES group), the assumption works out to 5.26% /5.56% of all employment per Census I OES group. A study of the list of the 18 DOTs within the OES 41-2011Cashier group reveals that 6 of the 18 (i.e. 1/3) are found employed ONLY in racetracks (pari-mutuel ticket sales). The faulty conclusion then is that 33.3% of employment of cashiers is found in racetracks (a subdivision of the industry "Spectator Sports").

The reality of employment reported by employers in the OES long-term employment projections shows that in the year 2006, only 4,922 of 3,500,169 cashiers were found in "Spectator Sports". Even adding the 3,743 cashiers reported employed in the Gambling industry, these 8,665 cashiers represent less than 1% of employment of cashiers (.25%)- not 33% as poorly estimated by the popular method. And the 8,655 should be divided by the 6 DOT cashier occupations in this industry!

Using long-term employment projections, it can be empirically established that about 23.5% of the OES Group: Cashiers work in grocery stores; that 14.9% work in Gasoline Stations; and so on. Use of this empirical industry frequency data from the occupational employment projections enables more precise analysis of the likely occurrence of DOT occupations, which are often described as existing in only a few, very specific industry settings.

SkiiiTRAN encourages the use of OES data for this process for the following reasons: employerreported; more occupations than the Census code system; employment numbers are updated annually; industry projections are updated biannually at the national level; and employment numbers are available for national, statewide, and for regional (sub-state) areas. Census data from the Current Population Survey (CPS) is only available nationally, is only reported at the industry level once every 1 0 years, and is based on household survey responses, not employer responses. There is sometimes a large discrepancy between the national total employment numbers estimated for essentially the same occupational group when comparing OES to Census. SkiiiTRAN believes that employers are more likely to accurately report employment of a specific occupational group than when self-reported during the Census survey.

It is only within the last few years that it has become clearer how to converge/triangulate various generally accepted government data sources (www.socialsecurity.gov/OP _Home/cfr20/404/404-1566.htm) in a new way to squeeze more information from available public data resources.

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Mike

Rectangular Exhibit Stamp


CORE SKILL TRAN ASSUMPTIONS

SkiiiTRAN makes the following core economic assumptions in its new methodology: 1. Jobs exist to fulfill an economic purpose/business activity. 2. The operation of a specific business requires specific occupations. 3. As a business grows or contracts, it requires a different number of some occupations than

others. This is also known as the staffing pattern for the organization. 4. Business activity (and hence occupations) can be influenced by a variety of factors such as:

opportunity, automation, outsourcing, competition, external economic factors, restructuring, etc. 5. In any given business, there may be only one or a very few job positions for a specific

occupation. 6. A business may need to be of a certain size (in terms of number of employees) before certain

occupations are likely to exist.

CORE OAT A SOURCES

• Occupational Employment Survey (OES)- www.bls.gov/oes • Employment Projections- www.bls.gov/emp • Occupational Projections and Training Data (OPTD) - www.bls.gov/emp/optd • Current Population Survey (CPS)- www.bls.gov/CPS • North American Industry Classification System (NAICS)

www .census.gov/eos/www/naics • SkiiiTRAN NAICS Industry Suggestions for each DOT occupation • County Business Patterns (CBP)- http://www.census.gov/epcd/cbp/index.html

The new SkiiiTRAN method relies heavily on the bi-annual Occupational Employment Survey (OES) Long-Term Occupational Employment Projections (occupational projections by NAICS industry) and the annual OES Employment Numbers Nationally, Statewide, and Regionally.

The OES program periodically reports national employment numbers industry by industry for an OES occupation. Long-term (1 0 year) projections are developed from employer projections to estimate the unique rate of change for an OES occupation in each industry. Employment growth for an OES occupation is shown in some industries; decline in others. These long-term national industry projections are adjusted every two years. Projections at a state level are also prepared for some OES occupations, but rarely released on an industry-by-industry basis, since sometimes the numbers are quite small and individual employers might potentially be identified. The OES survey program promises confidentiality to the employers who respond. The OES program requires a high response rate (75-80%) and at least 50-1 00 jobs before it will report industry employment data for an occupation.

The OES program annually prepares cross-industry estimates of occupational employment nationally, statewide, and at the regional level (MSA- Metropolitan Statistical Area and now non-MSA areas). MSAs are defined by one or more counties, some of which cross state boundaries.

SkiiiTRAN METHODOLOGY

Using a constant rate of change specific to the OES occupational group for each related industy (straightline interpolation method), SkiiiTRAN estimates the current year (or some other target year) national employment level within each reported industry. The percentage of estimated national employment of an OES occupation in each NAICS industry is calculated for the target year and shown as the Occupational Density factor. There are often hundreds of NAICS industries in which an OES occupation is reported by employers.

SkiiiTRAN uses the annual OES occupation employment numbers reported nationally, statewide, and regionally when available. Ski liT RAN suggests relevant industries for each DOT occupation, carrying forward the target year Occupational Density factor for each industry relevant to a DOT occupation to a new screen to estimate DOT employment numbers on both an unweighted and a weighted basis.

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The industry suggestions for a specific DOT are initially built on SkiiiTRAN's review of the DOT from an industry perspective. Over the years, SkiiiTRAN staff and consultants have read the DOT cover to cover from a job placement perspective. SkiiiTRAN has assigned various NAICS industries (North American Industry Classification System) to each DOT occupation. SkiiiTRAN used the DOT description or industry clues implying where the occupation is likely to be observed. Some DOT occupations have only one NAICS assignment because the occupation is quite narrowly defined. Other occupations have 25 or more likely NAICS industries. Sometimes, an obsolete occupation such as 371.667-010- Crossing Tender (railroad) has an industry tied to it, but no OES statistics to support its existence.

The Estimated DOT Employment Numbers screen shows only the SkiiiTRAN-assigned NAICS industries in which employment seems most likely for a specific DOT. The suggested industries can by modified by the customers to remove an irrelevant industry and to add more industries. SkiiiTRAN multiplies the unweighted industry estimate (occupational density factor) times the reported national/statewide/regional employment number for the OES occupation. This yields an unweighted estimate of OES employment in each industry.

Because most OES occupational groups contain many DOT occupations, SkiiiTRAN checks its industry suggestions for other DOT occupations in this same OES group and reports the number of DOT occupations also likely to be found in this industry in the Weight (WT.) column. When more than one occupation is likely, the list of likely DOT occupations is available for review by clicking the WT hyperlink. Only at this much smaller subset level does SkiiiTRAN initially assume equal distribution of employment. A skilled vocational expert or other subject matter expert in this industry will eventually be able to re-set the assumed equal distribution to more accurately apportion employment of the DOTs in a specific NAICS industry across the set of likely DOT occupations.

In the Industry Distribution screen, the weighted column initially reflects the assumption of equal frequency of employment by the member DOT occupations within that OES job family in that specific NAICS industry. For example, if the WT column for an industry shows 4 DOT occupations, then 1/41

h of that industry's employment is attributed to a specific DOT occupation (unless user adjusted). The software will remember user adjustments for later backup to its internet servers. This apportionment/weighting to a different portion is repeated for as many NAICS industries as are listed on the screen that are relevant to the specific DOT occupation. If there is only one DOT occupation in a specific NAICS industry for an OES group, all OES employment for that NAICS is attributed to the weighted DOT column (i.e. unweighted and weighted are the same values).

The user can remove industry suggestions found to be irrelevant for the selected DOT occupation. The user can also add additional NAICS industries for which OES statistics are available and its associated national Occupational Density factor value to the mix. The software instantly recalculates and remembers these changes, which are also archived for backup and subsequent Ski liT RAN study for potential revisions to its industry suggestions.

Ski liT RAN sums the unweighted and weighted occupational density values for each relevant industry and multiplies this summed percentage by the OES national, state and regional employment numbers to estimate DOT employment numbers.

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ADVANTAGES OF THIS NEW METHODOLOGY

1. Rather than self-reported survey data, the methodology is rooted in OES employer responses, a more reliable resource than CPS. Consider that the CPS reports 2007 employment of 1,459,000 Cashiers nationally {self-report) vs. employer-reported May 2007 count of 3,545,333 ± 10,636. This is just one example of the substantial variance in self-reported vs. employer-reported data.

2. OES data is collected on a systematic sampling of various industries and adjusted across a 3-year cycle. This smoothes out wild data sampling fluctuations.

3. Long-term projections are national and by industry. Dynamic adjustments every two years detect changes in the economy, including the precipitous decline of various manufacturing industries. Industry change values may apply to one OES occupation within an industry, but not to another. For example, automation in an industry may reduce the number of production workers but increase the number of maintenance mechanics needed to support more automated equipment and processes.

4. OES employment numbers are reported annually at the National, State, and Regional levels. 5. Ski liT RAN's method does not use a fixed ratio staffing pattern captured once every 10 years in

the decennial census, then proportionately adjusted each year, simply based on the size of a labor force.

CORROBORATING EVIDENCE

Initial exploratory research shows substantial declines in employment numbers for many occupations that common sense tells us probably exist in very low frequency. For example, the ·ooot & shoe" industry (NAICS 3162- Footwear Manufacturing) had a total work force of 82,500 workers in 1990. In 1995, total employment in this industry had dropped to 57,100. In 2000, the number dropped to 30,700. By 2005, total employment in this industry (across all occupations) had dropped to 18,200-a 78% plummet in employment over a 15-year period. Decline in the overall work force of an industry absolutely impacts the number of DOT occupations within that industry as well.

Source: http://data.bls.gov/PDQ/outside.jsp?survey=ce

Many DOT occupations show small estimated numbers of employment, in the expected direction. This is exactly what is needed to show low frequency of occupations particularly in industries that are known to have huge declines over the last 18 years due to off-shoring, outsourcing, automation, and obsolescence. Some occupations show no frequency in the expected industry, exactly what is expected due to automation - e.g. 371.667-010 Crossing Tender {railroad).

Ski liT RAN expects to continue to study various sources of published government data to build additional support for this new methodology.

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SkiiiTRAN REVIEW PROCESS- Present and Future

SkiiiTRAN has engineered and is continuing to refine this technology to eventually stand up to a Daubert challenge. This includes:

a. Independent review of all 3,1 00+ unskilled occupations for suitable industry suggestions b. SkiiiTRAN NAICS industry suggestions for semi-skilled and skilled DOT occupations c. Widespread distribution of the methodology d. Adoption, review, and revision of industry suggestions by the SkiiiTRAN customer base e. Informal anecdotal investigations - nothing scientifically rigorous yet (though SkiiiTRAN will gladly

cooperate with others who desire to do so) f. Continuous peer review of our industry suggestions g. Harvesting of customer-initiated changes to the industry suggestions for archiving/backup h. SkiiiTRAN study of the customer-suggested industry changes (i.e. continuous peer review) i. Sharing of SkiiiTRAN modifications of industry suggestions with the customer community j. Establishing a conservative "minimum size" (in terms of total number of employees that a

company would likely require) for a specific DOT occupation to even exist. k. Use of County Business Patterns (CBP) to determine the number of employers in a specific

geographic area to establish the frequency of actual appropriately-sized employers in the context of each DOT occupation

I. Further adjust the State/Regional estimates of DOT employment numbers using this CBP distribution data to reflect the unique and actual industry distribution of each state/region.

m. Identify actual appropriately-sized potential employers in a specific geographic area so that contact can be established for Labor Market Survey. SkiiiTRAN Internet Services have 13+ million employers on file- updated quarterly- to facilitate the identification and contact process.

n. Correlate actual results of Labor Market Surveys to the estimated numbers

These steps show the total planned process envisioned at this time. Steps a-b are complete. Steps c-f are happening now as customers use the software and report very good results using this methodology. Steps g-n are planned and in development. SkiiiTRAN plans more uses for this new process, including eventual calculation of Lost Earnings Capacity. This first requires a generally accepted method of determining the frequency with which occupations exist so that weighting can be appropriately done in the wage loss calculations.

CAVEATS

a.) This is an ESTIMATION process, not any kind of assurance that '1hese ARE the actual numbers". Because the estimated numbers are based on National staffing patterns, SkiiiTRAN believes that this estimation process is more reliable at the national level than the state/regional level, unless the industry distribution in a specific state closely parallels the national economy. We have a plan to further adjust the numbers going forward so that non-National estimation is more refined (Step Ill").

b.) Long-term employment projections are not sensitive to short-term or cyclic economic changes, such as a high oil prices, economic recession, or natural disaster (e.g. Katrina). Partial adjustment for these events occurs retrospectively as the OES data are updated.

c.) The OES program is reducing its sample size in a cost-reducing measure. Hopefully the reliability of its collected data will not significantly decline.

d.) This method does not consider the effect of several discrete DOT occupations being combined into a single occupational definition. To handle this situation, combine the DOT employment number estimates for each discrete occupation.

e.) This method does not address obsolete job descriptions/occupations nor does it update the DOT. It is sensitive to declining employment of many occupations, particularly in the manufacturing sector due to off-shoring, outsourcing, and overall industrial decline.

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This is a "disruptive" new methodology- meaning that it shakes up the disability market and causes folks to reconsider traditional methods. It will take a while for it to become more widespread and particularly to be ready for careful scientific dissection and research studies. In the meanwhile, SkiiiTRAN has been encouraged by enough people to continue with its development work in this area. It was at a point late in June, 2008 that SkiiiTRAN decided that it was "ready enough" for release and to take it to the market. It is not perfect. Nothing ever can be. It still takes skilled interpretation by a vocational professional, but it will get even better over time. The process of continuous peer review of SkiiiTRAN industry suggestions is an industry first, and an important part of the design to deal with Daubert defensibility. Additional description of the methodology is contained in the Help file topic linked to the screen showing these DOT estimates.

Ski liT RAN's mission is to provide a better methodology for estimating DOT employment numbers than has previously existed. At this point, SkiiiTRAN has anecdotal information supporting this new method from different sources, most of whom are vocational experts. In many cases, the numbers estimated are quite small. Vocational experts often share that the SkiiiTRAN estimates are surprisingly accurate based on a prior Labor Market Survey conducted by the VE.

A peer-reviewed article about Job Browser Pro was recently published in the Rehabilitation Pro, the journal of the International Association of Rehabilitation Professionals (IARP). Click the hyperlink to the PDF document on SkiiiTRAN's home page- http://www.skilltran.com/RehabPro_ Vol_ 16_No_ 4.pdf

Additional documents are available reflecting ongoing SkiiiTRAN research to establish support for its estimates using multiple government resources. These include handouts shared with attendees at a May, 2008 presentation at the IARP Conference in Los Angeles by Ski liT RAN:

• Initial identification of low/no frequency unskilled occupations by industry • Estimated national employment numbers for all 137 Sedentary, Unskilled occupations • Historical industry employment numbers for industries showing greatest decline for unskilled

occupations

• Frequency counts of employer size (by number of employees) from multiple sources in selected industries

• Slides presented 5/17/2008 at the IARP Conference: EMPLOYMENT NUMBERS: An Industry Evolution - Building a Better Mousetrap

SkiiiTRAN embraces all constructive suggestions about how to further refine its processes. We welcome customer feedback and will do our best to respond to customer needs. This document will be periodically revised to reflect changes and systematic improvements. SkiiiTRAN is grateful to a significant number of industry leaders who have already reviewed this methodology and made some great suggestions.

Please direct further questions about this exciting new methodology to:

Jeff Truthan, MS - Rehabilitation Counseling, CVE - President - [email protected] Ski liT RAN, LLC - www.skilltran.com

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(800) 827-2182 [Voice & Fax]- Pacific Time Zone (509) 927-8195 [Support]

©Copyright 2008 - Ski liT RAN LLC Spokane Valley, WA

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8th Circuit Social Security Disability Conference 2015

Des Moines, Iowa

Vocational IssuesPresented by

Michael J. Haller, Jr.

History Jeff Truthan – MS - Rehabilitation Counseling – 1975 9 years as a state vocational counselor/vocational

evaluator 30 years in software design & documentation focused

on the DOT, Skills Transferability, and Labor Markets Online services since 1982 + PC software since 1985

integrating the DOT with many labor market resources President of SkillTRAN LLC – Spokane, WA

7 employees – Sales, Support, Development

LMI Interpretation Challenges:Employment Numbers

Data Source Limitations- Source of survey responses:

Household (CENSUS)Employers (OES)

- Not available for all industriesData aggregated to occupational groupsVarious Methodologies & AssumptionsSimple Math

Pitfalls when Interpreting Government Data

• Nearly all government statistics are aggregated for a group of DOT occupations

• Simple math requires this erroneous assumption:All DOT occupations in a given statistical group occur with equal frequency

• The number of DOT occupations in a CENSUSGroup may be different than the number in the similar OES Group

Erroneous Assumptions Using Simple Math

• All DOT occupations in a SOC/OES/CENSUS group occur with equal frequency

• The number of sedentary or light jobs in a given labor market can be determined for a single SOC/OES/CENSUS group independent of the presence/absence of relevant industry and changing economic conditions

OCCUPATIONAL GROUP - "CASHIERS"CENSUS GROUP = 4720 OES GROUP = 41-2011

Auction AUCTION CLERK (retail) AUCTION CLERK

CASHIER II (retail) CASHIER II

Self-service store

CASHIER, COURTESY BOOTH (retail) CASHIER, COURTESY BOOTH

Dept. Store (Old)

CASHIER, TUBE ROOM (retail) CASHIER, TUBE ROOM

CASHIER-CHECKER (retail) CASHIER-CHECKER

CASHIER-WRAPPER (retail) CASHIER-WRAPPER

Gambling CHANGE PERSON (amusement/recreation)

CHECK CASHIER (business services) CHECK CASHIER

Sales Route DRIVERS'-CASH CLERK (motor transportation) DRIVERS'-CASH CLERK

FOOD CHECKER (hotel & restaurant) FOOD CHECKER

Racetrack INFORMATION CLERK-CASHIER (amusement & recreation)

INFORMATION CLERK-CASHIER

Racetrack MONEY COUNTER (amusement & recreation) MONEY COUNTER

Racetrack PARIMUTUEL-TICKET CASHIER (amusement & recreation)

PARIMUTUEL-TICKET CASHIER

Racetrack PARIMUTUEL-TICKET SELLER (amusement & recreation)

PARIMUTUEL-TICKET SELLER

Racetrack PAYMASTER OF PURSES (amusement & recreation) PAYMASTER OF PURSES

Racetrack SHEET WRITER ((amusement & recreation) SHEET WRITER

TELLER (utilities) TELLER

TICKET SELLER (clerical) TICKET SELLER

Toll Road TOLL COLLECTOR (government services) TOLL COLLECTOR

N = 19 N = 18

Retail

Retail

Retail

OES 41-2012 GAMING CHANGE

Sedentary – Unskilled DOT Occs.Simple Math vs. Industry Context

• SkillTRAN Industry Context method estimates less than 200,000 employed (and shrinking)

• Simple Math method estimates unskilled sedentary employment at about 700,000

• Simple Math overestimates the employment ofSedentary Unskilled Occupations by about 350%

Lines of Questioning re: Vocational Testimony What data source(s) are being used for

employment numbers (CENSUS, OES, ?) Are these estimates or actual numbers? Are the numbers quoted for the DOT cited

or for an occupational group? Have the numbers been reduced in some

way from the group numbers? How? Is this a commonly followed practice? Is this method an accurate reflection of

the labor market?

What is the percentage of reported employment in each relevant industry?

Are there other DOT occupations in this OES/CENSUS group in this industry? If yes, how many? How does that impact the estimate? Could this hypothetical person perform all of those other DOT occupations in that OES/CENSUS industry group?

How does the ALJ define “significant number” ? How does the ALJ define a “region”?

Lines of Questioning re: Vocational Testimony

If simple math is the method, ask if it is reasonable to assume that all of the DOT occupations in each occupational group occur with exactly the same frequency.

Full-time &/or part-time numbers quoted? If VE is using the industry context method,

ask for examples of the industries in which the cited DOT occupation is likely found.


SkillTran Contact Information Jeff Truthan

[email protected] www.skilltran.com (800) 827-2182

7/29/2015

1

8th Circuit Social Security Disability Conference 2015

Des Moines, Iowa

Vocational IssuesPresented by

Michael J. Haller, Jr.

History Jeff Truthan – MS - Rehabilitation Counseling – 1975 9 years as a state vocational counselor/vocational

evaluator 30 years in software design & documentation focused

on the DOT, Skills Transferability, and Labor Markets Online services since 1982 + PC software since 1985

integrating the DOT with many labor market resources President of SkillTRAN LLC – Spokane, WA

7 employees – Sales, Support, Development

LMI Interpretation Challenges:Employment Numbers

Data Source Limitations- Source of survey responses:

Household (CENSUS)Employers (OES)

- Not available for all industriesData aggregated to occupational groupsVarious Methodologies & AssumptionsSimple Math

7/29/2015

2

Pitfalls when Interpreting Government Data

• Nearly all government statistics are aggregated for a group of DOT occupations



Erroneous Assumptions Using Simple Math

• All DOT occupations in a SOC/OES/CENSUS group occur with equal frequency

• The number of sedentary or light jobs in a given labor market can be determined for a single SOC/OES/CENSUS group independent of the presence/absence of relevant industry and changing economic conditions

OCCUPATIONAL GROUP - "CASHIERS"CENSUS GROUP = 4720 OES GROUP = 41-2011

Auction AUCTION CLERK (retail) AUCTION CLERK

CASHIER II (retail) CASHIER II

Self-service store

CASHIER, COURTESY BOOTH (retail) CASHIER, COURTESY BOOTH

Dept. Store (Old)

CASHIER, TUBE ROOM (retail) CASHIER, TUBE ROOM

CASHIER-CHECKER (retail) CASHIER-CHECKER

CASHIER-WRAPPER (retail) CASHIER-WRAPPER

Gambling CHANGE PERSON (amusement/recreation)

CHECK CASHIER (business services) CHECK CASHIER

Sales Route DRIVERS'-CASH CLERK (motor transportation) DRIVERS'-CASH CLERK

FOOD CHECKER (hotel & restaurant) FOOD CHECKER

Racetrack INFORMATION CLERK-CASHIER (amusement & recreation)

INFORMATION CLERK-CASHIER

Racetrack MONEY COUNTER (amusement & recreation) MONEY COUNTER

Racetrack PARIMUTUEL-TICKET CASHIER (amusement & recreation)

PARIMUTUEL-TICKET CASHIER

Racetrack PARIMUTUEL-TICKET SELLER (amusement & recreation)

PARIMUTUEL-TICKET SELLER

Racetrack PAYMASTER OF PURSES (amusement & recreation) PAYMASTER OF PURSES

Racetrack SHEET WRITER ((amusement & recreation) SHEET WRITER

TELLER (utilities) TELLER

TICKET SELLER (clerical) TICKET SELLER

Toll Road TOLL COLLECTOR (government services) TOLL COLLECTOR

N = 19 N = 18

Retail

Retail

Retail

OES 41-2012 GAMING CHANGE

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Sedentary – Unskilled DOT Occs.Simple Math vs. Industry Context

• SkillTRAN Industry Context method estimates less than 200,000 employed (and shrinking)

• Simple Math method estimates unskilled sedentary employment at about 700,000

• Simple Math overestimates the employment ofSedentary Unskilled Occupations by about 350%

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Lines of Questioning re: Vocational Testimony What data source(s) are being used for

employment numbers (CENSUS, OES, ?) Are these estimates or actual numbers? Are the numbers quoted for the DOT cited

or for an occupational group? Have the numbers been reduced in some

way from the group numbers? How? Is this a commonly followed practice? Is this method an accurate reflection of

the labor market?

What is the percentage of reported employment in each relevant industry?

Are there other DOT occupations in this OES/CENSUS group in this industry? If yes, how many? How does that impact the estimate? Could this hypothetical person perform all of those other DOT occupations in that OES/CENSUS industry group?

How does the ALJ define “significant number” ? How does the ALJ define a “region”?


If simple math is the method, ask if it is reasonable to assume that all of the DOT occupations in each occupational group occur with exactly the same frequency.

Full-time &/or part-time numbers quoted? If VE is using the industry context method,

ask for examples of the industries in which the cited DOT occupation is likely found.


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SkillTran Contact Information Jeff Truthan

[email protected] www.skilltran.com (800) 827-2182

1

Cross-Examination of the Vocational Expert

NOSSCR, 8th Circuit, August, 2015 Des Moines, Iowa Timothy C. Harlan Harlan, Harlan & Still Columbia, MO “In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch” Attributed to Louis Nizer

“Never ask a question in cross-examination to which you don’t already know the answer.” A phrase repeated to thousands of law students every year Most Social Security disability hearings involve a non-exertional impairment, or some combination of exertional and non-exertional impairments; the Administrative Law Judge is almost always obligated to use a vocational expert. And usually the first question from the ALJ to the VE is in regard to the claim file exhibit containing the VE’s qualifications—does counsel have any objection, or some will ask if counsel will stipulate. The best reply in most situations is, “Your Honor we have no objection to the Vocational Expert’s qualifications.” To object to the qualifications of the VE is, as you discover quickly, a waste of time and a chance to needlessly upset the VE and the ALJ. As someone said at a NOSSCR seminar decades ago, “The Commissioner has already certified him/her. Why would the ALJ, who approved the VE when the case was scheduled (if the VE was not hand-picked) now find them not qualified?” An objection is a waste of time, the Commissioner has already found the VE to be qualified and the ALJ is not about to become embroiled in that issue. At the same time, why stipulate when the ALJ will be just as happy with no objection? It is better not to stipulate since something in the VE’s testimony might come to light in a few minutes and you don’t want to find yourself objecting to the person to whom you stipulated 5 minutes ago. I remember one situation about a year ago in which I had no objection, but 5 minutes later was objecting to the entire testimony of the VE because the VE had just admitted that his testimony about the DOT was false.

The ALJ will then usually ask the VE to discuss the claimant’s past employment that reached the SGA level. Counsel should let this play out, but listen closely. Some VEs cover every job, no matter how small, and have to be told by the ALJ that several of the jobs were not SGA. This used to be a fairly simple issue, most ALJs required that someone do a job for 6 months in order to have learned it enough to be SGA, 6 months was standard even for unskilled jobs. However, SGA Rule doesn’t actually say 6 months,

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it says long enough to learn how to do the job. For some ALJs this may be 2 months for an unskilled job. I was shocked very recently to find a young ALJ who drew the line at 6 months, anything less than 6 months he did not consider to be past employment.

It is helpful to be very familiar with the past jobs 1) as your client has described them, 2) as the job is described in the DOT (which may not be the same), and 3) the DOT number. And, if time is available, to provide your own analysis of past employment well before the hearing. I have heard West Des Moines VEs repeatedly praise a lawyer’s office that always provided a pre-hearing detailed analysis of the past jobs, which probably cut the preparation time for the VE. After the ALJ has determined which jobs are relevant, he/she will then ask the VE a hypothetical question about returning to one of the jobs. While, in my experience, about 80% of the time the VE testifies that a return to past work isn’t possible, some thought should be given to that possibility. There may be nothing said at the hearing, but remember that the burden of proof doesn’t shift if past work is possible. I’ve lost many cases in which the ALJ found that the claimant could do his/her past work, but didn’t give a clue at the hearing that this was going to be the outcome.

For the last 15 years I don’t think that one ALJ has failed to begin with the first hypothetical question as one that failed to include ¾ of the limitations, which allows the VE to always find jobs. A person who can barely stand may be assumed to be able to stand 6 hours a day. THEN, the serious questions start. Be sure to warn your client about the first question so you won’t have, as I once did, my client shout, “I can’t do that job,” after the first hypothetical question.

Comments on possible questions asked by counsel: Your questions should always be leading.

“Isn’t it true, etc.” And never, never, ask, “What do you think about xyz.” If you ask a broad question, you can’t complain when you get a broad, 10 minute, answer. When you find a question that you really think helps you can always slightly rephrase, “So you are saying…?”

Be flexible in your questioning.

It is good practice to rough out your questions before the hearing, but not to precisely write them out and then just read them. It is like cross- examination in a deposition, you are taught to be flexible so that you make yourself listen to the answers to see if they make sense, not just hurry on to the next question.

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A short question, calls for a short answer.

Keep your questions very short. One serious problem with informal hearings is that there is no one to crack the whip and make the witness answer the question that was asked. It is hard enough when you ask a short question and get a 10 minute non-responsive answer.

Ask as few questions as possible.

The more questions you ask the more chances for the VE to take you to the cleaners. For example, if the VE realizes that you have made him or her look bad they may see that as a time to go ahead with that 10 minute non-responsive answer/lecture.

Don’t come across as angry.

VEs may be seasoned witnesses, but they react to anger just as other witnesses do. At very best they clam up, at worst they give you a lecture that has nothing to do with the question that you asked. Also remember that the ALJ may have worked with this VE for 20 years, he/she doesn’t approve of you roughing up the VE.1

Prior to the hearing, try to get a medical opinion from a treating physician on at least one limitation that unquestionably would cause disability; an opinion on which you know that you can rely later if necessary, and if necessary get clarification.

In other words, try to get at least one treating physician to clearly indicate something that any VE would say, “Yes, they could not work if that were correct.” The claimant requires unscheduled breaks daily, in addition to the

normal three breaks; would miss more than two days of work a month; would come in late or leave work early at least one day a week, etc. If you lose with the ALJ you can get a restatement of the medical issue from the physician and you have the VE on record saying that prevents work.

During cross use the exhibit number on which you are relying.

If you are able to adequately prepare, slip in the exhibit number on which you are relying as a basis for the question, i.e., your question to the VE can be:

I think the best “angry” story was told to me by an ALJ who had represented claimants in his prior life. The VE had just testified that the claimant could miss as much work as he wanted to miss, no limit. (Meaning under FMLA, which shouldn’t be used by the VE and wasn’t explained at the time.) After about a minute of cross the ALJ kept trying to get a word in, and the claimant’s attorney was so mad he wouldn’t even stop for the ALJ. Finally the ALJ said loudly, “Mr. Jones, can you take a breath?”

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“If the claimant needs to lie down to rest 3 times a day, wouldn’t that the jobs that you just named?” (adding almost under your breath, “That’s Exhibit 31 Judge”), etc2.

If the VE violates a regulation, SSR, etc, DON’T point it out so he/she can change it.

Celebrate your success quietly, don’t point it out and have an argument. A good example, the VE has just testified, “The use of a cane is a not a significant limitation to sedentary work.” (SSR 96-9p states that it can be very limiting, depends on the facts.) Don’t argue with him/her, just perhaps reinforce the statement and try to use the language of the regulation: “Let me understand, it is your testimony that the occupational base for someone who must use a cane at all times that he or she is standing or walking due to balance problems or neurological problems does not significantly erode the base for sedentary work.” If the answer is “yes” change the subject, don’t push your luck! (This is close to a quote of SSR 96-9p, don’t point that out. Same issue if your VE just said that the complete inability to stoop or to bend is not significant. You’d be surprised how many CEs make that conclusion.)

Incredulous testimony, roughly the same rule.3

But what about testimony that states things that are absolutely incorrect, I’m thinking specifically of testimony about the DOT, i.e., jobs that don’t exist and numbers that are also fabricated. Do you point out to the ALJ that these jobs do not exist and there are no such numbers, or do you sandbag and ask to write a post-hearing memo? (But that request may be immediately denied), or take it up with the Appeals Council? I spoke up, objected right then to the entire testimony since he admitted that he made up jobs names and DOT numbers. The ALJ pointed out that the record would remain open anyway, so I could brief that issue while the record was being kept open anyway. But within a week the claimant had a fully favorable decision.

2 Thank you Tim Tripp for that idea. 3 Several years ago a VE testified that the claimant could always lie down on the couch in the break room. When asked what percentage of unskilled sedentary jobs provided couches in the break-room she was unsure. When further asked, “And if there was no couch where would the employee lie down,” she replied, “on the floor in the break room. “ And then, as if to really seal the poorly reasoned position, she volunteered, “And I don’t know that I would recommend it, but they could lie on the bathroom floor.” The foolishness of both statements is not something that you as the lawyer need to point out.

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Another incredulous answer was that it was not stressful to work in a commercial kitchen. (It happened to be the same VE that makes up jobs, different case.) I have a son who is a chef, I think that I know something about kitchens, so I asked, “Don’t they yell at you all the time.” No, he’d never seen a commercial kitchen in which people were yelling. I objected, stated to the ALJ that I would like to write a memorandum. The result—after sending in the memo, two affidavits from chefs, and an official booklet given to restaurant workers in NYC which states, “Don’t file a complaint when someone yells at you, it happens every night,” was that the ALJ simply scheduled a supplemental hearing with a new VE, nothing was ever said about kitchens or the prior hearing, and the claim was denied.

It is fine to push the VE, as long as you are pretty sure where you will end.

Recently a very good VE testified, as I had been warned, that most employers allow from 1.8 to 2 days a month of sick leave and vacation. Instead of challenging I asked, “So it is your testimony that some employers allow their employees to be absent 24 days a year?” The response, “Gosh, it didn’t seem like that much.” He then volunteered, “I usually say .8 to one day a month.” When I pointed out that this meant 10 to 12 days a year he responded, “Yeah, I guess you’re right.”

If you don’t own a DOT buy one.

They are usually fairly cheap on E-Bay. And take it to every hearing, if the VE is present you want him or her to know that you are familiar with the DOT. If possible pre-mark the prior employment and jobs this VE has used before. Most VEs go to the same jobs over and over. In fact, I hurt the feelings of one VE when I pointed out that his yellowed notes looked like they had been prepared when I was in kindergarten. (I knew for a fact that he’d received his PhD the year I was in kindergarten.) Actually, it is more dangerous to have a VE who acts like this is the first time they’ve thought of the issue of unskilled sedentary work with a sit-stand option! They start thumbing through the DOT, or worse, their expensive computer program, and come up with all sorts of weird jobs.

After you buy the DOT—READ IT. Know how to use the book. Be particularly familiar with the DOT, about2/3 of the way into the book, Appendix C appears. These define academic skills very specifically. EVERY job has a minimum math, language and reasoning level.

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For instance, every job has a minimum reading level. For instance the Level 1Reading level states:

Recognize meaning of 2,500 (two-or three-syllable) words. Read at rate of 9t-120 words per minute. Compare similarities and differences between words and between series of numbers. DOT Appendix C p. 1011.

Most VEs do not try to dispute this part of the book. However, some VEs will testify, “The DOT says that this job requires this level of reading. In the real world you do not have to read anything on this job.” This might be the time that very, very specific cross-examination is required. Every book, article, blog, any source that he/she is relying on. If he/she says “my experience” that has to detail—what experience, when, every single detail.

Sit-Stand Option

The VE will always testify that the DOT does not address the use of a sit-stand option.4 Ultimately the VE will testify that, while the DOT does not use the phrase “sit-stand option,” at least 3 jobs can be done on that basis. The trick is to get the VE to provide very precise information regarding the basis for the opinion that this would be allowed by a

significant number of employers. One area to explore is the use of one desk, table, or work area in which to both sit and stand.

Try to take good notes of the hypothetical questions and the answers.

Most ALJs start with a hypothetical question that assumes almost no limitations and for which the VE will most assuredly find jobs. Be sure to warn your client that this will happen so they won’t be shocked. (See comment at page 1 above) And warn the client that this is not their time to talk or ask questions. Also explain that the there is NEVER any occasion for them to ask the ALJ a question about a job or a limitation.

“Isn’t the treating physician always the best place to get information about the claimant’s limitations.” This the invitation for the VE to explain to you, for about 10 minutes, that there are some treating physicians who will lie for their patients, etc. 4 I have always found it interesting that I have never seen a medical report that suggested that a claimant plagued with significant back pain would find their problem solved by alternating sitting and standing all day!

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How much are you being paid, how many times a year do you testify, etc. Ask if you like, but it only drags out the hearing. Such questions make

the ALJ mad and the VE mad. Who cares if she’s paid $300 a hearing and who cares if she testifies 400 times a year? The federal court certainly won’t be impressed.

Difference in DOT and VE testimony.

This is one of the most difficult issues, from both a practical and a technical point of view. Counsel should be to be prepared for this issue in every case and to ask just enough to show that it is not being done correctly. It has been my experience that the federal courts see this “vocational stuff” as “insider baseball.” That they don’t really understand and yes, the ALJ’s walk all over the claimant’s due process, but the federal court doesn’t really understand all this job business. A court may go as far as to say, “He’s the expert.” It is important to know, not necessarily point out, that the DOT’s last edition was in 1991 and not every job was even reviewed then. Some jobs have not actually been reviewed since the 1970s! Actually, the DOT is a terrible source, but what replaces it might be worse. Advocates are actually better off with the VEs using a book that is 25-35 years out of date. The 8th Circuit has made it clear that the ALJ is to solve any issue of difference between the DOT and the VE. Renfro v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007), citing Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), and SSR 00-4p. Renfro, 920-921) However, in Renfro the Court found that there was not a conflict. Renfro, 921 The testimony given by VEs has, over the last 25 years, somewhat evolved. In 1990 a VE would stick to the DOT, or have very good reasons for not going along with the DOT. And could tell you why. In regard to the conflict, the DOT was incorrect. . Now the testimony seems to be very different, and when asked for the basis of the conflict, the VE thinks nothing of saying, “Based upon my education and experience as a vocational expert.” I have heard a VE testify that any factory job that is rated as light because of standing can actually be done from a seated position. “Based upon my education and my experience as a Vocational Expert!”

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DOT Job Titles and Numbers The more experienced VEs realized that both counsel and the ALJ are trying to get the exact name of the job and the DOT number. However,

some VEs do not give the DOT number unless asked. Do NOT leave the hearing room without the DOT number of each job suggested by the VE. I have seen a VE testify that a claimant could do a particular job with no interaction at all with the public. However, when the job description was reviewed, the DOT specifically mentioned interaction with the public in the job title!

VE analysis of the job. One thing that usually satisfies the court in regard to the difference between the DOT job description and the VE description is a detailed

analysis that has been performed by the VE regarding that particular job. I had always tried to ask the VE if he or she had ever had occasion to do a written detailed analysis of the job. If the answer was “yes” why not ask the VE to put it into the record? Because the usual answer was that the research was proprietary for that client and thus could the VE was not at liberty to be a part of the record. However, the real reason was provided by a VE at an 8th Circuit NOSSCR in Little Rock several years ago. The VE said, “A good ALJ will protect his/her VE better than that and will never make them have to answer that question.” I think the better approach is to ask about the analysis. Has been done? Then stop. It is the ALJ’ s burden to prove the basis of the difference. If the ALJ knows that the VE has the information, he/she should order his/her witness to put it in evidence.

Difference between assembly line and bench work. Sometimes ALJs are careful to point out to the VE that the claimant is not capable of assembly line work because of the stress involved in keeping up with the line. The VE will then suggest bench work which involves assembly, but does not have the pressure of keeping up with a moving

line. The testimony is usually something like this:” the employee goes to a central place to pick up the product in a box, take it to the ‘bench’ and return the assembled items in a box to the same place.” The weight of the box, amount of walking, etc., all depend on what type of job fits the judge’s interest.

Probationary period. Most VEs agree that unskilled jobs have a probationary period, usually 90 days, during which the new employee cannot use any sick leave.

However, some VEs also testify that the requirements are the same as post-probationary requirements.

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Vocational tests or psychological tests.

Sometimes an easy case may not turn out to be as easy as it seemed. For instance, a true neuropsychological test, with perhaps 20 different tests, may show that all of the claimant’s abilities are very limited. A small number of ALJs will stop the representative from inquiring about the specific tests. “This man is not qualified today as a psychologist, you must put your questions in vocational terms.” (Of course, counsel is not qualified to interpret the test results and change them into “vocational terms. “) Even if you might be able to ask the VE, “When you place someone on a job, do you have the tests interpreted and put into vocational terms, or do you use the raw data from these tests.” This can also happen in regard to medical reports, how do you translate those into vocational terms? It doesn’t come up often, but when it does counsel must have thought about how to answer the directive.

Sheltered workshop.

If possible be familiar with the language in your state’s statutes regarding sheltered workshops. If the claimant is employed in a sheltered workshop they had to be approved as “disabled” by a state agency and the work they do is subsidized. Have the state statue in your hearing materials if it may be relevant.

Breaks, unscheduled Most vocational experts will agree that almost every job allows three

scheduled breaks: 15 minutes mid-morning and mid-afternoon, 30 to 60 minutes for lunch. And most will agree that additional breaks, particularly unscheduled, would not be allowed. However, it is important to make it clear from your question that this is an ongoing issue, not just an extra break here and there.

Skills, Temperaments and Aptitudes

The definition of a “skill” is found at 20 CFR Section 404.1568(d) (2), “…qualifications in which a person uses judgment to determine the machine and manual operations to be performed in order to obtain the proper form, quality, or quantity of material to proper form, quality or quantity of material to be produced.” (For Transferable skills see the next Section). “Temperaments are the adaptability requirements made on the worker by specific types of jobs.” Examples would be directing, repetitive, influencing, etc. See https://www.pmpa.org/docs/reference/job-description-methodology.pdf?sfvrsn=0 Aptitudes include: General Learning, Verbal, Numerical, Spatial, etc. Supra. The distinctions are

https://www.pmpa.org/docs/reference/job-description-methodology.pdf?sfvrsn=0

https://www.pmpa.org/docs/reference/job-description-methodology.pdf?sfvrsn=0

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important since there are occasions upon which a VE attempts to refer to a Temperament or an Aptitude as a Skill, especially when the issue is whether skills have been acquired and whether the skills can be transferred.

Sick days per year

You would think that there would be agreement in regard to the number of sick days allowed per year, but there clearly is not. VE Hearing testimony will range from 7 days per year to “approaching 24 days a year.” And everything else in-between. It is not unusual for a VE to testify that many employers do not break down days away from the job into sick days or vacation days, but simply lump the two together. Which is not unlike the testimony in past years of “12 days which would include both sick days and vacation days.” If the VE attempts to testify that an employer would allow more than one day a month counsel must tie him/her down as to the authority, at some point you may have enough authorities to play them off against each other.

VE’s examination of medical records/listen to other testimony during hearing. I recently saw a list of suggested questions for a vocational expert. One was, “Did you examine the claimant’s medical records? What conclusions

did you draw?” This from a Social Security disability text by someone who didn’t know much Social Security law, or meant the question to be somewhat sarcastic. The VE is essentially limited to basing his/her answers on the ALJ’s hypothetical questions.5 I suppose an appropriate question to make an interesting record on appeal might be, “During your answers you did not consider the entirety of the claimant’s medical record, did you?” However, whatever points counsel might gain would be short-lived; the United States Attorney would surely point out to the

court that the VE did not need to consider all the medical records. Some hearing offices make it a practice to send all of the medical records to vocational experts, some do not. Some ALJs call the VE at the beginning

of the hearing (I think the better practice), some just call the VE after the claimant has testified.

CASE LAW

Interesting case law from the 8th Circuit and other Circuits. Please NOTE that some of the cases are not law in the 8th Circuit, some have been

5 Although, on occasion, knowledge is imputed to the VE based on a review of all medical records, or the testimony in the case. See cases cited by Young v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004), but court’s conclusion in Young was that it was not appropriate in that case because the series of hypothetical questions specifically prohibited the VE from considering other evidence.

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roundly criticized by other courts. I would never cite these without the help of Shepherds. However, all have theories that are worth discussion and will hopefully lead to some creative thinking:

1) Johnson v. Shalala, 90 F.3d 1428, 1434 (9th Cir. 1995). The court points out that the

DOT is “…not the sole source of admissible information concerning jobs.” The court quotes the 6th Circuit, Conn v. Secretary of Health and Human Services, 51 F.3d 607, 610, (6th Cir. 1995) in finding that Social Security does not require reliance on the DOT.

2) Stephens v. Secretary of Health, Education and Welfare, 603 F.2d 36 (8th Cir. 1979). While the ALJ is expected to “….relate with precision the…” job capacity, this ALJ asked the VE to assume “that Stephens could do ‘light or sedentary work with such limitations are noted in the record.” Stephens, 41 The court discussed the various physical limitations, then noted that the court was simply “…unprepared to assume that the vocational expert had all of these conditions in mind when he gave his answer.” Stephens, 41-42.

3) Andrews v. Shalala, 53 F.3d 1035, 1043-1044 (9th Cir. 1995) The ALJ asked the VE to significantly limit interaction with coworkers, but did not mention three different “concentration and persistence” categories; and two moderate limitations in the “adaptation” categories. Andrews, 1044. ALJ was compelled to include the other moderate limitations in the hypothetical. Remanded.

4) Pinto v. Massanari, 249 F.3d 840 (9th Cir. 2009.) The court observed that the best source in regard to how a job is performed is the DOT, p. 846, citing Johnson, 1435, supra. However, Social Security policy statements warn that the DOT alone may not be sufficient. Pinto, 846. In Pinto the ALJ did not address restrictions in stooping, climbing, and balance. Pinto, 846. Nor did the ALJ address language and literacy abilities that were issues. An important statement:

Because the ALJ made very few findings and relied largely on the conclusions of the vocational expert, it is difficult for this Court to review his decision. As the Tenth Circuit has noted, “[r]equiring the ALJ to make specific findings on the record at each phase of the step four analysis provides for meaningful judicial review. When …the ALJ makes findings only about the claimant’s limitations, and the remainder of the step four assessment takes place in the [vocational expert’s] head, we are left with nothing to review. Pinto, 847, citing Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996) (Emphasis added)

The 10th Circuit also noted in Pinto that SSR 82-61 specifically mentions that “packaging jobs” have common characteristics, but often very different “…functional demands and duties….” Pinto, 846.

5) Steele v. Barnhart, 290 F.3d 936 (7th Cir. 2002) The Court stated: The ALJ dismissed Steele’s description of his limitations in a single sentence. “The claimant’s subjective complaints and alleged limitations were considered under the criteria of Social Security Ruling 96-7p and found credible only to the extent of precluding the claimant from performing work in excess of light level.”

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Steele, 942. The ALJ further failed to include in the hypothetical how Steele’s depression would affect his ability to complete tasks or if daily activities and social functioning would be impaired.

VE Cross-examination: Start to Finish Andrew Kinney, Esq.

[email protected] VE Cross-examination: Part of a Whole Cross-examination isn’t just about asking “good” questions. It is a goal-driven process shaped and refined by your theory of the case. Thoughtful cross-examination adopts a natural outline and focus to it. At the end of the hearing, you want the ALJ to understand exactly how your theory of the case directs a reasonable outcome. While vocational expert cross-examination is a distinct part of the hearing process, it is a means to an end. All steps of the hearing process should, in different ways, aim to convince the ALJ that your theory of the case is correct. The strategic steps of the entire hearing process are set out below.

1. Pre-hearing record review: This allows you to form your “theory of the case.”

2. Pre-hearing client conference: This allows you to understand why your client thinks he cannot work.

3. Pre-hearing brief: This allows you to position your theory of the case in the ALJ’s mind

before the hearing.

4. Pre-hearing day final review: This allows you to confirm the elements of your theory of the case with your client.

5. Opening argument: This allows you to introduce the key elements of your theory of the

case.

6. Direct-examination of your client: This allows you to develop your client’s testimony that fleshes out your theory of the case.

7. Cross-examination of the ME: This allows you to: (1) Lock-in uncontested elements of

your theory of the case, and (2) tease out contested elements of your theory of the case.

8. Cross-examination of the VE: This allows you to assert your client’s limitations that support your theory of the case.

9. Closing argument: This allows you to summarize how the hearing evidence and testi-

mony supports your theory of the case.

10. Post-hearing brief: This allows you to address any impediment to your theory of case in depth.

Continuity of your theory of the case is king. Your pre-hearing work through to your ME cross-examination culminates in your questions for the VE. Keep in mind: Your opening and closing arguments are not only time you offer reasons why your client cannot work. Your VE cross-examination also offers arguments why your client is disabled under Social Security’s regula-tions. How to Prepare VE for Cross-examination It is important that you develop your own style of VE cross-examination. There are some fun-damental guidelines, however. Effective VE cross-examination answers these questions:

• Are you posing a new hypothetical, or adding to the current hypotheticals? If you are adding, to which ones? The ALJ needs to understand how your hypotheticals do or do not match the ones already asked.

• What limitation are you addressing? What condition causes it? Where is it in the rec-ord? You can simply state the limitation in your VE cross-examination, but it is more ef-fective to cite what condition causes the limitation and which exhibit and page best documents it. The ALJ will need to know where it is. Why not cite it?

• How does the limitation objectively limit your client? Which work activities are impact-ed? The more objective your hypothetical is, the more the ALJ will expect the VE to an-swer it. Examples include: Missing more than 2 days per month (absenteeism), being over 15% off-task (persistence), completing only 75% of the work of a normal employee (pace), and limited to occasional fine and gross handling.

• Which jobs are you eliminating? Be clear about which jobs you are asking the VE about.

• Is there something flawed about the VE testimony itself? You may question the VE’s in-terpretation of an ALJ’s hypothetical, or question how the VE determined certain jobs were possible (foundation).

Goals of VE Cross-examination VE cross-examination at a hearing is usually 3 to 5 different series of questions. On a broad lev-el, each series of questions will drive at one of three goals:

1. Modify ALJ limitations to eliminate jobs, 2. Offer new limitations to eliminate jobs, or 3. Question the foundation of VE testimony.

Most of your VE cross-examination questions will present hypotheticals that modify or add limi-tations (numbers 1 and 2 above). These “limitation questions” expose some deficiency in the ALJ’s hypotheticals. “Foundation questions” (number 3 above) make an ALJ doubt the accuracy of the VE’s testimony. Foundation questions can attack VE testimony various ways, including pointing out a VE’s misunderstanding of an ALJ’s hypothetical, the DOT, or the SCO. They may

also attack significant numbers, proper transferability of skills, or even the unreasonableness of certain jobs the VE offers. Setting the Table: The Order of Cross-examination Questions The order of your lead-up questions matters. Here is a series of foundation cross-examination questions that point out a VE’s apparent misunderstanding of an ALJ hypothetical:

Attorney Question 1: [Lead-up question] “Mr. Smith [VE], you testified that my client could perform a Cashier II position in answer the judge’s second hypothetical. Is this right?” VE: “Yes.” Attorney Question 2: [Lead-up question] “You also testified that your testimony is con-sistent with the DOT and the SCO. Is this correct?” VE: “Yes.” Attorney Question 3: [Lead-up question] “Could you please tell me what the SCO re-quires for Cashier II in terms of fingering?” VE: “Yes. Just a moment…The Cashier II position requires frequent fingering.” Attorney Question 4: [Key question] “If I recall the judge’s second hypothetical correct-ly, he limited my client to occasional fingering.” The Attorney looks to the ALJ. The ALJ nods. “With this clarification, would the judge’s hypothetical allow for a Cashier II posi-tion?” VE: “Oh, no. I must have misheard the judge’s second hypothetical. The Cashier II posi-tion cannot be performed with occasional fingering.”

An effective series of VE cross-examination questions seems more like a focused interview than an aggressive competition. As in interviews, the first question logically leads to the next. A se-ries of “lead-up questions” sets the table for the “key question”—the meat of your material. Each question in order has a purpose. Let’s break down each attorney question above. Attorney Question Function

1 Lead-up question. Confirms the VE testimony. Focuses the ALJ on the subject of your inquiry.

2 Lead-up question. Locks in the VE’s commitment that his testimony did not conflict with the SCO. Eliminates the VE later trying to reconcile his conflict with the SCO—which usually begins with, “In my experience…”

3 Lead-up question. Gets the VE to create a record of the fact at issue.

4 Key question. Identifies the source of the error and positions the VE’s testimony against the fact at issue. Allows the VE an “out” if the VE

didn’t understand the question or know about the SCO limitation. Leading into this cross-examination with a series of questions in this order positions the VE’s testimony squarely against the facts. Note that the key question above points out the VE’s er-ror, but does more. It positions the VE error as a clarification that does not invite the VE to stand his ground. The logical order of your questions creates gravitas that can influence how the VE responds. To underscore this point, play with these questions. Eliminate some, change the order, or both. For example, let’s say you went straight to your key question without any lead-up:

Attorney Question 1: “Doesn’t Cashier II require occasional fingering?” If you disrupt the logical order of your lead-up questions, a few things may happen. One, you may confuse the ALJ. “Counsel, are you asking about the second hypothetical?” You then need to backtrack to deal with Attorney Question 1. Two, you may prompt the ALJ to feel obligated to complete your question. ALJ to the VE: “Could you please look up the SCO for Cashier re-garding fingering?” The ALJ must ask Attorney Question 3. Three, you may prompt the VE to save face—inviting the VE to say: “Yes…ah…I heard the fingering limitation, but in my experi-ence, the Cashier II job can be performed with occasional fingering. I would, however, elimi-nate some fast-paced positions, which would reduce my numbers by 50%.” In a bind, the VE has fashioned his own logic to reconcile his error. If you stick with the logical order, your lead-up questions deflect “dodgy” VE testimony. Now consider this exchange as if you were the ALJ.

Attorney Question 1: “Mr. Smith [VE], you testified that my client could perform a Cash-ier II position in answer the judge’s second hypothetical. Is this right?” VE: “Yes.” Attorney Question 2: “You also testified that your testimony is consistent with the DOT and the SCO. Is this correct?” VE: [Dodge] “Well, I do not think there is any conflict. If there is, I am sure that my ex-perience can explain it.” Attorney Question 3: “So are unsure about your answer to the second hypothetical?” VE: “Well, no. What do you mean?” Attorney Question 4: “Do you need the judge to repeat his second hypothetical?” VE: “No. What’s your question?”

Attorney Question 6: “What does the SCO list for the frequency of fingering for Cashier II?” VE: “Well, it says…frequent….” ALJ: [Interrupting] “Mr. Smith, my second hypothetical asked for jobs requiring no more than occasional fingering.” VE: “Ah…Bilaterally, your honor?” ALJ: “Yes.” VE: “OK, ah….Since it is occasional bilateral fingering, Cashier II is out.”

In this example, the VE tried to side-step lead-up Attorney Question 2. In doing so, the VE ap-pears unresponsive. Dodging to save face can appear to hide deceit. After being caught trying to trump the logical order, the ALJ understood the VE’s error. The VE essentially saved face by blaming his inconsistent testimony on the ALJ. This impacts the VE’s credibility. Cross-examination Exposed: A Logical Method Effective cross-examination starts with a method to solve your issues with VE testimony at the hearing. VE testimony that interferes with your theories of the case are like puzzles. And, like any puzzles, you can develop logical methods to solve them. When you plan a series of cross-examination questions, a method can make your cross-examination seem almost conversation-al. From the ground up, here are some guidelines to help you develop your own method to create lead-up and key questions for VE cross-examination. The “occasional fingering” cross-examination is used for this example.

Preparation for VE Cross-examination

When What Example Before your hearing. Consider the RFC limitations

in your theory of the case that rely on supportive VE testi-mony.

Occasional fingering needs to eliminate PRW in a grid case.


When What Example

During your opening. When possible, explain how these limitations are support-ed in the record.

Your opening: “Your honor, my client has rheumatoid ar-thritis, first diagnosed by Dr. Segal, a rheumatologist, in January of 2014, at 4F, page 15. Hand x-rays then show malformation of the joints in both hands. This is at 4F, page 26.”

During your direct exami-nation of your client.

Anchor your client’s limita-tions with the hearing record. Refer to the record when ask-ing for examples of these limi-tations.

Question for your client: “Mr. Jones, I see on 6F, page 7, that in June of 2014, you told Dr. Segal that you had trouble buttoning. Have you had any other trouble using your hands together to do things?”

During the VE direct-examination.

Write down conflicts with your theory of the case, both anticipated and unanticipat-ed.

Conflict: VE testimony al-lowed Cashier II with occa-sional fingering.


For each conflict with your theory of the case, classify each error as either a factual error or a legal error.

Factual error analysis: The VE’s testimony conflicts with the SCO.


Form your key question. Then, identify the regulations, rulings, DOT, SCO, and the hearing record that support your side. This will help you form your lead-up questions.

Key question idea: Doesn’t Cashier II require frequent fin-gering? SSR-00-4p requires the VE to identify conflicts with the SCO. The VE said there were no conflicts.


Anticipate ways the VE may try to avoid admitting errors. Also, consider the VE’s possi-ble motivations given your previous and current experi-ence, and how you can push back.

The VE may testify that Cash-ier II does not require frequent fingering, but common sense reveals that cash registers re-quire pushing buttons—something your client ex-plained he cannot do. The ALJ knows this, too.


When What Example

During your VE cross-examination.

Confirm the VE in his testimo-ny.

Lead-up question to the VE: “Mr. Smith, you testified that my client could perform a Cashier II position in answer the judge’s second hypothet-ical. Is this right?”


Apply the law in your favor. SSR 00-4p. Lead-up question to the VE: “You also testified that your testimony is con-sistent with the DOT and the SCO. Is this correct?”


Identify the factual errors. SCO error. Lead-up question to the VE: “Could you please tell me what the SCO requires for Cashier II in terms of fin-gering?”


Ask your key question in a way that makes the conclu-sion self-evident under the law and facts. Be prepared for evasive answers.

Key question to the VE: “If I recall the judge’s second hy-pothetical correctly, he lim-ited my client to occasional fingering. With this clarifica-tion, would the judge’s hypo-thetical allow for a Cashier II position?”

Cross-examination Style Cross-examination is conflict. How you typically engage conflict matters. Your personality leaves an imprint—for better or worse—on your style of lead-up and key questions. If you pre-fer to invoke conflict, you tend to be passive-aggressive. ALJ’s may pay less attention to your questions because your dogma makes you appear unwilling to listen to reason. You also invite entanglements with experts. Compare these key questions to an ME:

A. “How can you expect a person with this level of anxiety to have only moderate limita-tions in social functioning? Didn’t you read the entire record?” (Weak)

B. “Is it typical for a person with moderate limitations in social functioning to rarely leave his house and stay in his room three days per week away from his family?” (Strong)

If you tend to be highly emotional under conflict, ALJ’s may pay less attention to your questions because your drama can detract from the facts of the case. Compare these key questions to an ME:

A. “Aren’t you ignoring my client’s severe pain when he reaches forward?” (Weak) B. “Based on the right shoulder MRI at Exhibit 6F, page 45, is it reasonable that Mr. Smith’s

right shoulder bursitis would cause pain when reaching forward?” (Strong) And if you are conflict adverse, ALJ’s may pay less attention to your questions because you can appear disengaged and unprepared. Consider these lead-up and key questions to a VE:

Attorney Lead-up Question: “My client talked about not being able to do things, like ty-ing his shoes one-handed.” VE: “Yes?” Attorney Lead-up Question: “Isn’t it hard to do things well with one hand as a helper hand only, like using a cash register?” VE: “Well, yes, it is. But I have placed people in these jobs who could only use one arm.” Attorney Key Question: “So in your experience, people in this job can do it one-handed?” VE: “Yes.”

This interchange should be painful to read. You may instinctively want to step in to help. Why? Because each of us knows the persuasive strength of logic and reason to engage the ALJ. How do you make your cross-examination style better? A more persuasive cross-examination style draws upon the authority of logic and reason. It removes your perceived need for control (or lack of control) from the process. A logical method to cross-examine experts helps you ask questions that ALJ’s understand. ALJ’s, in turn, will expect VE’s to understand (and answer) them too. Unreasonable VE responses to reasonable questions shed doubt on VE testimony. ALJ’s pay attention to your lead-up questions because you are driving at reasonable disagree-ments with VE testimony. When you employ a logical method to ask lead-up questions, you harness the power of the syllogism. Syllogisms: Leveraging Logic A syllogism forms premises that direct a logical conclusion to your key question. When reading the next example, note how the Statements A through C direct logical conclusion D:

https://books.google.com/books?id=fPAvsKPsmEAC&pg=PA93&lpg=PA93&dq=garner+winning+brief+syllogism&source=bl&ots=4qm80OwKZg&sig=83YphHetJrrm7FHKicZKZ8a_Ssk&hl=en&sa=X&ved=0CCgQ6AEwAmoVChMIr8Pw6P75xgIVA9YeCh0swATx#v=onepage&q=garner%20winning%20brief%20syllogism&f=false

A. A person is disabled under the Social Security regulations if he is expected to be unable to work due to a medically determinable impairment.

B. John’s MS was diagnosed by his neurologist. C. His MS is expected to keep him from working for over a year. D. John is disabled under the Social Security regulations.

Note how Statement D answers itself. So, a logical method to cross-examine experts uses lead-up questions to set up the contrast between reason and the expert testimony. In other words, the logic of your lead-up cross-examination questions beg reasonable answers to your key questions. With this in mind, let’s revisit the painful VE exchange above.

Attorney Lead-up Question: “My client testified that he can do things with one hand, only it takes longer. Would you agree that using only one hand, with the other as a helper hand only, can impact pace in a work setting?” VE: “Yes, it can. Depending on the job.” Attorney Lead-up Question: “You testified that my client could perform a Cashier II po-sition essentially one-handed. Is this true?” VE: “Yes. And I have placed people with issues using only one hand in this job.” Attorney Lead-up Question: “So, in your experience, does a Cashier II job require bilat-eral manual dexterity?” [Quick side bar with ALJ, “Your honor, I am referencing Social Security Ruling 83-14”]. VE: “Well, yes, it usually does.” Attorney Lead-up Question: “Does Cashier II require frequent handling under the SCO?” VE: “Yes, depending on the work setting itself.” Attorney Lead-up Question: “You testified that you have placed people in this job who use only one hand. In your experience, is it reasonable to conclude that a person using one hand, with the other as only an assist, doing a Cashier II would be able to perform at, let’s say, about 75% of the pace of a typical employee doing this job?” VE: “I don’t have exact numbers, but that sounds about accurate.” Attorney Key Question: “In your opinion, then, are employees regularly working at only 75% of the pace of normal employees competitively employable?” VE: “No.”

The logic of the lead-up questions above makes alternative responses to the final question un-reasonable. By the way, do not treat all adverse expert testimony as merely lies. Instead, con-sider various motives the experts may have for their testimony. In this example above, it is like-ly that the VE did place one-armed people in these positions. But just being able to do jobs does not mean they are done competitively. The VE likely placed people in accommodated work settings, which is good for those employees but not consistent with the Social Security regulations. This cross-examination points out this truth. Making Objective Limitations Count Your client’s physical and mental residual functional capacities (RFC’s) need to eliminate all jobs for your client. Your theory of the case should be your key to understanding which limitations knock out jobs cited by the VE at the hearing. As previously stated, many of your VE cross-examination questions will pose hypotheticals that modify or add limitations. During VE cross-examination, limitations are best presented as ob-jectively as possible. Read these two similar VE cross-examination questions about dominant arm reaching below, and compare them:

A. “If a person can only reach occasionally, would that person be able to do these jobs?”

B. “In addition to the first and second hypotheticals asked, if a person with dominant right shoulder impingement with a limited range of motion (as shown in exhibit 16F, page 10) can only reach forward over 18” from the body occasionally in an 8-hour day, would that person be able to competitively perform the jobs you testified to?”

Question A is definitely more concise. It is better written. The VE may even respond “yes” to it. But what does a “yes” to Question A mean in a Social Security hearing? Being concise has come at the expense of being accurate. A VE’s response of “yes” may be interpreted by the ALJ as occasional reaching overhead, which does not eliminate many jobs. A “yes” could also mean to the ALJ that your client cannot bilaterally reach, which is not demonstrated by the evidence. Finally, the ALJ may simply discount your question altogether because he is unclear how the record supports this exertional limitation. Question B, however, is more effective. It can be clunky, so it should be posed to the VE with pauses to allow the VE and ALJ to digest each part. A detailed breakdown of this hypothetical’s structure is below.

In addition to the first and second hypotheticals asked1, if a person with dominant right shoulder impingement with a limited range of motion2 (as shown in exhibit 16F, page 103) can only reach forward over 18” from the body occasionally in an 8-hour day4, would that person be able to competitively perform5the jobs you testified too?

Each of these sections above has a distinct purpose.

• Section 1 (marked by the subscript) identifies which ALJ hypotheticals you are attacking. This, in other words, flags which ALJ hypotheticals are potentially lacking.

• Section 2 properly identifies which arm is involved and why. This connects the condition

with the limitation. • Section 3 includes a vital anchor, an exhibit citation, which establishes the objective

source of the limitation on the record. • Section 4 specifies the kind of reaching limitation over a particular duration—an 8-hour

work day. While an 8-hour workday can be assumed, it offers an argument about a limi-tation over time that better communicates the thrust of your client’s limitations.

• Section 5 closes your question with a pace argument that your client’s pain would slow

work production over time. Your VE hypotheticals can trigger an interjection from the ALJ. Be prepared to defend your hy-potheticals. If the ALJ asks about any of your cross-examination questions, elaborate. This is an open opportunity to present favorable argument about your client’s limitations. For example, if the ALJ asks about your record citation in Section 3 above, you can respond by saying,

Your honor, exhibit 16F, page 10, is a functional capacity examination. The range of mo-tion of my client’s right shoulder is restricted during this test as shown about halfway down on that page. Note the left shoulder range of motion is normal as compared to the right. This functional capacity examination is relied on by my client’s treating physi-cian, Dr. Jones, on exhibit 15F, page 45.

If the ALJ is still listening, this may be a cue for you to continue:

My client discussed this problem with Dr. Jones on exhibit 18F, page 15, about a year before the FCE. This was also about 6 months before the right shoulder MRI at exhibit 10F, page 3. My client discussed right arm reaching issues today when getting a full gal-lon of milk out of the refrigerator.

The ALJ may ask, “Why hasn’t this limitation been accounted for before?” Your answer: “Your honor, the State Agency only restricted overhead reaching on the right. It had the right shoul-der MRI but not the FCE. The reconsideration decision is dated 3/10/14, and the FCE was done in May of 2014.” This answer reflects an understanding of your client’s medical narrative, dis-cussed in the next section. Sometimes asking yes or no questions can help your VE cross-examination be more objective. Practice saying statements followed by the question such as, “Is this correct?” Here is a sample lead-up question to a VE:

“You testified that my client can perform his past relevant work as a baggage handler while limited to light work. Is this correct?”

During cross-examination, pain and non-exertional mental limitations are best presented as ob-jectively as possible. This, however, can be a challenge. Try to visualize how your client will be limited by his combination of impairments. Reference treating source opinions whenever pos-sible. Here is sample VE hypothetical:

Mr. Simmons, in addition to the first and third hypotheticals, if my client has a marked inability to handle stress due to depression (as referenced by her psychiatrist in the RFC at Exhibit 14F page 3), would this limitation allow my client to work competitively?

Absent a treating source opinion, argue what should be a limitation based on the record. Quan-tify “off-task” behavior, such as aggression, crying, withdrawing under stress, or bathroom breaks on a daily or weekly basis. Here is another sample hypothetical for a VE:

The record shows that my client has crying spells twice per week. One reference for this is at Exhibit 5F, page 17. If a person were to have crying spells for 30 minute intervals twice per week in front of coworkers and supervisors outside of work breaks, in your experience, would this be tolerated in the competitive workplace?

Also consider pace issues, such as your client’s inability to complete no more than 75% of cer-tain tasks by the end of a typical 8-hour work day. The most effective source of objective mental health limitations for VE cross-examination is a mental treating source opinion. Other sources for VE cross-examination in mental health cases can arise from a careful review of treatment notes. Limitations and the Medical Narrative Mastering the facts supporting your cross-examination requires you to understand how each of your client’s significant medical limitations trace back to your client’s larger “medical narra-tive”—or story of disability. In other words, while an objective citation is good (such as an MRI), placing it in the context of other medical evidence is better. So, if your client has a low back MRI showing DDD, it is helpful to know the MRI citation, but it is better to trace back how he was first complaining about it 6 months previously. This medical narrative, in turn, should be consistent with the timeline as described in your client’s hearing testimony. As you understand your client’s medical narrative, look for medical narrative “outliers”—inconsistencies such as a client with back problems “helping a friend move.” Chasing down and explaining these outliers allows for a more consistent medical narrative (i.e., a more compelling case) for the ALJ. A consistent and compelling medical narrative, combined with a solid theory of the case, are the fuel for effective expert cross-examination.

The Role of Limitations in Grid vs. Non-grid Claims

Your theory of the case in your Social Security benefits claim collects your client’s limitations in such a way as to eliminate jobs. Unless your client meets or equals a listing, you must have a plan how to introduce and interject a set or sets of physical and mental limitations into the hearing. Beyond listings cases, Social Security claims divide out two basic ways: Grid cases and non-grid cases. Grid cases. Clients over 50 limited to sedentary work (or light work when over 55) can win un-der the medical-vocational guidelines (“grids”) if they reached grid age at some time before the hearing. http://www.ssa.gov/OP_Home/cfr20/404/404-app-p02.htm. Rare grid cases include those over 45 who are illiterate and/or unable to communicate in English. For grid clients, rela-tively less important limitations for younger clients can play major roles in eliminating past rel-evant work and transferable skills. For example, illiteracy may not play a large role in eliminat-ing all jobs for a younger person, but it can set up a grid at 45 (see above). Similarly, occasional fingering may not eliminate other work for a person under 50, but it can eliminate past relevant work (“PRW”) as a receptionist for a person limited to sedentary work over 50. Also, a mental health limitation to unskilled work for a person over 50 can eliminate all skilled and semi-skilled PRW because it necessarily eliminates all transferable skills. Non-grid cases. Clients under 50 without a listing or grid consideration are harder to win. You must prove their physical and mental limitations preclude not just SGA-level PRW (and jobs ap-plying its transferable skills) but all other work. For non-grid clients, at least one limitation needs a knock-out punch that eliminates a substantial swath of work at all exertional levels. For example, a client with leg swelling (edema) who must elevate one leg to heart level general-ly has a limitation that precludes all work. Diabetic polyneuropathy that limits a client to occa-sional handling and fingering allows for few jobs. Strategies to Challenge the VE's Testimony

Picture your client’s vocational limitations in a funnel. The ALJ’s hypothetical questions create a limited subset of jobs. Your VE cross-examination needs to eliminate these jobs. Part of the creativity of cross-examination is to anticipate the limitations you will need to eliminate the remaining jobs. This requires you to evaluate the weakest elements of your theory of the case before and during the hearing. How? Consider these questions before the hearing:

• What is your theory of the case? Have back-ups as well. This may invoke amended on-set dates.

• What are the elements of your theory of the case? Some are given, such as age. Others

are limitations that will tip your case one way or another. Handling limitations tend to do shift in your client’s favor. Transferable skills in grid cases can shift cases against your client.

http://www.ssa.gov/OP_Home/cfr20/404/404-app-p02.htm

• What medical evidence of record (MER) supports each element? Have the citations or-

ganized in your notes in such a way that you can reference them quickly.

• Which elements have the least support in the MER? In reading the medical evidence, judge how strong the evidence is. For example, an EMG to evaluate leg radiculopathy and a physical therapist examination finding of positive straight leg raising are both evi-dence, but the EMG evidence is more objective—hence more persuasive.

• What MER is out of context? Some of the most damning evidence, ironically, comes from subjective evidence. Your client tells his doctor, “I feel fine.” “I can lift 30 pounds.” “My mood is OK.” Ask your clients about the context of these statements. You can then raise them in your direct-examination of your client. Other detracting evi-dence is negative evidence: Is an ER exam for a headache that does not find peripheral neuropathy meaningful? Ask yourself, “Was this exam looking for the impairment at is-sue?” Find medical support to counter this evidence.

• What MER is wrong? Medical records have a structure to them, but computerized rec-ords can perpetuate errors and include dictation mistakes. Are negative diagnoses, such as substance abuse, simply carried forward in the medical record rather than newly documented? Some medical care stands out as odd. Look into conclusions that do not track the medical narrative. Does the neurologist improperly cite MRI findings in the treatment notes? Does this mean the doctor has a reliable diagnosis or conclusion? Ar-guably not. That is where you come in.

Consider these questions during the hearing:

• Which elements of your theory of the case does the ALJ seem to support? Which are off the table? Which are left? Listen for this information in either pre-hearing discussions, questions to your client, and, most importantly, in the hypotheticals. Some ALJ’s will engage you during your opening or your direct examination of your client on these ele-ments. This will flag the elements at issue. “Counsel, do we have evidence about carpal tunnel?” “Is there a low back MRI?” “Was your client been treated for depression dur-ing the period you are talking about?”

• Which elements of your theory of the case does the ME support? Sometimes you need

to clarify a limitation during your ME cross-examination.

• Which elements did the VE support to eliminate jobs? During the VE answers to the ALJ’s hypotheticals, certain physical or mental limitations from the hypotheticals may not have been accounted for. These need clarification on VE cross-examination. Other limitations, the critical ones you anticipated, may have been left out of the hypotheticals altogether.

VE cross-examination is the result of your effort to create and then build on your theory of the case. In your pre-hearing brief, your opening at the hearing, and in your direct examination of your client, you need to raise the uncontested and (potentially) contested elements of your theory of the case. Focus on the weakest links. Consider including these comments in your pre-hearing brief:

• “Ms. Smith reported symptoms of wrist pain and numbness over 6 months after her bi-lateral carpal tunnel surgeries.” This statement sets up the idea that the surgeries did not work, and that your client still has issues handling objects.

• “Mr. Jones discussed the lingering effects of chemotherapy with his oncologist in his 1-

year follow-up appointment.” This statement shifts focus on the cancer itself as a source of limitations to the impact of the cancer treatment.

• “Ms. Anderson began treatment for depression soon after getting her medical insurance

back.” This statement introduces an argument that the lapse in treatment was not due to improved health or noncompliance.

Consider including these comments in your opening argument:

• “I advised my client to be up front about her chemical dependency in her past and any use recently.” This statement sets up credibility with the ALJ and lets your client know that openness is OK. It also can introduce favorable clean and sober testimony that the ALJ may not have expected.

• “Please consider that if my client is limited to sedentary, and couldn’t return to past

work, that this may allow for a grid.” This statement can set up an ME, who might want to find your client is at light on purpose, when light may win also.

• “My client has had failed low back surgery, and he will describe his ongoing low back

symptoms that affect his daily life.” Rather than testify for him, you have introduced a focus for the ALJ in the hearing that may garner his attention about post-surgical, seden-tary restrictions.

Strong vocational limitations also should also be anchored in the record. Quantitative limita-tions spoken into the audio hearing record, such as functional capacity examinations or RFC’s, carry more authority in hypothetical questions to the VE.

Arguing Transferable Skills Transferable skill issues in grid cases may be part of why national approval rates have plum-meted double digits in the last few years. A transferable skill undermines grid approvals by finding other work your clients can do using certain skills. You need to attack these “transfera-ble skills.” Highly transferable skills tend to be general managerial, office, or people skills that can be done while seated.

Social Security Rulings 82-41 and 00-4p explain that a skill is hands-on knowledge acquired from past relevant work (PRW) activity that requires more than 30 days to learn. 20 C.F.R. § 404.1568 further explains that skills that most “readily and meaningfully” transfer to other work are skills that require: (1) the same degree of skill or less, (2) the same or similar tools, and (3) the same or similar raw materials, products, processes, or services. If a VE testifies that your client cannot perform his PRW, but a skill from PRW transfers to other work, consider these questions below: 1. Is the “other work” using this skill at the proper physical residual functional capacity? In

other words, could your client really physically do the other work? Two points are in order. First, a transferable skill needs to align with your client’s exertional level. Second, a trans-ferable skill also needs to account for your client’s specific physical limitations.

Facts: Your client is over 50 and is limited to sedentary work. The VE identifies your client’s

PRW as Small-engine Mechanic (DOT 625.281-034). The VE identifies transferable skills in small engine repair that can be performed in a similar, sedentary level job.

Analysis: Is the “other work” using this skill at the proper physical residual functional capaci-

ty? No. Small-engine repair is a medium job under the DOT. Small engine repair allows for specific skills, but argue that these skills cannot be performed at the sedentary level. Ask the VE, “Is the skill of small engine repair restricted to the light or higher exertional lev-els?”

2. Is the skill something that would take over 30 days to learn? Frequently at hearings, the

transferable skill is simply listed by a VE without thought as to whether they are skills at all. Valid skills must take over 30 days to learn. Also, no skills transfer to unskilled work.

Facts: Your client is a 55-year-old factory manager with accounting experience. He has bi-

lateral carpal tunnel syndrome and he is limited to sedentary work due to lumbar spine is-sues. The VE claims that your client has transferable bookkeeping skills that could be per-formed at sedentary other work as a Bookkeeper (DOT 210.382-014).

Analysis: Does the transferable skill account for your client’s specific physical limitations?

No. Under the Selected Characteristics of Occupations (SCO), the companion to the DOT, the Bookkeeper job requires frequent handling and fingering. Argue that your client’s bilat-eral carpal tunnel would not allow your client to do the Bookkeeper job. Ask the VE, “What does the SCO require of the Bookkeeper job in terms of handling and fingering?” After the answer, ask, “If a person is limited to occasional handling and fingering due to bilateral carpal tunnel syndrome, as evidenced by the EMG in Exhibit 6F, page 23, could they per-form the Bookkeeping job competitively?”

3. Did your client do his PRW long enough to gain this skill? The Dictionary of Occupational Titles lists a specific vocational preparation (SVP), or time, it takes to learn each job. These timeframes are below:

Skill Level of Past Relevant

Work SVP Time to Learn Skills

Unskilled 1 Short demonstration only

2 More than short demonstration to 1 month

Semi-skilled, Lower level 3 Over 1 month to 3 months

Semi-skilled, Upper level 4 Over 3 months to 6 months

Skilled, Lower to Upper levels

5 Over 6 months to 1 year

6 Over 1 year to 2 years

7 Over 2 years to 4 years

8 Over 4 years to 10 years

9 Over 10 years At the hearing, your client may have a few jobs that are past relevant work (PRW) because

she performed them at substantial gainful activity level less than 15 years ago. But not all PRW is done long enough to learn the skills from them.

Facts: Your 60-year-old client is limited to light work due to moderate bilateral knee degen-

erative joint disease. She was a private duty nurse. She did it 1½ years at SGA-level 13 years ago, rendering it PRW. Her job is classified as medium (DOT Code 075.374-018). The specific vocational preparation (SVP) for this job in the DOT is 7. The VE claims she can transfer skills from this SVP-7 job to light work as a SVP-6 Medical Record Technician (DOT 079.362-014).

Analysis: Did my client do her PRW long enough to gain this skill? No. SVP-7 jobs require at

least 2 years to learn, as the table above shows. So, unless your client did this private nurs-ing job for over 2 years, she did not do this PRW long enough to learn skills from it. Argue that your client cannot transfer skills she never acquired. Ask the VE, “How long does an SVP-7 level job take to learn the skills?” When you get the answer, ask, “Does the record show that my client performed her private nurse job over or under 2 years?” Keep in mind that recent education that allows for direct employment offers the only transferable skills that do not require actual work experience.

4. How long ago was the skill used? 20 C.F.R. § 1568 requires that transferable skills need to

be “readily usable”. While the regulations identify skills acquired in highly “specialized” or “isolated” settings as not readily usable, the most common transferable skill questions arise when skills are outdated.

Facts: Your client handled payroll a dozen years ago without using computers. The VE testi-fies that your client’s experience “processing payroll” is a transferable skill.

Analysis: Is your client’s skill processing payroll outdated? Yes. Skills from your client’s ac-

tivity are not readily usable in any current job setting. In these situations, argue that 20 C.F.R 404.1568 requires that transferable skills meet the current requirements of other work to be readily. Ask the VE, “In terms of tools, machines, or processes, does payroll processing currently use computers?” Then ask, “Does my client’s experience a dozen years ago reveal competency with computers?” Any skill that employed outdated tools, machines or processes is not “readily usable.”

5. Is the PRW SVP-3? Social Security Ruling 82-41 recognizes that while SVP-3 jobs involve

skills, no skills transfer from them. Facts: The VE at your hearing testifies that your client’s transferable skills are “using power

tools” and “people skills”. Analysis: Are “using power tools” and “people skills” skills that take over 30 days to learn?

No. Ask the VE, “Would using a cordless screwdriver take over 30 days to learn?” As for people skills, this is an aptitude that some people understand without training. Ask the VE, “Do some people have traits that allow them to have people skills without any training whatsoever.” Again, anything that can be learned in under 30 days is not a skill. Also, traits aren’t skills.

6. Does a non-exertional limitation, such as mental illness, eliminate your client’s ability to do

skilled work? Grid cases frequently hinge on whether your clients have transferable skills. Mental health diagnoses can limit your clients to unskilled work—thus eviscerating trans-ferable skills. Search in your clients’ medical records for any evidence of mental health limi-tations, including psychological consultative examinations. For those clients not yet at a hearing, counsel them about the importance of raising any mental health concerns with their doctors—particularly in chronic pain situations.

Facts: The VE testifies that your client gained transferable skills in “customer relations”

from her PRW as a Cashier-checker (DOT 211.462-014, SVP-3). Analysis: Can skills transfer from an SVP-3 job? No. Ask the VE, “You are testifying that

skills transfer from an SVP-3 job?” Once you confirm this, turn the ALJ and say, “Your hon-or, Social Security Ruling 82-41 specifically states while SVP-3 jobs involve low level skills, no skills transfer from them.” If the ALJ balks, follow-up with the VE by asking, “Can you give an example of these ‘customer relations’ skills?” When you are provided one, then ask, “Exactly how does this skill take over 30 days to learn?”

Cutting Edge VE Arguments Part-time Skills Argument. A novel argument is that your client could sustain some semi-skilled work, but not for 8 hours per day. This, in essence, would preclude semi-skilled work. Use this argument in grid cases with disabilities such as MS or strokes when fatigue or stamina is more pronounced as the day progresses. Ask the VE, “In addition the hypotheticals asked at the hearing, if a person could only sustain skilled work for 4 hours per day, and fatigue from his MS would only allow unskilled work for the remaining 4 hours, would this person be able to competitively perform skilled work?” Lesser-included Transferable Skills Argument. An untested (to my knowledge) transferable skills argument involves the concept that your client should actually be able to do “other work” with the transferable skills he has. One skill that transfers to other work does not necessarily mean your client could actually do the other work. In other words, your client can only do “other work” that requires fewer but similar skills from PRW. This concept is drawn from criminal law, in which all the elements of a lesser Crime X are included in greater Crime Y (making Crime X a “lesser-included” crime). Here is how this argument could proceed at a hearing.

Facts: Your 50-year-old client is limited to sedentary work. The VE testifies about your cli-ent’s light past relevant work. The VE also identifies a transferable skill to sedentary “other work.” Analysis: Could your client actually do the “other work” with the one transferable skill? No. Ask the VE, “The other work you cited in the DOT is SVP-4. In your experience, what skills are necessary to competitively perform this job?” The VE testifies to a few. “You testified that my client had one skill that can transfer to this other job.” The VE agrees. Then ask, “Would he be able to competitively perform this SVP-4 job with only this skill?”

When the ALJ objects, you can argue this. “Your Honor, the point of transferring skills is to identify other work my client could actually do. 20 C.F.R. 404.1568(d) states that past work ac-tivities (I’m reading from the regulation here) ‘can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work.’” Pause, then say, “The regulation says transferable skills are used to meet the requirements of other work, not just one. The VE testified that this sedentary work requires skills my client does not have. So, my client cannot actually do this new job. His one skill does not meet the requirements of this other work.” The Final Word: Authenticity Ultimately, strive to develop a cross-examination style that is authentic. The most effective cross-examination comes across as a focused interview that reasonably presses for the truth—not just the win. Strive to gain a reputation that you have a genuine concern about errors in expert testimony. When you do your job well, ALJ’s may come to expect that each question you pose in cross-examination is valid in some way. This implicit trust in your advocacy skills offers the highest possible gains for your clients.

2015 Eighth Circuit Disability Law Conference Vocational Expert Testimony Panel Discussion

Melinda Stahr, M.S., C.R.C. M.S. Rehabilitation Counseling, Drake University 1994 6 years regional Private Rehabilitation firm in Nebraska, 15 years sole practitioner In addition to SSA Vocational Expert – VA to Civilian Transition, OWCP, Loss of Earning Evaluation, Placement, Union Pacific Network Counselor, Long Term Disability, Workers’ Compensation, Personal Injury, Family Law, ADA, EEOC, Video and Live Presentations

Variations in VE Response • Art and Science to responses (i.e. composer and

musician) • Numbers estimated by Job Browser Pro at the DOT

level are estimates, not actual numbers of existing jobs.

• Labor Market Fluctuations (sedentary/ unskilled especially hit)

• Data Aggregated to occupational groups • Erosion due to specific hypothetical factors • Full-time vs. part-time

Example

Labor Market Fluctuations Business activity is influenced by various factors: Opportunity, Automation, Outsourcing, Competition, External Economic Factors, Restructuring Skilltran bases its weighing of employment numbers on Long-Term Projections. Long-Term Projections do not reflect Short-Term / Recessionary Impact Sedentary/ Unskilled especially hit hard. Overall decline of employment in the manufacturing sector workforce was 32.4% from 1990 to 2012 Only 14 of the 137 S/U DOT occupations (10%) are found in non-manufacturing industries.

Data Aggregation •Nearly all government statistics are aggregated for a group of DOT occupations

• Simple math requires this erroneous assumption: All DOT occupations in a given statistical group occur with equal frequency

• The number of DOT occupations in a CENSUS Group may be different than the number in the similar OES Group

Erosion Infinite number of scenarios possible. Common professional opinions offered for hypotheticals including overhead reaching, one-hand use, sit/ stand options. Example: cashier. Working as a cashier typically requires an individual to stand for the entire shift. However, some hospital cafeteria cashiers can sit while working as a cashier. So, a vocational expert may testify that an individual with those limitations still has the capacity of working as a cashier, with a 65% erosion in the job base.

Full-time, Part-time, Temporary, Self-employment

Temporary employment agencies and self-employment have not been historically included as an industry employer. However, in certain occupations, both temp agencies and self-employment are highly significant. Part-time employment is included in Total Employment.

Sources http://www.skilltran.com/index.php/support-area/documentation/216-job-numbers Truthan, J. (2015) Take This Job and Shove It! National Association of Disability Representatives. Powerpoint Presentation

http://www.skilltran.com/index.php/support-area/documentation/216-job-numbers

http://www.skilltran.com/index.php/support-area/documentation/216-job-numbers

7/29/2015

1

2015 Eighth Circuit Disability Law Conference Vocational Expert Testimony Panel Discussion

Melinda Stahr, M.S., C.R.C.M.S. Rehabilitation Counseling, Drake University 19946 years regional Private Rehabilitation firm in Nebraska, 15 years sole practitionerIn addition to SSA Vocational Expert –VA to Civilian Transition, OWCP, Loss of Earning Evaluation, Placement, Union Pacific Network Counselor, Long Term Disability, Workers’ Compensation, Personal Injury, Family Law, ADA, EEOC, Video and Live Presentations

Variations in VE Response• Art and Science to responses (i.e. composer and

musician)• Numbers estimated by Job Browser Pro at the DOT

level are estimates, not actual numbers of existing jobs.

• Labor Market Fluctuations (sedentary/ unskilled especially hit)

• Data Aggregated to occupational groups• Erosion due to specific hypothetical factors• Full-time vs. part-time

7/29/2015

2

Example

Labor Market Fluctuations Business activity is influenced by various factors: Opportunity, Automation, Outsourcing, Competition, External Economic Factors, Restructuring

Skilltran bases its weighing of employment numbers on Long-Term Projections. Long-Term Projections do not reflect Short-Term / Recessionary Impact

Sedentary/ Unskilled especially hit hard. Overall decline of employment in the manufacturing sector workforce was 32.4% from 1990 to 2012

Only 14 of the 137 S/U DOT occupations (10%) are found in non-manufacturing industries.

Data Aggregation•Nearly all government statistics are aggregated

for a group of DOT occupations



7/29/2015

3

ErosionInfinite number of scenarios possible.

Common professional opinions offered for hypotheticals including overhead reaching, one-hand use, sit/ stand options.Example: cashier. Working as a cashier typically requires an individual to stand for the entire shift. However, some hospital cafeteria cashiers can sit while working as a cashier. So, a vocational expert may testify that an individual with those limitations still has the capacity of working as a cashier, with a 65% erosion in the job base.

Full-time, Part-time, Temporary, Self-employment

Temporary employment agencies and self-employment have not been historically included as an industry employer. However, in certain occupations, both temp agencies and self-employment are highly significant.

Part-time employment is included in Total Employment.

Sourceshttp://www.skilltran.com/index.php/support-area/documentation/216-job-numbers

Truthan, J. (2015) Take This Job and Shove It! National Association of Disability Representatives. PowerpointPresentation

vocational cross-examinationc.ymcdn.com/.../vocational_cross-examination.pdfcashiers is found in...

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