vocational expert testimony in social security disability cases

Vocational Expert Testimonyin

Social Security Disability Cases

Dale A. Thomas Art KaufmanMTS, CRC, CCM, D-ABVE MEd, CRC, CDMS, D-ABVE

Thomas Vocational Consulting Accu-Pro Disability Advocates

Fayetteville, Arkansas Hillsboro, New Hampshire

Dale Thomas

“Magical Speaker”

SEQUENTIAL EVALUATION PROCESS (SEP)

Is the clmt. engaging in SGA?

Does the clmt. have a significant impairment?

Does the impairment meet or equal a Listing?

Can the clmt. do Past Relevant Work?

Can the clmt. do Other Work?

Getting Through Steps 4 & 5 (SEP)

• Establish a “function by function” RFC.

• Classify Past [Relevant] Work (PRW).

• Evaluate Transferability.

• If no Transferability, is there Other Work?

Getting Through Steps 4 & 5

To prevail the claimant must:

• Meet or Equal a Listing or

• GRID Out or

• Get through Step 5

“Function by Function” RFC

20 CFR 404.1545 “Your RFC”

Limitations on:

•Physical abilities•Mental abilities•Other abilities (skin, epilepsy, vision, hearing)•Total limiting effects (including non-severe

limitations.

“Function by Function” RFC“Exertional v. Non-exertional”

“If it isn’t exertional then it is non-exertional.”

20 CFR 404.1545

SSR 83-14

“Function by Function” RFC“Non-exertional”

Physical Demands comprise 19 activities, in addition to Strength.

Postural is captured by Cl, Ba, St, Kn, Cr, Cw

Manipulation is captured by Re, Ha, Fi, Fe.

Vision is captured by Ne, Fa, De, Ac, Cv, Fv

Others are Ta, He, Ts

“Function by Function” RFCMental Limitations

SSR 85-15

DI 25020.010

Four Basic Mental Demands of Unskilled Work

“Function by Function” RFC“Exertional”

Strength Demand Levels:

Sedentary

Light

Medium

Heavy

Very Heavy

These include: 3 work positions (standing, walking, sitting)

AND

4 worker movements (lifting, carrying, pushing, pulling)

“Function by Function” RFCPain & Other Symptoms

SSR 95 – 9p

Excessive breaks

Absenteeism

Diminished Concentration

Diminished Pace

Evaluate PRW – 3 Prong Test

Recency

Duration

SGA20 CFR 416.945: 3 Prong Test

82-61: Particular Job or As Generally Performed

82-62: Capacity to Do PRW in General

PRW

Skill Level is determined by four factors:

• SVP from the DOT/SCO

• D/P/T

• Claimant’s description

• VE opinion/experience

Leaving Step 4 SEP

The clmt. cannot return to PRW.

Based on the “function by function” RFC

Going to Step 5 SEP“Other Work”

Art Kaufman

“Master of Explanation”

Unskilled Sedentary Jobs

•201.00 Maximum sustained work capability limited to sedentary work as a result of severe medically determinable impairment(s). (a) Most sedentary occupations fall within the skilled, semi-skilled, professional, administrative, technical, clerical, and benchwork classifications., each representing numerous jobs in the national economy. Approximately 85 percent of these jobs are in the machine trades and benchwork Approximately 200 separate unskilled sedentary occupations can be identified occupational categories. These jobs (unskilled sedentary occupations) may be performed after a short demonstration or within 30 days.

What is a Skill?

•SSR 82-41 finds a skill must have:

•“same or similar tools, machines used”

•“same or similar raw materials, products, processes, or services are involved.”

Department of Labor DOT•A Department of Labor report entitled Criteria for Aggregating Jobs into

Occupations (see Appendix) explains that the method for aggregating jobs into occupations involves:

•First, there is a comparison of factors including; Objective information about the jobs, Worker Functions, Work Field(s)' machines, tools, equipment, and work aids (MTEWA), materials, products, subject matter, and services (MPSMS), GED, SVP, Aptitudes, Temperaments, Interests, Physical Demands, Environmental Conditions, Education, Training, Experience, and OGA Code.

•Then,

•The second step in the evaluation is to assess the validity of the various ratings assigned. Usually the definition writer is expected to follow the judgment of the field analyst, but substitutions should be made if the ratings are clearly in error. In other instances, rater differences should be reconciled. Often the presentation of all the criterion factors for a related set of jobs will help resolve rating differences by clearly showing the definitive pattern and atypical ratings.

Semi Skilled Work

•Semi-skilled work is work which needs some skills but does not require doing the more complex work duties. Semi-skilled jobs may require alertness and close attention to watching machine processes; or inspecting, testing or otherwise looking for irregularities; or tending or guarding equipment, property, materials, or persons against loss, damage or injury; or other types of activities which are similarly less complex than skilled work, but more complex than unskilled work. A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must move quickly to do repetitive tasks.

Skilled Work•Skilled work requires 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 be produced. Skilled work may require laying out work, estimating quality, and needed quantities of materials, making precise measurements, reading blueprints or other specifications, or making necessary computations or mechanical adjustments to control or regulate the work. Other skilled jobs may require dealing with people, facts, or figures or abstract ideas at a high level of complexity.

Interrog

Response

Transferability of Skills

82-41: Transferability defined & discussed

“same or similar tools, machines used”

“same of similar raw materials, products, processes, or services are involved.”

Transferability

TSA=MPSMS + WF + SVP (when SVP = or < PRW and > 2)

“And now, the “Wizard once

again!”

Step 5 SEPGRIDS

The Medical Vocational Rules (GRIDS) determine the clmt’s capacity to do “Other Work”.

(RFC for exertional limitations only)

“Other Work”The Unskilled Occupational Base

“Occupational Base” is the approximate number of occupations

that can be performed within the RFC.

137 Unskilled Occupations

Other WorkUnskilled Occupational Base

• DOT 12,000 + occupations

• EGOE 2,800 occupations, representing

jobs people actually work

(out of print – 1995)

14 Unskilled/Sedentary EGOE occupations

Ref. Susan Andrews, Esq.

“Other Work”The Unskilled Occupational Base

99% Erosion of the Unskilled Occupational Base when

Re, Ha, Fi, & De are Limited to

Occasional

“Other Work”The Unskilled Occupational Base

8 “Disabling Conditions”

SSR 96-9p

Other Work8 Disabling Conditions

• Inability to Lift 1 – 2 #

• Inability to Carry 1 – 2 #

• Only walk a few minutes in workday

• Inability to Stoop

• Significant limitations Ha small objects

• Significant limitations seeing small objects

• Inability to see ordinary hazards

• 4 Basic Mental Demands

Art is back

Problematic RFCs

• < Full Range of Light/Sedentary

• 1-2 Step Occupations

• Allowable Absences

• Acceptable Pace

• Areas not Addressed in the DOT/SCO

• Alternating Sit/Stand/Walk

Getting Through Steps 4 & 5 (SEP)

• Establish a “function by function” RFC.

• Classify Past Relevant Work (PRW).– Eliminate PRW based on RFC.

• Evaluate Transferability.– Eliminate Other Work that uses transferable

skills.

• Eliminate Unskilled Light occupations.

• Eliminate Unskilled Sedentary occupations.

Vocational Expert Testimonyin

Social Security Disability Cases

Dale A. Thomas Art KaufmanMTS, CRC, CCM, D-ABVE MEd, CRC, CDMS, D-ABVE

Thomas Vocational Consulting Accu-Pro Disability Advocates

Fayetteville, Arkansas Hillsboro, New Hampshire