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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