1. Cross Examining Medical and Vocational Experts 1/14/04

2. Medical Experts

3. Who Are They? • Doctor or psychologist who has not examined the claimant • Opinion based on records and testimony at hearing • Should not have discussed case with the ALJ • Selected by the ALJ

4. Why Are They Used • Explain to the ALJ complicated medical issues • Assist in determining whether evidence indicates that the claimant meets or equals listing • SSR 96-6p ALJ cannot change earlier finding that no equivalence exists without ME • Residual Functional Capacity Analysis • Onset date determinations • SSR 83-20 requires a medical opinion or evidence • Failure to follow prescribed treatment • SSR 82-59

5. Hearing Procedure • Usually testify after claimant and before vocational expert • ALJ will ask whether you have any objections to the ME’s qualifications • ALJ will ask ME if he/she wants to question the claimant • ALJ will question first. Will ask if meets or equals any Listings. May ask for RFC. • ALJ will allow cross-examination • ALJ may decide to send interrogatories to ME after receiving additional evidence

6. Preparing for a ME • Notice of hearing should contain name of ME • Record should contain a curriculum vitae • Determine what evidence supports your case theory • Check with others about ME’s history • Consult bulletin board (LAF only)

7. Objections to ME • Should be made as early as possible • ALJ may agree, and want to reschedule hearing • Object to ME testifying outside of his/her specialty • Don’t object on the basis that the ME has not examined the claimant

8. Cross Examination • If the testimony is favorable – shut up • Don’t repeat unfavorable testimony, ask why, sum up the testimony, or ask how come the ME doesn’t agree with the treating physician • Try to get the ME to focus on exhibits which support your theory. • Let’s look at exhibit 12 – doesn’t that meet the first part of Listing 1.02?

9. Cross Examination –RFC Issues • If ME does not testify about RFC don’t ask • Usually with Mental Impairments, ALJ will ask only about the “B” criteria in the mental listings • You should go through a mental rfc in hopes of getting a “marked” limitation • For physical rfc’s, get ME to admit it is based on the “average” person

10. Vocational Experts Friend or Foe?

11. Who Are They • Academics • Psychologists or Individuals with Masters Degrees in Counseling • Vocational Rehabilitation Specialists • Selected By The ALJ • Notice of hearing should contain name of VE • Record should contain a curriculum vitae

12. Why Are They Used • Step 4 Past Work Analysis • RFC required as was performed • RFC required as it exists in the region • Skill Level and Transferability • Step 5 – When Grid Cannot Be Used • Significant Nonexertional Impairments • Must find jobs that exist in significant numbers in the region

13. What Are Nonexertional Impairments • Impairments that effect the ability to work, but are not related to the ability to lift or stand • Nonexertional Impairments Can Include: • Mental Impairments • Postural-Manipulative • Sensory Impairments • Environmental Impairments

14. What Resources Do They Use • Dictionary of Occupational Titles • http://www.oalj.dol.gov/libdot.htm • Other Publications • Selected Characteristics of Occupations Defined in the DOT • Unskilled Employment Quarterly • Cannot use the O*Net • Own Experience

15. Understanding the DOT • 379.367-010 SURVEILLANCE-SYSTEM MONITOR (government ser.) •     Monitors premises of public transportation terminals to detect crimes or disturbances, using closed circuit television monitors, and notifies authorities by telephone of need for corrective action: Observes television screens that transmit in sequence views of transportation facility sites. Pushes hold button to maintain surveillance of location where incident is developing, and telephones police or other designated agency to notify authorities of location of disruptive activity. Adjusts monitor controls when required to improve reception, and notifies repair service of equipment malfunctions. GOE: 04.02.03 STRENGTH: S GED: R3 M1 L3 SVP: 2 DLU: 86

16. Understanding the DOT TrailerSTRENGTH: S GED: R3 M1 L3 SVP: 2 DLU: 86 • Strength • Defined in 20 C.F.R. §416.967 • GED – General Education Development • R – Reasoning • M- Math • L- Language • SVP – Specific Vocational Preparation • Unskilled work – can learn in 30 days, 20 C.F.R. §416.968 • SVP 1 or 2 • Semi-skilled –SVP 3 or 4

17. Hearing Procedure • VE testifies after claimant and ME • ALJ asks whether you have any objections to the VE’s qualifications • VE usually asked to describe claimant’s past work • ALJ then asks a series of hypotheticals to VE

18. Preparing for a VE • Review client’s past work • Is it “relevant” – less than 15 years ago • How was it performed • How is it ordinarily performed • Identify Nonexertional limitations • Figure out where your client wins on the grid

19. Hearing Practice • ALJ will probably give a few hypotheticals. • One will probably include all of the claimant’s allegations • Note all the factors listed by the ALJ

20. Cross Examination • Use the ALJ’s hypothetical to build upon • Add nonexertional limitations one at a time. • Don’t try to change rfc category (sedentary, light) given by the ALJ

21. VE Cross – continued • If only a few jobs left • Explore whether the jobs are consistent with limitations in the hypothetical • Explore whether jobs are consistent with definition in DOT • Use DOT trailer

22. Conflicts Between DOT and VE • Ruling 00-4p • But see Donahue v. Barhnart, 279 F.3d 441, 446 (7th Cir. 2002) • Explore VE’s basis of knowledge • Very few publications will give specific numbers for individual DOT listings – usually they combine them.

23. Factors VE Should Not Consider • Whether employers could modify job to accommodate claimant’s disability • Whether claimant would be hired • Lack of transportation • Lack of job openings

24. Erosion of Occupational Base • Grids recognize that fewer occupations available based on rfc, age, education and past work • SSA recognizes 200 occupations at sedentary level • If claimant wins at sedentary, try to get VE to conclude that the remaining number of remain occupations is less than 201. • For mental impairments use the concept of vocational adjustment

25. Alternate Sit/Stand Option • Most VE’s will find sedentary and light jobs exist • SSR 83-12 – Unskilled jobs are particularly structured so that a person cannot ordinarily sit or stand at will • DOT does not include this information so testimony must be based on VE’s observations

26. What is At Stake ? • If you cannot get VE to agree to at least one situation where your client wins…you will lose.