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Post by bartleby on Apr 6, 2014 15:26:01 GMT -5
Hopefalj, sometimes we give the VE a non-exertional RFC and they give us light jobs. I think because there are more light jobs than medium or heavy. I agree with you on the other examples, having been a writer. One thing I enjoy is when a rep says the claimant has a less than sedentary RFC because of severe mental impairments. I then ask them to explain and they look at me like I just handed them a radioactive snake to play with. It happens so much I think some of my fellow Judges accept their premise without question. Bothersome to say the least.
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Post by cougarfan on Apr 6, 2014 15:59:54 GMT -5
When VEs give me all light jobs for a nonexertional RFC I like to ask them to go back and give me a heavy and a sedentary example in addition to the light examples.
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Post by valkyrie on Apr 6, 2014 16:22:05 GMT -5
Wow, it's amazing how when there is little else to discuss we have the same arguments repeatedly on the Board. It's either insider versus outsider or quality (less than 500 decisions) versus quantity (more than 500 decisions). We really need a new topic to beat to death. Welcome to ODAR! What else do you discuss when you practice in a high-volume dead area of law? The only interesting thing about the work is some of the medical science. The jobs is great for what it is NOT. At least we're not practicing family law! The key to almost every case is quickly identifying what the important factors are for that particular case and customizing your approach to address those factors, whether it be in your preparation or your examination of the claimant. There are some close cases in which it is necessary to review almost every piece of evidence in the file, but if you are reviewing every piece of evidence in every case, you are a horribly inefficient ALJ. You are really no different from the decision writer that writes a 25 page 12.05C Listing reversal. It takes about two years to become familiar with the regs, the medicine, and the local providers. After two years you should be able to quickly determine what factors your case will turn on, and know which providers documents will have relevant evidence. That's just my opinion. |
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Post by privateatty on Apr 6, 2014 16:56:40 GMT -5
Let's see, how many Agencies' ALJs have to quickly decipher a medical report both for what it is (and is not) and its relative import to the issues at hand?
ODAR
OMHA
FMSHRC
LABOR
OSHRC
(did I miss one?)
What if you were at some of these other Agencies and had boxes of medical records? I'm just sayin'...
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Post by valkyrie on Apr 6, 2014 17:50:15 GMT -5
Let's see, how many Agencies' ALJs have to quickly decipher a medical report both for what it is (and is not) and its relative import to the issues at hand? ODAR OMHA FMSHRC LABOR OSHRC (did I miss one?) What if you were at some of these other Agencies and had boxes of medical records? I'm just sayin'... But with ODAR that's really all there is... |
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Post by JudgeRatty on Apr 6, 2014 18:34:36 GMT -5
When VEs give me all light jobs for a nonexertional RFC I like to ask them to go back and give me a heavy and a sedentary example in addition to the light examples. And there is a distinct difference between what is given in the RFC and what is given by a VE as a sample. I think what the original point by Hopeful was that if the RFC contains an exertional limitation there better be a physical impairment to support it. All jobs are characterized and have an exertional classification and the VE may give variety of jobs when the hypo is purely nonexertional. It is hard to support why an ALJ gives an exertional limitation when there are no physical impairments.  |
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Post by moopigsdad on Apr 6, 2014 18:40:49 GMT -5
insert code hereWow, it's amazing how when there is little else to discuss we have the same arguments repeatedly on the Board. It's either insider versus outsider or quality (less than 500 decisions) versus quantity (more than 500 decisions). We really need a new topic to beat to death. Welcome to ODAR! What else do you discuss when you practice in a high-volume dead area of law? The only interesting thing about the work is some of the medical science. The jobs is great for what it is NOT. At least we're not practicing family law! The key to almost every case is quickly identifying what the important factors are for that particular case and customizing your approach to address those factors, whether it be in your preparation or your examination of the claimant. There are some close cases in which it is necessary to review almost every piece of evidence in the file, but if you are reviewing every piece of evidence in every case, you are a horribly inefficient ALJ. You are really no different from the decision writer that writes a 25 page 12.05C Listing reversal. It takes about two years to become familiar with the regs, the medicine, and the local providers. After two years you should be able to quickly determine what factors your case will turn on, and know which providers documents will have relevant evidence. That's just my opinion. Val I don't disagree with your statement above in bold, since I have practiced SSA law for over 30 years. However, I think you sell yourself and the position short by intimating that there is little else of interest to the job or to discuss. I think you may be fighting some fatigue from the grind and may need a little R & R to recharge your batteries IMHO. |
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Post by cougarfan on Apr 6, 2014 19:31:45 GMT -5
When VEs give me all light jobs for a nonexertional RFC I like to ask them to go back and give me a heavy and a sedentary example in addition to the light examples. And there is a distinct difference between what is given in the RFC and what is given by a VE as a sample. I think what the original point by Hopeful was that if the RFC contains an exertional limitation there better be a physical impairment to support it. All jobs are characterized and have an exertional classification and the VE may give variety of jobs when the hypo is purely nonexertional. It is hard to support why an ALJ gives an exertional limitation when there are no physical impairments. I don't disagree with any of that. |
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Post by funkyodar on Apr 6, 2014 20:01:39 GMT -5
In regard to the writers, the biggest problem I've seen is indeed the fact that some don't realize they need to or don't know how to write the decision as a persuasive argument for the judge's decision. I see people that essentially recite facts from the record then just make some conclusory statment.
The problem is multifarious in its cause. One reason is the fact that many writers have never written an argumentative brief. Thus, on that point, I'd agree some litigation experience comes in handy.
Secondly, the FIT Template program breeds cookie cutter decisions. Writers are trained never to change the canned language. And that language just isn't always the right way to go.
Thirdly, the monotony of the job causes burnout. Seen one bad back, seen em all. Writers fall into a rut of making the same statement decision after decision. Some even have auto text or files of canned language they just insert whether its applicable or not. I've even had judges tell me some writers don't even bother to change the masculine pronouns to feminine when appropriate. Some of those mistakes are productivity pressure driven, some is just laziness.
The last cause is the judges. You give crappy instructions, you get a crappy decision. Writers can't read your mind. Some writers are outstanding,they can turn a hand scrawled three sentence instruction sheet into a great decision that's legally defensible, persuasive and hits every opinion and piece of evidence. Buts its easier to do that when a judge gives you a little bit more that "not credible, full light, step 5."
As to the judges, I kinow time pressure means you can't always do the best review or give the best instructions. Good writers that care about the process and you, will bring something you missed to your attention. If they don't care or don't like you, they will just write what they have to.
With the AC being a bit trigger happy on remands, I also think some judges are shy to do things that may be right, but are high remand issues. I can't tellyou what a pain Iit is when a judge just lists every single thing the claimant alleges as "severe impairments" because its easier to do that than risk a remand. Try writing a persuasive argument that hypertension is a severe impairment when there's no end organ damage, no meds, no complaints and the only diagnosis is in a CE.
Truth is, there ought to be quite a few no severe and no medically determinable impairment denials but I've had many judges say to find that way almost guarantees a remand.
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Post by bartleby on Apr 6, 2014 20:11:20 GMT -5
Danyak, while I agree, regulations require that all limitations be documented and have supporting documentation. I have not yet seen a record where the medical evidence supported exertional limitations due to mental impairments only.
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Post by JudgeRatty on Apr 6, 2014 20:12:09 GMT -5
Depression can result in exertional limitations, secondary to fatigue. Psychotropic medication side effects too... Agree but that is fact specific and the ones I reference do not have those facts. It is more a misunderstanding or error that is difficult to fix from a writer standpoint. |
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Post by JudgeRatty on Apr 6, 2014 20:55:02 GMT -5
"...if the RFC contains an exertional limitation there better be a physical impairment to support it. All jobs are characterized and have an exertional classification and the VE may give variety of jobs when the hypo is purely nonexertional. It is hard to support why an ALJ gives an exertional limitation when there are no physical impairments." sorry sratty. I read this differently. I was just giving a suggestion for the frequent depression case. bartlby, I see plenty of depression cases with well documented complaints of difficulty sleeping/daytime fatigue with an associated insomnia medication for a claimant who is generally credible. ALJs are permitted to make inferences and I don't think it's unreasonable to accommodate a claimant who is generally credible by limiting them exertionally based solely on a mental impairment. Even the POMS note it (I know...ODAR is not bound by POMS...) This wasn't my point and is a very unusual situation. Not once have I seen support for an exertion limitation with a mental only case. I do see your point though. And if the facts support it sure! The usual scenario for side effects goes to CPP or sustainability rather than exertion, but I can see that could also be a factor in exertion if the facts are there. Docs are not always good at documenting facts that would support it though and we are left with a credibility issue. Typically in mental only cases we have nonexertional and sustainability issues. |
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Post by hopefalj on Apr 6, 2014 21:42:11 GMT -5
danyak, I sincerely appreciate your thoughts as it has given me some new ideas on potentially working around situations like this in the future. With regard to using depression and/or insomnia as a basis for light work, it still seems like a thin argument to me. They're so tired and fatigued that they can't lift more than 20/10, but they can still stand/walk for 6 hours? However, a thin argument is better than none for sure. |
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Post by bartleby on Apr 6, 2014 21:55:34 GMT -5
I am sorry Danyak, but fatigue is not an exertional limitation. Most times I am able to find mental limitations such as off task and/or inability to maintain attention or concentration based upon mental impairments such as major depressive disorder, depending on the records, but not exertional limitations. Exertional limitations involve lifting, sitting, standing, walking, pushing/pulling, reaching, handling, feeling, fingering, climbing, balancing, stooping, crouching, crawling, and bending. I may have left a few out. Further, basing your RFC on the claimant's testimony alone is incorrect. Mental impairments do not give rise to exertional limitations. If the claimant testifies that his MDD is so severe he can't get out of bed 2 days a week, and it is well supported by mer, then that could lead to a RFC inclusive of off task and inability to maintain attention/concentration.
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Post by bartleby on Apr 6, 2014 23:12:19 GMT -5
Let's try this again, "Danyak, while I agree, regulations require that all limitations be documented and have supporting documentation. I have not yet seen a record where the medical evidence supported exertional limitations due to mental impairments only." If hysterical paralysis is documented and supported by the record, I would include relevant limitations in the RFC. To date, I have never seen such a record. Further, a less than sedentary without any exertional limitations in the RFC is incorrect.
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Post by prescient on Apr 6, 2014 23:21:03 GMT -5
The undersigned notes that the claimant reports various forms of difficulty sleeping(three-four hours a night and frequent awakening)in both his initial Adult Function report, during visits with his treating sources, and at the hearing, which results in credible reports of daytime fatigue. Mental health visits and periodic treatment plans document the subjective complaint on multiple occasions. The record also shows that the claimant has been prescribed medication in an attempt to better manage his insomnia. Given the claimant's reports that his activities of daily living are reflective of sedentary-light exertion, the undersigned finds that limiting him to sedentary/light (take your pick) exertional work adequately accommodates his major depressive disorder. Nevertheless, as discussed in more detail below, given the claimant's specific medical-vocational profile, a finding of "not disabled" is warranted. ... I think you're improperly equating fatigue with tiredness/insomnia. The record rarely, if ever, shows fatigue in a solely mental case. I'm not saying depression can't cause it, but it's not common, and rarely documented in a manner that would support exertional limitations. |
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Post by valkyrie on Apr 7, 2014 6:39:12 GMT -5
I frequently include exertional limitations based upon fatigue and have seen no remands from it. Fatigue is little different from pain in its relation to functional limitations. Its a subjective symptom related to any number of blood and liver diseases, along with depression, fibro and numerous others. I'll ask my claimants to rate their fatigue just like their pain.
My own pet peeve for leaving out an exertional limitation is seizure disorders. I would no more want someone with epilepsy driving my bus than I would want them helping me carry a 100 pound piece of furniture up a flight of stairs. I think it makes total sense to limit someone with a seizure disorder to light-level lifting.
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Post by maquereau on Apr 7, 2014 7:54:38 GMT -5
Generally speaking, cases of only mental impairment do not result in exertional limitations. However, sometimes it does happen. I have had some somatoform cases like that. Furthermore, we all know the rule that there is an interplay of psychological and physical impairments such that the former can cause the latter to be worse and could result in greater physical restriction than might otherwise be warranted.
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Post by maquereau on Apr 7, 2014 8:04:14 GMT -5
Funky, you are correct. The process really needs to be a collaborative effort. I well remember getting post-it note instructions with a few scribbles - for an UNFAVORABLE! I always thought I ought to be getting paid my writer's salary and the ALJ salary since I was performing both functions. How can we get judges to write better instructions? I don't know. How can we get writers to write real decisions? I don't know. There's no getting rid of them once they're past their probationary period. After that, the office simply has to deal with crap until that person retires or transfers.
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Post by moopigsdad on Apr 7, 2014 8:06:13 GMT -5
I will end my participation on the subject by simply stating that not understanding that depression can result in exertional limitations, far more often than represented here, is worrisome. Btw, Good Friday is my pick for Cert release... As a representative of SSA claimants for over thirty years, I can agree that depression may indeed result in exertional limitations in some rare circumstances, however there is usually little evidence in the claimant's medical record to prove the severity of any exertional limitation, if one even exists. Most licensed therapists, psychologists and psychiatrists do not place such notations in their files. I do agree with Bart that ODAR ALJs, based upon the regulations or HALLEX, will not find exertional limitations which exist solely from mental/psychological limitations and as you point out danyak POMS isn't binding on ALJs at ODAR. Most representatives do not know how to properly prepare cases and request answers to the right questions from medical sources. Unfortunately, every attorney who hangs out a shingle thinks he/she can do SSA law. Not a true statement, if they truly want to help the claimant and are looking out for the claimant's best interest. It takes skill and knowledge in the representation process and argument. |
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