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Post by Prrple on Feb 23, 2023 10:49:58 GMT -5
That’s interesting because I don’t know whether it’s just the Baader–Meinhof phenomenon following the article’s publication, but I feel like 3-4 different VEs have cited addresser as a sedentary occupation since the article was published. I feel like I rarely got that job before this year. It's weird, that's like the third or fourth reference to Baader-Meinhoff that I've seen recently. I see what you did there  |
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Post by Gaidin on Feb 24, 2023 15:52:44 GMT -5
And I got nut sorter last week. It didn’t go well. Since we’ve gone to non-local VEs I frequently get addresser and nut sorter. And in ridiculously low job numbers. Frustrating. I really want to be clear nut sorter is a real job, that real people perform at the sedentary level. I have claimants who have performed it in the last few years. I have seen nut sorting facilities. Like most agricultural work it is seasonal and localized which probably accounts for the low numbers but I promise it exists. The unskilled sedentary jobs are being provided in ever smaller numbers. I suspect that in the not to distant future a judge may need to ask for more than 3 representative occupations to test whether there is a substantial number in the national economy. |
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Post by ok1956 on Feb 24, 2023 19:11:49 GMT -5
Since we’ve gone to non-local VEs I frequently get addresser and nut sorter. And in ridiculously low job numbers. Frustrating. I really want to be clear nut sorter is a real job, that real people perform at the sedentary level. I have claimants who have performed it in the last few years. I have seen nut sorting facilities. Like most agricultural work it is seasonal and localized which probably accounts for the low numbers but I promise it exists. The unskilled sedentary jobs are being provided in ever smaller numbers. I suspect that in the not to distant future a judge may need to ask for more than 3 representative occupations to test whether there is a substantial number in the national economy. Just to be clear I wasn’t doubting the occupation exists. Just bemoaning that it’s used by VEs 😉 |
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Post by ssaogc on Feb 24, 2023 19:56:04 GMT -5
Since we’ve gone to non-local VEs I frequently get addresser and nut sorter. And in ridiculously low job numbers. Frustrating. I really want to be clear nut sorter is a real job, that real people perform at the sedentary level. I have claimants who have performed it in the last few years. I have seen nut sorting facilities. Like most agricultural work it is seasonal and localized which probably accounts for the low numbers but I promise it exists. The unskilled sedentary jobs are being provided in ever smaller numbers. I suspect that in the not to distant future a judge may need to ask for more than 3 representative occupations to test whether there is a substantial number in the national economy. We have some reps regularly arguing that anything less than 20k jobs is not substantial numbers. And there are some cases from DC that agree with this position. |
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Post by nylawyer on Feb 25, 2023 2:40:01 GMT -5
I really want to be clear nut sorter is a real job, that real people perform at the sedentary level. I have claimants who have performed it in the last few years. I have seen nut sorting facilities. Like most agricultural work it is seasonal and localized which probably accounts for the low numbers but I promise it exists. The unskilled sedentary jobs are being provided in ever smaller numbers. I suspect that in the not to distant future a judge may need to ask for more than 3 representative occupations to test whether there is a substantial number in the national economy. We have some reps regularly arguing that anything less than 20k jobs is not substantial numbers. And there are some cases from DC that agree with this position. I already am at times asking the VE for more than three positions. Of course, that's in part because there is one VE in particular who will give me three jobs with under 2K each, and only when I ask him about additional positions will he give me 10k+ jobs in the second group. The argument that less than 20k is not substantial isn't crazy. I figure that in a given year I probably find at least 50 cases where I issue an unfavorable finding while limiting the claimant sedentary, unskilled work. That's just one ALJ- if say a thousand others are doing the same, then that's 50k claimants a year being denied because they can perform unskilled sedentary work, which doesn't seem right if there aren't even 20k such jobs in the entire country. And that's just the ALJs, how many more is DDS denying and limiting to sedentary? |
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Post by pumpkin on Feb 26, 2023 20:23:40 GMT -5
Some jobs offered by VEs seemingly result in collective groans; addresser and nut sorter have already been so identified.
What about new jobs? Does anyone ever get jobs from a VE that are too “new” to be assigned a DOT number yet exist in significant numbers in the national economy?
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Post by hopefalj on Feb 26, 2023 23:32:39 GMT -5
Some jobs offered by VEs seemingly result in collective groans; addresser and nut sorter have already been so identified. What about new jobs? Does anyone ever get jobs from a VE that are too “new” to be assigned a DOT number yet exist in significant numbers in the national economy? I have not had that experience yet. I haven’t fully studied the VE handbook, but I’m guessing the courts, if not the AC, would have issues with that. But maybe not. The closest thing I’ve had to that are VEs that testify certain jobs are now done with different technology, like a document preparer, surveillance systems monitor, or even an addresser. They’ve also testified that certain managerial or clerical jobs can no longer be performed with occasional manipulation despite the 1977 DOT characteristics only having occasional handling, fingering, or feeling. |
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Post by operationalj on Feb 27, 2023 6:41:05 GMT -5
Regarding steps 4 and 5 analysis and improving due process at this point, tho Claimants do not have the burden at step 5, how can reps help their clients AND collaborate with ALJs to get to the right decision at the hearing and/or post-hearing brief? How should reps handle the VE? What works and what does not work? NO venting allowed - just solutions and productive feedback. Thanks. Former insider, now outsider, always learning...hoping I don't regret posting this question later! lol
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Post by nylawyer on Feb 28, 2023 20:00:14 GMT -5
Regarding steps 4 and 5 analysis and improving due process at this point, tho Claimants do not have the burden at step 5, how can reps help their clients AND collaborate with ALJs to get to the right decision at the hearing and/or post-hearing brief? How should reps handle the VE? What works and what does not work? NO venting allowed - just solutions and productive feedback. Thanks. Former insider, now outsider, always learning...hoping I don't regret posting this question later! lol Some quick thoughts- It is effective to engage the VE regarding the testimony they have actually given. Ask about specific jobs cited, and why the hypo doesn't preclude them. Some don'ts- don't just ask the exact same questions of every VE in every single case. Don't just read medical reports into the record under the guise of questioning the VE (that makes me in particular really crazy, since I allow reps to make opening and closing arguments, where they are free to properly cite those same records to bolster their argument). Don't ask the same questions (or variations of the same question) that I just asked. If the VE just testified a person can only be off task 10-15% of the day, then don't ask whether a person who must take a 15 minute break every hour is employable. Same thing with absences. Also, if I asked a hypo that the VE testified yields no jobs- don't ask a question that just adds additional restrictions to that same hypo- we already know the answer. Similarly, don't pose hypotheticals that as a matter of law would be work preclusive- such as "can only stand and sit for an hour each total in an eight hour day". (I'll make one exception- for the rep who just has nothing to ask but feels they need to show their client they did something, I am not without sympathy). As for post hearing briefs- I'm personally fine with them, particularly as to VE testimony (which can't be anticipated and can be difficult to respond to on the fly), but I may be in the minority on that. |
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Post by pumpkin on Feb 28, 2023 20:40:49 GMT -5
Regarding steps 4 and 5 analysis and improving due process at this point, tho Claimants do not have the burden at step 5, how can reps help their clients AND collaborate with ALJs to get to the right decision at the hearing and/or post-hearing brief? How should reps handle the VE? What works and what does not work? NO venting allowed - just solutions and productive feedback. Thanks. Former insider, now outsider, always learning...hoping I don't regret posting this question later! lol As for post hearing briefs- I'm personally fine with them, particularly as to VE testimony (which can't be anticipated and can be difficult to respond to on the fly), but I may be in the minority on that. Not sure who is the minority/majority on this, but I’m a flat NO on post-hearing briefs. There is ample opportunity to cross-examine the VE. Put your objections on the record at the hearing so I can rule on them in real time, when the VE testimony is fresh and the claimant is available to clarify any of his/her testimony. |
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Post by operationalj on Mar 1, 2023 3:56:41 GMT -5
Regarding steps 4 and 5 analysis and improving due process at this point, tho Claimants do not have the burden at step 5, how can reps help their clients AND collaborate with ALJs to get to the right decision at the hearing and/or post-hearing brief? How should reps handle the VE? What works and what does not work? NO venting allowed - just solutions and productive feedback. Thanks. Former insider, now outsider, always learning...hoping I don't regret posting this question later! lol Some quick thoughts- It is effective to engage the VE regarding the testimony they have actually given. Ask about specific jobs cited, and why the hypo doesn't preclude them. Some don'ts- don't just ask the exact same questions of every VE in every single case. Don't just read medical reports into the record under the guise of questioning the VE (that makes me in particular really crazy, since I allow reps to make opening and closing arguments, where they are free to properly cite those same records to bolster their argument). Don't ask the same questions (or variations of the same question) that I just asked. If the VE just testified a person can only be off task 10-15% of the day, then don't ask whether a person who must take a 15 minute break every hour is employable. Same thing with absences. Also, if I asked a hypo that the VE testified yields no jobs- don't ask a question that just adds additional restrictions to that same hypo- we already know the answer. Similarly, don't pose hypotheticals that as a matter of law would be work preclusive- such as "can only stand and sit for an hour each total in an eight hour day". (I'll make one exception- for the rep who just has nothing to ask but feels they need to show their client they did something, I am not without sympathy). As for post hearing briefs- I'm personally fine with them, particularly as to VE testimony (which can't be anticipated and can be difficult to respond to on the fly), but I may be in the minority on that. Thank you! All of the above makes complete sense. Essentially, add value with questions rather than just adding to the record. This is very helpful as I have been focused on a private appellate practice and SAA at OHO, adjudicating and brief writing, and appearance at hearings is a different skill set that I'm still improving. I am frequently asked by other reps how to improve cross-exam of VE, and I will pass this along! From my experience/perspective, I find that post-hearing briefs can be helpful for everyone. As a rep, a post brief can ensure due process for their client, which is part of the reps job. VE testimony is frequently unpredictable and a post brief can address concerns. As an ALJ, I would think a post brief could help avoid a remand... give the ALJ an idea of possible appealable issues that can be addressed before issuing the decision; thus, avoiding a remand IF the error is legal or factual error. However, I see that I could be wrong on this.  What about prehearing briefs...do you prefer? Any thoughts on those? |
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Post by operationalj on Mar 1, 2023 4:22:01 GMT -5
As for post hearing briefs- I'm personally fine with them, particularly as to VE testimony (which can't be anticipated and can be difficult to respond to on the fly), but I may be in the minority on that. Not sure who is the minority/majority on this, but I’m a flat NO on post-hearing briefs. There is ample opportunity to cross-examine the VE. Put your objections on the record at the hearing so I can rule on them in real time, when the VE testimony is fresh and the claimant is available to clarify any of his/her testimony. Thank you - I'm so glad you responded - GOOD to have a different perspective! So, like anything, some ALJs will be ok with post briefs and some will not. Now that the practice is more nationwide, it is a bit more challenging to know which ALJ is opposed or receptive to post briefs. Is your perspective different if the rep indicates at the hearing that a post brief will be submitted? I'm guessing "flat NO" but thought I would ask. I can see how not submitting a post brief is both helpful and potentially not helpful; No post brief means probably more extensive VE prehearing prep but may also extend the length of hearings/VE cross-exam. To be clear, I do NOT submit post briefs on all cases tho I do often think about things I wish I would have said or should have said at the hearing. lol However, I had been thinking that I SHOULD submit MORE post briefs. Good to know I can give myself a break on that! Something for me to think about. What about prehearing briefs - do you find them helpful? |
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Post by rp on Mar 1, 2023 6:41:04 GMT -5
I may ask for post hearing briefs on other issues, ie. earnings issues or listing arguments. But I don’t ask for them regarding VE testimony. In my experience post hearing briefs on VE testimony invites additional vocational evidence. Vocational evidence, as mentioned above, should have been presented at the hearing.
Regarding pre hearing briefs - I like and appreciate them in most instances. I read every single one and if they are well done will point me to what is material to the claimant’s case. I quickly discovered those pre hearing briefs which are helpful and those which typically are not. 😉
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Post by operationalj on Mar 1, 2023 8:45:29 GMT -5
I may ask for post hearing briefs on other issues, ie. earnings issues or listing arguments. But I don’t ask for them regarding VE testimony. In my experience post hearing briefs on VE testimony invites additional vocational evidence. Vocational evidence, as mentioned above, should have been presented at the hearing. Regarding pre hearing briefs - I like and appreciate them in most instances. I read every single one and if they are well done will point me to what is material to the Claimant’s case. I quickly discovered those pre hearing briefs which are helpful and those which typically are not. 😉 Thanks for the feedback! Hmmm, good point, if I were an ALJ and I received a post brief that brought up some serious VE issues and I planned on denying the case at step 5, I would would want an interrogatory, which extends the process. I try to not extend the process- the clients have waited long enough. However, an interrogatory that clarifies a legal error would be worth the time if it avoids a remand and/or pays the right Claimant...and saves the Agency time and money. So, for VE issues, there is some consistency that it is better to get it done at the hearing, if possible. I think part of the problem is that the VE testimony is at the end of the hearing and it seems like most ALJs are so ready to get the hearing completed, understandably, so rep cross of VE is limited. However, to be fair, I could see why some ALJs would limit cross that's just adding to the record rather than adding value. Honestly, sometimes, I wish I could say, "give me a minute to think about that...then do more cross examination of VE." Post briefs on earnings and listing issues make complete sense. I think it's a good idea. For some reps, they already completed the research and can pop it into a brief and submitted that day or next. For the reps who have not done their research... and have had the case for a while, they should have, and it would be a good post hearing process for their client, ensuring due process. Fair enough. Thank you for reading the prehearing briefs! I put a lot of work into mine- focused on material issues WITH ANALYSIS - not just a summary of the evidence - and I address SGA issues as well Or do you think just a medical summary is better? I prefer no surprises at the hearing for me or the ALJ. I often draft my prehearing briefs so the ALJ or DW can copy and paste the evidence into the decision - former DW and SAA - just trying to help (wink wink). lol |
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Post by Gaidin on Mar 1, 2023 11:44:52 GMT -5
The only time I think a post hearing brief is helpful is if I ask for it or new evidence comes in post hearing that should be addressed. Otherwise it is just a delay to the claimant getting whatever decision they're going to get.
Preheating briefs are fantastic especially if they can help identify and clean up issues.
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Post by nylawyer on Mar 1, 2023 12:45:05 GMT -5
If it turns out that the VE's testimony was inconsistent with the DOT, I'd rather find out in a post hearing brief than in a remand. If nothing else, it puts me on notice that I at least need to address the alleged inconsistency. And if the VE was just flat out wrong? Then, again, I see the brief as the lesser issue.
I should also point out that about 90% of my cases are going into POST anyway, because the records are absolutely never fully developed at the time of the hearing. So it isn't as though the case is typically being held up just for the brief.
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Post by operationalj on Mar 2, 2023 6:49:58 GMT -5
The only time I think a post hearing brief is helpful is if I ask for it or new evidence comes in post hearing that should be addressed. Otherwise it is just a delay to the claimant getting whatever decision they're going to get. Preheating briefs are fantastic especially if they can help identify and clean up issues. Thank you for the feedback. Glad you find prehearing briefs helpful that identify and clean up issues. I will keep that in mind. I think I have been able to advocate for my clients while also cleaning up issues such as substance abuse, SGA, doing stuff around the house that does not equate to working full time but can raise questions, for sure. What other issues do you find needing cleaned up, preferable before the hearing in prehearing brief? |
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Post by operationalj on Mar 2, 2023 7:22:27 GMT -5
If it turns out that the VE's testimony was inconsistent with the DOT, I'd rather find out in a post hearing brief than in a remand. If nothing else, it puts me on notice that I at least need to address the alleged inconsistency. And if the VE was just flat out wrong? Then, again, I see the brief as the lesser issue. I should also point out that about 90% of my cases are going into POST anyway, because the records are absolutely never fully developed at the time of the hearing. So it isn't as though the case is typically being held up just for the brief. Good points! I would rather know about any inconsistencies before issuing a decision so I could at least provide some clarification in the brief that is consistent with SSA policy and could satisfy magistrate or district judge. I would need to look again but I don't think SSA policy or case law requires the ALJ to clarify inconsistencies of VE testimony only at the hearing. It is important because I see remands on this quite a bit- not as much by the AC tho, and of course, other arguments are thrown in as well. Good point about case processing time. I typically do not want to extend anything after the hearing because I have been dealing with anxious Claimants who wanted this case done like yesterday! However, realistically, the adjudicative period of time is until date of decision. I rarely see the status change to decision writing even within 2 weeks post hearing. It's super easy to get a post brief submitted within that time period that does not extend processing time. Of course, a post hearing brief that is helpful for everyone, ALJ and Claimant, is worth the effort... not just creating the appellate record. Thank you for the response. Seeing different perspectives is very helpful. I prefer efficient, respectful, fact-based strategy rather than just being adversarial/aggressive. Former mediator. I occasionally train and mentor reps so it's good to have ALJ perspective, not just reps. |
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Post by pumpkin on Mar 2, 2023 16:29:16 GMT -5
Yes, please, I always welcome pre-hearing briefs.
Personally, I’m not looking for legal analysis and case law citations. Just the facts, ma’am.
Every ALJ has their own preference regarding pre-hearing briefs. You would probably not get the the same response twice even if you polled every ALJ in the same Hearing Office. But I offer the following for anyone who is considering submitting a pre-hearing brief but doesn’t know where to start. Your mileage may vary.
Introduction: Claimant has concurrent Title 2 and Title 16 claims, was 47 yrs old on the AOD of 5/19/2020, with a limited (10th grade) education, who attained age 50 on 3/2/2023.
Step 1: The claimant has not worked since the AOD; the 4Q 2020 earnings posted to the record represent the payout of claimant’s remaining sick and vacation time.
Step 2: The claimant has the following impairments: [lead with the most persuasive/compelling impairments]
[There are several effective methods of summarizing the objective evidence - some use a chronological approach, others group evidence by impairment. Whichever method you choose, it is most effective when you can cite to the exhibit/page number supporting each assertion.]
5/19/2020 claimant was driver whose vehicle was struck by a train. He was treated in the ER at St. Elsewhere Hospital (1F/1-45).
7/14/2020 MRI of the LS Spine revealed herniated discs impinging on the thecal sac at L4-L5, L5-S1 (2F/28-29)
9/19/2020 Claimant was evaluated by neurosurgeon Valerie Smith, MD. Exam showed positive SLR on the right, shuffling gait, diminished reflexes of the RLE, and complaints of numbness and shooting pain radiating from the lower back down into the toes on the right. (3F/33-35)
10/31/2020 EMG consistent with right-sided radiculopathy at levels of L4-L5, L5-S1 (4F/48-49)
12/30/2020 Claimant underwent a lumbar laminectomy at St. Elsewhere. His post-operative course was complicated by pulmonary embolism requiring intubation and a 2 week stay in the ICU. He was discharged to an inpatient rehabilitation facility for physical therapy. Dr. Smith prescribed a wheeled walker. (5F/1-20, 45-60, 77).
[. . .]
Step 3: The claimant reserves the right to offer listing level argument at the hearing [if you argue listing level impairment in your brief please don’t cite only one section when four conjunctive sections are required to meet the listing]
Step 4: The claimant has past work as a short order cook. The evidence shows the claimant’s anxiety and PTSD now limit him to unskilled work, thus he cannot perform his past semi-skilled work as a short order cook. Limitation to unskilled work would also eliminate the transferability of any acquired skills.
Step 5: The claimant’s impairments reduce his residual functional capacity to less than a [medium, light, sedentary] exertional level with a marked limitation in his ability to [understand, remember or apply information, interact with others, maintain sufficient concentration, persistence or pace, and/or manage or adapt himself].
[Take the opportunity to suggest a hypothetical supported by the objective evidence. Don’t make it ridiculously and cumulatively disabling or it loses persuasive value. If your hypo includes: would be absent 4 days per month; would be off task 25% of the time; needs to elevate legs to chest height for 15 minutes every hour; and could never work in proximity to supervisors, coworkers or the public, I’m just going to classify that as argument rather than a serious hypothetical to ponder.]
Whatever format or style, why would you ever pass up the opportunity to submit a pre-brief which highlights the strongest evidence and suggests a favorable outcome?
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Post by operationalj on Mar 3, 2023 6:03:04 GMT -5
pumpkin, greatly appreciate the format and suggestions! I do everything similar to your format except your step 4 (I like the analysis there) and I stopped providing suggested hypo at step 5 (may go back to that). I did a quick guesstimate, and I've written around 5600 briefs over my career and... there's STILL something to reconsider, learn, modify. Learning and modifying keeps my head in the game otherwise it gets boring, for me anyway. So thanks! I agree 100 percent - why miss an opportunity to advocate for the client, thoroughly review the file, and prepare for a hearing all at the same time! And sometimes I get an OTR and everyone likes that!
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