One Residual Functional Capacity, Two Outcomes

In a Social Security disability case, the record often contains a Residual Functional Capacity (RFC) or a medical source statement that sets forth limitations like these: lifting and carrying 10 pounds occasionally and less than 10 pounds frequently, standing and/or walking for about 2 hours in an 8-hour work day, sitting about 6 hours in an 8-hour day, occasional postural limitations, and occasional reaching. This is basicially a sedentary RFC with occasional posturals and occasional reaching.

Reaching means extending the hands and arms in any direction, and includes working with your hands in front of you. Occasionally mean up to one-third of the work day. Read more about manipulative limitations and Social Security Disability. 

This should be a winning RFC. Social Security Ruling 83-10 states that sedentary work requires "good use of the hands and fingers for repetitive hand-finger actions." Social Security Ruling 83-14 states:

a limitation to unskilled sedentary work with an additional loss of bilateral manual dexterity that is significant...warrants a conclusion of "Disabled." (The bulk of unskilled sedentary jobs requires bilateral manual dexterity.)

Whether you are doing desk work or factory work (the two main categories of sedentary jobs), you must have good use both hands. As a result,the unskilled sedentary occupational base is severely eroded by the limitation of occasional reaching. Other nonexertional limitations would further erode the occupational base. See Social Security Ruling 96-9p for the implications of an RFC for less than sedentary work. Under Social Security's rules, a fully favorable decision is appropriate in most cases based upon this RFC.

But when the judge has a vocational expert (VE) at the hearing, this outcome could change. If the judge asks that VE a hypothetical questions with the same functional limitations described above, the VE likely will testify that two unskilled sedentary jobs described in the Dictionary of Occupational Titles are available: surveillance system monitor (DOT Code 379.367-010) and call-out operator (DOT Code 237.367-014).

Those are the two sedentary jobs in the DOT that require less than frequent reaching. Call-out operator requires only occasional reaching, and surveillance system monitor requires no reaching at all. These two jobs are a thorns in the side of a claimant's representative, because VEs cite them all the time.

Now, with only two jobs remaining out of the entire unskilled sedentary occupational base, one would think that the unskilled sedentary job base would be severely eroded. Nevertheless, those two jobs are enough to lose a disability claim.

Of course, this raises two fairness issues:

1. Claimants with the same limitations are getting one result at a hearings without a VE, and potentially getting a different result after a hearing with a VE.
2. The SSA uses the occupational data contained in the Dictionary of Occupational Titles (Fourth Edition), which was compiled by the U.S. Department of Labor back in 1991 and has not been revised or updated since that time. So your claim is denied based upon occupational data that is 20 years out of date. Think about how much the workplace has changed in 20 years.

But complaining about fairness is not going to help your client at the hearing. If you cannot persuade the judge that there are additional limitations to those listed above, and the VE lists these two jobs, what do you do?

Well, of course you can cross-examine the VE on the job numbers. It is pretty well known that there are no statistics available with job numbers by DOT code, so the VE's job numbers are going to be, to put it gently, an estimate. The judge knows it, and a vigorous cross may not change the result.

Nevertheless, surveillance system monitor, as that job is described in the DOT, does not really exist today. So it is definitely worth asking the VE about the DOT definition, which specifies government-owned transportation centers. If the VE strays from that definition, then what is the source for his statistics regarding numbers of jobs?

Both these jobs are GED Reasoning level 3 jobs. So if there is an additional limitation to simple tasks, the jobs should be precluded by that limitation.

You must anticipate this VE testimony ahead of the hearing and prepare for it. You should never be surprised to hear the VE list these two jobs in response to a hypothetical containing the above RFC. Ideally, you can scour the record and find some nonexertional limitations that would preclude these two particular jobs. And have your cross-exam ready.

Comments

[Loyd Bourgeois]

This is a great post and is very helpful to novice practitioners like myself.

With respect to your recommendations, I try to get my claimant's doctor to include an additional limitation on twisting (range of motion on the neck/back -if appropriate). This limitation may/should erode ability to monitor a bank of televisions or monitors.

I can't remember who I picked up the tip from (maybe one of my reference manuals), but I believe it has helped in at least one case.