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Cross Examining a Vocational Expert

I. INTRODUCTION:

Effective cross-examination of the vocational expert is one of the most important tools in the arsenal of an effective Social Security representative. After presenting the medical evidence and presenting the claimant’s testimony, the subject will frequently turn to the question of whether jobs exist in the local or national economy within a defined residual functional capacity. This paper focuses on some of the methods available and the information that a competent representative must procure to permit a finding of transferability of skills.

The companion publications to the Dictionary of Occupational Titles contain a wealth of information for use in the cross-examination of a vocational expert. The companions describe the requirements of DOT occupations for:

WORK FIELDS and MATERIALS, PRODUCTS, SUBJECT MATTER AND SERVICES (for use in assessing transferability of skills)

APTITUDES including General Learning Ability; Verbal Aptitude; Numerical Aptitude; Spatial Aptitude; Form Perception; Clerical Perception; Motor Coordination; Finger Dexterity; Manual Dexterity; Eye-Hand-Foot Coordination; and Color Discrimination;

TEMPERAMENTS including working Alone or apart in physical isolation from others; Directing, controlling, and/or planning activities for others; Expressing personal feelings; Influencing people in their opinions, attitudes and the judgment; making Judgments and decisions and; dealing with People; performing Repetitive and/or continuous short-cycle work; performing effectively under Stress; attaining precise limits, Tolerances, and standards; working Under specific instructions; performing a Variety of duties (capped letter signifies the code for the temperament);

PHYSICAL DEMANDS including Climbing; Balancing; Stooping; Kneeling; Crouching; Crawling; Reaching; Handling; Fingering; Feeling; Talking; Hearing; Tasting/Smelling; Near Activity; Far Acuity; Depth Perception; Accommodation; Color Vision; Field of Vision;

ENVIRONMENTAL CONDITIONS including Exposure to Weather; Extreme Cold; Extreme Heat; Wet and/or Humid; Noise Level; Vibration; Atmospheric Cond.; Moving Mech. Parts; Electric Shock; High Exposed Places; Radiation; Explosives; Toxic Caustic Chem.; Other Env. Cond.

The topic of this analysis is transferability of skills. The Commissioner states in 20 C.F.R. §§ 404.1568(d)(1); 416.968(d)(1) that:

What we mean by transferable skills. We consider you to have skills that can be used in other jobs, when the skilled or semi-skilled work activities you did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs.

(Emphasis added). In order to establish transferability at all, the Commissioner states in 20 C.F.R. §§ 404.1568(d)(2); 416.968(d)(2) that:

How we determine skills that can be transferred to other jobs. Transferability is most probable and meaningful among jobs in which –

(i) The same or a lesser degree of skill is required;

(ii) The same or similar tools and machines are used; and

(iii) The same or similar raw materials, products, processes, or services are involved.

The pertinent question involves the methodology by which any vocational expert determines that skills are or are not transferable in order to meet the requirements of other work. The requirement for a same or lesser degree of skill is described in the specific vocational preparation time (SVP) in the DOT. Terry v. Sullivan, 903 F.2d 1273, 1278 (9th Cir. 1990).

The remaining to the requirements for the use of same or similar tools and machines and the same or similar raw materials, products, processes, or services are found elsewhere in the DOT descriptions. “Work fields" describe how the work is done and what result occurs in the activities of the work. “Materials, products, subject matter, and services" (MPSMS) describes the occupational grouping, basic knowledge required of the worker, and answers the question of “what does the worker need to know?" Comparison of work fields and MPSMS codes are thus necessary for a determination of whether an individual has transferable skills in order to meet the requirements of other occupations. Without an identity of both work fields and MPSMS codes, the vocational expert cannot identify transferable skills that would “meet" the requirements of other work.

The real question turns on the similarity of the work fields and MPSMS codes in order to justify a finding of transferability. It is clear that the regulations do not demand complete similarity but only same or similar tools and machines and the same or similar raw materials, products, processes, or services. Billy J. McCroskey, PhD. Advocates a sliding scale of transferability based on what he deems to be an outdated Social Security transferability paradigm. According to his theory, complete identity of the two 3-digit work fields and MPSMS codes provides the best basis for assigning a conclusion of transferability. Complete identity of either the work fields or the MPSMS codes along with 2-digit similarity of the other provides a high basis of transferability. A pair of 2-digit similarities or a 3-digit similarity with a 1-digit similarity in the other all lead to a conclusion of only moderate transferability according to Dr. McCroskey. Less than a total of 4 digits in similarity results in low or no basis for transferability.

It also is apparent that general education development is important to assessing transferability of skills. It makes little sense to find the presence of transferability within SVP where the “other work" requires a greater language, math, or reasoning level. These are important focal points of inquiry. The same is true of aptitudes (things that cannot be learned) such as dexterity. The conclusion of a vocational expert that transferability exists where the “other work" requires greater degrees of dexterity than has ever been demonstrated in past relevant work is simply counter intuitive.

The question of transferability of skills is complex and requires cross-examination based on the content of the DOT and its companion publications. It is my experience that many vocational experts do not conform to any acceptable methodology for assessing transferability much less the strict guidelines provided in 20 C.F.R. §§ 404.1568(d)(1); 416.968(d)(1). Test the experts! Ask them for their definition of transferability; ask them how their definition compares to the regulatory definitions; ask them for the work fields and MPSMS codes; and ask them to justify their testimony.

[i] See www.vocrehab.com/tsa_guidelines.htm; http://www.skilltran.com/TSATransition. htm (Truthan, J.A. & Karman, S.E. (2003), Transferable Skills Analysis and Vocational Information During a Time of Transition, Journal of Forensic Vocational Analysis, June, 2003, 6 (1)).

[ii] Billy J. McCroskey, PhD., McCroskey Transferable Skills (MTS) Analysis and MVQS[ii]Social Security Transferable Skills (SSTS) Analysis: Percent Agreement Matrices on Equal-Interval Ratio Scale

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