ALJ Hypo

Mr. Welch · Joined: 17 Sep 2004 Posts: 3

I have encountered an ALJ who incorporates in his hypo allowances that are ADA accomodations.. or more. For example he will give a hypo where the worker can rest at his desk for several minutes or lay down for several minutes!! Of couse I am providing my own hypos but is there any law or reg that I can use to form the basis of an objection for this kind of hypo so I can hopefully end this practice?

Mr. Welch

Craig Jarvis · Posted: Mon Jun 23, 2008 05:48 pm Post subject:

Guest · Posted: Mon Jun 23, 2008 06:28 pm Post subject:

It is not that simple. If the "rest period" can be taken during whatever the regular breaktimes are, that is not ADA. If a clerical or professional worked needs to alternate positions or needs a readily- ergonomic chair, that is not ADA. An air-conditioned environment? All non-exertional limitations fo not trigger ADA issues.

Guest · Posted: Tue Jun 24, 2008 12:09 pm Post subject:

Thank you for the thoughts Mr. Jarvis.

I understand what you are saying Guest, but the "accomodations" that this ALJ is using are beyond the normal rest periods that might commonly be built into a work day. They are over and above that, and the timing of them is to be at the election of the worker.

I am plagued with a feeling that I have seen this issue specifically dealt with in some reg or in an appeallate decision, but I can't track it down now.

Paul Nolan · Joined: 17 May 2004 Posts: 272 Location: Baltimore, MD

I am not aware of any regulation or court decision, but I think that you are referring to a memo from the Associate Commissioner Daniel Skoler in June 1993 that ADA accommodations are usually not relevant. You can find a reprint of that memo in Tom Bush's book "Social Security Disability Practice," Section 344.1. http://jamespublishing.com/books/ssd.htm

Good luck!

LaAttorney · Joined: 16 Jan 2008 Posts: 2

The case you might be thinking of is Jones v. Apfel, 174 F. 3d 692 (5th Cir., 1999). In it the court said:

"We agree with the Eighth Circuit that "the ADA and the disability provisions of the Social Security Act have different purposes and have no direct relationship to each other." Eback v. Chater, 94 F.3d 410, 412 (8th Cir.1996). Hence, a vocational expert should not base his determination of the availability of jobs on the assumption that the ADA requires an employer to accommodate an individual's disability."

However, in that case, the court found that the VE's reliance on employers' willingness to afford a worker a sit/stand option was not such a determination based on an ADA accommodation.

I have judges who pose these extreme limitations in their hypothets, and I ask similar questions, too. The point might be not to try to hang the testimony upon the existence of ADA accommodations, but to get the VE to testify that there will be no jobs available for workers whose impairments require such breaks. VE's around here routinely testify that if a worker (unskilled, in particular) requires more than one break in the morning or afternoon, no jobs would be found. I've been able to rely upon knowing this testimony whenever I have a client who, for example, needs to take extra bathroom breaks or, in one case, a client who needed to go to clean out a trach tube during the day.

Some of our judges also "start high and go low", insofar as how they develop the RFC to pose to the VE. They'll often go to the extreme of limitations, such as posing a hypothet to the VE that incorporates a need to take naps during the day, where testimony is that the claimant lays down or naps often. The answer always is that no jobs are available with that limitation. But the case then hinges upon what RFC the judge actually determines, and what documentation I have of the limitations.

Margherita McWilliams
Legal Services North Louisiana, Inc.

JOA · Joined: 13 May 2004 Posts: 1725

The Skolar memo Paul is pointing to is the same Skolar memo the SCOTUS cited in the excerpt quoted above. IMHO the right way to bring this up for administrative review is to both quote from the memo and then to make suring you're hooking it up with the SSR that reproduces the SCOTUS decision..

David Traver · Posted: Tue Jun 24, 2008 06:02 pm Post subject:

That Ruling is:

"SSR 00-1c: Sections 222(c) and 223(a), (d)(2)(a), and (e)(1) of the Social Security Act (42 U.S.C. 422(c) and 423(a), (d)(2)(A), and (e)(1)) Disability Insurance Benefits—Claims Filed Under Both the Social Security Act and the Americans with Disabilities Act" SSR 00-1c, at http://www.ssa.gov/OP_Home/rulings/di/01/SSR2000-01-di-01.html (last visited June 24, 2008).