Important 7th Circuit Decision on SSR 00-4p

David Traver · Last edited by David Traver on Wed Oct 22, 2008 01:52 pm; edited 1 time in total

I received this very nice decision today from Wisconsin Attorney Dana Duncan. Congratulations Mr. Duncan, this is a great win for claimants.

JOA · Joined: 13 May 2004 Posts: 1786

Mr. Duncan must surely have many hours invested in the issues for Overman. I've spent a few minutes with what the 7th CCA had to say. With this disclaimer, I will say that it wa this in particular struck my eye about Overman:

danawduncan · Joined: 15 Jul 2005 Posts: 26

Thank you. Yes, I have many hours in this issue. This was one of several cases where I made this argument to no avail in the District Court. I glad the Seventh Circuit applied the law correctly

In response, the key to this is two fold. First, you must cross-examine the VE. Don't take his word for anything. Pull out your DOT and SCO and ask questions. Once that is done, if you have raised an issue that the VE may be wrong or some issue is in dispute, that is enough to make the issue in apparent conflict. For example, I had a hearing Monday where PRW was at issue. The ME limited the claimant to no hazardous machinery. The DOT described the PRW as requiring the use of a large knife with chains and hooks (he worked in a meat packing plant -- it was a mental only claim). I cross-examined the VE and said that was hazardous machinery. He agreed finally, but if he had not, that would be enough of an apparent conflict to raise issue on post-hearing brief and appeal.

Remember, the decision says that the issue of conflict cannot be waived, affirming the McKinney decision. Moreover, the decision notes that at step 5 as this case was, the Commissioner has the burden of proof, and if he relies on flawed testimony the decision is flawed. I don't think it protects the decision in the least and does not preclude post-hearing issues. The key, however, is to cross-exam the VE and to object to the testimony if it appears that a problem may exist.

David Traver · Posted: Thu Oct 09, 2008 04:33 pm Post subject:

http://germaniapublishing.com/ Here is where you can go to get an SCO.

Disclaimer, I run the company. Second disclaimer, it is more of a pain in the butt than profitable. I run it as a public service to help fight bullshit testimony by VEs.

So if you get an SCO, please take the time to use it as suggested by Dana.

JOA · Joined: 13 May 2004 Posts: 1786

Mr. Duncan:

I can follow your comments about what we might call best practices for questioning a VE. But I can not follow the reasoning in the last paragraph of your post. At the very least, it seems to me that your reasoning is incomplete.

You say of Overman that "I don't think it protects the decision in the least and does not preclude post-hearing issues." There are two parts to this:

1. Overman doesn't "protect[] the decision in the least."
2. It also "does not preclude post-hearing issues."

For no. 1, how can this "in the least" statement be made to fit with the language from the 7th CCA (quoted in my post above) that you were obligated to argue "that the conflicts were obvious enough that the ALJ should have picked them up without any assistance"? Does every inconsistency meet this standard, no matter when it is discovered? Surely it cannot be the case that the very existence of an apparent inconsistency is enough to make it apparent, even when the existence of this apparent inconsistency comes to light later on. ALJs cannot be held responsible for seeing the future.

If I'm right that the 7th CCA was looking to you to demonstrate sufficient obviousness, then the burden on you to carry out this demonstration, in your words, "protects the decision." At least somewhat, anyway.

That's for no. 1. For no. 2, I'm not seeing that it says anything useful to state that post-hearing issues are not precluded. "Not precluded" isn’t the same as "not restricted." And if post-hearing arguments must demonstrate that there was an obvious-enough inconsistency right there in front of the ALJ, then this sure seems to be a restriction.

Which still leaves the troubling question I mentioned above about the status of post-decision evidence of an apparent inconsistency. If the apparent inconsistency was sufficiently obvious without this new evidence, then the new evidence is irrelevant. But what if the apparent inconsistency was not sufficiently apparent prior to the new evidence?