Posted: Wed Dec 31, 2008 11:42 am Post subject: Never versus hardly ever: a Pinaforian analysis
At one point in HMS Pinafore, Captain Corcoran makes the claim that "I'm never, never sick at sea!" As chorus, his skeptical crew responds, "what, never?"
"No, never," claims the captain. The crew, still sceptical, asks again, "what, never?" And then the captain confesses: "Hardly ever!"
Scepticism resolved, all sing this:
Quote:
He's hardly ever sick at sea!
Then give three cheers, and one cheer more,
For the hardy Captain of the Pinafore!
There's a similar kind of skepticism that comes into play for those hearing decisions that find an individual can never do balancing on stooping. If we do a Pinafore transformation, "never" really means "hardly ever." That's the temptation, anyway. And this temptation is strongest when, as is so curiously often the case, on appeal the representative does not argue that never means never.
When "never" is taken not as an everyday sort of "hardly ever" but rather as a complete prohibition, then under SSA policy, the vocational consequences are very significant. SSR 96-9p explains that balancing involves "maintaining body equilibrium while walking [or] standing . . ." A complete inability to balance would thus interfere with standing unaided. As for stooping, the ruling says that a "complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply . . ." (emphasis in the original).
What's the right thing to do in those instances in which a hearing decision finds an individual can never balance or stoop? Well, it depends on which flavor of "never" the evidence supports. If the evidence supports the strong flavor, then likely the right action is to vacate the hearing decision in favor of an award. If the evidence supports only the weak flavor, then there's a choice between reading the decision pragmatically as meaning only "hardly ever," or vacating the decision in favor of a remand that calls the ALJ's attention to just what "never" means. The character of the contentions can influence this choice.
Then give three cheers and one cheer more for those ALJs who actually understand that never means never. _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
Joined: 17 May 2004 Posts: 1648 Location: Michigan
Posted: Wed Dec 31, 2008 03:35 pm Post subject:
When I was with DDS claimants would worry if people were assigned to watch them do ADLs from day to day - like we hired a PI - oh my god. In a perfect world in a close case of "never" we would use a workshop evaluation to see if someone never "stooped" or had the capacity as I am not sure if a AP can be an expert on a empirical basis if someone can stoop.
If never is taken to an extreme and never means never would one need to have a spinal fusion not to be able to stoop by the common definition?
You introduced your second paragraph with this clause: "[i]f never is taken to an extreme." This illustrates part of my thesis quite nicely.
Consider for a minute: when we say "never," what range of frequency do we mean? On first reflection, the question is silly. After all, never means never. But just as you have demonstrated, in ordinary speech we use "never" to mean a rate of occurrence that ranges from zero up to something slightly higher.
When our words are subject to examination by individuals who dislike our conclusions, we need to be as precise as possible. The alternative is to be vulnerable to misinterpretation that is sometimes deliberate and often quite clever. Watch out for equivocation.
So let's reserve "never" for circumstances when we don't really mean "hardly ever." _________________ I've posted this in my private capacity. What I post might be wrong. Probably, it IS wrong. Any errors are my own. Please don't infer any SSA approval for what I post.
Joined: 17 May 2004 Posts: 1648 Location: Michigan
Posted: Wed Dec 31, 2008 10:00 pm Post subject:
OK you got me but how about the TV advertisement that says use the automatic dish washer detergent and your dishes will be "virtually spotless" - that means use the detergent and there will be some spots.
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