George Piemonte, NOSSCR 11th Circuit Board Representative

ALJs will use a common hypothetical question limitation: “Assume the claimant needs a low-production work setting” (or non-production pace, etc.). Here are the problems with this:

• All jobs require that something be produced or some service be provided.
• All jobs have some production requirement. For example, a hotel housekeeper must clean a certain number of rooms during their shift, and a cashier must check out a line of customers as quickly as possible.
• Have any of you hired someone (other than your child) with no expectation that they will do any actual work?
• We are almost always dealing with unskilled work, which means the claimant has no advantage over any random person on the street, so the employer has no economic motivation to keep a lower-producing worker.

So, how do you deal with “needs a low-production work setting” (or non-production pace, etc.)? You can ask the VE the following questions:

• Isn’t it true that work means providing services for pay?
• A job that does not require producing anything isn’t work, is it?
• All jobs have some productivity requirements, don’t they? Who sets them?
• If an employee can’t meet those set productivity requirements, they will be fired, won’t they?
• If an employer can hire someone off the street who can meet the productivity requirements, that’s what they will do to stay in business, right?
• A business that usually allowed a sub-average pace would fail, wouldn’t it?
• Isn’t retaining workers with sub-average productivity sheltered work?

The critical point is why an employer would keep someone who cannot meet their requirements when they can hire someone who can off the street.

If the VE fails or refuses to admit the obvious, get a rebuttal opinion and make your record. I know SSR 24-3p says no post-hearing evidence, but put on the record that the VE’s testimony is unreliable and request the record be held open for a rebuttal opinion. If the ALJ says no, get it and submit it anyway. There is a good chance the court would not take kindly to the ALJ not allowing you to fully develop the record.

This is a guest column. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.