George Piemonte, NOSSCR 11th Circuit Board Representative

The vast majority of hypothetical questions we deal with include, “Assume the hypothetical person can do simple, routine, repetitive work” or something similar. This limitation lends itself to many opportunities to cross-examine the VE.

What is wrong with this limitation? Well, routine work is becoming less common. See this article from the Federal Reserve Bank of St. Louis. Very few jobs are actually “simple,” and some that were when the DOT was compiled are no longer unskilled, such as surveillance system monitor (as defined in the DOT). Even SSA agrees that jobs with a GED Reasoning Level (RL) of 3 or higher may not be simple (See VE Handbook (2024), p. 40). The DOT defines GED Reasoning Level 2 as involving detailed instructions, which are greater than simple. Unfortunately, many courts have held that RL 2 does not conflict with a limitation to simple, routine, repetitive tasks (SRRT). So, your cross-examination will have to dig deeper.

How can you effectively cross-examine the VE if the ALJ includes a limitation to SRRT in the hypothetical question? First, either ask the VE for or find the GED Reasoning Level of any job the VE says can be done. If it is 3 or higher, cite the VE handbook to the ALJ. You can also cite a Memorandum dated December 28, 2009, to Regional Management Officers from Susan Swansinger, Director, Division of Field Procedures, in which she stated:

DOT ratings for General Education Development (GED).  We do not rely on these ratings to conclude whether a claimant can perform a particular occupation when we cite occupations that demonstrate the ability to do other work.  However, adjudicators should consider GED ratings that may appear to conflict with the claimant’s RFC and the cited occupation(s); for example, an occupation with a GED reasoning level of 3 or higher for a claimant who is limited to performing simple, routine, or unskilled tasks.  (See POMS DI 25015.030) 

(Emphasis added)

If the job(s) is RL 2, show the claimant cannot handle detailed instructions. You will have to do some pre-hearing preparation and/or questioning of your claimant during the hearing. Following a recipe is an example of detailed instructions. Can your claimant do that? Get a medical opinion using the language of the SCO “Can XXX sustain consistently acceptable performance to carry out detailed instructions, dealing with problems involving a few concrete variables?” (Remember you have a right to submit post-hearing rebuttal evidence).

Use the Occupational Outlook Handbook (OOH) (SSA has taken administrative notice of the OOH – See 20 C.F.R. §§ 404.1566(d)(5), 416.966(d)(5)) and O*Net to get the VE to agree when a job has changed. For example, if the VE says the job Addresser, read them the DOT description of Addresser, then ask – Who uses a typewriter anymore? How could a business survive in today’s economy operating in this manner? Have you personally observed any business in the last five years with full-time employees whose only job was addressing envelopes, cards, advertising literature, packages, and similar items for mailing on a typewriter or by hand? Where? When?

If the VE says that the Addresser job is now done printing labels or envelopes, get them to confirm that that involves using a computer and word processing software. Get them to admit that using a computer and word processing software is not unskilled let alone simple, routine, and repetitive.

If the VE gives the job document preparer, you again want to read the DOT description to the VE. Then, get them to admit that the Internet and the cloud have replaced microfilm. If the VE tries to say that they meant scanning, you want to ask: Operating a scanner is not unskilled, right? How long is the operating manual? (have the operating manual for a scanner in your office with you to show them) You have to use a computer to operate a scanner, right? Is operating a computer a simple, routine, and repetitive task?

Combining common sense and the real world can often eliminate bogus jobs and testimony. It is up to you for the sake of your client to do that.

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.