Schneider, Kerr & Robichaux
Copyright © Schneider, Kerr & Robichaux. All Rights Reserved.
626 SE Alder St. Portland, OR 97214
PO Box 14490 Portland, OR 97293
1. Attack the Medical Expert’s Expertise
ATTACK STRATEGY ONE
STEP ONE: Ask them what their area of practice is.
STEP TWO: Ask them if they’ve ever treated anyone with your client’s conditions.
STEP THREE: Ask them to explain their interpretation of specific evidence.
STEP FOUR: Ask them why they think they are in a better position to understand your client’s functioning than the treating physician.
ME: In essence we’ve got a gentleman with a long history of a flare up of MS who’s on medication for MS who exhibits some signs that it has not progressed. If anything it’s resolved and we have some previous signs of MS-like fatigue and chronic pain. So I don’t really feel that he meets the listing for MS. I don’t know of any marked persistence or abnormal neurologic function from the examination of the exhibits. And I don’t really see that he meets the neurocognitive disorders, A or B, so I don’t feel that he meets the listing, your honor.
ALJ: Ok and, given your review of the totality of the record, were there physical function limitations that you feel would be appropriate in terms of his functioning?
ME: Yes, certainly, I think he should probably avoid heights. Probably he’d be restricted to 10 pounds on a frequent basis and same as lifting. He – I’m trying to find my copy of the disability listings for work related but I can’t find it. But if you want to go through all of them, I’d be happy to.
ALJ: Well, generally it would be consideration of how many hours he could stand and walk, how many he could sit, the extent to which he can do postural changes.
ME: Well in an 8-hour day he could sit for 6 hours, he could stand for 2 and walk for 2… time would be limited to standing and walking for 30 minutes and sitting for an hour at one time.
ALJ: And with regard to postural changes, you know, stooping, kneeling, crawling, balancing…
ME: Balancing, no, stooping just occasionally, crawling no, what else…
ALJ: Kneeling and crouching.
ME: Kneeling infrequently because of past knee pain, crouching would be the same.
ALJ: Ok, one moment. Ok and I think you already spoke to avoiding heights, then the question would be the exposure to hazards, vibrations, pulmonary irritants and other kinds of environmental exposures?
ME: I don’t have any asthma history on the chart but he should avoid the extremes of either heat or cold due to his MS.
ALJ: Well, Doctor, thank you, I’m going to give the claimant’s representative the opportunity to ask any questions she may have, Ms. Smith?
ATTY: Yes, thank you. Doctor, are you currently practicing medicine?
ME: No, I’ve been retired for 18 years.
ATTY: And in your practice prior to retirement, how often were you treating individuals who had MS.
ME: I never treated anyone who had MS, I was a neurological surgeon.
ATTY: Ok, now you made some indication that he may need some neurological testing for maintaining concentration, persistence, and pace, is that correct?
ME: Yeah, we don’t have any neuro-psych testing in the exhibits.
ATTY: Ok, so you also testified that you were unaware of the deficits in adapting and managing oneself.
ALJ: Counsel, did you mean he was unaware or that he did not see evidence in the record, what’s your question?
ATTY: My question is, “did he not see evidence of that in the record.”
ME: Evidence of what?
ATTY: Adapting and managing oneself; the part B criteria.
ME: Well, let me pull up the part B.
ATTY: I think what you were talking about, at the time, was the opinion of his treating doctor. Doctor – I believe – Dr. X, and I believe that’s at 16F.
ALJ: So that doctor had found marked limitations in the B criteria and I think you were pointing out you didn’t really see support for that in the record.
ME: Marked on the patient’s physical function, right. Based on his neurological exam, we don’t have any evidence of a paralysis and we don’t have any exhibit evidence of fatigue on examination so I don’t - I can’t really see it as a marked limitation in physical function. If he’s able to swim, I see he’s been doing swimming exercises and swimming controls his weight. Someone able to swim, to me, would not have marked limitation in physical function.
ATTY: My understanding – well, I – I don’t know. But why don’t you tell me, in your experience, do individuals who have MS usually go through periods of flare ups? Is that typical with that disease?
ME: Well, we don’t have that on the chart, usually the flare ups are treated with medications, they don’t present to the emergency room because of a flare up. And they often are treated with medications for the flare-ups, and we don’t have that in the chart.
ATTY: And in the record, you noted this I believe, there’s an ER visit I believe, it’s February 14, 2015, where he’s going in for the back pain and tightness and pain down both arms and chronic headaches. They evaluated the C spine and you noted that there were no lesions in the C spine, but is it possible that the generalized body pain could be related to MS and could be part of a flare-up?
ME: Well counsel he did have lesions in the C spine.
ATTY: Oh he did?
ME: He does. On the initial MRI scan he has degenerative changes on the C5/6 and also a question or two in the C7 disk. He does have degenerative changes in his cervical spine.
ATTY: No, I’m sorry I thought you said – I apologize – I thought you said they were looking for lesions, not degenerative changes, I apologize.
ME: No, well they were looking for lesions. They were looking for MS plaques in the cervical spine and they were not present.
ATTY: Could you ask, I guess my question – even without the lesions being present in the C spine, could those pain symptoms – is it reasonable for them to be related to a MS flare up?
ME: Mmmm. Not really. You’d have to have some physical evidence of a flare up. Usually flare ups – a patient has – you’ll see some changes, either the previous MS plaques or additional new plaques being shown.
ATTY: OK. Ummm.
ME: I think that’s the reason why the treating neurologist wants to recheck the cervical MRI. If he has a repeat cervical MRI and he shows plaques there, you can reasonably say maybe these plaques are responsible for his symptoms.
ATTY: Let me understand this. It looks like subsequent MRIs were showing lesions that were currently present, is that correct?
ME: Uhh, correct. They were previously present but have reduced in frequency and, in fact, they were barely perceivable on the MRI, so they had remarkably improved. And there were no new lesions present.
ATTY: Ok is it possible to have flare ups even though you’ve had some reduction?
ME: I don’t believe so.
ATTY: Ok. Have you ever treated my client?
ME: No, never seen your client.
ALJ: Miss… I think we already explained that he’s not treating your client.
ATTY: Ok. Do you believe that you’re in a better position than the treating source, who has given him ongoing care, to give an opinion about the severity level of his symptoms?
ME: What Social Security asked me to do, counselor, is to review the exhibits and, based on what are in the exhibits, to see if he meets the listings that are provided by Social Security. That’s all I – that’s what I do. I’m not there to criticize the treating physician or to agree or disagree with the treating physician.
ATTY: Sure, no, and I do appreciate your testimony. My question is when you were in practice, you have individuals – patients come and talk to you about their symptoms. And, based on those symptoms, you would have an understanding of the severity level of their symptoms, is that correct?
ME: Well, that’s why I was asking the administrator whether or not we have a psychologist to testify. Because he’s been under the claim of this… receiving psychological counseling, he has –
ALJ: Ms. Smith I think you’ve made an argument about the weight to be given here, I think you need to proceed.
ME: …it’s denoted in the physical therapy records that his complaints are out of proportion to his physical findings. And people who are in psychological distress also have magnification of their symptoms. So, as a general rule as neurological surgeons, if I have a patient who has a lot of psychological symptoms, I generally do not recommend surgical intervention. And that should answer your question about, uhh, when I see people with complaints like pressing spinal –
ALJ: Ms. Smith I think it’s understood that he hasn’t seen your client. He’s giving his opinion based on his review of the records, I’m not sure where you’re going with the question.
ALJ: Doctor, I did have one other question I neglected to ask you when we were going through each of the claimant’s limitations – was the use of the claimant’s arms? With regard to reaching, handling, fingering would there be any limitations based on your review of the record?
ME: The limitations yes, as far as the elevation of the arm and the abduction of the arm, so there’d be a limitation of reaching overhead and a possible limitation reaching forward with the left arm. Due to his past history.
ALJ: Ok. Ms. Smith do you have any other questions?
ME: There shouldn’t be as far as fingering or things like that.
ATTY: Well I wanted a clarification, maybe I missed it. Would you think he would be limited to occasional reaching in all directions with the left upper extremity?
ME: Well he can certainly reach forw- in front of himself. And below. That would clarify it. I don’t. Someone who has a partial compression or mild rotator cuff signs usually have difficulty and pain if they elevate their arm either in front or off to the side or try to raise their arm above their head, so those would be the restrictions.
ATTY: Sure, I was just trying to understand if it’s frequent, occasional, constant, what the frequency would be.
ALJ: Doctor is it fair you’d say he’d be limited to occasional overhead reaching with the left arm and frequent reaching in all other directions? Is that consistent with what you’re saying?
ME: Yes, yes.
ME: That would be satisfactory.
ATTY: Now what medication did you say that he was on to treat his MS?
ME: He’s on the generic form. He was originally started on the brand name and the insurance carrier discontinued that so he was on the generic for while and then he had some side effects with the generic so they switched him back to the brand and then the insurance discontinued the brand name and he is back on the generic one – medication – again.
ATTY: And did you know what the specific side effects were that he had related to the generic form were?
ME: No, I don’t think it was listed.
ATTY: Ok. Are you familiar with any side effects that are typical with those medications?
ME: Other than what you can read on Wikipedia… *chuckle*
ATTY: I mean, I guess, did anything strike you as unreasonable about the side effects he was complaining of when you were reading that part of the record?
ME: No, I don’t really, I don’t think I put that in my notes here counsel.
ME: On uhhh 12F page 4, I’ll just and uhhh 16. Notes uhhh relapsing, experiencing vertigo, the side effects of fatigue and his examinations uhhh changes and due to the side-effects we switched to the *med* twice weekly and we’ve got uhh… 11 page uhh 12F page 25 we’ve still got him on the generic in February of 18.
ATTY: Ok, I guess my question is, is it reasonable that he could have these symptoms as a result of the side effects of a medication?
ME: Well, side effects are variable with patients.
ATTY: Certainly. What I’m asking is, are his subjective complaints consistent with the use of that type of medication?
ME: I believe they are.
ATTY: Alright. And, if he felt those side-effects would impact his every day functioning, do you think that it would be reasonable, just because of those side-effects, that his productivity in a work environment, would he be off task more than 15% of the work day?
ME: Uhhh…. That’s an either/or question. I don’t… If you’re limited to how he feels about it then you’d have to go back to neuro-cognitive evaluation and I’m not qualified to say that. Now, I don’t know whether the treating physician feels that his side-effects are sufficient to on them alone, eliminate him from a work situation.
ATTY: So you would think that-
ALJ: Let me stop you for a second. Doctor, just relying on the record that you reviewed and the objective evidence that you reviewed, without sort of – would you find that there was a basis to find that the claimant would be off task in the manner that she is describing?
ME: Ummm, no.
ATTY: Would you tend to defer to the treating physician on such an opinion?
ALJ: Ms. Smith I think we went over that already.
ME: As long as he understands the full impact of the Social Security regulations.
ALJ: Alright, did you have any other questions?
ATTY: I have no further questions.
Outcome = Partially Favorable Decision
At hearing, Dr. X testified that he was a neurosurgeon and did not treat multiple sclerosis. Moreover, his opinion is not consistent with the claimant’s treating primary care provider or neurologist treating the claimant for his multiple sclerosis. Finally, his opinion does not square with imaging of the claimant’s brain exhibiting white matter lesions, examination results showing dysmetria in the left upper extremity and the claimant’s complaints of musculoskeletal pain, tingling and fatigue.
2. Shift the focus from medical jargon to obtaining cilent specific limits
ATTACK STRATEGY TWO
STEP ONE: Step away from focusing on diagnoses and listings and focus on symptoms.
STEP TWO: Make the client human.
STEP THREE: Turn your client’s symptoms into practical limits.
STEP FOUR: Clarify questions the doctor has with client testimony/notes from the file.
STEP FIVE: Give cites that document the longitudinal nature of the condition.
ALJ: Is there sufficient evidence of record for you to have an opinion as to the claimant’s medically determinable impairments?
ALJ: And can you please tell us, doctor, based on your education, experience, training and your review of the medical record what MDIs you find the claimant to have, including your diagnosis and exhibits that we can find evidence, objective medical evidence of your diagnosis.
ME: Ok a couple things, the first is the lumbar…
ALJ: Doctor we’ve already heard from an orthopedic surgeon so with respect to the orthopedic issues, we’re good so we need you to focus in on the internal medicine issue for us.
ME: Ok no problem. So he does have the reflux disease and also Crohn’s disease and looks like Crohn’s is affecting him a bit more. He’s on meds for this disease as well as the supplement, discussed 30F/15. It looks like he’s been having involuntary weight loss with a baseline of 210, 29F/55, and on July 26, 2015 to the weight most recently of 154, this is 40F from a couple days ago. Otherwise it looks like it’s pretty well controlled it’s not uhh it doesn’t have any other abnormalities, hemoglobin is normal, not having other symptoms of Crohn’s disease and in that regard I find that he does not meet the listing 5.06 which IBD -
ALJ: How about the weight loss listing?
ME: So weight loss listing he should have a BMI of 17.5 or less, his BMI last updated 19.5.
ALJ: 19.5 so he’s slender but not critical.
ME: Slender yes but not critical yet.
ALJ: Ok… I mean. We’d probably all like to lose 10 pounds but this is a lot of weight.
ALJ: Ok. So he doesn’t meet or equal the weight loss or the Crohn’s?
ALJ: With respect to functional limitations what functional limitations would you anticipate with respect to this gentleman?
ME: So in terms of his limitations and because the Crohn’s looks like it’s very well controlled I don’t see a Crohn’s limitation that’s directly caused by his GI problems.
ALJ: Ok. Fatigue, sometimes we see that with fatigue doctor?
ME: Sometimes yes sometimes with the gastrointestinal discomfort, fatigue can be there, some bloating. But from the medical record I don’t see any overt sign.
ALJ: So you don’t have any specific functional limitations for this gentleman?
ME: No, not related to Crohn’s.
ALJ: Counsel, questions for this doctor?
ATTY: Yes your honor, thank you. Doctor there is an opinion from Dr. X at 36F could you please let me know when you get to that opinion and I’m looking at page –
ME: 36F yes yes, on the first page?
ATTY: Page 3.
ME: Page 3, alright I’m there.
ATTY: That provider actually opines that Mr. X would need to use the restroom 5 or more times daily on short notice or urgent basis, would you agree with that opinion?
ME: Uhh sorry, 36F/3 right?
ATTY: Yes, it’s towards the bottom of the page, it says “does Mr. X regularly need to use the restroom on short notice or on an urgent basis.”
ME: Ok so yeah – Crohn’s disease, the needing to use the bathroom is not a typical symptom of Crohn’s disease. Crohn’s disease usually presents with pain. So if you were talking about IBS, then yes, in that case probably would need to go to the bathroom regularly. But Crohn’s patients don’t usually have uncontrollable diarrhea.
ATTY: Now with regard to vomiting or the need to essentially just sit on the toilet because you’re unsure what your bowels are going to do, is that ever associated with Crohn’s?
ME: No, that’s again more associated with IBS than with Crohn’s. Crohn’s when they’re well controlled which seems to be his case, document 30F/15 looks like he’s treated well on Humira. And really, pain is the dominant symptom of Crohn’s so if he doesn’t, if he doesn’t –I don’t see he has too much pain with the current regimen.
ATTY: Ok then with regard to an individual with Crohn’s disease, how often have you treated individuals with Crohn’s?
ME: Not as a primary treating physician for Crohn’s but I have seen plenty of patients with Crohn’s in my practice.
ATTY: And are you familiar with how they go about relieving their pain?
ME: Yes so, Crohn’s disease when it has, usually when it’s controlled, they’ll have very little symptoms, so when they have pain that’s when we classify them as Crohn’s exacerbation in which patients are treated with steroids and various medications and antibiotics until the flare comes down. There is usually a flaring and then they usually achieve remission so that’s how we usually treat pain.
ATTY: Would you agree that this individual has lost more than 60 pounds?
ME: Uh yes.
ATTY: Ok so generally speaking, when someone loses that amount of weight is it typical, well I’m sorry. You see in this record that he’s experienced symptoms of vomiting and having to use the restroom?
ATTY: You do see that in this record?
ME: Uhhh no, where do you see that?
ATTY: I’m looking at Exibit 30F these are the X Clinic records where he’s followed by Dr. X. I’ll give you a specific citation… I’ll just give you one, this is on page one of the exhibit probably easiest to get to, it’s the first page. Chief complaints: weight loss, abdominal pain, bloating, nausea, and it looks like on the second page it’s – this is the third paragraph down uhh and then it’s the second sentence of that paragraph it states that “everything he eats causes nausea, gas, and lower GI pain. Pain will come within minutes of eating something. Takes GasX with minor and temporary relief. Bowel pattern tends toward constipation.” This is also fairly new for him I believe this is September of 2017, is it your testimony that problems with constipation and nausea and those types of issues would not cause someone to need to use the restroom?
ME: Uhhhh they would. Yes. Those symptoms would cause someone to use the restroom. To answer your question. But uhhh from what I see this more of an acute flare.
ATTY: Alright I’ll point you to an additional…
ME: I need to see, usually this is something ongoing over like a long period.
ATTY: Sure. Then we have the more recent X Clinic records that were submitted and those were seen at… oh. *heavy sigh*
ATTY: 38F, yes your honor, thank you. Those are also treatment from Dr. X. And in those records if we look at the second page, it looks – there’s a discussion of the weight loss – it looks like this is the third full paragraph down, and it is the fourth sentence down, it says “his appetite has been initially decreased, he’s been trying to use supplemental nutrition in the form on Ensure. He continues to have poor appetite. He has mild early SAE, there is generalized fatigue, for the most part he thinks his Crohn’s symptoms are quiescent. Then it talks about the bowel movements, the next paragraph it says “bowel movements, firm loose, and having approximately 4-5 a day and then it talks about the abdominal pain on average 5/10 on a 0-10 pain scale. Looking at that it looks like there’s some discussion of the ongoing nature of this.
Do you, does that inform your opinion at all about whether it’s just a flare or an ongoing problem?
ME: Yeah, so it’s not completely clear because if you look at the paragraph above, it says for the most part he thinks Crohn’s symptoms are quiescent. And then the current IBD symptoms like you said he listed all those symptoms, so I cannot say whether these symptoms are ongoing or if he’s having periods of flares. That leads me to think that because the Crohn’s symptoms are quiescent, it’s not 100% clear from the notes but it looks like the Crohn’s symptoms are well controlled and the symptoms down below are when he’s having flares.
ATTY: Ok let’s look at page 5, it’s number 3. This one of the more recent visits, February 9, 2018. It looks like they’re scheduling a colonoscopy and talking about continued investigation of his Crohn’s and colitis. Is it typical to have these continued colonoscopies if they feel like the Crohn’s is stabilized or what’s the general practice in that kind of situation?
ME: Well usually they only do when they think they are ongoing, that the Crohn’s is not well controlled. So I do agree with you that his GI does not think that the Crohn’s is well controlled at that time.
ATTY: Ok and then on page 11 of the same document, this is a nutrition consultation. It looks like this is under – diet recall is the bold header, and then it says 5 lines down from that “continues weight loss trend down 11.6% of body weight in 7 months, BMI 18 – not 19.5 – SGA equals high risk for malnutrition. Nausea, anorexia, supplemental diet, muscle wasting, hollowed eyes and temple, visible boney prominences. We talked a little bit about the fatigue and his ability to complete a normal work day. Does that consultation inform your opinion or change your opinion at all about his ability to complete a full 8 hour day?
ME: Uhhh…. So. Yes. It looks like his Crohn’s has worsened more recently. So… I do think that it will have some effect on his ability to complete an 8-hour day. Just because of the recent weight loss it looks like especially over the last year has lost a significant amount of weight at least 30 pounds. The subjective evidence on the other hand hadn’t really shown that he suffered from severe malnutrition, but I agree that it’s already starting to show.
So, his – I agree that his, he does look like his Crohn’s was well controlled before but more recently it looks like his Crohn’s has not been well controlled and he may be heading the direction of malnutrition.
ALJ: Doctor, it’s the judge again. Are you saying then, we have the NP suggesting claimant could work less than a full day, less than 8 hours, are you agreeing with that or not agreeing? What are you saying?
ALJ: Sorry that exhibit was 36F and she came up with – I think it’s she – she came up with I think it’s on page… that’s not right… where did I get that, counsel?
ATTY: 36F page 3, well there was, I’m sorry, there was the 5 times or more daily and then there was the RFC which was in the other opinion which was at…
ALJ: That’s what I was looking for.
ATTY: Uhh Dr. X 35F.
ALJ: Yeah thank you. So we’ve got 35F I apologize, it’s the doctor in that case, that’s the doctor who suggests at page 2, when you add them up you get less than 8 hours. Total of 6 hours. So, it says the rest of the time he has to lay down, etc. so are you agreeing with that, disagreeing, have a different opinion, what are you saying doctor?
ME: So it looks like his Crohn’s, I agree with that assessment, 35F.
ALJ: Well I’m just an old country judge here trying to sort this out but what it looks like to me is they tried a variety of things to try and help this gentleman and it’s not working yet.
ME: That’s true.
ALJ: I assume hopefully at some point they figure out something that does work?
ME: Yeah so he’s already on the Humira.
ALJ: Correct and I usually see that in this kind of case but not this kind of weight loss.
ME: Yeah, so if he’s on Humira and his symptoms are not well controlled then that’s a big problem because that’s pretty much a last line therapy for Crohn’s disease.
ALJ: Alright so, would it, I don’t want to put words in your mouth, so it’s fair to say you concur with the doctor in 35F?
ME: Yes I do.
3. Fight back against testimony that impairments are non-severe
ATTACK STRATEGY THREE
STEP ONE: Listen to what the ME says.
STEP TWO: Ask why questions.
STEP THREE: Establish a limitation. Any limitation.
STEP FOUR: Distinguish between meeting a listing and a finding that the medical impairment is non-severe.
STEP FIVE: If you can’t get them to lower the overall exertional level add on as many extra limitations you can come up with.
ALJ: Okay. So Doctor, would you please specify the claimant’s impairments, if any, established by the evidence and cite to objective findings that support your opinion with reference to the exhibits and page numbers from the file where possible.
ME: Sure. This gentleman is 54 years of age, was seen in a medical facility complaining of a severe headache and the evaluation of the headache revealed a space occupying region in the back of his head, in the occipital area and this was recognized as being a neoplasm, or a tumor. A decision was made to operate and on craniotomy the tumor was found to be a benign tumor- meaning it was a meningioma- and the biopsy of the tumor confirmed this diagnosis. He recovered sufficiently after the surgery and followed by rehabilitation, and was discharged from the facility.
The gentleman was unemployed and homeless and was brought under the care and help of the social facilities, then soon after that he was riding a bicycle and fell off the bike and sustained a fracture of the cervical spine. This was diagnosed as being a fracture of the second cervical vertebrae referred to as C2 or odontoid which is the process allowing the head to rotate on the neck.
The halo fixation was placed on his head and kept on for 6 to 8 weeks, allowing the fracture to heal, and ultimately the halo was removed and he was placed in a neck collar for further protection of physical recovery.
So, all these issues and treatments were quite effective and uh, he pretty much returned to back to a normal state of health…so reviewing your record I did not see any reason for any permanent impairment or disability related to these issues, Your Honor.
ALJ: So would you say that those were both under Social Security’s rules of non-severe impairments because they didn’t meet the durational requirements?
ME: Exactly, yes.
ALJ: Okay…*pause for typing*…um any other impairments at all that you found in your review of the file?
ME: No, I didn’t see anything significant really.
**More typing **
ALJ: Ms. Smith?
ATTY: Yes, Your Honor, thank you. Doctor, I was hoping you could take a look at the imaging at 19F with us, it is dated June 19, 2018. It’s only two pages of records- if you could just let me know when you get there.
ME: Yes I do, yes.
ATTY: Alright, so this is what about- a little bit more than four or five months post accident – are there any findings in here that there are going to be lasting effects to the cervical spine?
ME: Um, not really, I would caution him against severe movements of the cervical spine, although the images show that the healing was sufficient enough to be out of the halo fixation, but there is a vulnerability to re-fracture the site of the broken vertebra, so he should be exercising caution from then on.
ALJ: Um, can you just be more specific about what you mean by severe movements?
ME: Yes, like sharp bending of the head forward or backward, or a forceful rotation of the neck because the bone which was broken called odontoid process (Dens), and that is the axis on which the head rotates from side to side- there is inherent weakness perhaps at the site of the fracture and a vulnerability of re-fracturing, so we always speak of caution.
ALJ: Okay, when you said sharp movements, I just want to make sure that my understanding is what you really meant. Um, would that be like a very fast forceful movement?
ME: Yes, like uh, hyper-extending the neck, looking up and looking down like the chin on the chest...these sorts of things might precipitate damage to the odontoid process again, so in these cases we caution our patients to perhaps wear neck support when doing anything that would precipitate an undo amount of stress on that bone.
ALJ: Okay, so if an individual was wearing a neck support could they engage in normal activities at all exertional levels or not?
ME: Yes, they can engage in normal activities with some restriction, like I mentioned sharp forward bending of a neck or sharp hyper-extending of a neck or extreme rotation of the neck – these are the things I would be concerned about.
ALJ: Okay, so I need to go back again because ‘sharp’ doesn’t mean anything vocationally- are you talking about, when you say sharp, do you mean a very fast, forceful movement forward or back?
ME: Yes, such as climbing a ladder might be, uh harmful to him or sharp forward flexion putting the chin on the chest or someone manipulating his neck forcefully – these are the things I would caution my patients against.
ALJ: Okay then would you say that these are – now when you said you thought this was a non-severe impairment that indicates under Social Security rules that there are no functional limitations…but if you think that there are lasting functional limitations then that means that there is a severe impairment and I need you to simply clarify your testimony one way or the other, please.
ME: Well, these are potentials for being impaired, in normal state of life and normal function, uh he is functioning normally and what I mentioned about potential harm to the fracture site is an extreme classification of the stress on the area which was damaged…so in the normal state of life, every day working he could be functioning just as you and I can do normally.
ALJ: Okay so he can move his head forward and back, correct? He just can’t do it in a sharp or-
ME: Extreme, yes
ALJ: …extreme, very fast forceful movement?
ME: Exactly, I mentioned climbing a ladder- when you climb ladder you look up, you hyper-extend your neck looking up as you climb the ladder. So that should be vocational-
ALJ: Well that’s not necessarily true, some people don’t hyper-extend their neck looking up and some people do…I mean Doctor, if you think that the task of climbing a ladder is something that the claimant should not do that’s fine, but I’m actually going to ask a question of the vocational expert because I want to be really clear on what we are doing here.
ALJ: Mr. X, in your experience as a vocational expert who has observed lots of people doing lots of activities vocationally…is that correct?
ALJ: Do people hyper-extend, meaning beyond the normal extension of the neck, extending it way, way back to look up when they climb a ladder?
VE: The only time I’ve ever seen it is with roofers.
ALJ: You mean when somebody is looking way, way back?
ALJ: Got it. Okay but a normal climbing of a ladder doesn’t cause that problem?
VE: Not that I’ve ever seen other than a person that’s a roofer.
ALJ: Okay but the roofers do that because they need to?
VE: They are going up quite high.
ALJ: Okay I’m just checking. Okay, Doctor does that give you any understanding of how climbing a ladder is normally done?
ME: He, he can climb a ladder occasionally, exercising the caution that I pointed out to you.
ALJ: Okay, are there any other limitations, at all, that you think are necessary either because of the impairments he has or because of a potential for harm or harming the cervical area again?
ALJ: Okay, alright. And this is a limitation because of the cervical spine fracture not because of the tumor is that right?
ME: Right, he fully recovered from the tumor issue, yes.
ALJ: Okay, so I’m going to call the cervical spine fracture a severe impairment because there are functional limitations even though he has recovered in your view.
ALJ: Okay, having clarified all that Ms. Smith, go ahead with your questioning *laughing*.
ATTY: Thank you, so Doctor I was looking at the most recent records I think we got in from X and those are at 20F, did you have an opportunity to review those records?
ATTY: Okay, it looked to me on page one of those records it indicated that he’s continuing to take hydrocodone to treat his pain, would you agree with that?
ME: I think that’s overstated, Your Honor, hydrocodone is a drug which should be prescribed for small amounts for a limit of time because it’s habit forming and counter-productive to use for any length of time, yes.
ATTY: But, you would agree that he is currently being prescribed by a doctor to take hydrocodone, correct?
ME: Yes, as directed by a physician but I would taper that down to eventually nothing and use other sedatives for dealing with the pain.
ATTY: Alright, but he’s currently- is the doctor at this point committing malpractice by prescribing that type of medication?
ME: No *laughs* I’m not saying that, I’m not second guessing the discretion of another physician but you know, the opioid abuse has been a curse right now nationwide so we have to be extremely cautious in prescribing them for any length of time, yes.
ATTY: Certainly, but in this individual’s case he is on medications as prescribed, correct?
ATTY: Alright, with regard to his ability to lift weight up to fifty pounds is it your testimony that there would be no issue with that, there would be no additional strain on the cervical spine with lifting that much weight?
ME: No, I think fifty pounds is overstated Your Honor, I think he can lift twenty pounds occasionally and ten pounds frequently-
ALJ: Doctor, the person who is asking you questions is the representative, I have concluded my questions- you don’t need to call the representative Your Honor.
ALJ: Okay, so fifty pounds is not a problem is that correct Doctor?
ME: Well that’s overstated I think, I-
ALJ: I don’t know what you mean by saying ‘overstated’, Doctor-
ME: Meaning the amount of weight he can lift is overstated-
ALJ: This is-
ME: I would limit him to twenty pounds occasionally-
ALJ: Doctor! I’m going to have, I’m going to you know- if you think there’s a limitation you need to tell it to me initially, you don’t wait until later in the testimony to then say ‘oh yeah, I think that the claimant should only lift twenty pounds’ if you thought that was a limitation you should have said it initially…I’m very concerned about your testimony now and the reliability of it!
ME: Uh, Your Honor, this gentleman weights 175 pounds and is five feet seven inches tall-
ALJ: Right, and under Social Security rules, Doctor, you don’t consider someone’s weight or body habitus as we call it, unless it is a severe impairment, you don’t consider it as a part of whether someone can lift weight or not! I mean if this is considered, if this limitation to twenty pounds has to do with the fact that he has or had a cervical fracture then you needed to tell me that initially. If you’re saying this because you think it’s a matter of body habitus, that’s inappropriate for a Social Security hearing. I’m not sure what you are saying, Doctor, and I’m not sure about your testimony or the basis of it and I’m getting very concerned about the testimony that you’re providing. I mean, if you think because of the cervical fracture or frankly even the tumor that the claimant is limited to twenty pounds then go ahead and say that, but if you think for some other reason that he’s limited to twenty pounds then it’s inappropriate. So which is it?
ME: Your Honor, I’m a physician. I treat people, and someone who has had a craniotomy and a tumor removed from his brain and then subsequently broke his neck- I’m concerned about something else happening to him during the course of his life, so-
ALJ: *Irritated* Doctor, Doctor?
ME: Yes? Um-
ALJ: Is it your opinion-
ME: So somethi-
ALJ- Doctor, just stop. I think we’ve gotten into the land of fantasy and I just would like to know when I said to you ‘are there any other functional limitations at all that claimant should be operating under’ you said no, and now you’re changing that testimony and saying ‘oh well I think he should only lift twenty pounds’.
ME: *Clears throat* Your Honor-
ALJ: Doctor, I’m happy for you to have this opinion if that’s the actual opinion but I’m really not happy for you to not be answering my questions when I ask them. Does that make sense to you? Is there some reason you didn’t give me this opinion earlier when I asked you?
ME: No, I think you are misinterpreting me, Your Honor, this gentleman with two issues-
ME: …two issues-
ALJ- Hang on-
ME: …that he has put behind him-
ALJ: *Angrily* Doctor stop. Stop.
ALJ: I’m going to put you on mute for just a second…put him on mute…Doctor can you hear me?
ALJ- Ms. Smith…
ME: Can I explain?
ALJ: Take him off of mute…No, Doctor you may not explain! I’m putting you on mute, I’m having a conversation with the representative outside of your hearing, I will get back to you in a moment. Please simply wait and be quiet for a little while, we will come back to you I promise.
ME: As you wish, yes.
ALJ: Please mute him? I can’t rely on this doctor, counsel.
ATTY: I, I’m here tomorrow-
ALJ: If he had said to me-
ATTY- If you have anybody else you can get here-
ATTY: Do you have anybody else you can get soon?
ALJ: Well, I mean this is just outrageous to me that I ask him for every functional limitation and then he comes back with these things that just make no sense…
ATTY: No, I agree because I want to ask him about range of motion and I want to ask about- I don’t want to do that if we can’t rely on him, I’d rather have somebody we can rely on.
ALJ: Well you tell me, you know twenty pounds is not going to get us anywhere, it’s not going to limit the claimant-
ATTY: But if we had occasional reach and we had somebody who understood range of motion to be occasional in the neck, yeah maybe we’d get the sedentary, so I don’t know if that’s there or not, I mean he had a halo placed on his head because he broke his neck. In my mind-
ALJ: I understand and the doctor started out saying he’s fully recovered.
ATTY: I know but then he’s changing it so I don’t know what he means…
ALJ: Well, that’s what my problem is that I just don’t know what to do with the testimony of a doctor who says one thing when I ask it and says another thing when you ask it…I mean I’m concerned that he’s changing his testimony to make whomever is asking it happy.
ATTY: Well he thought I was you! So I don’t know. *laughing*
ALJ: Not at the point when he said the twenty pounds, earlier he was saying other things ya know, when he was saying the hydrocodone should only be prescribed- for the short term I understand his position on that…
ATTY: Sure, sure, sure…
ALJ: *Sighs* I mean this is really frustrating because Social Security pays for these doctors and then they prove themselves to be unreliable in the moment- you know- he may be reliable in another circumstance when there’s more evidence in the file that’s clearer but he’s certainly not being reliable here...you know I’m willing to give him an opportunity to try and explain himself, but frankly I’m very concerned about the reliability and the accuracy of the testimony.
ATTY: Well, I am too from my perspective because now he’s- who knows he might- who knows, I have no ideas it would all be conjecture what he’ll do so I just don’t feel comfortable on my end quite frankly.
ALJ: Okay, I just wanted to make sure we both agreed, I mean if you really wanted to keep asking him questions and go with him I’d be happy to do that but I really feel concerned about the testimony.
ATTY: I don’t want to go forward.
ALJ: Okay, alright, take it off mute…alright, Doctor both the representative and I agree that your testimony is unreliable because you have given inconsistent testimony from when you started to now and so at least for this case I will be asking for another expert- which is really frustrating to me because not only have we wasted the hearing spot which in and of itself is a cost, we are paying you for testimony that we don’t believe is reliable, and now we’re going to have to get another expert which is an additional cost to the government. So please in the futu-
ME: Pardon, pardon me-
ALJ: …I’d like you to, I’m just giving instructions Doctor you don’t need to say anything more, in the future it is very important when you testify on a case that if there are any limitations whatsoever that you think need to be applied to an individual based on their condition, that you talk about all of those limitations no matter what they be – whether they be a result of the condition itself or because you are trying to prevent the individual from reinjuring that part of their body. It doesn’t matter. I think you need to do a little bit more reading up on what is required for testimony in Social Security hearings and I ask that you do that, but we are going to excuse you for today. So, thank you very much and have a good day.
Example Four (Strategy Three)
ALJ: Was there sufficient information to allow you to form an opinion about the nature and severity of the claimant’s impairments in this case?
ME: Well, I think not, depending on what deficit the court says the client has. In terms of diabetes, there is. In terms of depression, there is. In terms of other issues I don’t think there’s enough information for me to really know what’s going on.
ALJ: And with regard to these diagnoses that you identified would the claimant have any functional limitations as a result of this?
ME: I think there might be some mild impairment of social interaction.
ALJ: And with regard to – well is that the entirety of the limitations you would find?
ME: Yes, and I think it’s mentioned in exhibit 4F that there’s some mild deficiencies in her ability to work and cooperate with people.
ALJ: And with regard to physical limitations, would you find that there would be any appropriate physical limitations?
ME: Well that’s what’s not really developed by the client in the record. I don’t see anything showing a limitation per se, so I have to say we have two assessments in that regard in the record and I can’t see – the record – like for instance exhibit F9 I can’t see where that’s substantiated in the record.
ALJ: So, in other words, you’re seeing the doctor’s opinion but you’re not seeing the objective evidence supporting the opinion?
ME: Right. So we have two opinions in the record, I believe we have exhibit 3 on page 6 and we have exhibit 10F. And when you go through the record, it’s 90% her visiting a diabetes clinic with them urging her to be more compliant, I mean there is noncompliance with her diabetes management. Going through that, looking for disability in her diabetes, for what we have on the listing, there’s no ulcerations, no documentations of severe neuropathy. She has probably some mild renal disease but it’s not that bad. It could be better but I think the record shows that there’s not a lot of monitoring of the blood sugars.
The other 10% of the record goes to this cat bite on her hand. There are other references that are made throughout the record to where she can’t work because of neck and back pain but that’s not developed anywhere. In fact, the only workup really getting into this would be 11F where there are just some X-Rays done. The record is devoid of documenting, for me, any reason why she can’t physically work under the stipulations under F3 page 6.
Now, that being said, there’s a lot of physical therapy notes in exhibit 4F page 23 for instance, or 6F sorry, 6F/23 where she’s having some residual pain in that hand from the bone. But I don’t see that developed as an impairment where these people have assessed if she can work or not.
I mean that, you know, she has poor wound healing, she did have to have physical therapy with that hand which is her dominant hand. I can’t get a good feeling from the record how she’s able to use that. There was a record that she would wear a brace to help her coordination playing the piano after this injury, which, that’s actually a fairly dexterous maneuver to play the piano. So, I don’t see where that’s developed either.
There’s mention of back pain and whiplash in exhibit 3 page 1, that’s in May of 2016, but nothings developed moving forward in the past 2 years for me to say that she’s disabled from back pain and neck pain… it’s just not in the record. In terms of diabetes… the diabetes… it doesn’t meet the listing.
ALJ: Ok so the record as it currently stands, there wasn’t enough in the objective record to support you finding more than what you’ve already stated; which would be a mild impairment in social interaction
ME: Right. Again I think if you look at 3F page 6 and 4F page 1, those seem to be the most clarifying I guess would be the word. She could probably work in a simple isolated functioning situation like a cashier at a 7-11 or something. I mean physically I don’t see how she’s impaired and she couldn’t do that. I mean look at all the social activities that she engages in her psych report. I think that in a situation with a fast-paced complex environment with another person on top of her ordering her around, I don’t think she’s got the personality to tolerate that.
ALJ: And would you say that that area falls into your area of experience and expertise?
ALJ: Ok. Ms. Smith did you have questions for Dr. X?
ATTY: I do your honor, thank you. Dr. X can you hear me ok?
ATTY: Alright so I believe you stated that you felt 3F page 6 was an accurate RFC, is that correct?
ME: I would agree, what they said there, I mean from what’s in the record I don’t have any information about her like I said – that’s the closest.
ATTY: Ok so that’s a limitation to 20 pounds occasionally and 10 pounds frequently, you agree with that limitation?
ME: I think, for someone who’s a poorly controlled diabetic, that seems to be reasonable.
ATTY: There is some – they note in the addendum that they want her to follow up with her primary care provider with regard to her – at that time recent right hand injury, inability to extend her right third and fourth fingers. You noted the occupational therapy, and thank you for reviewing those records. I just wanted to turn to the discharge summary. I believe the pages for the discharge summary are pages 39-42 at 6F, if you could let me know when you get there?
ME: Why don’t you just read it to me, because it’s going to be a little difficult for me to get on the internet and look at it.
ATTY: Ok. My computer’s a little slow too so give me a second to -
ALJ: What is it that you’re looking for?
ALJ: What are you looking for? I have it open right here.
ATTY: I believe it was on page 39 was when they described opening a jar I think that one was moderate difficulty.
ALJ: So this is page 39 and -
ME: And what’s the date on that?
ALJ: This is July 2016, she’s made progress in occupational therapy, her range of motion and grip strength have improved, she’s reporting improved functional use of her hand with piano and other daily activities… she will be discharged at this time.
I see, you’re looking for the standardized test. So there’s severe difficulty opening a tight or new jar, moderate difficulty doing heavy household chores, mild difficulty carrying a shopping bag or briefcase is that what you’re talking about?
ATTY: Yeah and there’s a couple of other things as well.
ALJ: Ok… So what’s your question?
ATTY: Well I want him to hear to make sure he understands what the activities of daily living that she was having difficulty with were upon discharge.
So I’m there. Under the standardized test, Doctor, it reads that she had severe difficulty opening a tight or new jar, moderate difficulty heavy household chores, mild difficulty carrying a shopping bag or briefcase, unable to wash her back, mild difficulty with a knife to cut food, moderate difficulty with recreational activities that impact the upper extremities, slight difficulty with social activities, moderate difficulty with light work or regular daily activities, mild difficulty with arm shoulder and hand pain, mild tingling in the arm, mild difficulty with sleep.
And so what I was trying to distinguish were the gross and find motor skills at that point. And so, this is after her injury and after the occupational therapy discharge, do you believe at that point there would have been a limitation in handling?
ME: Well, you know, the thing with handling, opening a jar can be difficult for anyone it’s certainly difficult for me at times. But playing the piano… that’s… I play the piano – that requires, I think, a great deal of dexterity. Granted it’s not a lot of physical force, per se, but for fine fingering… that’s what seems to be contradictory in the record.
So for me the issue also – when I read that – is you’re discharged from physical therapy for two reasons: either you’re good or you plateau in benefit. Otherwise they don’t get paid. So either she graduated from therapy or she did not improve over a few month period – she was kicked out for not improving. I think that’s the real reason with her physical therapy.
And the issue is, too, is, again, I don’t have anything in the record after that. I mean look, she has a non-functional hand. I was kind of wondering about that going through the record if you folks were going to develop this as regional pain syndrome or something, where you were going with it. I just don’t have anything going forward from there showing that disability in that regard. So, again, it’s not developed as far as I’m concerned. To say she can’t pick up 20 pounds occasionally with that hand, I don’t think that’s really documented anywhere in the record.
ATTY: Sure, sure, I think my question is a little different. My question is could she constantly handle with the right hand? Could she frequently, occasionally? I’m just trying to get an understanding of handling and fingering, with the fingering being –
ME: I think playing the piano is – again – is rather contradictory to the report there.
ATTY: I don’t believe the report says… one of the goals, and the reason I say this is that one of the goals was for her to be able – the primary function goal, and this is page 41, was that patient will be able to play piano without difficulty upon discharge. And at discharge, it said primary function goal 1 status is a 7, and primary function goal 1 status comment “improved, moderate difficulty.” So it’s still showing that while it’s improved she’s still having moderate difficulty with a status of 7. It’s not as though she was doing it without any problems, it just notes that she was getting better.
ME: Well, understand, but why was she discharged from physical therapy?
ATTY: Well, at that point it had said that she made progress with her occupational therapy goals. But I think that one of the points that you made, well I think it could have been one of two things, one, she was all better, or two, she had plateaued. Well, she certainly wasn’t all better because they are continuing to note severe functional impairments with regard to her ability to open things, moderate difficulty with household chores, I mean you have more than mild difficulty in multiple areas, so I’m asking you to consider that they reported continued issues when you make your analysis about whether she had plateaued or whether she was all better.
ME: Well let’s just say she was not at her pre-injury state.
ME: Ok? I think that’s fair to say.
ATTY: Ok, so if we were to judge, if we were to give a rating of her ability to handle with the right dominant upper extremity, would that be at a constant, frequent, or occasional or less than occasional level in your opinion?
ALJ: Based on the objective records you reviewed.
ME: I don’t have anything here about endurance for those issues. Again it takes, for opening a jar, it takes a lot of physical strength to do. In terms of pace and endurance given the depth of her hand… I don’t have it quantified anywhere. Granted, it’s not 100%, so we’re gonna have to find a happy medium somewhere.
ME: But it’s not a failed hand.
ATTY: It does have the grip strength readings and then it also has the flexion readings I don’t know if that would be helpful to you-
ALJ: Let me just stop for one second, doctor are you not able to view these as we’re speaking, do you not have access to them?
ME: Well as you know I had trouble yesterday -
ALJ: I know… I’m just wondering if that would be easier than the representative sort of…
ME: Well the thing is in neurology we know, a physical therapist is going to quantify everything down to how many angels are on the pinhead. When we examine people we don’t do it to that extent so it doesn’t necessarily translate out. When they measure how much you can flex your finger, I think the real issue is, “what does that actually mean in real life?”
ME: I mean in terms of, you know, if she had a job where she was required to do those – that she’s working on – exactly what’s going on *mumbles* exactly what was going on. But translating what a physical therapist is saying into real life is a different issue. Uhh. So we can say, “fine, she may not be able to open jars for people at 7/11,” but I don’t see where that is translated to taking a credit card and giving someone a slip with the effected hand. Maybe there’s a limit if she had to do re-shelving, maybe we could say there might a limit in regard to doing that or stocking stuff or reaching overhead there’s probably a mild limitation there. But in terms of how those degrees of lack of strength are going to affect her pace during an occupation, I can’t really, I would just be guessing.
ATTY: I’m not asking you to judge pace, I think that my first question is with regard to handling. Is that going to be less than occasional, occasional, frequent, constant, what’s your opinion on that? The handling, just specifically the handling alone.
ME: Just for the one effected hand we could say occasional would be fine. Ok?
ATTY: And that’s for the handling and what about fingering.
ME: I could say the same.
ALJ: Doctor let me just stop you for one second because I want to make sure that I follow what you’re saying.
ME: Well I’m giving her the benefit of the doubt with regard to the effected hand; her left hand has no limitations.
ALJ: So putting aside the benefit of the doubt and reverting back to your assessment of the objective evidence, and the degree to which the objective evidence supports limitations. Based on your comprehensive review of the record, did you find any physical limitations to be appropriate? Because my understanding was, when we first spoke, was that you found no physical limitations and a mild impairment in social interaction.
ME: That’s, well, again, for what’s documented in the record I felt that’s what was the case, I felt that she, maybe I was dissevering on the fact that she could play the piano. Let’s just go back to that. Because I feel like, and I’m having trouble hearing off and on again and - that to me, you know, you know what…
ALJ: I’m just trying to get a sense of, so when we first spoke it sounded like based on your review, putting aside the opinion evidence and looking at the objective evidence it was your finding that there wasn’t really enough there to support physical limitations, so we were talking, then, about -
ME: You know moving forward, again from the time she was discharged from physical therapy, and that was two years ago -
ME: I don’t see anything moving forward that suggests that the physical therapy – where do we go from there? I mean she was discharged from physical therapy. So if she had improvement, one would expect it to continue or they wouldn’t have discharged her.
ALJ: In other words she didn’t go back to –
ME: It should be improving on its own once they discharge her. If it plateaus then they would definitely say that she had failed physical therapy. So, again … hold on a minute I’m having trouble holding the phone in my face while I’m in here hold on a minute.
ALJ: Doctor, are you on the line?
ME: It’s only letting me log into my own personal social security. That’s what was happening last night and then I tried a third time and it let go in. I can’t - I can’t get in.
ALJ: Ok. So going for now based on the notes that you took when you were reviewing, it I want to go over one more issue and then I’ll turn it back to Ms. Smith who I think might have some more questions.
Ms. Smith was pointing you toward 3F which was the consultative examination where they limited the claimant to light work, 20 pounds occasionally, 10 pounds frequently, and I think in response to Ms. Smith’s question you found that that sounded reasonable to you.
ALJ: And I’m just trying to get a sense of, is it your assessment that she would be limited to lifting a maximum of 20 pounds? Or is it your assessment that she didn’t have physical limitations; but this sounds like a reasonable, a reasonable limitation to put on her?
ME: I would say, the latter opinion.
ALJ: So, based on the records you reviewed, would she in fact be limited to 20 pounds? Or would she be limited to – or is there no real limit that you would say –
ME: I think that was a generous ball park figure to give her. I don’t see where there’s any evidence where she can’t pick up 50 pounds with both hands, I mean there’s nothing in there saying that. In terms of him looking for “back pain, neck pain” being a factor, the record doesn’t develop that at all. It’s not developed at all. I think she has more than just a simple helping hand. It’s certainly not that severe. So, I thought that was reasonable. Given too that she’s going to be more compliant with her diabetic management. I think moving forward it’s a reasonable expectation.
ALJ: Ok. Ms. Smith, did you have any additional questions?
ATTY: I just… Doctor, the diagnoses given at 3F page 5 were chronic low back pain, chronic neck pain, and diabetes mellitus - uncontrolled, with a history of diabetic neuropathy. Do you agree with those medically determinable impairments?
ME: Well, they’re mentioned in the record, yes. But the pain, her kidney disease is not severe. She doesn’t have the neuropathy yet.
ATTY: So, I – I –
ME: In terms again of the back pain and neck pain the only thing we have in development of that is 11F. And, again, when she was in physical therapy, she wasn’t in physical therapy for disabling neck and back pain, just to point that out. So if she was really having a problem with it at that point in time, why was she not getting therapy for it? Why was it not developed?
ATTY: Ok, so I understand what you’re saying, you’re saying that neither the low back pain, the neck pain, nor the diabetes, independently or together, meet a listing. Is that correct?
ATTY: But beyond that, you do see in the medical record diagnoses and this evaluation, which you believe are reasonable, which are the diagnoses of low back pain, neck pain, and diabetes. Correct?
ATTY: Ok. And you believe that those things in combination would reasonably create a limitation to lifting up to 20 pounds?
ME: I think that’s reasonable, yes.
ATTY: Ok. I see. And that the limitation to occasional handling, fingering is reasonable, correct?
ME: For the right hand.
ATTY: Correct, alright, I have no additional questions.
ALJ: Alright so doctor, not to beat a dead horse but I just want to make sure I’m following you. In your opinion with regard to light work with occasional handling and fingering with the right hand is it your belief that that is a generous reading of the evidence?
ME: Yes, it’s generous.
ALJ: Ok. Do you think that based on the objective evidence that the claimant could likely do more than that?
ALJ: Ok, X.
ATTY: And just to follow up with that. Are we talking like on a good day, you think that at one time she could lift up to 50 pounds or if we were looking at up to a third of the work day, she could lift up to 50 pounds.
ME: Counsel, I mean… It’s just not developed in the record for me to say. Ok?
ALJ: Alright. Well doctor thank you for your testimony I appreciate you speaking with us today I’m going to go ahead and take you off the line.