[0:01] If you're applying for disability benefits or help people that are, the path to success
[0:05] has never been more complicated.
[0:07] Welcome to the Disability Expert Podcast, where we tackle the difficult issues and interview
[0:11] the country's top experts to help you better navigate the disability process.
[0:16] Winning a disability case is hard and keeps getting tougher every day.
[0:19] We can't promise you'll win your case by listening, but we sure think it's going to help.
[0:24] This really isn't that complicated.
[0:26] I mean, you won't win your case, don't you?
[0:29] Well, then listen to what I say.
[0:31] Hey, welcome to the Disability Expert Podcast.
[0:33] I'm Chad Brown, I'm your host, and we're here once again talking about all things
[0:37] so secure disability.
[0:39] Here.
[0:40] Good to be back.
[0:41] Let's talk about the grids.
[0:42] Yeah, we are, I don't know how many episodes in a row.
[0:46] It seemed like four or five or six episodes in a row.
[0:49] We were like, because they're so important.
[0:52] Like, these are, you know, I talked about this in the last episode.
[0:56] If you didn't see our last episode, we go through and explain what the grids actually are.
[0:59] Today, we're going to go through, and we're going to look at some real life examples,
[1:04] hypothetical individuals that meet certain requirements and see what the grids do in terms
[1:10] of their case to maybe help people understand a little bit better how the grids might be
[1:14] a benefit to them.
[1:16] But yeah, I think the reason they come up so much is because when you get to step five of
[1:22] the process, the burden shifts to the government, and the rules are really valuable because
[1:29] if, as we talked about in the last episode, if the rules determine inside the grid, the
[1:37] grid, because it's sort of a box, it has a bunch of squares in it, so it's a grid, right?
[1:42] If the grid says you're disabled, the court has to find you disabled.
[1:46] If the grid doesn't say you're disabled, doesn't necessarily mean you lose.
[1:52] Typically then you would have vocational expert testimony.
[1:54] You're going to have judge asking hypothetical questions, usually because there's the presence
[1:59] of non-exertional limitations.
[2:02] At the very last episode, we sort of just barely touched on this, we didn't really have time
[2:07] to get into it.
[2:08] The grid rules are designed, just for a quick recap, they look, they're at step five of
[2:13] the squintral evaluation process, now we're forecasted.
[2:16] We really need to go through the SCP again.
[2:19] That's like not one episode though, that's like for, we got step five here, regardless.
[2:26] When you get step five of the squintral evaluation process, the grid rules are sort of the
[2:31] starting point.
[2:32] They look at your RFC, which is the maximum amount of exertional activity the court determines
[2:39] you can do, looks at your age in the different categories, younger individual under 50, age
[2:47] 50, 54, age 55 or over, and you're closely retirement, but anyone over 55 is basically
[2:52] treated the same.
[2:53] So you have your age, you have your education, and you have your past work experience, which
[2:58] is going to be divided into unskilled, semi-skilled or skilled work.
[3:04] But that starting point in just looking at your exertional limitations will dictate a decision,
[3:11] but exertional limitations, and we talked about this in our RFC episode, sit, stand, walk,
[3:17] push, pull, carry, lift, the only seven exertional activities that are factored in there
[3:23] and you think, well, hold on a minute, what about reaching, what about squatting, what about
[3:29] the fact that I can't concentrate.
[3:30] Well, those are non-exertional limitations, and the grids are not designed to make decisions
[3:38] by and large when people have non-exertional limitations.
[3:41] Those cases are more nuanced, and because they're more nuanced, they're going to typically
[3:45] bring in vocational expert testimony.
[3:48] With exertional limitations and the RFC, you're going to have a really good idea of what
[3:56] type of work a person may be able to do.
[3:59] Don't forget, we're in step five of the process, so we've already proven the claimant has met
[4:03] their burden to prove that they're unable to do their past work.
[4:07] So now what we're looking at is the ability to move into other jobs in the national economy.
[4:14] So let's take a second, and let's go with hypothetical one.
[4:18] All right, pin out here.
[4:20] I'm going to write this down. We've got Mr. Robert.
[4:25] Robert is 57 years old.
[4:28] Okay, good start.
[4:30] Today he said he became disabled.
[4:32] He has an 11th grade education.
[4:35] Okay.
[4:36] He has worked for 25 years as a rougher.
[4:43] Now he's not the laborer, let's just say he's sort of the working crew leader.
[4:48] So he's not only doing the physical labor work, he's managing the crew,
[4:53] he's making sure the ridge vents installed correctly.
[4:58] First time at range, he don't end up with a big giant leak in the middle of your house.
[5:02] All that important stuff.
[5:03] And that's actually skilled work, which might be surprising to people.
[5:07] I think it says VP seven, maybe.
[5:09] And the determination has been made, that he is going to be limited to light work.
[5:16] He had a fall coming up and down the ladder, so he had a fall.
[5:22] He had a fall about three years ago, and he injured his knee, and he injured his back.
[5:30] So he had a back surgery, tried to go back to work.
[5:33] We're not talking about past work, I'm just giving you some background.
[5:36] He tried to go back to work, worked about a year or so, and just realized he couldn't do it.
[5:41] He also had chronic issues with his knees with arthritis, so he's got a back issue,
[5:47] that makes it difficult for him to lift.
[5:51] He's difficulty, also has some shoulder issues.
[5:56] Okay, you know, banging all those nails before they went to nail guns all those years.
[6:04] So he's got a knee problem, he's got a back problem, he's got a shoulder problem.
[6:08] He looks a lot like a guy who's been a root for for 25 years.
[6:12] Okay, so he's limited to light work, his past work is heavy, so we very quickly get out of step four.
[6:20] Now we're at step five.
[6:22] He's in the grids, walk us through the four components of the grids, and what's going to happen
[6:27] with Robert? All right, so we have unlimited to light, so we know which table we're looking at.
[6:35] He's aged 57, so he's an individual of advanced age, so far the grids are looking favorable.
[6:43] The 11th grade work history, sorry, 11th grade education, so that is a limited education,
[6:50] but he does have a skilled work history. And I think that's a good place to stop to and understand.
[6:56] Education is a factor, but it doesn't necessarily determine your level of
[7:02] prior work skill. Right.
[7:04] There are separate considerations, now they're factored in differently into the grid,
[7:08] but just to understand from a starting point, just because you have a lower education doesn't mean you
[7:13] have a higher skilled past work and vice versa. We have people who have a higher level of education,
[7:20] but sometimes they don't actually engage in skilled work. So regardless, he's got a skilled work
[7:26] history. Yes. So I think that the grids are looking favorable. The last hurdle I think we have to
[7:34] clear is the question of work skills. Right. Are there going to be transferable skills? Or can we
[7:41] argue that he's limited to unskilled work? Okay. Because of course, if you're limited to unskilled work,
[7:46] then you can't transfer skills. Right. So there's really two, there's really sort of two assessments there.
[7:52] One is does the limitations that are driving the RFC negate the skills? So you could have skills,
[8:02] but you can't use them. Right. It's sort of the idea. Or, and then the second question is,
[8:07] even if you could use your skills, do they actually have a transferable component such that they could move
[8:15] to a maybe less physically demanding job where those skills could be applied? Right. Okay. So how are
[8:21] you going to work through with Robert? Like, what's that? What's that going to look like in trying to work
[8:25] through those issues specifically? So some things that I'm looking at in preparing for the hearing
[8:33] on the first issue of are the skills actually usable? Right. We're going to be talking about pain.
[8:39] We've got back problems, knee problems, shoulder problems. So we're going to be looking at, you know,
[8:45] is the pain making it such that he's not able to use the skills because he'd be too distracted
[8:51] by how much things hurt? Medication side effects, is he taking pain medications that cause drowsiness?
[8:58] Maybe he's not safe to be on on ladders or roofs anymore because of those.
[9:03] The other issue that I'm going to be looking at is, you know, what do I think that the vocational
[9:09] expert is going to be testifying about these work skills? And one thing I think that sometimes surprises
[9:15] clients is I don't get to talk to the vocational expert before the hearing. There's no pre-trial
[9:21] deposition. There's no deposition. So the testimony that my client is hearing during hearing from
[9:29] the vocational expert. That's the first time hearing of it as well. It's somewhat ironic that it's
[9:34] a non adversarial process feels adversarial. It's just my opinion. But it's a non adversarial process
[9:43] in the use vocational expert testimony by ambush basically. Which doesn't seem non adversarial to be,
[9:50] but regardless, regardless. But you're not going to have to, you're trying to anticipate. So I'm trying
[9:54] to anticipate what the vocational expert might say. Going in, I think probably the vocational expert
[10:02] is going to say that these skills are going to be industry specific. Robert was on roofs his entire
[10:08] career. There's most likely any skills are going to be related to being on a roof.
[10:16] He is also age 57. So we might be looking at, you know, if he does have skills,
[10:22] do those adjust to other lines of work and how much adjustment does that take?
[10:27] Yeah, because when you look at the transfer ability of skills for people who are over 55,
[10:32] the regs are pretty clear that you need to have very close alignment with those skills. So
[10:39] that means they really need to basically be doing the same skill and the same environment with
[10:48] the same application. It's not sort of sounds like you have to do almost the same job, but I think
[10:54] that's really how the rules are designed to work. If you have transferable skills over 55, because of
[11:00] your age, there needs to be very minimal vocational adjustment for those. Okay, so what's your,
[11:05] what's your sort of rough guess on what's going to happen in the vocational component of this if it
[11:09] comes up? I think most likely the vocational experts going to tell us no transferable skills to
[11:16] industry specific. Right. The judge is going to say, okay, thank you. No follow-up questions.
[11:20] We don't need examples of jobs at light because the grid's dictate of finding. Right.
[11:25] If we get an ambush from the VE and the VE says, well, you know, there are all these transferable
[11:32] skills that would maybe apply to being an insurance adjuster or something. So he's not installing the
[11:37] roofs, but now he's going out and he's looking after storm damage to assess. Right. And so then I'm
[11:42] going to be preparing some follow-up questions. Right. Well, doesn't an insurance adjuster still have
[11:47] to get up on the roof? Still has to climb ladders. Right. And trying to chip away at the idea that he can
[11:54] transfer to some other. Yeah. That that that are showing that there's there's a fundamental
[12:00] difference when the skill he has and how it would be applied such that if you have a highly specific
[12:07] sort of industry understanding, it's difficult to take that level of specificity and go to a
[12:14] different industry without having to learn significantly. Right. And now you start saying that doesn't look
[12:22] that doesn't look like an easy adjustment. That looks like you're kind of learning a new job that
[12:27] you had a foundation for. But that's not closely aligned for someone who's over 55. Someone's younger
[12:34] might have a more difficult argument with that. But yeah, I think you're right. I think in this case
[12:39] you're going to end up with a approval based on the grids. You have strong arguments that the skills
[12:44] have been negated by the impairments themselves so that functionally this person is unskilled at this
[12:49] point. If the judge disagrees with that, you say, okay, well, there's very limited transferability of
[12:54] these skills. And even if they are transferable based on his age, they're probably not closely aligned
[13:00] such that there's going to be a significant amount of retraining that the rules say he doesn't have
[13:04] to do. Right. Yeah. So I think Robert's going to win. Yep. Looking good for Robert. All right. So let's go
[13:09] to Patricia patty. There's a patty in our office too, by the way. She's our client liaison. This is
[13:17] not who we're talking about. She is not a production of simple. I'm looking at what the job is.
[13:24] I love patty. She's great. She's not a production assembly worker.
[13:27] Patty's also like one of Aaron's main assistants in his federal court practice.
[13:34] All right. We do have patty though. And she's 52. She also has an 11th grade education.
[13:41] She's worked for 22 years as a production assembler, basically a medium unskilled factory job.
[13:48] And she has been limited to sedentary work. She had a significant work related injury,
[13:55] not talking about workers comp. She had a significantly significant work related injury
[14:01] where she also injured her back. But she had a very significant shoulder injury. So she's working in
[14:08] the production environment. She has a ends up having to have shoulder replacement.
[14:15] Has a pretty significant back issue as well. His own pretty high level man amount of pain medicine.
[14:21] And Judge says, hey, I think we're at sedentary here. I would personally challenge that.
[14:29] And we see this a lot too. They'll say, well, the judge says you're at sedentary and this is a good
[14:33] point. I think we need to people to understand. And they're like, well, I can't sit. But you need
[14:38] to understand it really doesn't matter when we're talking about the grids. Because if the maximum
[14:43] exertional level that you're able to sustain is sedentary and you're in the grid, you may very well
[14:50] whether you consider not it's actually irrelevant. Well, we can make that argument. And we
[14:54] would make that argument. But what you don't want to do is sort of get in the weeds about what the
[15:00] ultimate RFC is. If the RFC given is sufficient to win under the grids, then it doesn't really matter.
[15:07] Right. A win's a win. A win's a win. Right. So, so how are you going to work through and assess
[15:12] assessment's patties case? Like, what are we looking at? We know she's going to be sedentary.
[15:17] Talk through age education and work experience. So patties case is looking pretty good. She's
[15:22] she's over 50. So she's an individual closely approaching advanced stage. We know that she's
[15:29] at sedentary. So we're finding that box on the grid. Her work history is unskilled. So I'm not worried
[15:38] about transferable skills in her situation. We talked about the fact that she's on pain medication.
[15:44] So she's probably going to be limited to unskilled work anyway. Right. But even if she's not,
[15:49] she doesn't have skills to transfer. So that's all that's all looking good looking good for patty.
[15:55] Yeah. I mean, I think this is a good example of what I would consider to be a really good
[16:02] closely approaching advanced stage case. When you have someone that 50 to 54 range,
[16:07] you need them to be limited to sedentary because that's when the grids start to become advantageous
[16:12] for them. But now you're saying, okay, the court is not as favorable towards a 52-year-old as
[16:20] a 57-year-old because remember the older you become, the greater the presumption is that you're
[16:26] unable to make adjustments to other work in the economy. So it's powerful that she doesn't have
[16:33] a high school education. It's powerful that her work history is unskilled. This is someone who
[16:38] basically didn't have a lot of opportunities probably when she went into the workforce.
[16:45] But she's worked hard. She sustained her work. But if she has to come out of the workforce in this
[16:50] job that she can no longer do, it's highly unlikely that she's going to be able to find another job
[16:55] that she can do. And the rules correctly will find that she's disabled. And I think this is a case
[17:00] where she's going to win under the grids. Yes. One little tweak just for fun and giggles.
[17:09] What if she's 49 and a half? What if she's 49 and three quarters? So she's a younger individual
[17:16] but she's right on the cusp of changing age categories. Can you walk through how that's going to be
[17:22] assessed with her? Yes. Patty and I will have a very detailed conversation in her pre-hearing meeting
[17:28] that we're going to go in arguing that she's limited to less than sedentary because the only way that
[17:36] we can win technically under the grids with her being under 50 is to prove that she's limited to less
[17:43] than sedentary. However, there is a little bit of wiggle room with the grids. And so what we call that
[17:51] is a non-mechanical application of the grids. And essentially what that allows the judges to do
[17:57] is look at somebody's case and say, hey, you're within six months of changing age categories at which
[18:03] point the grids dictate a finding of disability. We can do a non-mechanical application and say,
[18:10] you're close enough. Is that six months? That three months really going to enable you to go back
[18:17] to the workforce? Are you close enough? And it's somewhat arbitrary at one level about the age.
[18:22] What we see is inside six months, you're going to have a good chance with that. But strategically,
[18:28] a lot of times what happens is people actually change age categories, not in this example,
[18:34] specifically, but they will change age categories. So if this person's, we can say they're right on the
[18:39] cusp at 49 and 10 months, then the judge can apply the grids non-mechanically. But a lot of times what
[18:47] might happen in a case like that is they might have applied it 49 and now they're 51 at the hearing.
[18:52] And what we're going to say is look, we know you were disabled at 49. We agree with you.
[18:57] But it's way easier to get you paid at age 50 because now we move from
[19:04] out of the age, out of the grids into the grids and so you're going to be able to move. So there's
[19:08] sort of two issues there. There's this really technical non-mechanical application and I don't want
[19:12] to confuse the issue. But there's the other issue of sometimes strategically it makes sense to
[19:17] a move your own set date to be inside. In fact, that's a very common strategy that she used to help
[19:21] people 50 and over when we have one final example. And I'm going to go through this a little bit
[19:28] quickly because I want to talk about, we talked about transferable skills, but I want to look at this.
[19:34] So we've got Donna. Donna is 56. She has a, she has a high school diploma, but she actually has a
[19:41] two-year nursing degree. So she went to Community College. She got her RN. She's an RN which is medium
[19:46] skilled work. She's worked as an RN for 20 years. She's 56 years old and now she has been
[19:53] limited to sedentary work for short on time according to our producer. So let's, let's go through,
[20:02] let's go through Donna's case and just how are you doing an assessment for her?
[20:08] All right. So 56, that looks good. Medium past relevant work and she's limited to sedentary,
[20:18] that that sounds good. But then oh, hold up. We have a skilled work history as an RN in the healthcare
[20:26] field. I'm a little bit concerned that there may be some transferable skills here. So if you think
[20:31] about it, if she doesn't have transferable skills or is in semi-skill work, she's going to win.
[20:36] Yes. If she's in a different job with this fact pattern and has an unskilled work, she's going
[20:40] to be just like Patricia and our patty in our former example. She's going to win. The, the kink
[20:46] here is that she has a highly skilled job that is industry specific, but it's broader maybe than our
[20:54] roofer. So what is that going to look like? What's the risk to her that the grids might not work
[20:59] favorably for her? If we cannot convince the judge that she's limited to unskilled work.
[21:06] So one of the things I'm looking at is do we have some medication side effects? Do we have some
[21:10] anxiety or depression that could get her to unskilled? But if we can't convince the judge that she's
[21:14] limited to unskilled, then I am pretty concerned. And limited to unskilled because the impairments themselves
[21:19] have such negated her ability to apply the skills she has. Right. Exactly. Then I am a little
[21:25] bit concerned about what our vocational expert might say at the hearing. So we may end up with vocational
[21:32] expert testimony that there are transferable skills to other similar type jobs in the health
[21:40] care industry. So some examples we see with nurses. Sometimes there's there's like a charge or
[21:45] admitted nurse who's mainly at the desk. Right. Sometimes there are nurses who work for insurance
[21:52] companies to approve or deny claims. Right. And those could be sedentary jobs. Right. So the the question
[22:00] is does she have sort of the intellectual skill set to be able to transfer to a sedentary job,
[22:05] which is what she's limited to in her RFC and still be able to take those skills that she has,
[22:10] which are which are very advanced as a nurse and apply them to some virtual triage or insurance
[22:20] review. And in attacking that, what you're going to do once again, similar to what we do with Robert,
[22:26] the Roofer is we're going to be able to say, okay, can she actually still have those skills?
[22:34] Right. Line one, line two would be is she actually going to be able to apply them
[22:40] without once again, she's 56. Is there sort of a clean alignment with those new skills so that
[22:45] there's little need for vocational adjustment? And a lot of times in these type cases,
[22:52] the judge will say, well, I think they can do that. And these cases sort of scare me a little bit
[22:57] because if someone with a really good work history who has a high skilled background,
[23:02] everything works for them in the grids except navigating this transferable skill component,
[23:08] and in a lot of cases like that, we're going to spend a lot of time trying to develop the non-exertional
[23:14] limitations, saying, hey, she has pain, she has issues of concentration, she has issues of
[23:20] medication management, you're still dealing, especially like with a nurse, even in a sort of a
[23:25] teleneur's capacity, a lot of times you are dealing with people's health and there's a lot of stake
[23:29] and you can't put people in danger in your job. So we might say, hey, it's not safe for her to work
[23:33] this other job or she's not going to be able to meet sort of the demands of working for an insurance
[23:39] company because she can't sustain her concentration. And so you're really going to lean into how do the
[23:45] impairments that are that she has exertionally lead to sort of non-exertional type issues or
[23:52] non-exertional issues themselves that can either reduce that skill set or make it difficult to think
[23:59] she's going to be able to apply it in a consistent way. So I think Donna's going to win. We're just winners
[24:05] today. I think Donna has a good case. Yeah, we took her case for sure. Like she got through intake,
[24:10] like I bet I'll fight the bite of transfer if the only fight we have is the transfer ability of
[24:15] skills inside the grids. I mean, that's a case we should be working on. And there's lots of other
[24:19] examples. But generally, understanding, get the age, get the education, understand transfer ability
[24:27] of skills, figure out what the RFC is, and you're going to be able to have a really good understanding
[24:34] very quickly about how strong your case is. In fact, grid analysis is something we're doing at intake
[24:39] because we know ultimately it is the whole of the girl, but this bill, it is, it is the way to win.
[24:44] That's all we got. We're out of time. Two episodes. We might do an elephant sometime on the grids,
[24:49] but I hope that last episode and this episode gives you some basic understanding. But that's all
[24:54] the time we got today. Thanks for watching. Subscribe.
[0:05] has never been more complicated.
[0:07] Welcome to the Disability Expert Podcast, where we tackle the difficult issues and interview
[0:11] the country's top experts to help you better navigate the disability process.
[0:16] Winning a disability case is hard and keeps getting tougher every day.
[0:19] We can't promise you'll win your case by listening, but we sure think it's going to help.
[0:24] This really isn't that complicated.
[0:26] I mean, you won't win your case, don't you?
[0:29] Well, then listen to what I say.
[0:31] Hey, welcome to the Disability Expert Podcast.
[0:33] I'm Chad Brown, I'm your host, and we're here once again talking about all things
[0:37] so secure disability.
[0:39] Here.
[0:40] Good to be back.
[0:41] Let's talk about the grids.
[0:42] Yeah, we are, I don't know how many episodes in a row.
[0:46] It seemed like four or five or six episodes in a row.
[0:49] We were like, because they're so important.
[0:52] Like, these are, you know, I talked about this in the last episode.
[0:56] If you didn't see our last episode, we go through and explain what the grids actually are.
[0:59] Today, we're going to go through, and we're going to look at some real life examples,
[1:04] hypothetical individuals that meet certain requirements and see what the grids do in terms
[1:10] of their case to maybe help people understand a little bit better how the grids might be
[1:14] a benefit to them.
[1:16] But yeah, I think the reason they come up so much is because when you get to step five of
[1:22] the process, the burden shifts to the government, and the rules are really valuable because
[1:29] if, as we talked about in the last episode, if the rules determine inside the grid, the
[1:37] grid, because it's sort of a box, it has a bunch of squares in it, so it's a grid, right?
[1:42] If the grid says you're disabled, the court has to find you disabled.
[1:46] If the grid doesn't say you're disabled, doesn't necessarily mean you lose.
[1:52] Typically then you would have vocational expert testimony.
[1:54] You're going to have judge asking hypothetical questions, usually because there's the presence
[1:59] of non-exertional limitations.
[2:02] At the very last episode, we sort of just barely touched on this, we didn't really have time
[2:07] to get into it.
[2:08] The grid rules are designed, just for a quick recap, they look, they're at step five of
[2:13] the squintral evaluation process, now we're forecasted.
[2:16] We really need to go through the SCP again.
[2:19] That's like not one episode though, that's like for, we got step five here, regardless.
[2:26] When you get step five of the squintral evaluation process, the grid rules are sort of the
[2:31] starting point.
[2:32] They look at your RFC, which is the maximum amount of exertional activity the court determines
[2:39] you can do, looks at your age in the different categories, younger individual under 50, age
[2:47] 50, 54, age 55 or over, and you're closely retirement, but anyone over 55 is basically
[2:52] treated the same.
[2:53] So you have your age, you have your education, and you have your past work experience, which
[2:58] is going to be divided into unskilled, semi-skilled or skilled work.
[3:04] But that starting point in just looking at your exertional limitations will dictate a decision,
[3:11] but exertional limitations, and we talked about this in our RFC episode, sit, stand, walk,
[3:17] push, pull, carry, lift, the only seven exertional activities that are factored in there
[3:23] and you think, well, hold on a minute, what about reaching, what about squatting, what about
[3:29] the fact that I can't concentrate.
[3:30] Well, those are non-exertional limitations, and the grids are not designed to make decisions
[3:38] by and large when people have non-exertional limitations.
[3:41] Those cases are more nuanced, and because they're more nuanced, they're going to typically
[3:45] bring in vocational expert testimony.
[3:48] With exertional limitations and the RFC, you're going to have a really good idea of what
[3:56] type of work a person may be able to do.
[3:59] Don't forget, we're in step five of the process, so we've already proven the claimant has met
[4:03] their burden to prove that they're unable to do their past work.
[4:07] So now what we're looking at is the ability to move into other jobs in the national economy.
[4:14] So let's take a second, and let's go with hypothetical one.
[4:18] All right, pin out here.
[4:20] I'm going to write this down. We've got Mr. Robert.
[4:25] Robert is 57 years old.
[4:28] Okay, good start.
[4:30] Today he said he became disabled.
[4:32] He has an 11th grade education.
[4:35] Okay.
[4:36] He has worked for 25 years as a rougher.
[4:43] Now he's not the laborer, let's just say he's sort of the working crew leader.
[4:48] So he's not only doing the physical labor work, he's managing the crew,
[4:53] he's making sure the ridge vents installed correctly.
[4:58] First time at range, he don't end up with a big giant leak in the middle of your house.
[5:02] All that important stuff.
[5:03] And that's actually skilled work, which might be surprising to people.
[5:07] I think it says VP seven, maybe.
[5:09] And the determination has been made, that he is going to be limited to light work.
[5:16] He had a fall coming up and down the ladder, so he had a fall.
[5:22] He had a fall about three years ago, and he injured his knee, and he injured his back.
[5:30] So he had a back surgery, tried to go back to work.
[5:33] We're not talking about past work, I'm just giving you some background.
[5:36] He tried to go back to work, worked about a year or so, and just realized he couldn't do it.
[5:41] He also had chronic issues with his knees with arthritis, so he's got a back issue,
[5:47] that makes it difficult for him to lift.
[5:51] He's difficulty, also has some shoulder issues.
[5:56] Okay, you know, banging all those nails before they went to nail guns all those years.
[6:04] So he's got a knee problem, he's got a back problem, he's got a shoulder problem.
[6:08] He looks a lot like a guy who's been a root for for 25 years.
[6:12] Okay, so he's limited to light work, his past work is heavy, so we very quickly get out of step four.
[6:20] Now we're at step five.
[6:22] He's in the grids, walk us through the four components of the grids, and what's going to happen
[6:27] with Robert? All right, so we have unlimited to light, so we know which table we're looking at.
[6:35] He's aged 57, so he's an individual of advanced age, so far the grids are looking favorable.
[6:43] The 11th grade work history, sorry, 11th grade education, so that is a limited education,
[6:50] but he does have a skilled work history. And I think that's a good place to stop to and understand.
[6:56] Education is a factor, but it doesn't necessarily determine your level of
[7:02] prior work skill. Right.
[7:04] There are separate considerations, now they're factored in differently into the grid,
[7:08] but just to understand from a starting point, just because you have a lower education doesn't mean you
[7:13] have a higher skilled past work and vice versa. We have people who have a higher level of education,
[7:20] but sometimes they don't actually engage in skilled work. So regardless, he's got a skilled work
[7:26] history. Yes. So I think that the grids are looking favorable. The last hurdle I think we have to
[7:34] clear is the question of work skills. Right. Are there going to be transferable skills? Or can we
[7:41] argue that he's limited to unskilled work? Okay. Because of course, if you're limited to unskilled work,
[7:46] then you can't transfer skills. Right. So there's really two, there's really sort of two assessments there.
[7:52] One is does the limitations that are driving the RFC negate the skills? So you could have skills,
[8:02] but you can't use them. Right. It's sort of the idea. Or, and then the second question is,
[8:07] even if you could use your skills, do they actually have a transferable component such that they could move
[8:15] to a maybe less physically demanding job where those skills could be applied? Right. Okay. So how are
[8:21] you going to work through with Robert? Like, what's that? What's that going to look like in trying to work
[8:25] through those issues specifically? So some things that I'm looking at in preparing for the hearing
[8:33] on the first issue of are the skills actually usable? Right. We're going to be talking about pain.
[8:39] We've got back problems, knee problems, shoulder problems. So we're going to be looking at, you know,
[8:45] is the pain making it such that he's not able to use the skills because he'd be too distracted
[8:51] by how much things hurt? Medication side effects, is he taking pain medications that cause drowsiness?
[8:58] Maybe he's not safe to be on on ladders or roofs anymore because of those.
[9:03] The other issue that I'm going to be looking at is, you know, what do I think that the vocational
[9:09] expert is going to be testifying about these work skills? And one thing I think that sometimes surprises
[9:15] clients is I don't get to talk to the vocational expert before the hearing. There's no pre-trial
[9:21] deposition. There's no deposition. So the testimony that my client is hearing during hearing from
[9:29] the vocational expert. That's the first time hearing of it as well. It's somewhat ironic that it's
[9:34] a non adversarial process feels adversarial. It's just my opinion. But it's a non adversarial process
[9:43] in the use vocational expert testimony by ambush basically. Which doesn't seem non adversarial to be,
[9:50] but regardless, regardless. But you're not going to have to, you're trying to anticipate. So I'm trying
[9:54] to anticipate what the vocational expert might say. Going in, I think probably the vocational expert
[10:02] is going to say that these skills are going to be industry specific. Robert was on roofs his entire
[10:08] career. There's most likely any skills are going to be related to being on a roof.
[10:16] He is also age 57. So we might be looking at, you know, if he does have skills,
[10:22] do those adjust to other lines of work and how much adjustment does that take?
[10:27] Yeah, because when you look at the transfer ability of skills for people who are over 55,
[10:32] the regs are pretty clear that you need to have very close alignment with those skills. So
[10:39] that means they really need to basically be doing the same skill and the same environment with
[10:48] the same application. It's not sort of sounds like you have to do almost the same job, but I think
[10:54] that's really how the rules are designed to work. If you have transferable skills over 55, because of
[11:00] your age, there needs to be very minimal vocational adjustment for those. Okay, so what's your,
[11:05] what's your sort of rough guess on what's going to happen in the vocational component of this if it
[11:09] comes up? I think most likely the vocational experts going to tell us no transferable skills to
[11:16] industry specific. Right. The judge is going to say, okay, thank you. No follow-up questions.
[11:20] We don't need examples of jobs at light because the grid's dictate of finding. Right.
[11:25] If we get an ambush from the VE and the VE says, well, you know, there are all these transferable
[11:32] skills that would maybe apply to being an insurance adjuster or something. So he's not installing the
[11:37] roofs, but now he's going out and he's looking after storm damage to assess. Right. And so then I'm
[11:42] going to be preparing some follow-up questions. Right. Well, doesn't an insurance adjuster still have
[11:47] to get up on the roof? Still has to climb ladders. Right. And trying to chip away at the idea that he can
[11:54] transfer to some other. Yeah. That that that are showing that there's there's a fundamental
[12:00] difference when the skill he has and how it would be applied such that if you have a highly specific
[12:07] sort of industry understanding, it's difficult to take that level of specificity and go to a
[12:14] different industry without having to learn significantly. Right. And now you start saying that doesn't look
[12:22] that doesn't look like an easy adjustment. That looks like you're kind of learning a new job that
[12:27] you had a foundation for. But that's not closely aligned for someone who's over 55. Someone's younger
[12:34] might have a more difficult argument with that. But yeah, I think you're right. I think in this case
[12:39] you're going to end up with a approval based on the grids. You have strong arguments that the skills
[12:44] have been negated by the impairments themselves so that functionally this person is unskilled at this
[12:49] point. If the judge disagrees with that, you say, okay, well, there's very limited transferability of
[12:54] these skills. And even if they are transferable based on his age, they're probably not closely aligned
[13:00] such that there's going to be a significant amount of retraining that the rules say he doesn't have
[13:04] to do. Right. Yeah. So I think Robert's going to win. Yep. Looking good for Robert. All right. So let's go
[13:09] to Patricia patty. There's a patty in our office too, by the way. She's our client liaison. This is
[13:17] not who we're talking about. She is not a production of simple. I'm looking at what the job is.
[13:24] I love patty. She's great. She's not a production assembly worker.
[13:27] Patty's also like one of Aaron's main assistants in his federal court practice.
[13:34] All right. We do have patty though. And she's 52. She also has an 11th grade education.
[13:41] She's worked for 22 years as a production assembler, basically a medium unskilled factory job.
[13:48] And she has been limited to sedentary work. She had a significant work related injury,
[13:55] not talking about workers comp. She had a significantly significant work related injury
[14:01] where she also injured her back. But she had a very significant shoulder injury. So she's working in
[14:08] the production environment. She has a ends up having to have shoulder replacement.
[14:15] Has a pretty significant back issue as well. His own pretty high level man amount of pain medicine.
[14:21] And Judge says, hey, I think we're at sedentary here. I would personally challenge that.
[14:29] And we see this a lot too. They'll say, well, the judge says you're at sedentary and this is a good
[14:33] point. I think we need to people to understand. And they're like, well, I can't sit. But you need
[14:38] to understand it really doesn't matter when we're talking about the grids. Because if the maximum
[14:43] exertional level that you're able to sustain is sedentary and you're in the grid, you may very well
[14:50] whether you consider not it's actually irrelevant. Well, we can make that argument. And we
[14:54] would make that argument. But what you don't want to do is sort of get in the weeds about what the
[15:00] ultimate RFC is. If the RFC given is sufficient to win under the grids, then it doesn't really matter.
[15:07] Right. A win's a win. A win's a win. Right. So, so how are you going to work through and assess
[15:12] assessment's patties case? Like, what are we looking at? We know she's going to be sedentary.
[15:17] Talk through age education and work experience. So patties case is looking pretty good. She's
[15:22] she's over 50. So she's an individual closely approaching advanced stage. We know that she's
[15:29] at sedentary. So we're finding that box on the grid. Her work history is unskilled. So I'm not worried
[15:38] about transferable skills in her situation. We talked about the fact that she's on pain medication.
[15:44] So she's probably going to be limited to unskilled work anyway. Right. But even if she's not,
[15:49] she doesn't have skills to transfer. So that's all that's all looking good looking good for patty.
[15:55] Yeah. I mean, I think this is a good example of what I would consider to be a really good
[16:02] closely approaching advanced stage case. When you have someone that 50 to 54 range,
[16:07] you need them to be limited to sedentary because that's when the grids start to become advantageous
[16:12] for them. But now you're saying, okay, the court is not as favorable towards a 52-year-old as
[16:20] a 57-year-old because remember the older you become, the greater the presumption is that you're
[16:26] unable to make adjustments to other work in the economy. So it's powerful that she doesn't have
[16:33] a high school education. It's powerful that her work history is unskilled. This is someone who
[16:38] basically didn't have a lot of opportunities probably when she went into the workforce.
[16:45] But she's worked hard. She sustained her work. But if she has to come out of the workforce in this
[16:50] job that she can no longer do, it's highly unlikely that she's going to be able to find another job
[16:55] that she can do. And the rules correctly will find that she's disabled. And I think this is a case
[17:00] where she's going to win under the grids. Yes. One little tweak just for fun and giggles.
[17:09] What if she's 49 and a half? What if she's 49 and three quarters? So she's a younger individual
[17:16] but she's right on the cusp of changing age categories. Can you walk through how that's going to be
[17:22] assessed with her? Yes. Patty and I will have a very detailed conversation in her pre-hearing meeting
[17:28] that we're going to go in arguing that she's limited to less than sedentary because the only way that
[17:36] we can win technically under the grids with her being under 50 is to prove that she's limited to less
[17:43] than sedentary. However, there is a little bit of wiggle room with the grids. And so what we call that
[17:51] is a non-mechanical application of the grids. And essentially what that allows the judges to do
[17:57] is look at somebody's case and say, hey, you're within six months of changing age categories at which
[18:03] point the grids dictate a finding of disability. We can do a non-mechanical application and say,
[18:10] you're close enough. Is that six months? That three months really going to enable you to go back
[18:17] to the workforce? Are you close enough? And it's somewhat arbitrary at one level about the age.
[18:22] What we see is inside six months, you're going to have a good chance with that. But strategically,
[18:28] a lot of times what happens is people actually change age categories, not in this example,
[18:34] specifically, but they will change age categories. So if this person's, we can say they're right on the
[18:39] cusp at 49 and 10 months, then the judge can apply the grids non-mechanically. But a lot of times what
[18:47] might happen in a case like that is they might have applied it 49 and now they're 51 at the hearing.
[18:52] And what we're going to say is look, we know you were disabled at 49. We agree with you.
[18:57] But it's way easier to get you paid at age 50 because now we move from
[19:04] out of the age, out of the grids into the grids and so you're going to be able to move. So there's
[19:08] sort of two issues there. There's this really technical non-mechanical application and I don't want
[19:12] to confuse the issue. But there's the other issue of sometimes strategically it makes sense to
[19:17] a move your own set date to be inside. In fact, that's a very common strategy that she used to help
[19:21] people 50 and over when we have one final example. And I'm going to go through this a little bit
[19:28] quickly because I want to talk about, we talked about transferable skills, but I want to look at this.
[19:34] So we've got Donna. Donna is 56. She has a, she has a high school diploma, but she actually has a
[19:41] two-year nursing degree. So she went to Community College. She got her RN. She's an RN which is medium
[19:46] skilled work. She's worked as an RN for 20 years. She's 56 years old and now she has been
[19:53] limited to sedentary work for short on time according to our producer. So let's, let's go through,
[20:02] let's go through Donna's case and just how are you doing an assessment for her?
[20:08] All right. So 56, that looks good. Medium past relevant work and she's limited to sedentary,
[20:18] that that sounds good. But then oh, hold up. We have a skilled work history as an RN in the healthcare
[20:26] field. I'm a little bit concerned that there may be some transferable skills here. So if you think
[20:31] about it, if she doesn't have transferable skills or is in semi-skill work, she's going to win.
[20:36] Yes. If she's in a different job with this fact pattern and has an unskilled work, she's going
[20:40] to be just like Patricia and our patty in our former example. She's going to win. The, the kink
[20:46] here is that she has a highly skilled job that is industry specific, but it's broader maybe than our
[20:54] roofer. So what is that going to look like? What's the risk to her that the grids might not work
[20:59] favorably for her? If we cannot convince the judge that she's limited to unskilled work.
[21:06] So one of the things I'm looking at is do we have some medication side effects? Do we have some
[21:10] anxiety or depression that could get her to unskilled? But if we can't convince the judge that she's
[21:14] limited to unskilled, then I am pretty concerned. And limited to unskilled because the impairments themselves
[21:19] have such negated her ability to apply the skills she has. Right. Exactly. Then I am a little
[21:25] bit concerned about what our vocational expert might say at the hearing. So we may end up with vocational
[21:32] expert testimony that there are transferable skills to other similar type jobs in the health
[21:40] care industry. So some examples we see with nurses. Sometimes there's there's like a charge or
[21:45] admitted nurse who's mainly at the desk. Right. Sometimes there are nurses who work for insurance
[21:52] companies to approve or deny claims. Right. And those could be sedentary jobs. Right. So the the question
[22:00] is does she have sort of the intellectual skill set to be able to transfer to a sedentary job,
[22:05] which is what she's limited to in her RFC and still be able to take those skills that she has,
[22:10] which are which are very advanced as a nurse and apply them to some virtual triage or insurance
[22:20] review. And in attacking that, what you're going to do once again, similar to what we do with Robert,
[22:26] the Roofer is we're going to be able to say, okay, can she actually still have those skills?
[22:34] Right. Line one, line two would be is she actually going to be able to apply them
[22:40] without once again, she's 56. Is there sort of a clean alignment with those new skills so that
[22:45] there's little need for vocational adjustment? And a lot of times in these type cases,
[22:52] the judge will say, well, I think they can do that. And these cases sort of scare me a little bit
[22:57] because if someone with a really good work history who has a high skilled background,
[23:02] everything works for them in the grids except navigating this transferable skill component,
[23:08] and in a lot of cases like that, we're going to spend a lot of time trying to develop the non-exertional
[23:14] limitations, saying, hey, she has pain, she has issues of concentration, she has issues of
[23:20] medication management, you're still dealing, especially like with a nurse, even in a sort of a
[23:25] teleneur's capacity, a lot of times you are dealing with people's health and there's a lot of stake
[23:29] and you can't put people in danger in your job. So we might say, hey, it's not safe for her to work
[23:33] this other job or she's not going to be able to meet sort of the demands of working for an insurance
[23:39] company because she can't sustain her concentration. And so you're really going to lean into how do the
[23:45] impairments that are that she has exertionally lead to sort of non-exertional type issues or
[23:52] non-exertional issues themselves that can either reduce that skill set or make it difficult to think
[23:59] she's going to be able to apply it in a consistent way. So I think Donna's going to win. We're just winners
[24:05] today. I think Donna has a good case. Yeah, we took her case for sure. Like she got through intake,
[24:10] like I bet I'll fight the bite of transfer if the only fight we have is the transfer ability of
[24:15] skills inside the grids. I mean, that's a case we should be working on. And there's lots of other
[24:19] examples. But generally, understanding, get the age, get the education, understand transfer ability
[24:27] of skills, figure out what the RFC is, and you're going to be able to have a really good understanding
[24:34] very quickly about how strong your case is. In fact, grid analysis is something we're doing at intake
[24:39] because we know ultimately it is the whole of the girl, but this bill, it is, it is the way to win.
[24:44] That's all we got. We're out of time. Two episodes. We might do an elephant sometime on the grids,
[24:49] but I hope that last episode and this episode gives you some basic understanding. But that's all
[24:54] the time we got today. Thanks for watching. Subscribe.
