Larkin v. Saul -- POMS Supports the Majority and the Dissent

  An unpublished decision containing a dissent provides some level of concern.  Larkin v. Saul provides the example of the day.  Judges Collins and VanDyke affirmed the final decision of the Commissioner to deny Larkin's claim for benefits.  Judge Berzon would have reversed and remanded.  The case centers around the state agency psych workup, juxtaposing the section I worksheet with the section III residual functional capacity assessment.  

The case centers around application of Stubbs-Danielson v. Astrue.  The majority Stubbs-Danielson as the "most applicable precedent."  Larkin's description of the case informs the application of precedent:

Not unlike this case, the ALJ in Stubbs-Danielson was faced with physicians' statements like: "claimant has several mental limitations" and "borderline intellectual functioning" and "slow pace in thought and action" and is "moderately limited in her ability to perform at a consistent pace without an unreasonable number and length of rest periods," but also that she "showed good persistence" and "retained the ability to carry out simple tasks" and "could perform simple work without public contact." Id. at 1171, 1173 (internal quotation marks omitted). The ALJ ultimately "determined that Stubbs-Danielson `retained the residual functional capacity to perform simple, routine, repetitive sedentary work, requiring no interaction with the public.'" Id. at 1171 (alteration marks omitted).

Hoopai v. Astrue stands for the same basic proposition.  The doctor said two things about persistence that reside in conflict.  Moderate limitations in performing at a consistent pace conflicts with the statement that the claimant had good persistence and still had the ability to perform simple tasks without public contact.  

POMS DI 24510.060 describes the process of the mental residual functional capacity assessment.  The purpose of section I is to document the presence and degree of specific functional limitations and hte adequacy of the documentation.  Section B.2.a states that section I is a mere worksheet and an aid that does not constitute the RFC assessment.  Section B.2.c describes moderately limited as greater than not significantly limited and less than markedly limited.  A moderate limitation in any of the 20 categories represents a significant impairment but it is not a RFC assessment.  That structure supports the treatment of the tension between moderate limitations in moderate limitation in performing at a consistent pace and having good persistence for simple non-public work.  The section III findings are the RFC and the section I categories are a worksheet.  That supports the majority opinion.  

Judge Berzon makes the observation:

The ability to complete a regular workweek is a separate employment qualification from performing simple, routine tasks. A person may be able to perform simple, routine tasks on one day and still be limited in her ability to appear for work the following day because she is suffering from an episode of depression or anxiety. Dr. Comrie's summary sentence on which the majority focuses—"[Larkin] will have some limitation with keeping a regular workweek due to her mood and anxiety [symptoms] but she retains the ability to follow through with routine tasks with reasonable [concentration, persistence, and pace]"—firmly distinguishes between the ability to show up to work regularly and the ability, when at work, to complete tasks. If the ALJ had questions about what the sentence meant, then he should have inquired further.

 POMS DI 24510.060, first bullet, describes an endorsement of a moderate limitation in performing at a consistent pace as present and a specific functional limitation.  POMS DI 25020.010 sec. B.3 lists 14 functional requirements that are critical to performing unskilled work.  Section B.3.i lists as one of the critical functions:

complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. (These requirements are usually strict.)

It is not persistence but a consistent pace that is both critical to performing unskilled work and represents a usually strict requirement.  Persistence is an attribute of semi-skilled and skilled work per sec. B.4.b.  Judge Berzon poses the question of whether having the persistence to complete simple work represents a different functional problem compared to getting to work regularly and completing tasks on a timely basis.  POMS answers that question, yes.  More importantly, the need to complete tasks in a timely fashion is strictly enforced.  

My question is whether that question was posed by the representative at the hearing.  The lack of statement to the contrary tells me, "no."  The order adopting the report and recommendation is available on google scholar but the R&R is not.  

Nor was POMS centered in the available materials.  The Ninth Circuit is scattered on this issue.  POMS is entitled to at least respect.  As a construction of the RFC regulation that is facially incomplete (404.1545(c)), POMS warrants deference.  That is a subject for another day.  

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Suggested Citation:

Lawrence Rohlfing, Larkin v. Saul -- POMS Supports the Majority and the Dissent, California Social Security Attorney (August 13, 2020) https://californiasocialsecurityattorney.blogspot.com/2020/08/larkin-v-saul-poms-supports-majority.html