February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley

 Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at a second of those dispositions. 

2. Cuestas v. O'Malley - Cuestas argued that the ALJ did not explain how the agency considered supportability and consistency. The Court disagreed, but did not give examples.

Cuestas argued that the ALJ relied on objective basis for symptoms and limitations. The Court found that the ALJ did and could rely on the failure to comply with medical advice and failed to attend pain management. 

Cuestas argued that the ALJ did not pose all the limitations to the vocational witness. This is a rehash of the opinion and subjective testimony issue -- not a separate issue. 

Cuestas argued that the ALJ disregarded evidence of interaction with other people as stated by the Bureau of Labor Statistics. The Court found that the ALJ could rely on the DOT and the vocational testimony to reach the conclusion that Cuestas could perform other work.

COMMENT: The courts have this issue wrong. Heckler v. Campbell, 461 U.S. 458, 469, n.13 (1983):

Rather the court's reference to notice and an opportunity to respond appears to be based on a principle of administrative law — that when an agency takes official or administrative notice of facts, a litigant must be given an adequate opportunity to respond.^[13] See 5 U. S. C. § 556(e); McDaniel v. Celebrezze, 331 F. 2d 426 (CA4 1964).

13 The Court of Appeals did not identify any basis for imposing this requirement other than its earlier decision in Decker v. Harris, 647 F. 2d 291 (CA2 1981). Decker, however, identified the source of this requirement more clearly. It stated: "This requirement of specificity . . . assures the claimant of adequate notice of the grounds on which his claim may be denied, providing him with an opportunity to present rebuttal evidence. See generally 3 K. Davis, Administrative Law Treatise § 15.18, at 198-206 (2d ed. 1980)." Id., at 298.

(Emphasis added). The COSS takes administrative notice of the DOT by regulation and expands that notice to include the SCO. Most of the DOT codes have a Date Last Updated code of 1977. Vocational witnesses have local experience, not national experience. An ALJ can rely on unrebutted nonsense. Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019). But if the vocational testimony is "feeble" or "contradicted," the testimony is no longer unrebutted. Id. at 1156. The claimant can show that the testimony was "untrustworthy" or "contradicted." Ford v. Saul, 950 F.3d 1141, 1159 (9th Cir. 2020). 

Cuestas rebutted the vocational testimony with BLS data. The testimony is now contradicted under Biestek and Ford. Why did the ALJ reject the BLS data? The Court does not say why. The Court says that the ALJ may rely on vocational testimony and the DOT regardless of what BLS publishes. 

As a society, we continue with the national consternation over whether private parties or the government can count. The vocational witnesses called by the COSS should travel under two names: Rudy and Sidney. We should label the data published by the Department of Labor -- when the O*NET, ORS, EP, or OEWS -- as the national election bureau. Believing that housekeeping cleaner, photocopy machine operator, or marker don't have extensive contact with others is nonsense. From the District Court decision:

The VE stated that she had no data to refuse the BLS statistic indicating that for the job of Photocopy Machine Operator, up to 82 percent of the people who do that job have contact with others constantly or most of the time. AR 65-66. For the job of Marketer, the BLS data indicated that 90 percent of people performing that job had contact with others most of the time or constantly. The VE stated that she had no data to refute that statistic. AR 66-67.

The record has statistical data from the Department of Labor that the vast majority of photocopy machine operators and markers have frequent or constant contact with others. The witness does not have a statistical basis for refuting what DOL reports according to OMB standards. That is not substantial evidence. That is garbage. 

1. The DOT does not address work contact with coworkers. 

2. The witness does not have a basis for overcoming DOL data (the source that describes contact with others is the O*NET, published by the ETA, not BLS). 

3. Would a reasonable mind accept Rudy and Sidney's word as election experts over the Georgia Secretary of State? No. Nor should the courts accept every bile that vomits from the vocational witnesses mouth. 

The unaddressed issue of housekeeping cleaners is the problem. About 18% of those jobs have occasional (8%) or no (10%) contact with others. That probably makes the contact with others harmless. But the ORS (a BLS product) confirms that housekeeping cleaners do not sit two hours a day. 

Cuestas is wrong at step five. I vigorously dissent, but I'm not a judge. 

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Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Cuestas v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley

Two months into the 2024 calendar and the Ninth Circuit has issued nine unpublished memoranda, seven in February. We take a look at one of those seven dispositions, all losses for the claimant-appellant. 

1. Slayton v. O'Malley - the Court affirmed.

    a. Dr. Haggerty opined that Slayton could sit or stand for just 15 minutes and lift no more than 10 pounds, limited to working one hour in a workday with high levels of absenteeism. The record contains contradicting evidence. The ALJ rejected Dr. Haggerty's opinions citing contradiction, minimal treatment, and easily performed activities of daily living. The ALJ found that the opinion was "largely conclusory" and had little to objectively support the extreme limitations. 

    b. Dr. Rado described Slayton as needing a 10 minute break every hour. The ALJ found the opinion contradicted and at odds with the objective record including normal neurological examinations. 

    COMMENT: The presence of contradiction with other opinions is never a reason to reject the evidence. The presence of contradiction triggers the need to state why the ALJ rejected the opinion evidence. When an ALJ uses adverbs that exclude always, the ALJ is fudging the record. Largely, mostly, normally, frequently -- all of those words mean that some of the objective findings were abnormal. For some opinion sources, the glass is half full, when the findings are normal, the person can function. For other opinion sources, the glass is half empty, when the findings are abnormal, the person has limited function. When the half empty view casts the limited function as persistent or always, the source has exaggerated. That allows the ALJ to reject the evidence. It is equally true that the half full opinion is flawed. Counsel should focus on why the ALJ erred in accepting that opinion for the reasons stated to reject the other evidence. 

    c. The ALJ rejected Slayton's symptom and limitation testimony. The ALJ relied on conservative treatment and activities of daily living. 

    COMMENT: The Ninth Circuit has dueling panels. The Court cites "Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (finding that a claimant’s daily activities suggested that his “claims about the severity of his limitations were exaggerated”); Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir. 2007) (explaining that evidence of conservative treatment 'is sufficient to discount a claimant’s testimony regarding severity of an impairment')." The Court does not consider the other line of case finding that activities of daily living do not translate easily to the rigors of work. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). There is a synthesis that turns first on the denial or minimizing of ADL. The nature of a memorandum disposition does not lend itself to the hard consideration of nuanced questions. We must remain diligent to and address those nuanced questions. 

    d. Slayton raised a step four question. Courts and parties sometimes conflate the RFC assessment as a step four finding. It is not. It is the second half of step three, or what I call an interim step. The consideration of vocational questions is never an opportunity to argue about the RFC -- again. 

___________________________

Suggested Citation:

Lawrence Rohlfing, February 2024 Unpublished Ninth Circuit Memoranda -- Slayton v. O'Malley, California Social Security Attorney (March 17, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.

 

No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley

 In Terry v. Saul, 998 F.3d 1010 (9th Cir. 2021), the court ruled that if an ALJ told the vocational expert to assume an ability to perform medium work, that direction implied and everyone knows that the ability to perform medium work includes a limit to standing/walking in combination for six hours in a workday. A different panel extended Terry to light work in Guillermina R. v. Kijakazi. The Tenth Circuit agreed with the reasoning without citing Terry in Sewell v. Comm'r, SSA. Those three cases have two things in common: (1) they are all wrong; and (2) I handled them. 

On March 26, 2024, the Ninth Circuit rolled back on Terry. In Conway v. O'Malley, ___ F.4th ___ (9th Cir. 2024), The court started with the Terry presumption, medium work includes a limit to standing/walking six hours in a workday. Undaunted by the identification of work requiring medium exertion, From the court decision:

"if someone's only able to be on their feet for six out of eight hours, maximum, would they be able to do any medium work or the jobs you listed?" The expert responded, "The three sample occupations would not comport with that additional work restriction and [sic] would be difficult for me to provide substitute unskilled, medium occupations where a worker would be capped at being on their feet no more than six hours in a workday."

The Commissioner argued that the original hypothetical question included the limitation to six hours by inference. Conway argued that cross-examination rebutted the presumption. The court noted that Terry's counsel at the hearing did not attempt to rebut the presumption or meaningfully cross-examine the vocational expert. (That's true but Terry did submit Occupational Requirements Survey data that showed that the work identified required more than six hours of standing/walking in a workday; I didn't handle the hearing). The court then noted that presumptions are generally rebuttable. 

The court held that the cross-examination revealed that the vocational expert "did not understand" that the limitation to medium work included a six-hour limitation. The Commissioner argued that the limitation described in cross-examination did not accurately reflect the state agency findings -- about six hours. The court rejected the "about" discrepancy as meaningful. 

Let's examine this "about" problem from a different angle. The state agency doctors are charged with finding a residual functional capacity (RFC). 20 CFR sec. 404.1546(a). An RFC is always the most that the person can do. 20 CFR sec. 404.1545(a). When the state agency finds "about six hours" as the most that the person could do, the state agency put a ceiling of six hours and recognizes that there may be times with the capacity is less but not more. Using "about six hours" as allowing 6.4 hours per day every day would mean that the RFC finding was not accurate and complete. "About six hours" is not an average of six hours, it is at most six hours. 

Undaunted, Judge Rawlinson dissented. The facts are clear, if Conway is limited to six hours of standing/walking in a workday, he cannot perform medium jobs identified. Judge Rawlinson took the vocational expert statement that capping standing and walking at six hours is an additional work restriction. That's right. The witnesses do not assume a six-hour limitation, they have to be told explicitly that there is a six-hour limitation in standing/walking. More importantly, the six hours is implied, not as an about limitation, but as a clear limitation. That's what Terry says. Everyone knows that medium work as defined in SSR 83-10 has a limit of six hours. Conway shows that the vocational witnesses do not know that, assume that, or care about that. 

Conway demonstrates that the Terry presumption is wrong. In my anecdotal experience, vocational witnesses assume that "stand and/or walk for six hours" means that the person could stand/walk for a total of eight hours. A few hours standing here, a little walking there, some more standing, and some more walking. Most unskilled medium jobs do not allow sitting on the job. 

Some vocational experts will state that the person gets to sit for 15 minutes during the morning and afternoon break and 30 minutes at the meal break. That makes an hour so sneaking in another 60 minutes is not hard to do. This is the kind of sophistry to which VW resort. By sophistry, I mean that they lie. 

Assume a person engaged in medium cleaner work. The bell rings and the person gets 10 to 15 minutes for a break. The person gets not more than 15 minutes (California is it 10). To sit the entire 15 minutes, the person must drop down and sit exactly where they stand when the bell rings. If the person needs to engage in body functions and the restroom is 2 minutes away, the person cannot sit for 15 minutes because getting to the restroom takes 2 minutes there and 2 minutes back. 

The meal break is worse. The 10-15 minute rest breaks are generally paid breaks. The meal break is not paid unless the person has a working lunch under federal law. The meal break is not part of the eight-hour day, it does not count. Even if it did, getting to sit the entire 30 minutes implies that the worker has lunch in the back pocket and can stop, sit, and eat right where they stand at the whistle. Dumb, just dumb. The person must walk to retrieve the meal, walk to the break room/area, consume the meal, dispose of rubbish, use the restroom, and get back to the work station in 30 minutes. 

The VW in Conway did not indulge in that nonsense. Some VW do. Representatives with claimants over 55 must come prepared to win a medium RFC case by proving up the six hours of standing/walking as preclusive of unskilled medium work that exists in significant numbers. The ORS is that backup available in Job Browser Pro and at Occucollect.com. 

Paul Warren argued and Kevin Kerr wrote the briefs in Conway. Kerr Robichaux & Carroll continue to do outstanding work for the disabled community and continue to provide great cases for the Social Security bar. 

Genuflecting.

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Suggested Citation:

Lawrence Rohlfing, No, Vocational Experts Do Not Assume that Light and Medium Includes a Six-Hour Limit - Conway v. O'Malley, California Social Security Attorney (April 3, 2024)

https://californiasocialsecurityattorney.blogspot.com

The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.