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.

___________________________

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.

 

Medium Exertion and Standing/Walking Six Hours in an Eight-Hour Day

That is the common state agency finding, common consultative examiner finding, and frequent ALJ assessment of residual functional capacity.  The claimant can stand/walk for six of eight hours during the workday.  The problem is simple:  standing/walking for six hours does not permit the full range of medium work or even most unskilled medium jobs.

We start with the Dictionary of Occupational Titles because the Commissioner treats the DOT as the holy grail of vocational resources.  The DOT says:

M-Medium Work - Exerting 20 to 50 pounds of force occasionally, and/or 10 to 25 pounds of force frequently, and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.

Nothing about six hours of standing/walking in the DOT. 

Occu Collect has a free summary DOC/SCO report just for signing up.

The Commissioner cannot claim the privilege of construing the DOT but she does promulgate regulations:

Medium work. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.

 Nothing about six hours of standing/walking in the regulations.  The Commissioner construes her own regulations.  SSR 83-10:

3. Medium work. The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time.

 There it is.  Six hours in an eight-hour workday.  Pretty definitive except that is required just to perform the frequent lifting required of medium work.  The second phrase that is important is that "sitting may occur intermittently during the remaining time."

May is one of those words that strips all meaning out of everything that follows.  May in this context means that the person might sit in the remaining two hours.  But even if the worker does sit, the ruling does not imply that the person sits for the remaining two hours.  Instead, SSR 83-10 states that the worker might sit intermittently during the remaining time.  So might sit some of the remaining two hours of the workday.

If the person cannot perform more than six hours of standing/walking in an eight-hour day, that person cannot perform the full, wide, or any portion of medium work based solely on administrative notice.  The person must stand/walk for six hours and have the ability to stand/walk intermittently in the other two hours with scattered sitting in between.

We see this in current ALJ decisions.  The ALJ will find that the person can perform medium work as defined in the regulations.  But the medical evidence says six hours or about six hours.  Failure to reconcile the medical evidence to the fact finding is error.

Light Work Does Require More than Six Hours of Standing/Walking

Marian Marracco testified at a hearing yesterday.  Marracco has a bulk provider agreement to testify before the Social Security Administration as a vocational expert.  She was in New Jersey.  Now she works out of Desert Hot Springs.  She is prolific.

The ALJ directed Marracco to assume an ability to perform light work as defined in the regulations with other limitations.  Marracco identifies three occupations:  night cleaner; mail clerk; and garment sorter.  On cross-examination, the question turns to the medical expert's testimony: six hours of standing and walking in an eight-hour day.  Marracco says no change because the DOT defines light work as six hours of standing/walking in an eight-hour day.  Marracco further testifies that no light work ever requires more than six hours of standing/walking in a day; no light work requires standing/walking throughout the day; and Labor does not have data to the contrary.

We start with the DOT, Appendix C definition of light work:

Exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or more of the time) to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.

Walking or standing to a significant degree does not cap those activities at six hours nor preclude eight hours of standing/walking.  We move to the regulatory definition of light work:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.

A good deal of walking or standing does not cap those activities at six hours nor preclude eight hours of standing/walking.  That leaves the non-law description of light work in Social Security Ruling 83-10:

the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.  Sitting may occur intermittently during the remaining time.

We check the description of medium work:

A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time.

We start with six hours and calculate the remaining time; that leaves two hours.  Sitting occurs "intermittently during the remaining time."  Intermittently modifies the phrase during the remaining time to mean some of the time, not all of the remaining time.  Read in context and giving meaning to the words of the ruling, light and medium work require standing/walking six hours per day and intermittently during the remaining time with intermittent sitting during that same period.  Intermittent is a broad word that runs from seldom to half the day.   Merriam-Webster defines intermittent as coming and going at intervals: not continuous and synonymous with occasional.  M-W provides other synonyms of continual, on-and-off, periodic, periodical, recurrent, and recurring.  Antonyms include constant, continuous, incessant, and unceasing.

Reading the ruling as capping standing/walking at six hours with no standing/walking during the remaining time is linguistically wrong.  Reading the ruling as redefining the DOT (which SSA does not get to construe) and the regulation (by adding a limitation that is inconsistent with the plain language of the regulation) may be binding on the ALJ but it is not binding on the claimant and not entitled to deference by a court.  SSR 83-10 is plainly erroneous and inconsistent with the regulation by imposing a six-hour cap in standing/walking and inconsistent with the DOT.

It is safe to assume that some light work does not require more than six hours of standing/walking in a day.  But that is a contextual inquiry, which we take up in the next three pieces on this blog.