Monday, May 14, 2018

Essential, Integral, or Expected Job Functions

Ruiz v. Berryhill is an unpublished opinion of the Ninth Circuit.  Ruiz warrants consideration because of how it applies Gutierrez v. Colvin and basically guts Pinto v. MassanariRuiz uses the essential, integral, or expected job functions test to dispose of an otherwise apparent conflict between vocational expert testimony and the Dictionary of Occupational Titles

Pinto does not give us the DOT code for the hand packager occupation discussed.  It is probably hand packager, DOT 920.587-018.  Pinto performed the occupation with constant stooping.  The Selected Characteristics of Occupations defines the occupation as requiring occasional stooping.  Pinto loses because she could perform her past relevant work as generally performed -- so the ALJ found.  But Pinto had a marginal education, was illiterate and unable to communicate orally in English.   As generally performed, hand packagers require reasoning level 2, language level 1, and mathematics level 1.  The ALJ did not resolve the language level problem and Pinto reversed.  

Gutierrez affirmed the denial of benefits where the ALJ found that the claimant could perform the work of a cashier despite a limitation to no overhead reaching with the right dominant arm juxtaposed against the SCO description of cashier as requiring frequent reaching.  The SCO, Revised Handbook for Analyzing Jobs, and SSR 85-15 define a reaching description as "any direction."  Gutierrez used experience to conclude that it is uncommon for cashiers to reach overhead.  

Ruiz winds the two published decision and provides insight into how the courts will resolve apparent conflict in the future.  Ruiz is not precedential.  Ruiz worked as a sewing machine operator.  The DOT describes the occupation cited:

787.682-030 MENDER (any industry)
    Operates sewing machine to repair defects, such as tears and holes in garments, linens, curtains, draperies, and blankets: Patches, darns, or reweaves holes or tears in garments, curtains, or linens, and resews ripped seams. Sews fringe, tassels, and ruffles onto drapes and curtains. Sews buttons and trimming on garments after they have been cleaned. Operates sewing machine to restitch or replace binding ribbon on edge of blankets. May cut curtains to specified measurements and hem edges. May shorten or lengthen hems to alter size of garments. May replace pockets in coats or trousers. May sew identifying labels and emblems on uniforms, linens, or diapers for linen supply or diaper service. May repair defective stitching on articles. May be designated according to type of article sewn as Sewer, Linen Room (hotel & rest.) or machine used as Darning-Machine Operator (any industry). May examine lace webbing for defects and be designated Examiner-Mender (tex. prod., nec). Performs duties as described under SEWING-MACHINE OPERATOR, REGULAR EQUIPMENT (any industry) Master Title.
GOE: 06.02.05 STRENGTH: L GED: R3 M1 L2 SVP: 4 DLU: 78

Ruiz is apparently illiterate or unable to communicate in English orally.  Mender requires language level 2.  If Pinto applies, Ruiz gets a remand.  The court applied Gutierrez.  The DOT occupation does not imply the ability to read or speak/listen.  The master title of Sewing-Machine Operator, Regular Equipment does not imply reading or speaking/listening.  Ruiz found that English was not essential, integral, or expected on the job.  

Essential points to essential job functions.  Essential job functions is an ADA concept; if a person cannot perform the essential job functions, workplace accommodation is not applicable.  These are core job functions.  Teachers teach but it is not essential to write on the board.  

Integral has the dictionary definition in two of three offerings that uses the word essential.  Treat that as pointing to essential job functions.  Redundant, yes, but so is cease and desist.  

Expected points to a different concept.  Teachers teach and we expect that teachers will write on the board.  It is the bona fide occupational qualification standard.  The BFOQ standard generally means "traits are reasonably necessary to the normal operation of doing business."  42 U.S.C. § 2000e-2(e).

The BFOQ standard applies in Social Security disability cases. SSR 00-1c. Accommodation is irrelevant in claims adjudicated by SSA. Would an employer of menders expect that workers operating sewing machines to repair defects to speak, read, and write in English. Common experience of the world of work says -- probably not. Ruiz lost.

The SCO does describe mender as requiring occasional hearing. Hearing can point to essential, integral, or expected job functions of hearing noise or communicating orally. Menders don't require talking, just hearing. That SCO described function is not described in Ruiz and was presumably waived.

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