Friday, March 26, 2021

Jaquez v. Saul - Role of the Court and Part-Time Work

Jaquez (pronounced hockez) brought an action in the Southern District of California.  As he did before the Appeals Council, Jaquez challenged the sufficiency and reliability of the vocational evidence.  Because vocational experts testify on the fly without any knowledge of residual functional capacity and little evidence of age, education, and past work, they operate at a disadvantage.  Vocational experts fly by the seat of their pants.  What would ordinary people do to make in excess of $100,000 per year to testify half days four days a week?  They answer the questions without looking it up.

Jaquez knocked out two of the three occupations identified by the vocational expert.  That left usher ostensibly representing 90,200 jobs in the national economy.  The O*NET OnLine stated that 90% of ushers, lobby attendants, and ticket takers worked less than 40 hours per week.  How much less?  The O*NET does not say.  

The District Court held that the ALJ may rely on work that is not substantial gainful activity as evidence that Jaquez could engage in substantial gainful activity.  The statute focuses on exactly that, the inability to engage in any substantial gainful activity.  The regulation defines disability as the inability to do any substantial gainful activity.  The ability to perform work that is not substantial gainful activity is not evidence that a person would perform substantial gainful activity in significant numbers of jobs in the national economy.  The District Court concluded that evidence of less than 40 hours per week does not dispute that usher represents substantial gainful activity.  The Court assumed that the part-time work represented substantial gainful activity without any affirmative evidence that ushers worked 30+ hours per week on average over a year.  

The Ninth Circuit reversed.  The Court held:

POMS DI 10501.015, tbl. 2 (calendar year 2016) [...] in conjunction with Jaquez's evidence, suggests that there may not be a significant number of usher jobs in the national economy constituting substantial gainful employment. Specifically, Jaquez's brief before the Appeals Council stated that the median pay for ushers was $9.58 per hour. Consequently, Jaquez would need to work roughly 29.49 hours per week to meet the manual's threshold. The record does not reveal what percentage of the usher jobs identified by the VE are available for at least 29.49 hours per week. All we know is that 10% of ushers, (or 9,020 ushers) work at least forty hours per week.

The other evidence referenced by the Court was now before the ALJ but presented to the Appeals Council.  The Court followed circuit precedent to allow consideration of that evidence under the substantial evidence test.  The Court emphasized that it did not have the position to engage in the fact-finding to assess whether ushers represented substantial gainful activity, the Court remanded for further proceedings.  

The pregnant question is whether part-time work ever counts at step five of the sequential evaluation process.  Social Security Ruling 96-8p states that a person must have a full-time capacity but does not describe the target work.  It would truly represent an odd circumstance where a person capable of 30 hours per week of work and limited to occasional use of the hands would be found disabled under the ruling but that a person capable of 40 hours per week and having the same universe of jobs available would be found not disabled.  The range of work is a mere 10% larger in this case and that 10% does not represent a significant number of jobs.  

The watershed on the full-time and part-time problem at steps four and five of the sequential evaluation process came in Social Security Ruling 96-8p.  Footnote 2 states that a capacity past relevant part-time work (that meets the three-part test) will result in a step four denial.  The sentence to which the agency attached the footnote reads:
Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A "regular and continuing basis" means 8 hours a day, for 5 days a week, or an equivalent work schedule.
We still have the Jaquez problem.  If a person has a capacity for a narrow range of full-time work that does not represent a significant number of jobs, can the agency fill in that number with part-time work that is part-time work?  The Commissioner answered that question when it amended the adverse vocational profile regulations.  The Commissioner explains
the language in previous §§ 404.1562 and 416.962 needed to be updated to be consistent with our current rules and policies. For example, the last sentence of the paragraph before the example spoke about the ability to do other work ‘‘on a full-time or reasonably regular part-time basis.’’ However, in SSR 96–8p, we explain that at step 5 we consider only full-time work when we consider other work you are able to do. (See 61 FR 34474, 34475 (July 2, 1996).)
What was implicit in SSR 96-8p is not explicit in this publication in the Federal Register, the agency considers only full-time work at step five of the sequential evaluation process.  

This understanding of SSR 96-8p was not before the District Court.  My bad, I found it halfway through the Circuit Court briefing process.  The Ninth Circuit did not address the deletion of reasonably regular part-time work but it is clear that the courts should not assume that part-time work is substantial gainful activity.  The discussion by the District Court:
See Wright v. Colvin, No. CV 12-1893, SP, 2014 WL 5456044, at *6 (C.D. Cal. Oct. 27, 2014) (Ninth Circuit has not directly addressed issue of whether ALJ can consider part-time work on step five); De La Cruz v. Astrue, No. 08cv782 DLB, 2009 WL 1530157, at *9 (E.D. Cal. May 28, 2009) ("While it is not necessarily clear in the Ninth Circuit whether part-time work constitutes `other work' at step five . . . .") In Wright, the plaintiff argued that the VE impermissibly included part time work in the job numbers yet the VE did not testify to that fact and Plaintiff did not pose the question to the VE. Wright, 2014 WL 5456044, at *6. Alternatively, even if the VE considered part-time jobs, the court noted there is no legal authority stating that the ALJ cannot consider part-time work in step five. Id. The district court in Wright, relying on other circuits that have held that the ALJ may consider part-time jobs, concluded that the ALJ's step five determination was supported by substantial evidence. Id. (citing Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 450, n. 6 (2d Cir. 2012) ("We decline to create a per se rule prohibiting an ALJ from considering part-time positions."); Liskowitz v. Astrue, 559 F.3d 736, 745 (7th Cir. 2009) ("[A] VE may . . . testify as to the number of jobs that a claimant can perform without specifically identifying the percentage of those jobs that are part-time" and explaining that the regulations do not state "that a VE may permissibly testify only as to the availability of full-time jobs"); and King v. Astrue, No. C 09-5322-MEJ, 2011 WL 1791553, at *19 (N.D. Cal. May 10, 2011) (rejecting plaintiff's argument that the VE had to distinguish between full-time and part-time jobs because the regulations only require that a significant number of jobs exist)). Other district courts have also found that it was not improper for the ALJ to consider other work that is available on a part-time basis. See Angelica E. v. Saul, Case No. 18cv1025-MAA, 2019 WL 3531272, at *4 (C.D. Cal. Aug. 2, 2019) (rejecting argument that usher jobs, which are mostly part-time, do not involve substantial gainful activity because the regulations state that part time work can be substantial gainful activity); Pitts v. Colvin, Civil Action No. 16-434, 2016 WL 6217068, at *4 (W.D. Pa. Oct. 25, 2016) (not improper for ALJ to consider election clerk position even it can be performed on a part-time basis).
that's all wrong.  Wright, Brault, Liskowitz, King, Angelica E., Pitts, and other cases of that ilk -- wrong.  They do not address the August 26, 2003, deletion of reasonably regular part-time work and the explanation that even reasonably regular part-time work is not substantial gainful activity.  The Commissioner construes the statute in the first instance and that construction is entitled to Chevron deference.  


Suggested Citation:

Lawrence Rohlfing, Jaquez v. Saul - Role of the Court and Part-Time Work, California Social Security Attorney (March 26, 2021)

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