The Burden of Proof - Past Work as Generally Performed

The burden of proof places the obligation on the offeror of the proposition to prove the case. Villa v. Heckler, 797 F.2d 794, 798 (1986) holds that the "claimant has the burden of proving an inability to return to his former type of work and not just to his former job." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) softens the burden to hold that the "ALJ still has a duty to make the requisite findings to support his conclusion" citing SSR 82-62. In the context of Villa and Pinto, we examine the memorandum disposition in Wright v. Kijakazi, 2023 WL 3641718 (May 25, 2023) that carries a dissent by Judge Bress.

Judge Bress repeats the well-settled proposition that Wright bore the burden of proof that she could not perform her past relevant work as generally performed citing Stacy v. Colvin, 825 F.3d 563, 566-67 (9th Cir. 2016). Stacy testified on remand that acting as a supervisor represented up to 75% of his work duties. Although Stacy could not perform his past work as actually performed (heavy), he could perform just his supervisory duties. Stacy litigated the issue under the "least demanding aspects" of his job. Stacy argued that the ALJ misclassified his work as a supervisor and erred in concluding that Stacy could perform the work as generally performed.

The agency may not classify a job by its least demanding component function. Valencia v. Heckler, 751 F.2d 1082, 1086 (9th Cir.1985); Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008). Stacy treats the case as presented, a Valencia-Carmickle case. Stacy is not a "as generally performed" case but instead a composite job case. Agency policy is clear, a composite job has no "as generally performed" component. POMS DI 25005.020.B.

That conclusion invokes Carmickle. There, the ALJ erred in finding that Carmickle could perform past work as a supervisor with transferable skills at step four. Carmickle holds that the finding constitutes error, the TSA belongs at step five. The difference between Carmickle and Stacy is the percentage of time devoted to supervising and hands-on work. Carmickle supervised 20% of the time; Stacy supervised 70-75% of the time. The question is not the percentage of time but whether the job had composite duties from two or more DOT codes.

SSR 82-61 describes the DOT as listing jobs as they are "usually" but that some jobs within that classification may require more or less exertion than the DOT describes. The ruling then describes functional demands and job duties in excess of those generally required. What SSR 82-61 does not address and what POMS DI 25005.020.B does address is the presence of additional job duties that cross the line to job functions described in a different DOT code. A supervisor that has to engage in heavy exertion on occasion still has past work as generally performed requiring light exertion. A supervisor that must perform heavy work responsibilities and functions performed by other non-supervisory workers has a composite job.

A concrete example helps. Photocopying-machine operator (DOT 207.685-014) requires light exertion. A box of paper weighs 26 pounds according to Amazon. Once a week, the operator must move a box of paper. That represents heavy exertion but the job as generally performed requires light exertion. That person is not disabled when limited to light work under SSR 82-61. Moving the box of paper is not a separate job duty.

A company needs 3.25 full-time equivalent engineers or 3.8 full-time carpenters. That fractional need is filled by having a part-time supervisor from 20 to 75 percent of the day and a part-time engineer from 80 to 25 percent of the day. That does not represent additional demands or duties but instead a composite job.

Judge Bress cites Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir.2002). Lewis is an "as actually performed" case. Lewis's coworkers did most of the lifting. The ALJ found that the past work as actually performed required light work. That conclusion lacked the support of substantial evidence but was not completely unreasonable.

Completing the circle, we return to Wright. The ALJ found that Wright needed a sit-stand option. As actually performed, Wright did not have a sit-stand option. The vocational expert testified that at times, dealers have a chair or stool and that she had seen dealers sitting or standing. What the vocational expert did not say is that the jobs "usually" under SSR 82-61, "typically" under DICOT Appendix D, or "generally" under the regulations had the option of sitting or standing every 30 minutes.

https://www.youtube.com/watch?v=ymQ-0S4C11Y.

The government argued vigorously for Judge Bress's position and that Wright had failed to carry her burden of proof. Judges Sidney Thomas and Morgan Christen that the thin evidence provided by the vocational expert was insufficient to justify the finding "as generally performed." This result highlights the need for vigorous representation at the hearing at past relevant work questions and the importance that having a wide range of experience o the court is essential.

Convince me otherwise.

___________________________

Suggested Citation:

Lawrence Rohlfing, Lambert v. Saul - The Continuing Presumption Died or Continues?, California Social Security Attorney (April 29, 2023) https://californiasocialsecurityattorney.blogspot.com

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