The Ninth Circuit published Leach v. Kijakazi on June 15, 2023. Google Scholar has the preliminary version. The opinion starts with the complete hypothetical and accurate hypothetical problems. A residual functional capacity that does not match the hypothetical question to the vocational witness results in a finding that the testimony is not substantial evidence if the difference is material. If the residual functional capacity and the hypothetical question match, the ALJ may generally rely on the testimony with the exception of DOT conflict.
Leach finds that omission of little or no judgment is immaterial to the disability conclusion. To reach this conclusion, Leach relies on 20 CFR 404.1568(a). The first sentence of the subsection states that unskilled work needs little or no judgment to do simple duties in a short period of time. Short period of time is the qualifier that Leach missed. Short period refers to occupations with SVP 1. The DOT defines SVP 1 as requiring a short demonstration only. The DOT defines SVP 2 as anything beyond a short demonstration up to and including one month. The regulation describes work that takes up to 30 days as requiring little specific vocational preparation and judgment. Little judgment exceeds half of the limitation found -- no judgment. Only SVP 1 is defined as requiring little or no judgment based on the regulation and DOT.
Leach finds that short and simple instructions have an apparent conflict with reasoning level 2. Occupations requiring reasoning level 2 may require more than short instructions. Leach cites two cases from the Fourth Circuit but does not adopt that strict standard. This issue supported reversal and remand.
Leach finds that work in a predicable work environment with few changes does not support a residual functional capacity for occasional changes. Leach cites the dictionary to juxtapose the difference between few and occasional changes, that occasional may very well exceed few.
Each of the limitations identified warrants a limitation to a narrow range of reasoning level 1 work existing with an SVP 1. Leach reverses on the second and third issue. That gives a strong basis for the argument in future cases. It will be up to future cases to draw out the distinction about jobs that require more than a short demonstration. This finds support in the severe impairment regulation. 20 CFR 404.1522(b)(4) (the basic work functions necessary to do most jobs includes use of judgment). That is a future refine for a future case if that is the only issue presented.
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Suggested Citation:
Lawrence Rohlfing, Short and Simple is Different than Simple, Routine -- Leach v. Kijakazi, California Social Security Attorney (April 29, 2023) https://californiasocialsecurityattorney.blogspot.com
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