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.
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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
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