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Ruiz v. Berryhill is an unpublished opinion of the Ninth Circuit.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. Massanari.  Ruiz 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  Ruiz is not precedential.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.

Serial Hypothetical Questions - Makes Cross Impossible

ALJ -- I will now ask you a series of hypothetical questions that will the same age, education, and work experience of the claimant. 

The ALJ goes on to ask anywhere from two to seven hypothetical questions.  Which one, if any, represents the eventual finding that will find its way into the ALJ decision denying the claim for benefits.  Does the ALJ know or have a pretty good idea which one of the hypothetical questions constitutes the most likely residual functional capacity?  Pretty sure that the ALJ has more going on mentally than to have a flaccid notion of which question will reflect the finding. 

How does the representative at the hearing cross-examine the vocational expert about the content of three hypothetical questions, each with the identification of jobs existing in the national economy?  The representative must pick apart the material components of the hypothetical questions, one at a time.  Each construct will take time. 

On occasion, the ALJ will announce that the finding will reflect a reduced range of standing and walking as opposed to the first question that assumed an unlimited standing and walking with normal breaks.  But if the ALJ does not favor the record and the claimant with a statement of which one will constitute the finding, the representative must cross on every question that did not result in a statement from the witness of "no jobs." 

In a civil or criminal trial under and adversarial process, no reasonable attorney would try to confuse the jury or judge with a blast of hypothetical questions to the expert.  The attorney would advocate the key factual finding urged and ask the expert to give an opinion about how that fact impacts the ultimate question of fact.  So why would an ALJ ask serial hypothetical questions? 

Part of that answer rests in the attempt to placate the claimant with the thought that the ALJ will pay the case.  After all, the vocational expert said that the claimant could not work in the third hypothetical question that assumed the limitations described by claimant's testimony.  It dampens any consternation of the claimant that the ALJ didn't listen to the testimony or understand what the claimant said.  The last hypothetical question is the placebo and rarely the ultimate finding of the ALJ. 

The rest of the answer rests in the preclusion of intelligent cross-examination.  The ALJ tries to anticipate the other hypothetical questions that the representative or claimant might ask.  But that wastes time.  The representative can ask the question and no representative needs the ALJ to recast the question into words and phrases that change the tenor of the question.  The ALJ asks one to five questions when none of them reflect the theory of the case; the representative would have asked one question; and now we are out of time. 

And that forms the core of the problem.  When an administrative hearing proceeds on the premise that the ALJ seeks to cross the t's and dot the i's to award the claim, that hearing takes about 15 minutes.  When the hearing proceeds on the premise that the ALJ will deny the claim, that case can and should take an hour and maybe two hours.  Most hearings get scheduled 30 to 45 minutes apart, depending on the ALJ.  When the ALJ dallies through hypothetical questions that have no bearing on the eventual disposition of the case, burning up precious time, the ALJ precludes intelligent examination on the bona fide occupational qualifications of the jobs identified, the statistical methods used for estimating the number of jobs, and what the sources of administrative notice say about jobs and numbers. 

The bottom line is simple.  Don't ask serial questions of the vocational expert.  The ALJ is wasting time, preventing cross-examination, and making the process unwieldy.  If the ALJ really does need or want to build a stick figure, one limitation at a time, then the ALJ should tell the representative or claimant which one should form the focus of the cross-examination.  Making representatives and claimants guess with five minutes left in the hearing does not constitute due process.