[00:00:00] Speaker 04:
Right, thank you, your honors.

[00:00:01] Speaker 04:
Good morning, Chad Hatfield for Ms.

[00:00:03] Speaker 04:
Chavez, this appeal to social security claim.

[00:00:08] Speaker 04:
The review is a de novo review.

[00:00:11] Speaker 04:
I appreciate the notice, my honors, that you would like us to address some out of circuit court cases.

[00:00:19] Speaker 04:
And so in connection with that, I will just begin with the step four argument.

[00:00:24] Speaker 04:
It seems to be a focus of attention.

[00:00:27] Speaker 04:
Can you, of course, the...

[00:00:30] Speaker 04:
from our briefing, the errors be found by the ALJ and contend for improper rejection of medical source opinions, as the judge to complaints would render this point moot as it would be to a favorable decision for Ms.

[00:00:43] Speaker 04:
Chavez.

[00:00:44] Speaker 04:
But I'll jump into the step four argument.

[00:00:47] Speaker 04:
Ms.

[00:00:47] Speaker 04:
Chavez has most of her work history, was a janitor, there was some seasonal work, a potato processing plant worker, an 08-010,

[00:00:59] Speaker 04:
And that's what's at issue in this claim.

[00:01:03] Speaker 04:
The things we do know, Social Security ruling 82-61, we know that composite jobs have significant elements of two or more occupations and as such have no counterpart in the DOT.

[00:01:17] Speaker 04:
Such situations will be evaluated according to the particular facts of each individual case.

[00:01:22] Speaker 04:
And as both parties cited, the palms,

[00:01:25] Speaker 04:
Pastoral work is a composite job that takes two DOT titles to locate the main duties as described by the claimant.

[00:01:34] Speaker 04:
If it's a composite job, the generally performed test is not used except for and the actually performed test is used where the claimant must be shown capable performing the composite job only if they can perform all parts of the job.

[00:01:47] Speaker 02:
Could you clarify one point for me and that is you've stated

[00:01:54] Speaker 02:
The next item is regulation 82-61.

[00:01:58] Speaker 04:
How does that interface as a standard of review with the program operations manual, which makes reference to composite jobs also?

[00:02:24] Speaker 04:
as a practical matter of how the ALJ should apply that regulation is that it takes two DOT titles to locate the main duties as described by the claimant.

[00:02:34] Speaker 02:
So you would end up in the same place in your view?

[00:02:37] Speaker 04:
Yes.

[00:02:38] Speaker 02:
Thank you.

[00:02:41] Speaker 04:
We see the ALJ, both VEs ultimately found this was a composite job.

[00:02:47] Speaker 04:
The administrative law judge found that it was the portion that was the industrial cleaner was incidental.

[00:02:55] Speaker 04:
And we see at the first hearing that Mr. Lajaj characterized this cleaning as incidental, explaining that if someone were to, as they were working, things fall on the floor, they had to move it out of the way, it wasn't done frequently, the vocation expert said, yeah, that'd be incidental.

[00:03:13] Speaker 04:
When it was clarified, that vocation expert, that'd be for an hour a day, said, well, no, it'd probably be a composite job.

[00:03:22] Speaker 04:
This was remanded.

[00:03:23] Speaker 04:
Administrative law judge found still incidental.

[00:03:26] Speaker 04:
The appeals council remanded this case to clarify what the claimant actually did at their job.

[00:03:32] Speaker 04:
And at this remanded hearing, we heard that at the job processing plant potato job, the line would get shut down.

[00:03:42] Speaker 04:
There was no other work being done.

[00:03:44] Speaker 04:
And all of the workers in her position would clean for one to one and a half hours per day.

[00:03:51] Speaker 04:
up to 30, you know, 30 pound buckets of potatoes using a shovel and doing that.

[00:03:56] Speaker 04:
And the line would not start until that was done.

[00:04:00] Speaker 04:
This was explained to the vocational expert second hearing.

[00:04:03] Speaker 04:
And the vocational expert said, well, that would be an essential duty of the job.

[00:04:07] Speaker 04:
That would be a significant element of the job.

[00:04:12] Speaker 04:
And the judge even went further to say, well, would this be incidental or would the DOT actually capture this or would it be a composite job?

[00:04:18] Speaker 04:
And the VE responded, well, it'd be a composite job.

[00:04:21] Speaker 04:
this was not said it was incidental.

[00:04:23] Speaker 04:
So I think it goes into the two cases from out of circuit, Ray versus Berryhill.

[00:04:28] Speaker 04:
And Ray versus Berryhill, it was found that the duties of the job as the claimant described it were not all listed one DOT, but the position of the claimant was bolstered by the fact that the duties were described in another DOT.

[00:04:45] Speaker 04:
And although the vocational expert in that claims testimony was inaudible,

[00:04:49] Speaker 04:
Here we have an even stronger position and that the vocational expert did find the duties were in two different DOTs and said that this would be a significant element and it is a composite job.

[00:05:02] Speaker 04:
On the other side, we have the case of Sloan.

[00:05:05] Speaker 04:
In Sloan, here we have something that does seem more incidental.

[00:05:09] Speaker 04:
There was no schedule.

[00:05:10] Speaker 04:
It was not controlled by the person.

[00:05:13] Speaker 04:
It was the receptionist who had walked the floor once per week

[00:05:17] Speaker 04:
to stay updated on what things they had, and sometimes need to retrieve items if there's something with a customer issue that needed to be done.

[00:05:27] Speaker 04:
This is very different, again, to the situation of Ms.

[00:05:30] Speaker 04:
Chavez, where the line would shut down, and she was not able, I mean, she had to do this work before continuing to her next one here.

[00:05:37] Speaker 04:
So what do we get into, I think a lot of the cases cited by the commissioner revolves around Stacy.

[00:05:45] Speaker 04:
And so I just want to really

[00:05:47] Speaker 04:
going to Stacey.

[00:05:48] Speaker 04:
Stacey, the term composite job is not found in Stacey.

[00:05:53] Speaker 04:
It was not argued by either party.

[00:05:55] Speaker 04:
It was never found that the manual labor task jobs was the job.

[00:06:01] Speaker 04:
Stacey even explicitly states, regardless of which test is applied at step four, the ALJ may not classify a passive occupation according to the least demanding function.

[00:06:13] Speaker 04:
They found that this was in response to some other decisions

[00:06:17] Speaker 04:
where an ALJ had gone through, just looked through the different tasks, tasks of a job, found the least demanding task that was performed and said, that's the job.

[00:06:27] Speaker 04:
And Stacey said, that violates the spirit of the social security disability program.

[00:06:32] Speaker 04:
In this situation, the thing that the ALJ found was the job was done in the majority of the time.

[00:06:38] Speaker 04:
They're not reaching in something in violation of the spirit of the social security program by just picking a particular task and saying, that's the job.

[00:06:45] Speaker 04:
Now the problem is other district courts in the circuit attempted to apply this finding to the composite job analysis.

[00:06:54] Speaker 04:
And I think that the Lucero District Court handled it appropriately.

[00:07:01] Speaker 04:
They noted that in that court, Social Security's focus on more demanding job duties is misguided.

[00:07:08] Speaker 04:
It is the presence of additional job duties beyond those listed in a particular DOT description, which makes a prior job a composite job.

[00:07:16] Speaker 04:
Where those activities were more or less demanding is totally inconsequential to a generally step forward determination.

[00:07:22] Speaker 04:
And that's really the appropriate test.

[00:07:25] Speaker 04:
If they're found to be a significant duty, if it's essential job function, then it is a composite job.

[00:07:29] Speaker 04:
It doesn't matter which one is more demanding or less demanding or percentage of time one versus the other, we do not consider as generally performed.

[00:07:37] Speaker 04:
It is then actually performed and the claimant would have to be found to perform both job duties here.

[00:07:46] Speaker 04:
It is interesting in a social security case, an ALJ must question the VE to resolve any inconsistencies with the DOT.

[00:07:55] Speaker 04:
Here we have the DOT and the vocational expert who both found this was a composite job, was an essential and significant job duty.

[00:08:04] Speaker 04:
And yet the judge arbitrarily rejected both.

[00:08:09] Speaker 04:
We know it's just common sense.

[00:08:11] Speaker 04:
Ms.

[00:08:11] Speaker 04:
Chavez would not be allowed to just pull up a chair, sit down for an hour, hour and a half, and watch other people do the job.

[00:08:17] Speaker 04:
She testified this was at every potato processing plant warehouse she worked at.

[00:08:22] Speaker 04:
This is how it was done.

[00:08:23] Speaker 04:
It makes sense.

[00:08:24] Speaker 04:
How could you have people just standing by to do industrial cleaning for one to one and a half hours?

[00:08:29] Speaker 04:
The first BE said he had never been to a potato processing plant for many years, but in a fruit sorting one they'd have people clean after hours.

[00:08:36] Speaker 04:
But that was not the job.

[00:08:37] Speaker 04:
So I do want to defer some time.

[00:08:40] Speaker 04:
I will close at this time if there's no questions on the panel.

[00:08:46] Speaker 03:
I don't hear any questions.

[00:08:50] Speaker 03:
Let me say one thing to the clerk.

[00:08:54] Speaker 03:
While counsel was arguing, I couldn't see the time clock.

[00:09:00] Speaker 03:
So can you display that?

[00:09:19] Speaker 03:
Okay, now.

[00:09:26] Speaker 03:
Mr. Burdell for appellee.

[00:09:45] Speaker 00:
Good morning, Your Honors.

[00:09:47] Speaker 00:
I'm David Burdette.

[00:09:48] Speaker 00:
I'm here to represent the Acting Commissioner of Social Security, currently Mr. Leland Dudek.

[00:09:53] Speaker 00:
Michelle King was the Acting Commissioner at the time of the caption.

[00:09:58] Speaker 00:
Mr. Hatfield, in his argument, talked a lot about Ms.

[00:10:02] Speaker 00:
Chavez's job as it was actually performed.

[00:10:06] Speaker 00:
That is not the only inquiry.

[00:10:08] Speaker 00:
At step four, an ALJ may determine that a claimant can return to their pastoral work as actually performed or as generally performed in the national economy.

[00:10:21] Speaker 00:
Her job, we agree that she could not, assuming that her testimony is accurate, we agree that she could not return to her job as actually performed.

[00:10:31] Speaker 00:
But she could return to her job as generally performed as both of the VEs testified.

[00:10:36] Speaker 00:
Now, the POMS, the Program Operation Manual System, says that the ALJs are not to consider as generally performed if the job is a composite job.

[00:10:48] Speaker 00:
So the matter is, was the ALJ appropriate in determining that this job was not a composite job?

[00:10:58] Speaker 00:
And for that, we can look at the cases that the court focuses on from the Seventh Circuit and the Eighth Circuit.

[00:11:04] Speaker 00:
And for example, in Sloan, the Eighth Circuit case, the Eighth Circuit says that a job entails responsibilities beyond those outlined in the DOT does not necessarily make it a composite job.

[00:11:14] Speaker 00:
And this despite the fact that a VE testified in the hearing in Sloan that it was a composite job.

[00:11:20] Speaker 00:
But the Eighth Circuit said that the ALJ properly reviewed the record and found that it was not.

[00:11:28] Speaker 00:
Here, we have a pretty good guideline from this court's precedent in the Stacey case from 2016.

[00:11:35] Speaker 00:
And despite my friend Mr. Hatfield's effort to wave it away, it is important to determine what percentage of the time a worker spends in the more demanding and the less demanding duties.

[00:11:51] Speaker 00:
Stacey was a supervisor who also did some general laboring work that was

[00:11:56] Speaker 00:
more demanding in his case.

[00:11:58] Speaker 00:
And this court said when Stacey performed his job, he engaged in the supervisory duties, that is, the less demanding duties, 70 to 75 percent of the time.

[00:12:09] Speaker 00:
And this court characterized the other 25 to 30 percent of his time as occasional, occasionally doing other non-supervisory tasks, the heavier work, the more demanding work.

[00:12:23] Speaker 00:
So here, where the facts of the case say that Ms.

[00:12:27] Speaker 00:
Chavez was doing the heavier, more demanding work, one hour to maybe an hour and a half out of an eight hour day, so 12.5% to less than 20% of her time, that was occasional.

[00:12:40] Speaker 00:
That was an occasional instance of her doing the more demanding jobs, the more, excuse me, that was an occasional period of time in which she did the more demanding functions of that job.

[00:12:53] Speaker 00:
So by the rule of Stacey, it was appropriate for the ALJ to find that that was occasional, it was less than 25 to 30% of her time spent doing the more demanding functions, and therefore it was okay for him to determine that that was not a composite job as indeed the VEs testified that though it appeared to be a composite job as actually performed, she could perform the job as generally performed.

[00:13:21] Speaker 00:
And that's really the heart of the argument

[00:13:23] Speaker 00:
the composite job issue.

[00:13:26] Speaker 00:
Now, before I get on to other things that are in this case, I want to ask if I can answer any questions from the court on that point.

[00:13:38] Speaker 00:
Okay.

[00:13:39] Speaker 00:
So just briefly with the remainder of our time, and I will not linger unnecessarily, but I want to just emphasize the fact that

[00:13:47] Speaker 00:
whatever happens in a social security case, whatever happens at a hearing, whatever happens in the ALJ's case, in the ALJ's decision, a claimant cannot be awarded benefits if they are not disabled, as a matter of fact.

[00:14:02] Speaker 00:
There was abundant evidence of malingering on the record that was cited by at least three different medical providers who said that she was engaging in exaggeration of her symptoms.

[00:14:15] Speaker 00:
Nurse Glenn,

[00:14:16] Speaker 00:
Observed her engaging in postural behaviors that were incompatible with her claims Said I believe the patient is exhibiting blatant malingering.

[00:14:25] Speaker 00:
That's the quote that blatant is not my adjective that's the quote in the record at 836 and observed her to Leave them leave the examination room by pushing a heavy door contrary to her claims about her ability to reach and push and By walking across the parking lot with normal gate and station contrary to her claims about limitation to walk

[00:14:46] Speaker 00:
And there's other evidence in the record to that same effect of symptom exaggeration from both Dr. Nadler and Dr. Weir.

[00:14:52] Speaker 00:
So I would very much urge the court to affirm the administrative decision.

[00:15:00] Speaker 00:
And I'm not going to beat that point into the ground because I think that the record speaks loudly.

[00:15:05] Speaker 00:
Can I answer any other questions?

[00:15:07] Speaker 01:
I did have just one, going back to the first point you discussed.

[00:15:11] Speaker 01:
So your view is that we would review the determination whether something is a composite job or not a composite job, or if we apply

[00:15:19] Speaker 01:
Stacey's formulation of it, that we would review that for whether there was a substantial evidence to support that decision.

[00:15:26] Speaker 01:
That's correct, Your Honor.

[00:15:27] Speaker 01:
So it's, I know we review all of these things de novo, but we're reviewing whether there's de novo, whether there was substantial evidence.

[00:15:35] Speaker 00:
That's right, Your Honor.

[00:15:35] Speaker 01:
And even for a determination like that, whether it's composite or not, you think that's still a substantial evidence review?

[00:15:42] Speaker 01:
Correct.

[00:15:46] Speaker 00:
Thank you, Your Honor.

[00:15:47] Speaker 03:
Thank you, Counsel.

[00:15:49] Speaker 03:
Okay, we have some time for rebuttal.

[00:15:54] Speaker 04:
All right.

[00:15:57] Speaker 04:
Again, I think it's important, the actual regulations and the palms going with it, the term is significant and essential, opponents of a job.

[00:16:07] Speaker 04:
We heard the vocational expert testify, even 15% off task, not doing duties, lower than others, we get fired.

[00:16:14] Speaker 04:
Ms.

[00:16:14] Speaker 04:
Chavez, the job, as she said, was at all the potato processing,

[00:16:19] Speaker 04:
warehouses, you had to be able to do this job.

[00:16:23] Speaker 04:
She couldn't just sit along and do it.

[00:16:24] Speaker 04:
She would get fired.

[00:16:25] Speaker 04:
How could it be considered as not significant or essential if you get fired for not being able to perform it and that your work could not continue until it was done?

[00:16:35] Speaker 04:
The Stacey case, again, was not talking about composite jobs.

[00:16:38] Speaker 04:
It was talking about a violation of the spirit of the Social Security Administration.

[00:16:43] Speaker 04:
And we have here is the judge kind of mischaracterizing

[00:16:46] Speaker 04:
I mean, characterizing in a certain way, but once clarified by the claimant, then it was found that that would be a composite job.

[00:16:53] Speaker 04:
There's no rational way that it could be done in another way.

[00:16:57] Speaker 04:
The duties were in the DOT of a separate DOT title.

[00:17:02] Speaker 04:
They were essential.

[00:17:03] Speaker 04:
They were significant.

[00:17:05] Speaker 04:
They couldn't be avoided, and they were not on the person's own schedule.

[00:17:09] Speaker 04:
It's very different than the Stacey Court.

[00:17:11] Speaker 04:
District courts were trying to take that and apply something that was missing in the Ninth Circuit.

[00:17:16] Speaker 04:
But the Lucero Court got it right.

[00:17:18] Speaker 04:
As far as just briefly, the malingering.

[00:17:20] Speaker 04:
First, Nurse Lynn found this.

[00:17:22] Speaker 04:
It should be noted this is in the context of an LNI initial examination where the terms malingering are thrown around.

[00:17:29] Speaker 04:
That is not found malingering in the social security context of the CEs.

[00:17:33] Speaker 04:
Dr. Weir did say poor effort.

[00:17:35] Speaker 04:
She's also noted to have depression, she says affects her pain and has pain tolerance.

[00:17:39] Speaker 04:
He still found a limitation noting that with four hours standing and walking, which would lead to her being found disabled.

[00:17:46] Speaker 04:
Nurse Lann said she walked across the parking lot.

[00:17:48] Speaker 04:
Ms.

[00:17:49] Speaker 04:
Chavez's testimony, she can stand, walk 10, 15 minutes before the pain makes her sit down.

[00:17:55] Speaker 04:
It would be expected for her to be able to walk across the parking lot at the beginning.

[00:17:59] Speaker 04:
That's not inconsistent.

[00:18:00] Speaker 04:
It's actually consistent.

[00:18:01] Speaker 04:
So those are small things.

[00:18:05] Speaker 04:
The judge did find limited to light work.

[00:18:08] Speaker 04:
I think there's support.

[00:18:08] Speaker 04:
There should be more limited to that.

[00:18:09] Speaker 04:
But even with the judge's findings,

[00:18:12] Speaker 04:
I don't have any other questions.

[00:18:21] Speaker 04:
I don't have any further unless there's questions for me.

[00:18:24] Speaker 03:
Thank you, Council.

[00:18:25] Speaker 03:
I think your time is up, so we appreciate the argument.

[00:18:33] Speaker 03:
I want to thank both Council for their excellent arguments.

[00:18:41] Speaker 03:
That Chavez case will now be submitted and the parties will hear from us in due course.