[00:00:01] Speaker 02: Good morning, Your Honors, opposing counsel. [00:00:04] Speaker 02: I would like to reserve two minutes for rebuttal, please. [00:00:07] Speaker 02: May it please the court? [00:00:09] Speaker 02: This case concerns a finding that the appellant can perform her past relevant work at step four. [00:00:14] Speaker 02: Specifically, it concerns whether the ALJ had substantial evidence that she could perform her past relevant work as either actually or generally performed as of the date last ensured, which, for clarity, was at the end of December 2016. [00:00:28] Speaker 02: The job in question is cashier, identified by DOT code 211462-014, which appellant had last performed in 2004. [00:00:38] Speaker 02: According to the DOT, this job requires level three reasoning, at least as generally performed. [00:00:45] Speaker 02: And in Zavalin versus Colvin back in 2015, the Ninth Circuit held that there was an apparent conflict between the demands of level three reasoning and a limitation to simple routine or simple repetitive tasks. [00:00:57] Speaker 02: And this job of cashier was specifically mentioned in Zavalin. [00:01:01] Speaker 02: So there really shouldn't be any question that this job is in conflict with the demands of level is, sorry, this job requires level three reasoning. [00:01:12] Speaker 02: The question before the court is whether Zavalin applies in step four. [00:01:17] Speaker 02: We believe that it does, but that inquiry has to be broken into two pieces because at step four the judge's finding can be supported by the past relevant work either as generally performed or as actually performed. [00:01:32] Speaker 02: At least as generally performed, the DOT seems to be authoritative unless the vocational expert specifically gives testimony to explain the deviation from the DOT. [00:01:43] Speaker 02: That's something that Zavalin says pretty clearly, and Zavalin rests in part on SSR 004P, which explicitly applies at steps four and five. [00:01:53] Speaker 02: So as far as actual performance, [00:01:57] Speaker 02: I believe Zavalin should still apply if the judge is relying on vocational testimony, because if the judge is relying on vocational testimony, then that testimony has to be either consistent with the dictionary of occupational titles, or the deviation has to be explained. [00:02:13] Speaker 03: This may be overlooking the subtleties, but how hard is it to define what the job is? [00:02:22] Speaker 03: Basically, she's a grocery checker. [00:02:26] Speaker 03: actually performed as generally performed. [00:02:28] Speaker 03: I mean, we all know about grocery checkers. [00:02:31] Speaker 02: Right. [00:02:31] Speaker 02: I don't think that our position is that there isn't any distinction, frankly. [00:02:35] Speaker 04: And that's a cashier. [00:02:37] Speaker 04: She was basically a cashier. [00:02:38] Speaker 02: Yes. [00:02:39] Speaker 02: Yes. [00:02:39] Speaker 02: And in Zavala, they discussed the requirements of a cashier. [00:02:42] Speaker 02: The court held that it was a complicated job. [00:02:45] Speaker 02: It exceeded simple because of requirements such as reconciling the ticker tape with the cash on hand at the end of the day. [00:02:51] Speaker 04: It was inconsistent with reasoning level three, is what they said. [00:02:56] Speaker 02: Right. [00:02:56] Speaker 02: Right. [00:02:56] Speaker 02: Well, they said it was consistent with the reasoning level of three, but the demands of level three reasoning exceeded the limitation to simple routine tasks. [00:03:04] Speaker 02: Right. [00:03:04] Speaker 02: It is worth noting, as opposing counsel pointed out in the briefs, that the limitation in this case is to simple decisions, which is at least a different word than simple tasks. [00:03:15] Speaker 02: Our position is that this is a distinction without a difference. [00:03:18] Speaker 03: Does it make a difference, depending on what step we're at, who has the burden of proof? [00:03:23] Speaker 02: It does, but the ALJ's position has to be based on substantial evidence in the record. [00:03:29] Speaker 02: While it is still the claimant's burden at step four, the ALJ also has a duty to develop the record. [00:03:34] Speaker 02: These cases are not adversarial at the administrative level. [00:03:38] Speaker 03: If we remand, does the checker job in the past [00:03:42] Speaker 03: fall out, that is to say the time period has changed. [00:03:45] Speaker 02: The time period has changed not because of the change in time, but because of new regulations that the Commissioner issued in June. [00:03:54] Speaker 02: On remand, they will only be looking back to 2011 based on the date last insured of 2016. [00:04:00] Speaker 04: A five-year period. [00:04:02] Speaker 02: Yes, exactly. [00:04:04] Speaker 03: So if we remand, it sounds as though all of a sudden this job is off the table. [00:04:08] Speaker 03: Exactly. [00:04:09] Speaker 03: The LJ doesn't even look at it. [00:04:11] Speaker 02: It's our position that there's no point in remanding for further proceedings. [00:04:14] Speaker 02: If there is error, then it has to be remanded for immediate payment because there's just nothing on remand. [00:04:18] Speaker 02: There is no past relevant work. [00:04:24] Speaker 03: Well, but past relevant work's not the only question. [00:04:29] Speaker 02: Well, how do you mean? [00:04:31] Speaker 03: That is to say, the question is can you do work available in the economy, not merely whether you can do past relevant work. [00:04:38] Speaker 02: Right, but this claimant was age 56 at her protective filing date. [00:04:42] Speaker 02: She's limited to light work, so if she can't do her past work, the grids force a conclusion of disabled. [00:04:49] Speaker 04: But isn't it unclear with respect to, say, if it's remanded, whether she would be precluded from all work in terms of an analysis of step five? [00:04:58] Speaker 02: Well, she would be limited to a range of light work based on the RFC finding below. [00:05:02] Speaker 02: Right. [00:05:04] Speaker 04: I'm not sure if I really understand your response to Judge Fletcher's question in terms of if there's a remand, it must just be an immediate calculation of benefits when it appears that the record might reflect that [00:05:18] Speaker 04: The record is really unclear in terms of whether there's any analysis as to step five, whether with her RFC she's able to do any other work. [00:05:27] Speaker 02: Well, Your Honor, because she is limited to light work and she was over 55 years old at all material times to the case, the grid rules at 20 CFR part 404 subpart P appendix two indicate that a person of her age group limited to light work is entitled to a finding of disabled if she reaches step five. [00:05:46] Speaker 02: So even if she can still do some other light work in the country, unless it is her past relevant work, it does not count against her. [00:05:57] Speaker 04: So it's sort of all or nothing from your point of view. [00:05:59] Speaker 04: If we remand, we should just order that the payments be paid. [00:06:02] Speaker 04: Otherwise, we shouldn't remand at all. [00:06:04] Speaker 04: Well, I think you should remand, but— I understand that, but I guess I'm trying to follow up on your response to Judge Fletcher insisting a remand would include— It is essentially all or nothing at this point. [00:06:14] Speaker 02: Okay. [00:06:14] Speaker 02: Also, with her date last insured being 2016, it's not like she can reapply. [00:06:17] Speaker 02: Okay. [00:06:21] Speaker 02: With specific reference to this job of cashier, the Zavalin Court held the task of reconciling cash on hand against the register tape. [00:06:29] Speaker 02: and issuing credit memoranda to customers would not be simple or repetitive tasks. [00:06:33] Speaker 02: And it's our position that those also involve complex decisions. [00:06:38] Speaker 02: It's difficult to imagine a complex task that doesn't involve a complex decision, frankly. [00:06:45] Speaker 02: And so that's why we believe the position of the United States attorney is a distinction without a difference. [00:06:55] Speaker 02: If there's nothing further, I'll just sit down. [00:06:57] Speaker 01: All right. [00:06:58] Speaker 01: Thank you. [00:06:58] Speaker 01: You have some time for rebuttal. [00:07:18] Speaker 00: Good morning, Your Honors. [00:07:19] Speaker 00: Joseph Langkamer on behalf of the Commissioner. [00:07:22] Speaker 00: Langkamer, I don't mean to interrupt you quickly, but I would note you're from Baltimore. [00:07:26] Speaker 00: I'm actually not from Baltimore. [00:07:27] Speaker 04: It's snowing like crazy in Baltimore. [00:07:29] Speaker 00: I'd like to welcome you to the good weather of Seattle. [00:07:31] Speaker 00: It's cold out there, but it's not snowing. [00:07:33] Speaker 00: I'm in Seattle. [00:07:34] Speaker 00: It's just our headquarters are in Baltimore. [00:07:37] Speaker 00: And you don't get a pass from me. [00:07:40] Speaker 00: But I know you are. [00:07:41] Speaker 00: I want to start by disagreeing with my colleague's argument that [00:07:52] Speaker 00: Simple decisions and simple tasks are a distinction without a difference. [00:07:59] Speaker 00: Making decisions and performing tasks are two different concepts. [00:08:04] Speaker 00: If you look it up in the dictionary, for example, a decision is a conclusion or resolution reached after consideration, a choice you make about something after thinking about several possibilities. [00:08:16] Speaker 00: Task is a piece of work that needs to be done. [00:08:20] Speaker 00: And when we look at the DOT description for cashier, it's focusing on tasks. [00:08:26] Speaker 00: It's not talking about making complex decisions. [00:08:29] Speaker 00: For example, it involves using a cash register, scanning things, handling coupons, bagging items. [00:08:37] Speaker 00: Not complicated decisions. [00:08:40] Speaker 00: When we look at reasoning level three, there's no specific limit on decision making. [00:08:45] Speaker 00: It talks about common sense understanding, carrying out certain instructions. [00:08:50] Speaker 00: It talks about dealing with problems, but it adds that we're talking about several concrete variables. [00:08:55] Speaker 01: How do you reconcile this case with Zavalin? [00:08:59] Speaker 00: The RFCs are different. [00:09:00] Speaker 00: The residual functional capacities are different. [00:09:02] Speaker 00: Zavalin dealt with tasks, and this case deals with decisions. [00:09:07] Speaker 00: And I think it becomes clear. [00:09:08] Speaker 00: In Zavalin, this court pointed out that the residual functional capacities. [00:09:15] Speaker 00: So what the claimant was limited to in Zavalin was simple repetitive tasks. [00:09:23] Speaker 03: I'm looking at the ALJ decision here. [00:09:25] Speaker 03: The claimant is limited to simple routine repetitive tasks. [00:09:29] Speaker 03: That's what the ALJ says. [00:09:31] Speaker 00: I don't believe so, Your Honor. [00:09:32] Speaker 00: I think if we turn to page [00:09:36] Speaker 00: 19 of the transcript. [00:09:40] Speaker 00: This is the current ALJ decision. [00:09:43] Speaker 00: Your Honor might be referring to the prior ALJ decision from 2015. [00:09:47] Speaker 03: That may be right. [00:09:49] Speaker 00: Yeah. [00:09:50] Speaker 01: In that one, that was- AR 48, the right location to look at when the ALJ asked the [00:09:54] Speaker 01: expert to assume whether the job seeker can make only simple work-related decisions with few, if any, workplace changes. [00:10:02] Speaker 01: That's the one I'm looking at. [00:10:03] Speaker 01: And I don't see a distinction between that and simple, routine, repetitive tasks that was at issue in Zavelin. [00:10:09] Speaker 01: Tell me again what the distinction is, because you're splitting a very, very thin line here. [00:10:14] Speaker 00: I think what it comes down to is what my colleague referred to as, is there a difference between decisions [00:10:22] Speaker 00: This claimant was limited to simple decisions, but no limitation on performing tasks or instructions, versus in Zavalin where the claimant was limited to performing simple routine tasks. [00:10:35] Speaker 00: And if I could just sort of add to this, when we look at the [00:10:42] Speaker 00: DOT description for cashier, as I was saying before. [00:10:46] Speaker 00: It's talking about tasks. [00:10:47] Speaker 00: It's talking about doing things like using a cash register, handling coupons, bagging items. [00:10:54] Speaker 00: Let's think about this court, I think, in Zavalin said that, well, a cashier might have to do more than follow simple instructions, or those could involve multiple tasks that would be potentially inconsistent with simple [00:11:10] Speaker 00: with reasoning level three, or with simple repetitive tasks. [00:11:14] Speaker 00: But let's think about sort of what decisions would a claimant actually, would an employee actually be making in performing those tasks? [00:11:23] Speaker 00: Well, let's say something doesn't scan. [00:11:26] Speaker 00: One of the tasks is scanning items. [00:11:28] Speaker 00: Well, what happens if something doesn't scan? [00:11:30] Speaker 00: You could decide to look it up in the computer somehow at the cashier, or you could send somebody to go check the price in the aisle. [00:11:39] Speaker 00: Um, what about bagging items? [00:11:41] Speaker 00: What are the decisions involved in that? [00:11:44] Speaker 00: Uh, you know, you could put every everything in one bag or you could separate bags based on whether it's, you know, cold food, delicate food items, things like that. [00:11:53] Speaker 00: So we're really talking about simple decisions. [00:11:55] Speaker 00: And I think, um, returns, uh, [00:12:02] Speaker 03: That can be complex. [00:12:04] Speaker 00: I think that can be complex, but I think also what Gutierrez says, this court's Gutierrez decision, which we cite in our brief, is when we're talking about apparent conflict. [00:12:14] Speaker 00: So remember, we have to have a conflict that's obvious for the ALJ to ask the follow-up question. [00:12:18] Speaker 00: When we're looking at that question, Judge Fletcher, Gutierrez says we're really looking at the essential sort of everyday functions of what a claim, of what an employee is doing at the job. [00:12:29] Speaker 00: And I would say returns do happen, but I wouldn't characterize that as necessarily an essential function of the work itself. [00:12:36] Speaker 03: You're telling me that a cashier working along and then all of a sudden a return comes, and the cashier says, I can't do that, and calls the manager. [00:12:44] Speaker 03: Right. [00:12:45] Speaker 03: Is that person going to be employed at that job much longer if it is absolutely a routine, whenever routine comes in? [00:12:51] Speaker 03: So I can't do that. [00:12:54] Speaker 03: That may not happen very often, but I think it's an essential part of a cashier's job. [00:12:58] Speaker 03: We all see it. [00:12:59] Speaker 00: Yeah, and I mean, I think that does happen from time to time. [00:13:02] Speaker 00: But again, I would say it's, first off, it's not in the DOT description for this specific cashier. [00:13:10] Speaker 00: code, as far as I recall, I'd have to look back at the code. [00:13:13] Speaker 00: But again, I would say that when we're looking at sort of the routine things that a cashier does, it doesn't involve simple decisions. [00:13:19] Speaker 03: I don't think you're quite taking my point. [00:13:22] Speaker 03: Some things the cashier does all the time, some things the cashier does from time to time, some things the cashier does rarely but was required to do, [00:13:31] Speaker 03: And I think you're asking me to say, well, the things that the cashier does but rarely don't count as part of the cashier's job. [00:13:39] Speaker 03: Is that what you're saying to me? [00:13:40] Speaker 00: And I think that's exactly what this court said in Gutierrez. [00:13:43] Speaker 00: In Gutierrez, the question was a reaching limitation in a cashier position. [00:13:48] Speaker 00: And this court said, [00:13:51] Speaker 00: that sometimes a cashier might have to reach overhead. [00:13:54] Speaker 00: That was the specific limit in the RFC in that case. [00:13:57] Speaker 00: Sometimes cashiers have to do that, but it's not an essential part of the job. [00:14:01] Speaker 00: So it doesn't raise an obvious conflict that the ALJ has to follow up on. [00:14:05] Speaker 03: And back to this decision- I just have to say I beg to differ. [00:14:08] Speaker 03: If you're saying that returns can be complex and therefore they're a problem, but they're not a problem for you because that doesn't happen very often, [00:14:16] Speaker 03: I just disagree in terms of whether that's an essential characteristic of the job of a cashier. [00:14:22] Speaker 00: Okay. [00:14:23] Speaker 00: And again, I don't know that I would say that all returns are complicated. [00:14:28] Speaker 00: I don't know if that's always the case. [00:14:30] Speaker 00: I think we're sort of assuming that, but I don't know that I would necessarily agree with that. [00:14:35] Speaker 00: But I do want to make this point. [00:14:38] Speaker 00: When we're talking about reasoning level three, [00:14:41] Speaker 00: and whether or not there's a conflict. [00:14:43] Speaker 04: Does not your response to Judge Fletcher's question then raise the issue as to whether or not the ALJ made the appropriate finding in terms of lack of substantial evidence, in terms of work as a cashier, that was as to generally performed in the national economy, correct? [00:14:59] Speaker 04: That's correct. [00:15:00] Speaker 04: Well, it seems to me that your acknowledgement as to Judge Fletcher's question places us in jeopardy from the point of view of the government and the agency, it would seem. [00:15:10] Speaker 04: I don't think it's a model. [00:15:12] Speaker 04: I guess what I'm trying to give you the benefit is I don't think it's a mild concession here. [00:15:15] Speaker 04: I think it's a crucial concession you just made to Judge Fletcher here that I think jeopardizes your position before us, it seems. [00:15:21] Speaker 00: I don't believe I'm conceding. [00:15:24] Speaker 00: All right. [00:15:24] Speaker 00: I don't believe I'm conceding that returns are either set or. [00:15:28] Speaker 04: Opposed to actually conceding or generally conceding, I guess, is what it might be. [00:15:32] Speaker 00: Oh, the general versus the actual. [00:15:33] Speaker 00: Yeah, that's what I'm saying. [00:15:35] Speaker 00: Maybe I should just take a step back here. [00:15:37] Speaker 00: I just want to make sure we're all on the same page. [00:15:39] Speaker 00: The claimant has to show both that they can't perform the job as generally performed in the economy and as actually performed in the economy. [00:15:47] Speaker 00: So what I think I'm trying to convey here is when we're talking about general performance, [00:15:55] Speaker 00: What does the job typically entail? [00:15:58] Speaker 00: We do look to the DOT for that. [00:16:00] Speaker 00: That sort of is an important resource. [00:16:03] Speaker 01: Doesn't the DOT talk about the job of a cashier involving sometimes reconciling the accounts with the cash that's actually in the register? [00:16:12] Speaker 01: I guess my struggle with your argument is that you're asking us to make some fundamental assumptions [00:16:20] Speaker 01: about the scope of a cashiering job, but it can be very different involving complex tasks in addition to very routine tasks. [00:16:30] Speaker 01: So if we look to the DOT, and I think you're right that we do look to that, I think reconciling cash accounts and doing returns at Judge Fletcher hypothesized is much more complex than just simple routine tasks. [00:16:45] Speaker 01: So I think that's why Zavalin was talking about level three reasoning. [00:16:49] Speaker 01: And here, I think that the potential complexity of the cashiering job makes your argument of [00:17:00] Speaker 01: what's generally accepted as a scope of a cashiering job difficult. [00:17:05] Speaker 01: And so your alternative argument is, well, she worked as a cashier in the past, but my problem with that is that the record doesn't really involve any details about what her scope of responsibilities are. [00:17:18] Speaker 01: The AOJ just stopped that confirmation that she had worked as a cashier but didn't go into any details about what that entailed. [00:17:28] Speaker 00: And I understand your honor's point. [00:17:30] Speaker 00: I mean, I think if we look at the DOT code, technically the DOT code in Zavalin, the cashier position in Zavalin that we were talking about was actually, it's a different cashier position in DOT. [00:17:41] Speaker 00: I don't see anything in this DOT code that talks about reconciling [00:17:48] Speaker 00: cash, as your honor was pointing out, some of the tasks are a little bit different between the DOT codes. [00:17:53] Speaker 00: I wouldn't say that there's any, I'm not asking the court to make assumptions. [00:18:00] Speaker 00: What I would encourage the court to do is look at the DOT definition here, see that it's focusing largely on tasks, and then understand that decision making is different than tasks. [00:18:12] Speaker 00: So that's my basic point. [00:18:15] Speaker 00: If I could for a moment, I know there was some questioning, I think, [00:18:19] Speaker 00: by Judge Fletcher and maybe Judge Bennett about if this court were to remand, do we just remand for payment of benefits? [00:18:30] Speaker 00: We should not do that. [00:18:31] Speaker 00: This would have to go back for further proceedings. [00:18:33] Speaker 00: And the reason is, yes, it's true the new five-year rule under the revised regulations would apply on remand. [00:18:42] Speaker 00: It doesn't apply here. [00:18:44] Speaker 00: The claimant has withdrawn that argument, I think, as we're aware. [00:18:49] Speaker 00: And I think it appears also that the cashiering position would no longer be on the table because we would be outside the five years. [00:18:57] Speaker 00: But what complicates this case is I believe Ms. [00:19:02] Speaker 00: Young said this was a Title II claim only. [00:19:04] Speaker 00: It's not a Title II claim only. [00:19:05] Speaker 00: It's a Title XVI claim as well. [00:19:07] Speaker 00: So we're dealing with both disability insurance benefits, which do have a date last insured. [00:19:13] Speaker 00: But we're also dealing with supplemental security income, which the end period for that is the date of the ALJ's decision. [00:19:21] Speaker 00: So if this case were to go back on remand, at least for the Title 16 claim, we would be using the new ALJ decision as that point, that reflection point for five years back. [00:19:35] Speaker 00: So the question for the agency on remand would be, [00:19:39] Speaker 00: And I do say I'm over my time, but I just want to finish this. [00:19:41] Speaker 01: Go ahead and finish that answer. [00:19:42] Speaker 00: The question on remand would be, has there been any work within the past five years, from the date of this new ALJ decision in the future, whenever that is, that the claimant performed? [00:19:54] Speaker 00: And it very well may be that the claimant hasn't done anything, any work. [00:19:59] Speaker 00: But we don't have that in the record. [00:20:01] Speaker 00: So really, it would be for the agency to apply these revised regulations in the first instance [00:20:08] Speaker 00: And to make factual findings about whether there is actually past relevant work that has been performed again on remand so So I would I would request this court to affirm the LJ step for finding. [00:20:22] Speaker 00: Thank you. [00:20:23] Speaker 02: Thank you counsel Sorry for being tall [00:20:36] Speaker 02: I do have a few points to bring up in rebuttal. [00:20:38] Speaker 02: Mainly, and I've been wrong before, but my notes indicate that the Title 16 was allowed in this case and that the issue on appeal into the federal court was only the Title 2. [00:20:51] Speaker 02: As far as I know, Ms. [00:20:53] Speaker 02: Faulkner is on SSI benefits at this time. [00:20:56] Speaker 02: Also, regarding the Gutierrez case, and again, I haven't read it in the last few minutes, but if I recall correctly, the issue in Gutierrez was whether a person who was limited to occasionally overhead reaching could perform a job that required frequent reaching in general. [00:21:12] Speaker 02: The court's holding was that because overhead reaching is a pretty rare requirement, a limitation to occasional would not be in conflict. [00:21:20] Speaker 02: This case isn't about occasional versus frequent, it's about whether the person can or cannot do [00:21:25] Speaker 02: complex tasks. [00:21:26] Speaker 02: If there's any complex tasks that they cannot do, then they're going to have a problem with that job. [00:21:32] Speaker 02: Respectfully, there is some evidence in the record distinguishing actual from general performance. [00:21:37] Speaker 02: It wasn't at the hearing for this case. [00:21:39] Speaker 02: It was at the hearing for the 2015 case, but it is in the record. [00:21:42] Speaker 02: The 2015 hearing transcript is in the record. [00:21:45] Speaker 02: And at CAR 103, the previous vocational expert testified [00:21:50] Speaker 02: that the past relevant work exceeded light exertion. [00:21:54] Speaker 02: So there is a distinction in the record, but that distinction would lead the ALJ to conclude that she could not do her past relevant work as actually performed. [00:22:03] Speaker 02: Lastly, as far as the question of whether [00:22:06] Speaker 02: a cashier has complex decisions to make. [00:22:09] Speaker 02: As I believe Gutierrez held, and I know the court held in Lemire versus Berryhill, 865 F3rd, I want to say 1021, no 1201. [00:22:20] Speaker 02: This court is not deprived of its common sense. [00:22:22] Speaker 02: We have all [00:22:23] Speaker 02: gone grocery shopping, and encountered cashiers. [00:22:26] Speaker 02: And there are certain things we know cashiers have to do. [00:22:29] Speaker 02: If someone's buying alcohol, they have to check ID, and they have to determine whether that ID is valid, shows that the person can buy alcohol, or is fake. [00:22:38] Speaker 02: If someone pays by check, they might have to check ID, they might have to deal with the check. [00:22:43] Speaker 02: Or if a customer comes up and says, hey, this rang up for this price, but on the shelf it said this price, that's a pretty complicated situation, and the cashier has to decide what to do about that. [00:22:52] Speaker 02: That's, in our position, clearly not a simple decision. [00:22:59] Speaker 02: If there's nothing further, we'll rest. [00:23:02] Speaker 01: All right. [00:23:02] Speaker 01: Thank you very much, counsel, to both sides for your argument. [00:23:05] Speaker 01: The matter is submitted, and that concludes our argument calendar this morning. [00:23:09] Speaker 01: We'll be in recess until tomorrow morning.