James Terry v. Andrew Saul ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES TERRY, No. 19-56000
Plaintiff-Appellant,
D.C. No.
v. 2:18-cv-08794-
KES
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
Karen E. Scott, Magistrate Judge, Presiding
Submitted February 12, 2021 *
Pasadena, California
Filed May 28, 2021
Before: Richard C. Tallman, Consuelo M. Callahan, and
Kenneth K. Lee, Circuit Judges.
Opinion by Judge Callahan
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 TERRY V. SAUL
SUMMARY **
Social Security
The panel affirmed the district court’s judgment
affirming the administrative law judge (“ALJ”)’s
determination that claimant James Terry was not disabled
within the meaning of the Social Security Act.
The panel held that knowledge of the Social Security
Administration’s longstanding interpretation of the term
“medium work” – as requiring standing or walking for
approximately six hours out of an eight-hour workday – can
be imputed to a qualified vocational expert. Specifically, the
panel held that an expert in the field is presumptively aware
of the agency’s well-established definition of this term of art.
When the ALJ asked the vocational expert in this case
whether jobs existed for a hypothetical individual who was
limited to medium work, that question adequately
communicated the term’s attendant standing and walking
limitations. The panel held that the expert’s resulting
testimony that a significant number of jobs existed in the
national economy for an individual with claimant’s
limitations constituted substantial evidence in support of the
ALJ’s determination that claimant was not disabled within
the meaning of the Social Security Act.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
TERRY V. SAUL 3
COUNSEL
Lawrence D. Rohlfing, Santa Fe Springs, California, for
Plaintiff-Appellant.
Timothy R. Bolin, Special Assistant United States Attorney,
Office of the General Counsel, Social Security
Administration, San Francisco, California, for Defendant-
Appellee.
OPINION
CALLAHAN, Circuit Judge:
At issue is whether knowledge of the Social Security
Administration’s longstanding interpretation of the term
“medium work” as requiring standing or walking for
approximately six hours out of an eight-hour workday can
be imputed to a qualified vocational expert. See SSR 83-10,
1983 WL 31251, at *6 (Jan. 1, 1983). We hold that an expert
in this field is presumptively aware of the agency’s well-
established definition of this term of art. Thus, when the
administrative law judge (“ALJ”) asked the expert in this
case whether jobs existed for a hypothetical individual who
was limited to medium work, that question adequately
communicated the term’s attendant standing and walking
limitations. It follows that the expert’s resulting testimony
that a significant number of jobs existed in the national
economy for an individual with claimant James Terry’s
limitations constituted substantial evidence in support of the
ALJ’s determination that Terry was not disabled within the
meaning of the Social Security Act.
4 TERRY V. SAUL
I
Terry filed a Title II application for disability benefits in
March 2015. Following a hearing, an ALJ found that Terry
had not engaged in substantial gainful work activity since his
alleged disability onset date of December 18, 2014. The ALJ
also found that Terry had a number of severe impairments,
but determined that none of them met the severity of those
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
After considering Terry’s impairments, the ALJ
determined that Terry had
the residual functional capacity to perform
medium work as defined in 20 CFR
[§] 404.1567(c) except he can lift or carry
50 lbs occasionally and 25 lbs frequently; he
can sit, stand or walk up to 6 hours in an
8 hour workday; he can occasionally reach
overhead with the left upper extremity; he is
precluded from working at unprotected
heights; he is precluded from operating a
motor vehicle; he is precluded from working
around moving mechanical parts; he is
limited to simple routine and repetitive tasks;
and he is limited to superficial occasional
interaction with the general public.
Based on testimony from a vocational expert, the ALJ found
that with these limitations Terry could not perform his past
work as a gardener, stuntman, or butler. The ALJ then asked
the vocational expert whether jobs existed for a hypothetical
individual “who has the capacity to do medium work, except
overhead reaching on the left is occasional; there’s not
unprotected heights; no moving mechanical parts; no
operating a motor vehicle; simple, routine, and repetitive
TERRY V. SAUL 5
tasks; [and] with superficial, occasional public contact.” The
vocational expert responded that jobs existed in significant
numbers in the national economy that such an individual
could perform, including positions as an order filler,
packager, and laundry worker. Based on this testimony and
the other evidence in the record, the ALJ determined that
Terry was not disabled.
The Appeals Council denied Terry’s request for review.
Terry then brought a civil action in the district court seeking
review of the agency’s decision. The district court affirmed
and entered judgment in favor of the Commissioner. Terry
timely appealed.
II
“We review the district court’s order affirming the ALJ’s
denial of social security benefits de novo, and will disturb
the denial of benefits only if the decision contains legal error
or is not supported by substantial evidence.” Ford v. Saul,
950 F.3d 1141, 1153–54 (9th Cir. 2020) (quoting
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
“Substantial evidence is relevant evidence which,
considering the record as a whole, a reasonable person might
accept as adequate to support a conclusion.” Flaten v. Sec’y
of Health & Hum. Servs., 44 F.3d 1453, 1457 (9th Cir. 1995).
On appeal, Terry contends that the vocational expert’s
testimony did not constitute substantial evidence supporting
the ALJ’s finding regarding the availability of work for
someone with Terry’s limitations because the ALJ did not
reference Terry’s six-hour standing and walking limitation
in his questioning of the expert. Embrey v. Bowen, 849 F.2d
418, 422 (9th Cir. 1988) (“Hypothetical questions posed to
the vocational expert must set out all the limitations and
restrictions of the particular claimant.”). Although the ALJ’s
6 TERRY V. SAUL
questions referenced a hypothetical individual with “the
capacity to do medium work,” Terry argues that there is no
reason to assume that the expert understood this to suggest
that the hypothetical person had any standing or walking
restrictions. Terry further asserts that the jobs identified by
the vocational expert require more than six hours of standing
or walking per day, which he contends confirms that the
expert did not factor in Terry’s limitations.
We are not persuaded. “Medium work” is a term of art
in disability law with a well-established meaning. 20 C.F.R.
§ 404.1567(c). While the regulation defining “medium
work” does not include any express standing and walking
limitation, the Social Security Administration has long
interpreted this language to include such a restriction. In a
1983 published Social Security Ruling, the Commissioner
interpreted “medium work” to “require[] standing or
walking, off and on, for a total of approximately 6 hours in
an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *6
(Jan. 1, 1983).
Here, the testifying vocational expert had significant
experience in the vocational rehabilitation field and as an
expert witness. Terry’s counsel did not object to the expert’s
qualifications or otherwise challenge the expert’s testimony
at the administrative hearing. There is no reason to think that
the vocational expert was not familiar with Social Security
Ruling 83-10 and the agency’s longstanding interpretation
of “medium work.” We thus determine that the ALJ’s
reference to the term in his questioning of the expert
sufficiently conveyed Terry’s standing and walking
limitations.
Citing O*Net data and information from the
Occupational Requirements Survey, which became part of
the administrative record as new evidence submitted to the
TERRY V. SAUL 7
Appeals Council, Terry claims that the majority of the jobs
identified by the vocational expert require more than six
hours of standing or walking per day. But this does not
necessarily establish either legal error or a lack of substantial
evidence to support the ALJ’s disability determination. As
noted, a qualified vocational expert is presumptively familiar
with the meaning of “medium work” as a term of art and its
attendant limitations. The expert’s opinion that an
individual with Terry’s restrictions could work as an order
filler, packager, and laundry worker was supported by her
unchallenged expertise and her reference to the Dictionary
of Occupational Titles. This constituted substantial
evidence in support of the ALJ’s finding that Terry could
perform jobs existing in significant numbers in the national
economy. See Ford, 950 F.3d at 1159 (holding that an ALJ’s
reliance on qualified, cogent, and uncontradicted expert
testimony generally constitutes substantial evidence in
support of the ALJ’s finding). Importantly, even where the
evidence of record is “susceptible to more than one rational
interpretation,” we must defer to the Commissioner’s
interpretation of the evidence. Andrews v. Shalala, 53 F.3d
1035, 1039–40 (9th Cir. 1995). Because the
Commissioner’s interpretation of the record regarding
occupational characteristics was reasonable, we must defer
to it. Id.Terry also claims that Social Security Ruling 83-10 is
inconsistent with the regulation defining “medium work.”
Terry notes that, unlike the Ruling, the regulation does not
include any express reference to any standing or walking
restrictions. 20 C.F.R. § 404.1567(c). But the relevant
inquiry here is whether the ALJ’s question to the vocational
expert concerning a hypothetical individual sufficiently
conveyed all of Terry’s limitations, not whether Social
Security Ruling 83-10 is entitled to deference. In other
8 TERRY V. SAUL
words, the question is whether the ALJ and the expert would
have shared an understanding that the term “medium work”
implies a six-hour standing and walking limitation. Because
we hold that the expert here would have understood the
ALJ’s question to imply such a limitation, the ALJ’s inquiry
concerning a hypothetical individual was not incomplete. 1
III
For the reasons stated above, we agree with the district
court that the ALJ’s question to the vocational expert
concerning a hypothetical individual was not incomplete.
The expert’s responsive testimony thus constituted
substantial evidence in support of the ALJ’s determination
that Terry was not disabled within the meaning of the Social
Security Act. The judgment of the district court is
AFFIRMED.
1
Though we need not and do not reach the issue of whether Social
Security Ruling 83-10 is a permissible interpretation of 20 C.F.R.
§ 404.1567(c), we note that this court has cited this particular Ruling’s
definitions with approval on multiple occasions. See, e.g., Vertigan v.
Halter, 260 F.3d 1044, 1052 (9th Cir. 2001); Aukland v. Massanari,
257 F.3d 1033, 1035 (9th Cir. 2001); Gallant v. Heckler, 753 F.2d 1450,
1454 n.1 (9th Cir. 1984).