Caroline Leach v. Kilolo Kijakazi ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROLINE C. LEACH, No. 22-55504
Plaintiff-Appellant,
D.C. No.
v. 8:20-cv-02229-
JDE
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Central District of California
John D. Early, Magistrate Judge, Presiding
Submitted June 8, 2023*
Pasadena, California
Filed June 15, 2023
Before: Susan P. Graber and John B. Owens, Circuit
Judges, and John R. Tunheim,** District Judge.
Opinion by Judge Graber
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2 LEACH V. KIJAKAZI
SUMMARY***
Social Security
The panel reversed the district court’s judgment
upholding an administrative law judge (“ALJ”)’s denial of
Claimant Caroline Leach’s application for disability benefits
under the Social Security Act, and remanded.
An ALJ often calls upon a vocational expert to testify
about what jobs, if any, a hypothetical person with specified
limitations may perform. If the ALJ reaches the final step of
the five-step sequential evaluation process, the ALJ may
rely—as the ALJ did here—on the vocational expert’s
testimony.
Here, Claimant argued that the ALJ’s question posed to
the vocational expert inaccurately described her actual
limitations. First, the hypothetical posed to the expert did
not provide that claimant was limited to jobs with “little or
no judgment.” The panel concluded that the error was
harmless because the vocational expert identified only jobs
with that limitation.
Second, the hypothetical did not provide that Claimant
could “follow short, simple instructions” only. The panel
held that because the ALJ omitted the qualifying adjective
“short” when posing the question to the vocational expert,
thereby describing a hypothetical person with greater
functional capacity than Claimant possesses, the ALJ erred
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LEACH V. KIJAKAZI 3
by relying on the vocational expert’s testimony, and the error
was not harmless.
Third, in the question posed to the vocational expert, the
ALJ described a hypothetical person who “can work in an
environment with occasional changes to the work
setting.” The panel held that the ALJ’s reformulation does
not accurately reflect Claimant’s limitation to “few” changes
only, and that the error was not harmless.
The panel concluded that the ALJ materially
mischaracterized Claimant’s functional capacity when
posing a question to a vocational expert, so the vocational
expert’s testimony lacked evidentiary value with respect to
jobs that Claimant could perform. Because the ALJ relied
on the vocational expert’s testimony in concluding that
Claimant was not disabled, the panel reversed the district
court’s judgment and remanded to the district court with the
instruction to remand the case to the agency for further
proceedings.
COUNSEL
James B. Lewis, James Lewis Law Office, Laguna Hills,
California, for Plaintiff-Appellant.
Elizabeth Firer, Special Assistant United States Attorney;
Matthew W. Pile, Associate General Counsel; Martin
Estrada, United States Attorney; Social Security
Administration, Office of the General Counsel; San
Francisco, California; for Defendant-Appellee.
4 LEACH V. KIJAKAZI
OPINION
GRABER, Circuit Judge:
Claimant Caroline Leach appeals the district court’s
judgment upholding the denial of social security benefits by
an administrative law judge (“ALJ”). Reviewing de novo
the district court’s decision, Farlow v. Kijakazi, 53 F.4th
485, 487 (9th Cir. 2022), we reverse. The ALJ materially
mischaracterized Claimant’s functional capacity when
posing a question to a vocational expert, so the vocational
expert’s testimony lacked evidentiary value with respect to
jobs that Claimant could perform. Because the ALJ relied
on the vocational expert’s testimony in concluding that
Claimant was not disabled, we remand with the instruction
that the district court remand the case to the agency for
further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Claimant applied for disability benefits in 2018. After a
hearing, the ALJ found that Claimant had the following
severe impairments: “cardiac impairment, spinal
impairment, neuropathy, hypothyroidism, obesity, and
neurocognitive disorder.” The ALJ determined that
Claimant has the residual functional capacity for light work
except with certain physical and mental limitations. The
mental limitations included:
She can perform simple, routine tasks and
can follow short, simple instructions. She
can do work that needs little or no judgment,
and can perform simple duties that can be
learned on the job in a short period. She
requires a work environment that is
LEACH V. KIJAKAZI 5
predictable and with few work setting
changes.
A vocational expert testified during the hearing. The
ALJ asked the vocational expert if a hypothetical person
with certain limitations could perform jobs in the national
economy. The ALJ accurately summarized Claimant’s
physical limitations. But, as we discuss in detail below, the
ALJ described mental limitations that differed from
Claimant’s actual limitations. In particular, the ALJ
identified the following limitations in the hypothetical posed
to the vocational expert:
[The person] can understand and remember
and carry out simple job instructions,
maintain attention and concentration,
perform non-complex routine task[s], and
can work in an environment with occasional
changes to the work setting.
The vocational expert testified that such an individual could
perform three representative unskilled occupations, as
described in the Dictionary of Occupational Titles: routing
clerk, cafeteria attendant, and order caller. See Dictionary
of Occupational Titles, § 222.687-022, 1991 WL 672133(“Routing Clerk”); id. § 311.677-010, 1991 WL 672694(“Cafeteria Attendant”); id. § 209.667-014, 1991 WL
671807 (“Order Caller”).
At step five of the familiar sequential process, 20 C.F.R.
§ 404.1520, the ALJ relied on the vocational expert’s
testimony and concluded that Claimant could perform all
three jobs. Accordingly, the ALJ denied disability benefits.
The Appeals Council denied Claimant’s appeal.
6 LEACH V. KIJAKAZI
Claimant then filed this action. The district court granted
judgment to the Acting Commissioner of the Social Security
Administration (“Commissioner”). Claimant timely
appeals.
DISCUSSION
An ALJ often calls upon a vocational expert to testify
about what jobs, if any, a hypothetical person with specified
limitations may perform. If the ALJ reaches the final step of
the five-step process, the ALJ may rely—as the ALJ did
here—on the vocational expert’s testimony. In addressing
challenges to an ALJ’s reliance on that testimony, our legal
inquiry hinges on the nature of the ALJ’s question.
When the ALJ’s question to a vocational expert
inaccurately describes the claimant’s true limitations, our
legal rule is clear: “If an ALJ’s hypothetical does not reflect
all of the claimant’s limitations, then ‘the expert’s testimony
has no evidentiary value to support a finding that the
claimant can perform jobs in the national economy.’” Bray
v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th
Cir. 2009) (quoting DeLorme v. Sullivan, 924 F.2d 841, 850
(9th Cir. 1991)). In that situation, “the vocational expert’s
testimony cannot constitute substantial evidence to support
the ALJ’s findings.” Hill v. Astrue, 698 F.3d 1153, 1162
(9th Cir. 2012) (quoting Gallant v. Heckler, 753 F.2d 1450,
1456 (9th Cir. 1984)) (internal quotation mark omitted). We
may affirm nevertheless if the ALJ’s failure to include all of
the claimant’s limitations was harmless. See, e.g., Matthews
v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (reviewing for
harmless error). “An error is harmless only if it is
‘inconsequential to the ultimate nondisability
determination.’” Lambert v. Saul, 980 F.3d 1266, 1278 (9th
LEACH V. KIJAKAZI 7
Cir. 2020) (quoting Brown-Hunter v. Colvin, 806 F.3d 487,
494 (9th Cir. 2015)).
A different standard applies when the ALJ’s question to
a vocational expert accurately describes the claimant’s
limitations. In that circumstance, an ALJ ordinarily may rely
on the expert’s testimony. White v. Kijakazi, 44 F.4th 828,
833–34 (9th Cir. 2022). An exception exists, however, if
there is an “apparent conflict” between the expert’s
testimony and the Dictionary of Occupational Titles.
Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003
(9th Cir. 2015). If an “apparent conflict” exists, “the ALJ
has an affirmative duty to ask the expert to explain the
conflict and then determine whether the vocational expert’s
explanation for the conflict is reasonable before relying on
the expert’s testimony to reach a disability determination.”
Id. (citations and internal quotation marks omitted). We
have explained that “the conflict must be ‘obvious or
apparent’ to trigger the ALJ’s obligation to inquire further.”
Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017)
(quoting Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir.
2016)). And we may affirm if the ALJ’s failure to reconcile
the apparent conflict was harmless. Id. at 1206.
Although the two lines of cases both concern a
vocational expert’s testimony, the legal inquiries differ.
When an ALJ inaccurately summarizes a claimant’s
limitations, we ordinarily must reverse and remand (unless
the error was inconsequential). When, by contrast, an ALJ
accurately summarizes a claimant’s limitations, we
ordinarily must affirm (unless there is an unexplained,
obvious conflict that is consequential).
Here, Claimant argues that the ALJ’s question to the
vocational expert inaccurately described her actual
8 LEACH V. KIJAKAZI
limitations. In particular, she asserts that the question posed
to the vocational expert omitted three aspects of her
limitations: (1) she is limited to jobs with “little or no
judgment”; (2) she can “can follow short, simple
instructions” only; and (3) she “requires a work environment
that is predictable and with few work setting changes.” We
address each aspect in turn.1
1. Judgment
In assessing Claimant’s residual functional capacity, the
ALJ determined that Claimant is limited to work requiring
“little or no judgment.” The question posed by the ALJ
contained no reference to that limitation, thus permitting the
vocational expert to list jobs that require the exercise of more
than minimal judgment. But we conclude that the error was
harmless because it was inconsequential to the ultimate
nondisability determination. Lambert, 980 F.3d at 1278.
In responding to the ALJ’s question, the vocational
expert identified the three jobs and described each one as
“unskilled,” a characterization that Claimant has not
challenged. The agency defines “[u]nskilled work” as “work
which needs little or no judgment.” 20 C.F.R.
§ 404.1568(a). In other words, even though the ALJ’s
question did not limit the vocational expert’s answer to jobs
1
Claimant raised this argument to the district court, and the district court
addressed it on the merits. We reject, as unsupported by the record, the
Commissioner’s argument that Claimant forfeited or waived the
argument by failing to raise it to the district court. See, e.g., Arizona v.
Components, Inc., 66 F.3d 213, 217 (9th Cir. 1995) (“Although there is
no bright-line rule to determine whether a matter has been raised below,
a workable standard is that the argument must be raised sufficiently for
the trial court to rule on it.” (ellipsis omitted) (citation and internal
quotation marks omitted)).
LEACH V. KIJAKAZI 9
that require little or no judgment, the vocational expert
identified only jobs with that limitation. In this
circumstance, the error was harmless.
2. Short, Simple Instructions
In assessing Claimant’s residual functional capacity, the
ALJ determined that Claimant is limited to following “short,
simple instructions.” The ALJ’s question to the vocational
expert asked only whether jobs existed for a person who can
carry out “simple job instructions.” The ALJ plainly omitted
the adjective “short,” thus inviting the vocational expert to
identify jobs that have longer-than-short, simple
instructions. The ALJ thereby erred by relying on the
vocational expert’s testimony.
Unlike the previous error, we cannot say that this error
was inconsequential. The Commissioner points out that the
three jobs identified by the vocational expert have a
“reasoning development” level of two. See Dictionary of
Occupational Titles, § 222.687-022, 1991 WL 672133; id.§ 311.677-010, 1991 WL 672694; id. § 209.667-014, 1991
WL 671807. The Dictionary of Occupational Titles assigns
each job a “reasoning development” level, on a six-tiered
scale of Level One (simplest) to Level Six (most complex).
Dictionary of Occupational Titles, App. C, § III, 1991 WL
688702 (4th ed. 1991). The first two levels are:
LEVEL 1[:] Apply commonsense
understanding to carry out simple one- or
two-step instructions. Deal with
standardized situations with occasional or no
variables in or from these situations
encountered on the job.
10 LEACH V. KIJAKAZI
LEVEL 2[:] Apply commonsense
understanding to carry out detailed but
uninvolved written or oral instructions. Deal
with problems involving a few concrete
variables in or from standardized situations.
Id. (reordered). The Commissioner urges us to conclude that
all jobs with reasoning level two are suitable for persons, like
Claimant, who are limited to following short, simple
instructions. We disagree.
Most pertinently, level-one jobs require only “simple
one- or two-step instructions” but level-two jobs require
“detailed but uninvolved . . . instructions.” Id. Both
reasoning levels require simple (or “uninvolved”)
instructions. Cf. Zavalin v. Colvin, 778 F.3d 842, 847 (9th
Cir. 2015) (noting that a limitation to “simple, routine tasks”
was more consistent with reasoning level two than with
reasoning level three). The key distinction between those
two levels is that level-one jobs require instructions
involving at most two steps, whereas level-two jobs may
require “detailed”—that is, potentially longer—instructions.
See Rounds, 807 F.3d at 1003 (“Only tasks with more than
one or two steps would require ‘detailed’ instructions.”). A
level-two job with “detailed but uninvolved . . . instructions”
could require an employee to follow lengthy simple
instructions. On the present record, then, we cannot
determine whether the level-two jobs identified by the
vocational expert require only short, simple instructions.
In reaching this holding, we emphasize that we agree
with the Commissioner that a limitation to “short, simple
instructions” does not necessarily restrict a claimant to level-
one jobs. Level-one jobs encompass instructions that
include, at most, two tasks. Id. But “short, simple
LEACH V. KIJAKAZI 11
instructions” could comprise more than two tasks. Some
level-two jobs—including potentially the jobs identified by
the vocational expert here—might be consistent with a
limitation to following only short, simple instructions. For
example, a particular level-two job might involve only three
tasks that are simple to explain. Because the vocational
expert was not asked about a person limited to following
short, simple instructions, however, we have no evidence on
this point, and remand for further proceedings is required.
See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988)
(requiring remand and reconsideration because the ALJ’s
hypothetical did not reflect all of the claimant’s limitations).
Relatedly, we stress that we need not, and do not, reach
the question whether remand would be required had the ALJ
accurately summarized Claimant’s limitations and had the
vocational expert identified jobs with reasoning level two.
Because some level-two jobs may be consistent with a
limitation to short, simple instructions, there may not be an
“obvious” conflict between level-two jobs and that
limitation. We do not reach that distinct question.
Decisions by the Fourth Circuit strongly support our
analysis. In Thomas v. Berryhill, 916 F.3d 307 (4th Cir.
2019), the Fourth Circuit held that a claimant’s limitation to
“short, simple instructions” conflicted with level-two jobs
because a person “limited to short, simple instructions . . .
may not be able to carry out detailed but uninvolved
instructions.” Id. at 314. The Fourth Circuit later
elaborated: “‘Short’ is inconsistent with ‘detailed’ because
detail and length are highly correlated. Generally, the longer
the instructions, the more detail they can include.”
Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019). In
Thomas, the court also recognized, as we do, that the
potential conflict “is not a categorical rule—some
12 LEACH V. KIJAKAZI
instructions, particularly if they are well-drafted, may be
simultaneously short, simple, detailed, and uninvolved.”
916 F.3d at 314.
The Fourth Circuit’s holding in Thomas went beyond
ours. The ALJ in Thomas had described the claimant’s
limitations accurately, and the Fourth Circuit held that the
conflict was apparent—an issue that we need not, and do not,
reach. Id. at 313–14; but see Surprise v. Saul, 968 F.3d 658,
662–63 (7th Cir. 2020) (holding that no obvious conflict
existed between level-two jobs and a limitation to one- to
three-step instructions). We hold only that, because the ALJ
omitted the qualifying adjective “short” when posing the
question to the vocational expert, thereby describing a
hypothetical person with greater functional capacity than
Claimant possesses, the ALJ erred by relying on the
vocational expert’s testimony, and the error was not
harmless.
3. Predictable Work Environment with Few Changes
Finally, in describing Claimant’s capabilities, the ALJ
held that Claimant “requires a work environment that is
predictable and with few work setting changes.” (Emphases
added.) In the question posed to the vocational expert,
though, the ALJ described a hypothetical person who “can
work in an environment with occasional changes to the work
setting.” (Emphasis added.) The ALJ’s reformulation does
not accurately reflect Claimant’s limitations. “Occasional”
changes may, over time, amount to more than “few”
changes.2 And, at least in the context of physical exertion,
2
“Few” suggests an absolute number that is small. Few, Merriam
Webster Dictionary, https://www.merriam-webster.com/dictionary/few
(May 30, 2023). But “occasional” suggests from time to time, with no
necessary numerical limit. Occasional, Merriam-Webster Dictionary,
LEACH V. KIJAKAZI 13
both the Dictionary of Occupational Titles and a Social
Security Ruling have defined “occasionally” to mean “from
very little up to one-third of the time.” SSR 96-9p, 1996 WL
374185, at *8 (July 2, 1996) (emphasis added); see also
Dictionary of Occupational Titles, App. C, § IV, 1991 WL
688702 (4th ed. 1991). Changes that can occur one-third of
the time amount to much more than “few” changes. At a
minimum, the vocational expert could have understood the
ALJ’s question in that manner.
We agree with the Commissioner that an ALJ need not
use identical wording when describing a claimant’s residual
functional capacity and when posing a question to the
vocational expert. ALJs permissibly may use synonyms and
reasonably reworded descriptions of limitations, so long as
the limitations are not materially altered. We acknowledge
that the distinction here is a close call. But, for the reasons
described above, the vocational expert may have understood
the permissively worded allowance of “occasional” changes
differently from Claimant’s restrictive limitation to “few”
changes only. Accordingly, we hold that the ALJ erred in
this respect, too, and the error was not harmless.
CONCLUSION
The ALJ omitted or meaningfully misstated Claimant’s
limitations when he posed a question to the vocational
https://www.merriam-webster.com/dictionary/occasional (May 30,
2023). A person who expects to watch “few” movies during the
upcoming year might mean half a dozen at most. A person who expects
to watch movies “occasionally” during the upcoming year might mean
once a month, at least twice that total. A year is an appropriate unit of
comparison because a claimant is not disabled unless the relevant
limitations will persist for a minimum of 12 continuous months. 20
C.F.R. §§ 404.1505(a), 416.905(a).
14 LEACH V. KIJAKAZI
expert, and the ALJ erred by relying on the resulting
testimony. Although an omission proved harmless in the
circumstances of this case, the two mischaracterizations of
Claimant’s limitations require remand to the agency.
Accordingly, we reverse the district court’s contrary
judgment and remand with the instruction to remand to the
agency for further proceedings.
REVERSED AND REMANDED. Costs on appeal
awarded to Claimant.