When someone’s Social Security benefits are denied, an administrative law judge (ALJ) often calls upon a “vocational expert” to determine the propriety of the denial. Plaintiff/appellant Caroline Leach disagreed with the expert’s evaluation of her medical condition and appealed her claim denial, arguing that her judgment, ability to follow directions, and capacity to handle workplace changes had been mischaracterized. The Ninth Circuit agreed with Leach and now her functionality will get another review.

In a unanimous 3-0 opinion by the U.S. Court of Appeals for the Ninth Circuit, the panel reversed the decision of Presiding Magistrate Judge John D. Early of the U.S. District Court for the Central District of California on June 15. The opinion in Leach v Kilolo Kijakazi (Acting Commissioner of Social Security) was written by Circuit Judge Susan P. Graber, with concurrences by John B. Owens and District Judge John R. Tunheim, sitting by designation.

Leach had filed for disability in 2018 because of cardiac and spinal impairments, “neuropathy, hypothyroidism, obesity, and neurocognitive disorder(s).” The ALJ held a hearing and determined that she “has the residual functional capacity for light work except with certain physical and mental limitations” and she could “perform simple, routine tasks…and follow short, simple instructions” that require “little or no judgment.” He also determined that she could function in a predictable work environment where few changes occur.

The ALJ’s decision was primarily based on the testimony of a vocational expert, but that expert’s report was based on the ALJ’s description of a person with certain “hypothetical limitations.” The Ninth Circuit found that those hypotheticals were not an accurate description of Leach’s actual limitations. The ALJ asked the expert if someone who “can understand and remember and carry out simple instructions, maintain attention and concentration, perform non-complex routine task(s), and can work in an environment with occasional changes to the work setting” could work in a certain environment.

The vocational expert testified that someone with those vocational limitations could function as a routing clerk, cafeteria attendant or order caller, all of which were unskilled occupations listed in the Dictionary of Occupational Titles, a publication of Information Technology Associates based on information supplied by the U.S. Department of Labor. The Dictionary assigned specific levels to each of its listed job categories and descriptions. The ALJ concluded that Leach would be able to perform the tasks required by each of the three jobs the expert mentioned.

Leach then filed suit, lost in the district court, and filed a timely appeal. Circuit Judge Graber summed up the task before the Ninth Circuit, which was to determine whether the ALJ posed the proper questions to the vocational expert that would form the basis of his opinion. She stressed that precedent insisted that inaccurate descriptions would have “no evidentiary value” and errors would be “harmless only if it is inconsequential to the ultimate nondisability determination.”

Leach argued that the ALJ’s questions to the vocational expert “inaccurately described her actual limitations“ because they failed to adequately describe her limited judgment, ability to follow directions, and need for a predictable and rarely changing work setting.

Each of these inaccurate descriptions was reviewed in Graber’s opinion. The Court of Appeal found that the ALJ did not inform the expert about Leach’s lack of judgment, but said this omission was harmless error because it was inconsequential to the ultimate nondisability determination. Next, the Court addressed Plaintiff’s ability to follow “short, simple” instructions, finding that the ALJ omitted the word “short,” thus invalidating the expert’s recommendation that also included the need to follow “longer-than-short instructions.” This error, unlike the previous one, was found to be consequential because it would make Leach an appropriate hire for a higher category of jobs in the Dictionary of Occupational Title.

The ALJ’s final mischaracterization was about Leach’s need for a predictable and rarely changing work environment. When the ALJ asked the expert about the stability of work environments, he added the word “occasional” to describe changes. Occasional changes are not the same as “few” and “predictable” because they are more “permissible,” the opinion stated. This addition was not harmless error either.

The Ninth Circuit concluded that the ALJ had “omitted or meaningfully misstated Claimant’s limitations when he posed a question to the vocational expert.” Graber used Webster’s Dictionary to elaborate on the exact meaning of the word “few.” She said, “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 coming 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 limitation will persist for a minimum of 12 continuous months.”

The ALJ’s two mischaracterizations require remand to the agency. Leach will get another chance to claim her disability, and hopefully this time, her disability will be more accurately described.