[00:00:00] Speaker 02:
Good morning, Your Honors.

[00:00:01] Speaker 02:
I'm Jeffrey Baird, representing Ms.

[00:00:03] Speaker 02:
Sanderson.

[00:00:05] Speaker 02:
I'll reserve two minutes for rebuttal.

[00:00:08] Speaker 02:
This is a step four case about past work.

[00:00:12] Speaker 02:
The claimant's injury or primary impairments are in the back.

[00:00:16] Speaker 02:
She had to have lumbar surgery and she had trouble sitting.

[00:00:20] Speaker 02:
She couldn't sit well.

[00:00:22] Speaker 02:
Her past relevant work was production pace, sitting at a computer with a headset on, taking customer complaints.

[00:00:31] Speaker 02:
She described that job as requiring sitting seven and a half hours a day or maybe eight hours a day because of the production pace.

[00:00:39] Speaker 02:
The vocational expert also said sitting all day or essentially all day or very little standing or some standing or very short standing.

[00:00:48] Speaker 02:
What the vocational expert never said was occasional standing, which would be two hours.

[00:00:54] Speaker 02:
The ALJ limited plaintiff in the RFC and in the hypothetical questions to sedentary work.

[00:01:01] Speaker 02:
Sedentary work is a term of art under SSR 8310, and it means sitting six hours.

[00:01:08] Speaker 00:
Well, it's actually what it says is not standing or walking for more than two hours, which is different than a straight six hours.

[00:01:20] Speaker 02:
Well, it says standing and walking occasionally, which would be two hours.

[00:01:24] Speaker 00:
Right, so it means six to eight hours.

[00:01:27] Speaker 02:
No, Your Honor.

[00:01:28] Speaker 02:
Under the Terry case and under the Conway case, terms of art are set in SSR 8310 and in the palms.

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And to say sedentary work means sit six hours.

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But the ALJ said that specifically at the hearing.

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He kept saying sit six hours.

[00:01:48] Speaker 04:
If limited to sedentary work were to mean, impliedly, a six-hour sitting limitation, why isn't that a shared understanding then between the ALJ and the VE here, where I think we had the original testimony, the ALJ said, assume a hypothetical individual limited to sedentary work, can they do this?

[00:02:13] Speaker 04:
And the V.E.

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said yes.

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So if under Terry, they would have that mutual understanding.

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So then why wouldn't the record then establish that the V.E.

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testified that she could do the work?

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Because the V.E.

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was clear, sitting essentially all day.

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The V.E.

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drew a distinction with the D.O.T.

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and never said standing occasionally.

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He never responded to sit six hours is good.

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Ms.

[00:02:38] Speaker 02:
Ayerza, the VE, consistently said it has to be sitting essentially all day because of the production pace.

[00:02:45] Speaker 00:
Well, and the VE also said there can be some standing involved, especially since mostly they use a headpiece.

[00:02:52] Speaker 00:
It's pretty standard for people to wear a headpiece.

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So short standing can be done.

[00:02:58] Speaker 02:
Well, it's short standing, she said.

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She didn't say occasion.

[00:03:00] Speaker 00:
But she did.

[00:03:02] Speaker 02:
Yeah.

[00:03:02] Speaker 00:
Well, OK.

[00:03:04] Speaker 02:
The occasional would be two hours.

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That would be the term of art, sedentary work.

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The VE responded over and over, very little standing.

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I mean, very little sitting because the ALJ kept pressing, sit six hours.

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But the VE kept saying, sit essentially all day.

[00:03:25] Speaker 02:
So that is at least an ambiguity.

[00:03:26] Speaker 02:
It was never really resolved.

[00:03:29] Speaker 04:
under the Substantial Evidence Review Standard, isn't the ALJ, shouldn't we defer to the ALJ's resolution of that ambiguity, if it is ambiguous?

[00:03:39] Speaker 02:
Right.

[00:03:40] Speaker 02:
The ALJ can resolve ambiguities, but the ALJ didn't.

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The ALJ specified sentry work and six hours of sitting.

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That was never clarified.

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The VE said sitting almost all day.

[00:03:53] Speaker 03:
And I'm not real familiar with this area of the law, but are you saying that

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Sedentary work means you literally can't move from your seat for six hours?

[00:04:06] Speaker 03:
No.

[00:04:06] Speaker 03:
No.

[00:04:07] Speaker 02:
The term of art is defined in SSR 8310 and the palms.

[00:04:12] Speaker 03:
And I'm looking at 8310 and it says, jobs are sedentary if walking and standing are required occasionally.

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Right.

[00:04:21] Speaker 03:
It also says six hours, right?

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Six hours sitting.

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But as you just agreed, that can't be literal.

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You could never go to the facilities or anything like that.

[00:04:36] Speaker 02:
It'd be about six hours.

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But the point is her job was production pace and required being at a computer.

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And that's why the sitting was eight hours, as she described, or seven and a half, or all day, or essentially all day, by the V.E.

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So that's the puzzle.

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It's at best ambiguous, but I think the VE was clear it takes more than six hours of sitting.

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And from what the ALJ said, sedentary work as a term of art means sitting about six hours.

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And the ALJ specified at the hearing, sit six hours.

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So there wasn't that shared understanding, Judge Sung.

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Well, that's really the main argument.

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I don't know that she could even sit six hours.

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She had to have the lumbar surgery shortly after the date last insured.

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So that suggests she did have the serious lumbar problem that she described and Dr. Grytska described throughout the short period of issue, which runs from September 2015 to October, or was even shorter than that, September 2015 to March.

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2016.

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So in that span, she had to establish that she couldn't perform her past relevant work.

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And in that span, she was still under schedule of getting surgery on her lumbar, a fusion a few months later.

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And I will reserve the rest for rebuttal if I can.

[00:06:19] Speaker 01:
Good morning.

[00:06:20] Speaker 01:
May it please the court.

[00:06:21] Speaker 01:
Jeff Staples here for the commissioner who asked that you affirm the district court's judgment because substantial evidence supports the LJ's findings of fact.

[00:06:30] Speaker 01:
I think about the sedentary work.

[00:06:32] Speaker 01:
I think we were getting confused about what is the limiting factor in these jobs.

[00:06:38] Speaker 01:
And the limiting factor, I think you were right on it, Judge Graber, it's standing.

[00:06:43] Speaker 01:
You know, SSR 8310, I think you read exactly the right point, should total no more than about two hours.

[00:06:51] Speaker 04:
Council, what I would like to ask you about is a couple of things because we also have, unfortunately not cited by the parties, but in 1996,

[00:06:59] Speaker 04:
Social Security ruling that has language that is very similar to what was considered in Terry and it says in order to perform a full range of sedentary work, an individual must be able to remain in a seated position for approximately six hours of an eight hour workday.

[00:07:17] Speaker 04:
And then the ALJ at the hearing interjected a couple times to say, when council was suggesting that sedentary work requires eight hours of sitting, the ALJ interjected and said, no, it's six, right?

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And then we also have the commissioner

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Taking the position in a number of the cases exactly the position that Sanderson is taking now which is that?

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Limited to sanitary work implies a six-hour sitting limitation.

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So can you reconcile the Commissioner's position in this case?

[00:07:52] Speaker 01:
with its position in other cases So my understanding is that the six hours of

[00:08:02] Speaker 01:
is what you need to be able to do.

[00:08:04] Speaker 01:
You need to be able to do at least six hours of sitting, right?

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But the standing and walking has to top out at two hours.

[00:08:15] Speaker 01:
You can't have more than two hours of standing and walking, but you can have less because it's always sitting that makes up the balance in these jobs.

[00:08:24] Speaker 01:
So when we're talking about medium work,

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That's a cap of six hours standing and walking, and then sitting makes up the rest.

[00:08:32] Speaker 01:
So that's why the SSR says standing and walking should total no more than about two hours, and why the regs and the DOT kind of talk about the standing and walking as being up to, you know, not exactly.

[00:08:48] Speaker 04:
that you know in the vocational expert was explaining it's not exactly this it keeps a sitting can go over to make up for the city and that is the more common sense and plain understanding of the regulations and the definitions of the various levels of work but i also have multiple cases in which we have

[00:09:06] Speaker 04:
quoted the commissioner's position as, arguing that an RFC for sedentary work intrinsically and implicitly means that an individual is limited to sitting for approximately six hours of an eight hour day.

[00:09:17] Speaker 04:
And I could go on.

[00:09:19] Speaker 04:
So my concern is that the commissioner has essentially taken the position that the limited to sedentary work is a term of art that implies a six hour sitting limitation.

[00:09:31] Speaker 04:
So what am I supposed to do with that when I see it over and over again in the cases?

[00:09:35] Speaker 01:
I mean, I think, you know, as council pointed out, and as you pointed out, that's how these terms of art are.

[00:09:41] Speaker 01:
That's how you kind of stack them up, right?

[00:09:44] Speaker 01:
You've got six.

[00:09:45] Speaker 01:
In the case of sedentary, you've got six hours sitting and then two standing and walking.

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In the case of light or medium, you've got six standing and walking, two sitting.

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But I don't think that means that

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It's that there's no room for movement on, in sedentary, the standing and walking.

[00:10:06] Speaker 01:
Otherwise, you know, the regs and the SSRs, I mean,

[00:10:11] Speaker 00:
Council, can I ask you a slightly, in a case called Vertigan in 2001, we held that sedentary work involves sitting or the ability to do such for six to eight hours a day.

[00:10:26] Speaker 00:
Are you aware of any case or regulation that post dates 2001 that alters that holding?

[00:10:38] Speaker 01:
No, Your Honor, I'm not.

[00:10:40] Speaker 01:
And I think that is exactly what I was trying to get to.

[00:10:44] Speaker 01:
And I was fumbling a little bit.

[00:10:46] Speaker 01:
So I appreciate that.

[00:10:47] Speaker 01:
But I don't think the position is six and no more, not one minute more.

[00:10:52] Speaker 00:
It doesn't matter what your position is if we've held to the contrary.

[00:10:56] Speaker 00:
Right.

[00:10:56] Speaker 01:
And I think that's a perfectly good.

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That is the law.

[00:11:01] Speaker 01:
And that is consistent with the regs and with SSR 8310

[00:11:07] Speaker 01:
The standing and walking can go up to two, but the sitting doesn't max out at six.

[00:11:13] Speaker 01:
It's not no more than six for sitting.

[00:11:17] Speaker 04:
I also, in reading your brief, I see that at some point you state that even assuming that there is a six-hour sitting limitation, substantial evidence supports a finding that

[00:11:33] Speaker 04:
that Ms.

[00:11:33] Speaker 04:
Sanderson can't do her past work.

[00:11:37] Speaker 04:
But in the brief, in the whole argument is you also seem to concede that the record is ambiguous.

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And I don't see you actually develop your argument in any way that even assuming a six hour sitting limitation, the decision is supported by substantial evidence.

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So if we were to find

[00:12:00] Speaker 04:
that the ALJ intended to imply a six-hour sitting limitation.

[00:12:03] Speaker 04:
What should we do?

[00:12:05] Speaker 01:
I think for one thing, as you were pointing out, there is

[00:12:16] Speaker 01:
There does seem to be a meeting of the minds between the ALJ and the vocational expert, you know, at least as generally performed.

[00:12:24] Speaker 01:
I think those, you know, that could line up with what's in the dictionary of occupational titles.

[00:12:30] Speaker 01:
I mean, I think the, you know, we put things in our brief for the sake of

[00:12:37] Speaker 01:
covering all our bases here, but I think the much stronger argument is that she actually could do the job as she and the vocational expert described it being more like seven and a half hours of sitting.

[00:12:50] Speaker 01:
And I think I wanted to talk briefly about the colloquy that we've been discussing between the vocational expert, Sanderson's attorney,

[00:12:59] Speaker 01:
and the ALJ.

[00:13:01] Speaker 01:
And I think there was a little bit of confusion about when the ALJ was talking about six hours, that's in the context of standing up and taking breaks, going away from the workstation.

[00:13:14] Speaker 01:
That's what they're talking about at that point.

[00:13:17] Speaker 01:
They're not talking about just how much standing is involved or can the person sit for

[00:13:22] Speaker 01:
six hours, the ALJ was saying that, you know, you need to be able to sit for six, and if you have to be taking a break for the rest of the time, which is kind of what they were describing, you know, you stand up and you come away from the workstation, well, that's not consistent with any of these jobs or any other jobs.

[00:13:42] Speaker 03:
But then on the very, you know, toward the end of the colloquy... He indicated, the vocational expert, I think that you could wear a headpiece and that's commonly done so that allows you to stand up and so forth.

[00:13:53] Speaker 01:
Absolutely, Your Honor.

[00:13:54] Speaker 01:
And so if you're talking about taking the headpiece off and coming away from the station, that's not going to work.

[00:13:59] Speaker 01:
And the ALJ says, you know, if I find that she needs these kind of breaks, like you're describing, then I'm going to find her disabled, of course.

[00:14:08] Speaker 04:
I'm looking at the transcript and it says, Sanderson's attorney asks, is it fair to say that a person who can't sit eight hours a day will not be able to do that job?

[00:14:18] Speaker 04:
Something to that effect.

[00:14:19] Speaker 04:
And the ALJ interjects and says, well, the standard is six out of eight.

[00:14:26] Speaker 04:
In context, that implies to me the ALJ believes, rightly or wrongly, that sedentary work requires six hours of sitting out of eight.

[00:14:40] Speaker 01:
Right.

[00:14:41] Speaker 01:
So the ability to do sedentary work doesn't, it doesn't mean that you have to be able, like Judge Rakoff was saying, that you have to stay in your seat for six, for eight straight hours.

[00:14:54] Speaker 01:
That's not what it is because it also involves some standing and walking.

[00:14:58] Speaker 01:
And I think when you look at the context of the whole record, the whole conversation, when the VE is describing this job as requiring about seven and a half hours of sitting and standing occasionally in there,

[00:15:11] Speaker 01:
The ALJ, excuse me, is not interjecting and saying, whoa, whoa, whoa, I meant six and then stop.

[00:15:19] Speaker 04:
Well, it literally says, let's make clear, the standard for sedentary is six out of eight, not the full eight out of eight.

[00:15:27] Speaker 04:
VE says, right.

[00:15:29] Speaker 04:
And the ALJ says, it's six out of eight.

[00:15:31] Speaker 04:
VE says, right.

[00:15:33] Speaker 04:
That suggests to me they're saying something about the sedentary work requiring six hours of sitting out of eight, which would be consistent with the social security ruling that says sedentary work requires six hours of sitting out of eight.

[00:15:54] Speaker 01:
Right.

[00:15:55] Speaker 01:
I think what the ALJ was getting at there is it doesn't mean eight, right?

[00:16:01] Speaker 01:
Sedentary doesn't mean you have to be able to sit for the entire day.

[00:16:05] Speaker 01:
And I think if you go to the very next page, the attorney clarifies that sedentary can involve sitting for six or more.

[00:16:16] Speaker 01:
And the V agrees, says, yes, that's what we're talking about here.

[00:16:20] Speaker 01:
So that's on 1357.

[00:16:22] Speaker 01:
So that sentence that you've taken, Judge Sung, and I agree that if you looked at it in isolation, that certainly would look like the ALJ meant.

[00:16:34] Speaker 01:
sedentary work involves sitting six hours and no more.

[00:16:37] Speaker 01:
But I think when you look at the rest of it, what they're talking about there is it doesn't mean eight out of eight.

[00:16:44] Speaker 01:
It doesn't mean you have to be able to sit eight out of eight.

[00:16:46] Speaker 01:
You can have some standing and walking in there.

[00:16:49] Speaker 01:
But what they were talking about, what they were trying to get the contours of was

[00:16:54] Speaker 01:
These breaks from the workstation.

[00:16:56] Speaker 01:
That's the that's the context of that question and the ALJ goes on and says, you know Hey, no, I mean if the person is gonna be away from their desk and they're not gonna be doing things then I'm gonna find her disabled but the ALJ didn't and you know The LJ gave a lot of good good reasons for that.

[00:17:11] Speaker 01:
So I see my time is up I appreciate the opportunity to answer these questions and I will ask that the court affirm

[00:17:24] Speaker 02:
Ordinarily, when an ALJ sets an RFC, they'll start with the category.

[00:17:31] Speaker 02:
So they'll say, light work, butts, stand, two hours, lift 50 pounds, whatever.

[00:17:37] Speaker 02:
Here, the ALJ started with the category, sedentary work, and said no more.

[00:17:43] Speaker 02:
That is not like vertigo.

[00:17:45] Speaker 02:
That is using the term of art, sit about six hours, which the ALJ clarified in the examination of the vocational expert.

[00:17:54] Speaker 02:
I mean six of eight.

[00:17:56] Speaker 02:
I mean standing up to two.

[00:17:59] Speaker 02:
The VE never indicated standing up to two would be OK, because it's production pace.

[00:18:05] Speaker 02:
So you could stand and have the headset on, but you couldn't be typing in.

[00:18:09] Speaker 02:
You couldn't be staying at production pace.

[00:18:12] Speaker 02:
implications of certainly what the claimant said, but also what the VE said.

[00:18:18] Speaker 02:
So that's the distinction.

[00:18:20] Speaker 02:
In the Lounsbury case, what was critical was the category, right?

[00:18:23] Speaker 02:
The ALJ has to apply the category first and then can refine it.

[00:18:28] Speaker 02:
But here, the ALJ, by saying sedentary work, was using the term of art, which is the exact same as Terry or Conway.

[00:18:38] Speaker 02:
It's 8310.

[00:18:39] Speaker 02:
It means six hours.

[00:18:41] Speaker 04:
And in the same cases that I quoted to the commissioner where the commissioner seems to have taken the position over and over again that limitation to sedentary work implies a six-hour sitting limitation.

[00:18:53] Speaker 04:
The courts have repeatedly rejected that argument essentially for the reasons stated by Judge Graper, which is that in actuality that these levels of work are defined by a maximum or by a range of standing and walking and that sedentary work can require

[00:19:12] Speaker 04:
a minimum of six, but up to eight hours of sitting.

[00:19:15] Speaker 04:
And so they've repeatedly rejected the argument, as far as I can tell.

[00:19:19] Speaker 02:
Well, not Terry or Conway.

[00:19:20] Speaker 04:
Well, Terry or Conway involved medium work regulation, and it was about standing or walking.

[00:19:27] Speaker 04:
So it is very, I acknowledge there are many parallels, but there are some potentially significant differences as well.

[00:19:36] Speaker 02:
But the ALJ didn't specify in the RFC, sedentary works the category, and I'm thinking sitting up to eight hours or seven and a half.

[00:19:47] Speaker 02:
It just stated the category.

[00:19:48] Speaker 02:
And if they're doing that, that's the term of art, meaning about six hours, which again, the ALJ specified again and again at the hearing.

[00:19:56] Speaker 02:
But the VE never backed down.

[00:19:59] Speaker 02:
This is sitting all day or essentially all day.

[00:20:01] Speaker 02:
And the standing you might do for relief, but it's production pace.

[00:20:06] Speaker 02:
Thank you very much.

[00:20:07] Speaker 04:
Thank you, Council.

[00:20:10] Speaker 04:
Thank you for your arguments.

[00:20:11] Speaker 04:
This matter is admitted.