[00:00:14] Speaker 01:
Good morning, Your Honors, opposing counsel. May it please the court. This case concerns a medical opinion that the ALJ purported to accept as persuasive and then didn't adopt and didn't explain why. The opinion came from a state agency psychological consultant on reconsideration, Dr. South. Dr. South indicated that Mr. Dumit would be capable of carrying out and maintaining attention and concentration for, and I'm quoting here, short and simple instructions, but not detailed. Ms.

[00:00:41] Speaker 05:
Counsel, I know we've read the briefs and we know and appreciate that there's essentially just one issue we need to decide here. And that, so I think there's two questions I have for you. One is the cases you rely on are really about translation of the RFC to the VE, right? And here you really have about a translation of a medical opinion into an RFC, correct? So then, and then the other, partial disconnect that I see is that Dr. South said that there was a limited to carrying out short and simple instructions, but not detailed or complex ones, which that I, excuse me, I'm on ALJ, translated into carry out simple and detailed tasks that can be learned in 30 days or less, whereas I think there's at least a fair argument when talking about simple and detailed tasks.

[00:01:44] Speaker 05:
That's not the same thing as detailed instructions, especially when there's a limitation that says the tasks can be learned in 30 days or less. Does that make sense?

[00:01:56] Speaker 01:
Your question makes sense. I respectfully disagree that the... So I want you to address why that doesn't... So let's go straight to that. I believe in rounds the court looked at the question of tasks versus instructions differently. and said that detailed instructions would only be required in tasks with more than one or two steps. And those are precisely the kinds of tasks that that claimant's RFC indicated that she couldn't perform.

[00:02:20] Speaker 05:
So where does Dr. South say they can't do more than one or two steps?

[00:02:25] Speaker 01:
Oh, Dr. South didn't say no more than one or two steps explicitly. She said no detailed. And that's one of the things we're talking about here. Because if you're, the complexity of tasks in the DOT is measured in the reasoning level, which is a six-point scale. And if you're trying to measure somebody's capacity on a numerical six-point scale, you can say they can do at most one or they can't do two or more. Those would mean the same thing. If you're drawing the line between one and two, you can say it as can do one or you can say can't do two.

[00:02:57] Speaker 01:
And that's what she said was can't do two. She can't do detailed or complex instructions, and that pretty closely mimics the language of level two reasoning.

[00:03:05] Speaker 04:
Don't the instructions specifically, he didn't make up the 30-day standard. It came out of the regulations, right?

[00:03:13] Speaker 01:
I'm sorry, can you repeat the question?

[00:03:15] Speaker 04:
The ALJ did not make up the 30-day, learning 30 days provision. It came out of the regulations.

[00:03:24] Speaker 01:
So the significance of the 30-day limitation in the regulations is that that matches the the extent of specific vocational preparation level two. SVP is a nine-point scale that's intended to measure how long it takes to learn the job. That is at best a weak proxy for task complexity. There are SVP two jobs that take reasoning level four. I can name you a couple examples.

[00:03:48] Speaker 01:
So it doesn't make sense to say anything unskilled is also simple. We've already established in Zavalin that that's not true.

[00:03:58] Speaker 01:
So to get back to your first question, Your Honor.

[00:04:02] Speaker 04:
But an unskilled work is work which leaves little or no judgment to do simple duties that could be learned in a short period of time. And short period of time is defined as less than 30 days.

[00:04:12] Speaker 01:
Right.

[00:04:13] Speaker 04:
And so the ALJ simply elaborated on the simple duties by saying it could be learned in less than 30 days.

[00:04:29] Speaker 04:
So what's wrong with that?

[00:04:31] Speaker 01:
What's wrong with that is that Dr. South didn't include that limitation. Dr. South said that Mr. Dumit cannot do detailed or complex instructions. She didn't qualify it at all. She said she can't do that. The judge is now saying, well, he can do that, but only in this limited context. And that goes back to the original question of the judge's job to translate.

[00:04:50] Speaker 01:
And the judge does have the duty to translate medical opinions.

[00:04:53] Speaker 04:
Does the ALJ have to assume that when Dr. South used the term details, he was using it, in a technical sense that the regulation and standards use it, or could he use his own definition? Why?

[00:05:09] Speaker 01:
Because Dr. South is a state agency consultant. These are the people that Social Security relies on to administer their program at the sub-hearing levels. So they know what these terms mean. They present their opinions in these terms.

[00:05:23] Speaker 01:
I do want to get back to the question.

[00:05:25] Speaker 05:
Yeah, I think I'm not sure how good my question was, but it seems to me that tasks, detailed, simple and detailed tasks, because I'm not, it's a little oxymoronic, but the simple and detailed tasks that can be learned in 30 days or less, I guess there's a question in my mind, something that can be learned in 30 days or less are those simple instructions. Do you see what I'm I mean, and part of this is why I have to rely on ALJ to translate the medical opinion into an RFC.

[00:05:59] Speaker 05:
Right. Because these are all terms of art.

[00:06:02] Speaker 01:
It is the judge's job to translate, but it's not translation to turn can into can't. That's changing it.

[00:06:09] Speaker 05:
I guess I'm saying why isn't detailed tasks that can be learned in less than 30 days or something that says that is not...

[00:06:20] Speaker 05:
Simple instructions?

[00:06:21] Speaker 01:
Yes.

[00:06:23] Speaker 01:
In Zavalin, we were dealing with a couple of jobs that were all at level three reasoning. The most notable example that sticks in my mind is cashier. That requires level three reasoning. It is nonetheless considered an SVP2 job. So it is learnable in 30 days or less. But the court in Zavalin concluded that the requirements of level three reasoning were on their face, at least, apparently conflicting with a limitation to simple tasks. So those would be non-simple tasks that can be learned in 30 days or less.

[00:06:52] Speaker 02:
But I guess I may be just not being too practical about this, but it appears to me that in this record, the question is asked about simple and repetitive or routine tasks that are level two or below. And Is that something you agree that your client can do or not? Because the VE said there were numerous jobs in that category.

[00:07:29] Speaker 01:
Right. The VE was not presented with Dr. South's language.

[00:07:33] Speaker 02:
Well, I know that. That's not my question. It's not the precise wording, but isn't it consistent to say simple and repetitive or routine with a skill level of two or less and a reasoning level of two or less?

[00:07:49] Speaker 02:
Isn't that consistent with what Dr. South said?

[00:07:52] Speaker 01:
I don't think it is.

[00:07:54] Speaker 01:
In Leach v. Kizikazi just a couple years ago.

[00:07:58] Speaker 02:
Wait, simple?

[00:07:59] Speaker 01:
Well, first of all, Dr. South said short and simple, but she also said no detailed or complex.

[00:08:05] Speaker 02:
Well, repetitive or routine and simple don't suggest complex at all.

[00:08:11] Speaker 01:
No, they don't. But the two things that Dr. South said are short and detailed. In Leach v. Kizikazi, the Ninth Circuit said that short and simple means something more restrictive than just simple. It might still allow some reasoning to jobs, but it's not coextensive with all reasoning to jobs. And for the ALJ to fail to present that short limitation to the vocational expert when it was included in the RFC was error. Our position is if it was error to include that in the RFC but not present it to the vocational expert, then it must also be error to leave it out of the RFC if it's an appropriate limitation.

[00:08:51] Speaker 01:
In Leach, the court declines... Tell me again why a detailed instruction...

[00:08:59] Speaker 04:
is one thing. A detailed task, I mean, something like cooking a making a sandwich is a detailed task. I don't know that the instructions have to be detailed. Why are they the same thing? I don't understand that.

[00:09:24] Speaker 01:
It

[00:09:27] Speaker 04:
A detailed task is something that requires you to pay attention to something small, but it doesn't require that it be complicated in the sense that it's not repetitive and so on. They don't seem to think the same thing at all. You're telling me there's some case that says it is the same thing?

[00:09:49] Speaker 01:
Yes, there's rounds.

[00:09:51] Speaker 05:
That says a detailed instruction is the same thing as a detailed task.

[00:09:55] Speaker 01:
In rounds, the court looked at the question of detailed tasks. And the quote from the case that I'm on about is that only tasks with more than one or two steps would require detailed instructions. There's a nexus there between instructions and tasks. Only these tasks that are more complex than one or two steps are going to need more than one or two step instructions.

[00:10:16] Speaker 05:
What about the opposite? The limitation can be... detailed task that can be learned in less than 30 days.

[00:10:23] Speaker 05:
So why doesn't that address limit the detail of the instructions required to learn the task?

[00:10:30] Speaker 01:
Because when you look in terms of 30 days, you're measuring something completely different. You're measuring time, not complexity.

[00:10:35] Speaker 05:
Well, it seems like a proxy for how complex it is to learn the task.

[00:10:39] Speaker 01:
It is a proxy for how complex the task is. It's already there. And instead of that, the judge pulled out the time it takes to learn a case, which goes to skill level, but there are unskilled jobs that are using level four.

[00:10:52] Speaker 05:
I think the argument from the agency is that was a legitimate way to translate Dr. South's limitation on how complex the instructions could be was to say, I'm going to limit how complex the instructions can be by saying they have to be able to be learned in less than 30 days.

[00:11:10] Speaker 01:
I would agree that that is their position. I don't think that was a fair translation. I think that's changing can't into can.

[00:11:18] Speaker 05:
Okay. And then other than the cases about RFC to the VE, do you have anything else that supports your view that that's not a fair translation of the medical opinion into the RFC?

[00:11:33] Speaker 01:
I don't have a case law. I think I'm relying on common sense there.

[00:11:37] Speaker 05:
I understand. Thank you. Thank you.

[00:11:46] Speaker 03:
Good morning. Catherine Watson for the commissioner.

[00:11:50] Speaker 03:
Judge Sung, I think you identified the key distinction in this case from the cases relied on by my friend on the other side, which is this is about how the ALJ translated a medical opinion. And there are two bases independent that this court can affirm. One is what both Judge Sung's and Judge Berzon's questions pertain to. which is whether the ALJ reasonably translated the opinion into the RFC. It's our position that the ALJ did.

[00:12:20] Speaker 03:
And the third is what Judge Berzon's questions pertain to, which is regardless of that, this court still can't reverse or remand for further proceedings so long as the identified occupations are consistent with the state agency consultant's opinion. So turning to the first basis of the opinion, which is that the ALJ translated this opinion to mean that DUMIC could perform unskilled work.

[00:12:49] Speaker 03:
The form that the state agency consultants filled out more closely aligned with agency regulations, which divides work into unskilled, semi-skilled, and skilled, that's 20 CFR 1568, defines unskilled as short-term, simple duties that can be learned in a short amount of time.

[00:13:15] Speaker 03:
The ALJ looked to the assessment as a whole, and this court in Shea B. v. Berryhill discusses how neither the ALJ or this court should be looking or plucking words out of context, but should be looking at the narrative discussion in the context of the assessment as a whole. So what do we know about Dr. South's assessment as a whole? We know that in addition to stating that Dumit could perform short and simple tasks but not detailed one, we know that he assessed mostly no significant limitations in mental functioning, and he assessed only moderate limitations in a few areas, one of which was in Dumit's ability to perform detailed tasks.

[00:14:02] Speaker 03:
That's on AR 97 and 106.

[00:14:06] Speaker 03:
We also know that Dr. South found Dr. Barsukov's assessment, MRFC, so his assessment of limitations to be, quote, supported, unquote, by the record. And Dr. Barsukov found that Dumit could perform simple routine tasks that require multiple steps. He also used the words simple and unskilled interchangeably. He said that Dumit could carry out simple or unskilled tasks, but not more complex, So again, they seem to be mirroring more the language of agency regulations, which is dividing work into unskilled, semiskilled, and skilled, which is how the ALJ interpreted the opinion.

[00:14:48] Speaker 03:
And finally, we know that Dr. South stated that Dumit could perform simple and repetitive tasks. He used the letters SRT, standing for Simple Repetitive Tasks. We also know that Dr. South defended one of his explanations for his assessment as he talked about how Dumit's mental status examinations were largely unremarkable. So Dumit had largely intact cognitive functioning during exams. And he talked about how Dumit could perform tasks that we know require more than one to do steps, such as driving, performing housework, shopping in stores, handling money.

[00:15:28] Speaker 03:
So that brings us to the identified occupations, which is another basis for affirmance. If there's any question about what Dr. South meant when he said short and simple, but not complex instructions, he did explain it in his conclusions on CAR, excuse me, 94 and 103, when he said Dumit could perform simple routine tasks. So not just simple tasks, but also tasks that were routine.

[00:16:02] Speaker 03:
At the hearing, the ALJ asked or confirmed with the vocational expert whether the occupations, which were level two reasoning that the vocational expert identified, were not just simple, but whether they were routine.

[00:16:20] Speaker 03:
And the vocational expert on CAR 93 and 94 confirmed that they were.

[00:16:26] Speaker 03:
The vocational expert testified these were not just simple tasks. These were not occupations involving simple tasks. They were occupations that were repetitive. They were routine, which by definition means they're not going to require lengthy instructions to perform. So we know that the occupations that the ALJ found that Dumit could perform are consistent with Dr. South's assessment because Dr. Sealth himself concluded on CAR 94 and 103 that Dumit, when he was explaining his conclusions and summarizing them, that Dumit could perform SRT, simple routine tasks.

[00:17:15] Speaker 03:
And in fact, Dumit's counsel at the hearing similarly discussed how that wasn't an issue, that we knew that he could perform simple routine tasks.

[00:17:25] Speaker 04:
I understand that there is the thrust of your opponent's challenge is that the instructions, whatever the tasks were, the instructions were, according to Dr. South, had to be non-detailed and that that was not included in the RFC. Right. And or by the vocational expert, I guess, is what he's saying.

[00:17:55] Speaker 04:
Correct. So what's the response to that?

[00:17:58] Speaker 03:
Two responses to that. The first is, again, this is interpreting it into the RFC. So looking to the RFC, the LJ interpreted that short and simple on the one hand, but not detailed on the other hand.

[00:18:12] Speaker 04:
As to instructions.

[00:18:13] Speaker 03:
Correct. As to instructions to be equivalent to unskilled work. And the reason why it was reasonable for the LJ to make that interpretation is because if you look on the form, Dr. South only had two options. He didn't have a delineated approach like the DOT has where you have one to two steps for the most simple all the way up to level six, the most complex. All he was deciding was could Dumit perform short and simple instructions on the one hand, and could he perform detailed instructions on the other?

[00:18:46] Speaker 03:
And he assessed No significant limitations in short and simple. He assessed moderate limitations in detailed and then translated that in narrative form by saying he could perform short and simple, not detailed or more complex. Again, delineated along three lines, similar to how our regulations delineate to unskilled, semi-skilled, and skilled work. So that was how the LJ translated it. So our first argument and first position is that was a reasonable translation of his opinion.

[00:19:15] Speaker 03:
Even if this court disagrees, however, that gets to our second position. And there's, I guess, two effective arguments here. One is that Dr. South explained what he meant by that on CAR 94, where he said in his summary of his conclusions, Dumit could perform simple routine tasks. So he explained what he meant by that. And the ALJ confirmed at the hearing that the occupations were simple and routine tasks.

[00:19:47] Speaker 05:
So the DOT... And it's simple and routine. I mean, there's a little bit of trouble because I understand the argument is that your opposing counsel is saying simple and routine tasks is not the same thing as simple and detailed tasks that can be learned in 30 days or less.

[00:20:03] Speaker 03:
Correct. Yes. So when it comes to the RFC, right, we have unskilled work.

[00:20:09] Speaker 03:
And we're saying that was a reasonable translation. But we're also saying even if this court disagrees, we know that these were only simple routine tasks because the vocational expert expressly testified. And therefore not detailed. Is that what you're saying?

[00:20:28] Speaker 03:
And therefore not detailed in the sense that there are more than one to two steps required. So the DOT, it's reasoning level two, which is detailed but uninvolved. However, that's the highest, that's the maximum that those occupations would require. What we know of these is that they're only simple, they're repetitive, they're routine. So they're not going to be highly detailed. They're going to be, I would argue, short and simple.

[00:20:54] Speaker 05:
If I understand your argument correctly, is that even if the RFC is wrong. Correct. That because the VE identified only jobs that are in fact simple and routine, and simple and routine is the same thing as short and simple, not complex.

[00:21:18] Speaker 05:
That is correct. Okay. And the reason why is that it's also- Not detailed or complex. Yes. Okay.

[00:21:22] Speaker 03:
We are arguing that the RFC was correct, but we are also arguing even if the RFC is wrong, especially given the context of the opinion as a whole. In other words- I think it's very clear that Dr. South meant, we know what he meant by short and simple because he did summarize in his conclusions SRT, simple routine tasks.

[00:21:42] Speaker 05:
The argument in the alternative.

[00:21:44] Speaker 03:
Correct.

[00:21:44] Speaker 05:
If for some reason we disagree with you about the translation.

[00:21:47] Speaker 03:
Correct.

[00:21:48] Speaker 05:
And therefore the RFC is somehow incorrect in saying that he can do detailed tasks. The VE in effect only identified jobs that are short and simple tasks, not complex or detailed tasks.

[00:22:08] Speaker 03:
Correct.

[00:22:09] Speaker 05:
Not detailed instructions, whatever it may be.

[00:22:11] Speaker 03:
Correct. The VE expressly testified, these are repetitive, these are simple, these are routine. And this was on card 93 and 94. And we know that's consistent with what Dr. South meant when he said short and simple, but not detailed, because he said as much. He said SRT when he summarized his opinion that DUMIC could perform simple routine tasks, and that was on CAR 94 and 103.

[00:22:38] Speaker 04:
What about this conflict if there is one between tasks and instructions? Dr. South was referring to detailed instructions.

[00:22:47] Speaker 03:
I would have to agree with my friend on the other side that rounds did at least seem to indicate, and my friend on the other side quoted rounds, so I'll leave that quote as it stands. So there does seem to be some indication by this court and rounds that there isn't a lot of meaningful distinction between tasks and instructions. I would also argue there's not a lot of meaningful distinction between tasks and duties, which is how our regulation defines simple duties that can be performed in a shortened amount of time. And so I do think that speaks to a translation issue.

[00:23:21] Speaker 03:
The ALJ is looking at this opinion, the fact that he used the word instructions doesn't mean he's signaling He's copying the language of the DOT. He did not mimic the language of the DOT, the state agency consultants.

[00:23:34] Speaker 05:
So I appreciate your candor about a possible reading of rounds essentially suggesting that we should consider, I think what you're saying is rounds suggest at least that detailed instructions and detailed tasks are essentially the same.

[00:23:55] Speaker 03:
Interchangeable. Interchangeable.

[00:23:57] Speaker 05:
Okay.

[00:23:59] Speaker 05:
Putting aside rounds for the moment, is that actually how the agency sees it? Does the agency use them interchangeably?

[00:24:07] Speaker 03:
I mean, I think so in the sense that the ALJ is translating an opinion. So I don't think the fact that there's instructions and instructions is used in one regulation means that the ALJ has to assume that it's referring to that regulation.

[00:24:22] Speaker 05:
Would, if a medical...

[00:24:25] Speaker 05:
an agency examiner says they can't do detailed tasks or they can't do, they can't handle detailed instructions. An ALJ normally would assume that means the same thing as can't do detailed tasks.

[00:24:42] Speaker 03:
My understanding is that per rounds, those terms are largely interchangeable. So I'm not aware of the agency. The agency doesn't have any regulations or rules that makes clear distinctions between those terms. But I think the,

[00:24:56] Speaker 05:
You are conceding that something that requires detailed instructions is a detailed task requires detailed instructions.

[00:25:10] Speaker 03:
I think that's what rounds indicated. So I'm just deferring to what this court held in rounds. I recognize you said putting rounds inside. I would just say I don't think that's material to deciding this case. I think it really turns on, did the ALJ reasonably translate an opinion? And also, ultimately, the occupations, are those occupations consistent with the opinion? And we know they are. We know that he said this claimant could perform simple routine tasks, and we know that those occupations are simple routine instructions.

[00:25:39] Speaker 05:
Less on the distinction between tasks and instructions and more on the, you're trying to say, looking at Dr. South's opinion as a whole, that it wasn't a categorical exclusion of all detailed tasks, but instead a, I guess, moderate limitation on the ability to do detailed tasks and the ALJ, when they didn't have to, the ALJ could rightly say there's a lower level of detailed tasks that are still within the RFC.

[00:26:13] Speaker 03:
I think what I would say, yes. And I think, again, it's sort of detailed what context detailed is used. Did the state agency consultant mean detailed in the context of the DOT? Did he mean detailed in the context of our regulations?

[00:26:27] Speaker 05:
And I think the age... Move from one thing with five levels to a thing with nine levels. Correct.

[00:26:33] Speaker 03:
Yes.

[00:26:34] Speaker 05:
Okay.

[00:26:36] Speaker 05:
I understand the argument.

[00:26:38] Speaker 03:
Thank you.

[00:26:39] Speaker 03:
So I'll just conclude by saying the simplest path to affirmance here is we know what Dr. South meant. He said what he meant. He said that Dumit could perform simple routine tasks. He also said that Dr. Barsukov's assessment, which indicated that Dumit could perform unskilled or simple work and use the word unskilled, was supported. The ALJ, the question isn't whether there's another interpretation of his assessment. The question is whether the ALJ's interpretation was reasonable. We are arguing that the ALJ's interpretation was reasonable.

[00:27:12] Speaker 03:
And even if this court disagrees, we know the occupations per the vocational expert testimony were simple, routine assessments. Simple routine tasks.

[00:27:21] Speaker 05:
Thank you.

[00:27:30] Speaker 05:
Can you address the last argument that I think about, even if we agree with you that the RFC is wrong, that the BE actually identified jobs that are within what you would propose?

[00:27:43] Speaker 01:
I will. Okay. So in this case, the vocational expert identified no less than six different jobs. All six of them nominally require Level 2 reasoning in the DOT, and Level 2 reasoning is detailed but uninvolved instructions. So at least the specter of detailed instructions, tasks, whatever, is in those jobs. Now, if the vocational expert had been told, as Dr. South said, that this person cannot handle detailed or complex tasks and still said those jobs are consistent, this case might be different.

[00:28:19] Speaker 01:
but the vocational expert wasn't told that. He was told that she could handle detailed instructions as long as it was within, learnable within 30 days, which means SVP 2, all these jobs are SVP 2.

[00:28:32] Speaker 01:
So that's a different measurement. The judge changed can't into can.

[00:28:37] Speaker 05:
Okay.

[00:28:39] Speaker 05:
Anything else?

[00:28:39] Speaker 01:
Thank you. That's all I have. Thank you.

[00:28:41] Speaker 05:
Thank you. Thank you.

[00:28:46] Speaker 05:
This matter is submitted. I believe we are adjourned.

[00:28:49] Speaker 00:
not to return tomorrow all rise this court stands adjourned for this whole session and will resume in september