70 F.4th 1251
9th Cir.2023Background
- Caroline Leach applied for Social Security disability benefits in 2018; after hearing the ALJ found several severe impairments and assessed an RFC for light work with specific mental limits.
- ALJ’s mental RFC included: can perform simple, routine tasks; can follow short, simple instructions; needs little or no judgment; requires a predictable work environment with few work-setting changes.
- At the hearing the ALJ posed a hypothetical to a vocational expert (VE) that misstated Leach’s mental limits: it omitted “short” (asking only about "simple" instructions), omitted the "little or no judgment" limitation, and replaced "few" work-setting changes with "occasional" changes.
- The VE identified three unskilled jobs (routing clerk, cafeteria attendant, order caller) with DOT reasoning level two; the ALJ relied on that testimony at step five and denied benefits.
- The Ninth Circuit reversed: the ALJ materially misstated the claimant’s limitations in the hypothetical so the VE testimony lacked evidentiary value for those jobs; some misstatements were harmless but others were not, requiring remand to the agency for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ’s hypothetical materially omitted claimant’s RFC so VE testimony lacked evidentiary value | Leach: ALJ omitted/altered mental limits (no "little or no judgment," dropped "short," changed "few" to "occasional") so VE testimony is unreliable | Commissioner: ALJ’s rewording was permissible or harmless; VE identified unskilled jobs so "little or no judgment" omission is immaterial | Court: Omission of "little or no judgment" was harmless (VE listed unskilled jobs), but other omissions were not harmless; remand required |
| Whether omitting the adjective "short" (i.e., asking about "simple" instructions only) was material | Leach: Limitation to "short, simple instructions" is narrower and may conflict with DOT reasoning level two jobs | Kijakazi: Level-two jobs are often compatible and any difference is not dispositive here | Court: Error not harmless — cannot determine from record whether level-two jobs require only short instructions; remand required |
| Whether replacing "few" work-setting changes with "occasional" changes was material | Leach: "Few" is more restrictive than "occasional"; the VE could have understood a broader allowance | Commissioner: ALJs may reasonably rephrase RFC so long as meaning isn’t materially altered | Court: Close call but ALJ’s formulation materially altered limitation; error not harmless and requires remand |
| Standard for reliance on VE testimony when hypothetical misstates limitations | Leach: VE testimony has no evidentiary value if hypothetical doesn’t reflect all limitations | Kijakazi: If hypothetical accurately reflects limits, VE may be relied on; apparent conflicts with DOT must be resolved | Court: Confirms precedent — inaccurate hypotheticals invalidate VE testimony unless error harmless; accurate hypotheticals allow reliance unless unexplained apparent DOT conflict |
Key Cases Cited
- Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219 (9th Cir. 2009) (VE testimony lacks evidentiary value if hypothetical omits claimant limitations)
- DeLorme v. Sullivan, 924 F.2d 841 (9th Cir. 1991) (same principle regarding incomplete hypotheticals)
- Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996 (9th Cir. 2015) (ALJ must resolve apparent conflicts between VE testimony and DOT)
- Lambert v. Saul, 980 F.3d 1266 (9th Cir. 2020) (harmless-error standard for ALJ mistakes)
- Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988) (remand required when ALJ hypothetical fails to reflect all limitations)
- White v. Kijakazi, 44 F.4th 828 (9th Cir. 2022) (discusses reliance on VE testimony when hypothetical is accurate)
- Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019) (analysis that "short, simple instructions" can conflict with DOT reasoning level two)