*1 392 Auer, 51.319(e)(2)(i) 463, majority quotes.
§ it wants. 519 117 S.Ct. U.S. 2677, 2682; Maj. Op. at 376- That applies See TRRO at 905. rationale with extra interpretive All the TRRO is agency 77. of this confirms that force to rules: An legislative Vigil, wipe rule. See Lincoln v. interpretive could amend its rule and 2024, 195-196, 182, 124 U.S. 113 S.Ct. 508 with- interpretation court’s off board (1993); Francis Health L.Ed.2d 101 St. delay out even the of notice-and-comment Shalala, Ctr. v. 205 F.3d Care rulemaking. Cir.2000) (“[I]f by agency its action the analysis, interpre- In the final the FCC’s ..., new rule is
intends to create law reasonably tation respects words its properly to be a legislative considered requires and Auer re- regulations us to rule.”). interpretation. spect majority Perhaps majority means seeing differently, it I respectfully dissent. ¶¶ 136-40 of the do not TRRO deserve paragraphs deference because those
part general the “concise statement” of purpose,”
the TRRO’s “basis and 5 U.S.C. 553(c), not amendments to the federal (“[T]he Maj. Op. n.
code. See at 375 ”). ‘regulation.’
TRRO ... is ... not a true
I reading am unaware such a Angela WRIGHT-HINES, so, into line Auer. No one has done Plaintiff-Appellant, “[cjourts believe, Congress ‘regulation’ treat the terms and ‘rule’ as interchangeable,” Treasury Employ Nat’l COMMISSIONER OF SOCIAL Weise, Union ees SECURITY, Defendant- (D.C.Cir.1996), general and “concise state Appellee. rule,
ments” are see 5 U.S.C. 553(c); Lincoln, 195-96, U.S. No. 08-5830. 2024. S.Ct. Justice concurrence in Scalia’s of Appeals, United States Court Coeur not to contrary. Alaska is See Sixth Circuit. Alaska, Coeur Inc. v. Se. Alaska Conserva — Council, -, tion Submitted: Jan. 2458, 2479, 174 L.Ed.2d (noting courts Decided and Filed: Feb. defer under Auer “to an agency’s interpretation regu its ambiguous own
lation.”). Justice Scalia distinguish regulations statutes, between
between of a legislative sections rule. See
id.
But interpre- whether the is an TRRO legislative
tive or rule is the point. beside generally agency’s defer inter-
pretation of its own it rules because impose little
“make[s] sense” to our inter-
pretation agency it remains (largely)
free rewrite the rule however *2 Barnes- E.
ON BRIEF: Janice Counsel, Williams, Office of the General Administration, Kansas Missouri, Appellee. Angela City, Tennessee, Wright-Hines, Memphis, on came disabled December Her denied, appeared se. were claims and she May before an WHITE, Before: MARTIN and Circuit represented She was counsel *3 ZOUHARY, Judges; Judge.* District an hearing. opinion up- The ALJ issued the denial holding of benefits November ZOUHARY, D.J., opinion delivered 14, 2006. J., court, MARTIN, joined. in which five-step The ALJ used the familiar dis- WHITE, J., 397-98), (pp. delivered analysis provided by ability the social secu- separate opinion concurring part and one, rity regulations. step At the ALJ dissenting in part. determined that had not en- OPINION gaged gainful activity since two, step December 2002. At ZOUHARY, Judge. District that Wright-Hines found suffered from Pro appellant Angela following impairments”: “severe herni- appeals from the Commissioner nucleus pulposus, pain syn- ated chronic Security’s supple- denial her claims for drome, syndrome, bilateral carpal tunnel (SSI) mental security disability income and paranoid depressive schizophrenia, disor- (DIB). insurance benefits ALJ The found der, three, step and cocaine abuse. At WrighNHines was not disabled because that WrighWHines ALJ found did not have capacity residual functional allowed impairment impair- combination of her to perform relevant work as a regulatory ments met listed criteria. cashier. The district court adopted the ALJ The then defined magistrate judge’s Report and Recommen- (RFC): capacity residual functional (R R) upheld dation and & [Wright-Hines] has the the ALJ. residual func- capacity pounds tional to lift 50 occasion- construed, Liberally Wrighb-Hines’ ap- ally pounds frequently and as well as (1) peal arguments: raises four Voca- stand, walk, or sit for six hours in an (VE) Expert tional relied on eight-horn- workday. also has She non- had with Wright-Hines, contact and limitations postural exertional that re- testimony the VE’s improp- was therefore her to climbing, strict occasional balanc- (2) er; hypothetical question to ing, stooping, kneeling, crouching, the VE Wright- failed include all of crawling. Additionally, she has nonex- (3) limitations; physical Hines’ there was ertional mental limitations that restrict WrighU-Hines per- evidence that her to understanding, remembering, and formed aas cashier for more out carrying simple and low-level de- months; (4) than three district job tailed instructions. court erred in denying Wright-Hines’ mo- (ROA 21). judgment. tion for default affirm. four, step At the ALJ determined that
Background Wrighb-Hines’ per- RFC allowed her to In April May 2004, Wrighb-Hines form relevant work aas cashier. The applied DIB, alleging SSI she be- ALJ noted “[w]ork cashier re- * Ohio, The Zouhary, sitting Honorable Jack by designation. United States Judge District for the Northern District of 404.1560(b)(2) conclusion. See C.F.R. activity unskilled quires sustained (‘We may use the services of vocational also level.” light exertional experts help ... us determine whether is consistent conclusion “[t]his noted work[.]”) record, you your past can do including longitudinal added); Allen, (emphasis see also from State Rebecca assessment Griffeth 217 Fed.Appx. Soc. The state VE’s expert.” vocational agency (6th Cir.2007) (“The per regulations of the written assessment a voca mit an ALJ to use the services of “past aas and it listed “cashier” step tional four to determine expert Wright-Hines did occupation.” can rele whether a claimant do his work as a testify previous *4 RFC.”) ALJ, given (emphasis vant his during the before the cashier added). Thus, is Wright-Hines’ argument cashier posi- nor was she Nevertheless, unavailing. on the based conclu- tion. capable Wrighb-Hines was of that sion Question Hypothetical to VE ALJ found that
working as a the was not disabled. The ALJ Wrighb-Hines Wrighb-Hines next argues the analysis. reach five of step did not hypothetical question to the VE
include limitations. all of relevant Review Standard of Specifically, argues hypothetical she syn- limited to whether carpal Our review is failed to mention her tunnel legal the correct stan applied Again, premise argu- drome. of this mistaken, findings of the ALJ and whether the ment is because the ALJ never dards VE, evidence. supported by posed hypothetical question are to the Sec., 581 Soc. F.3d Blakley required Comm’r nor was he to do so. (6th Cir.2009). must affirm We as Past Relevant Work Cashier findings if his and infer the ALJ’s decision her work as claims from reasonably drawn the rec ences months, cashier lasted two to three supported by or substantial evidence ord is rele which too short to as support a con if that evidence could even cite Wrighb-Hines vant work. does not Id. at 406. trary decision. she any supporting legal authority, but may relying be on the “unsuccessful Discussion attempt” regulations, provision Prior With Claimant VE’s Contact provides jobs which that of short some not be considered rele Wrighb-Hines argues ALJ duration will 404.1574(c); § testimony of vant 20 C.F.R. see relying a state erred Wright- had contact also Carreno Soc. VE who Cir.2004) argument Fed.Appx. (apply premise of this is Hines. regu mistaken, presented attempt” the “unsuccessful work as the never ALJ lation). Generally, work” is question “past the VE or heard hypothetical Rather, you with defined “work that have done testimony other from VE. as report years, in the that was substantial noted a written from that long gainful activity, and that lasted with his conclusion the VE consistent to learn it.” 20 capable per enough you to do that 404.1560(b)(1). as a C.F.R. “Substantial past relevant work cashier. forming Moreover, is in turn required gainful activity” defined ALJ was or men- testimony “significant physical his that involves reaching from a VE solicit agree “pay profit.” tal done for dissent activities” inquisitorial duty has an to seek clari 404.1572(a)-(b). ALJ C.F.R.. facts, and that fication material ALJ’s determination We conclude the would have well-advised to con past relevant work as a firm by supported as a cashier was But hearing. we cannot excuse in the independent evidence. Two sources Wright-Hines’ failure to us with provide finding: such a written factual record we find in her need to Explana- Social Administration’s Wright- favor. To do so would be to treat Decision, per- tion of states ‘You which than differently Hines other Securi month(s). job for 3 formed ty claimants for no other reason than that your description job, Based on of this we proceeded the district court you it” are able to concluded on appeal. the focus of our (AR 32); and a Assessment Vocational inquiry is what occurred in the administra Department from Human the Tennessee proceedings, represent tive she was Services, “past which “cashier” lists ed counsel. On this we cannot 50). (AR addition, occupation” say legal the ALJ utilized an incorrect *5 report a standard that substantial evidence did *6 Cir.1983) Wright-Hines’ work as past a cashier. an “the (noting that ALJ has cursory Notwithstanding nature of the that responsibility ensuring ultimate in references to work the record cashier a and fair every claimant receives full ....”) Richardson, Wright-Hines’ testify failure to at all (citing 402 hearing 1420).1 any regarding cashier the ALJ at Wright- based his denial of benefits on case, In the denied instant ability to this perform Hines’ work. on that Wright-Hines benefits the basis perform past particularly troubling work as a This she could conclusion is cashier, a there required presumption against which is a determination engaged a in finding as a cashier was sub- that claimant sub work activity. gainful activity if the claimant’s gainful stantial 20 C.F.R. stantial Lashley, routinely unrepresented claimant makes this case This In unusual. hearing ALJ. held before the This court where affirms Commissioner the relevant fully obligation develop to the record inquiry fully developed a is whether there was duty” special to “a 708 rose such cases. ability regard perform to to case, present In the F.2d 1051-52. See, e.g., Wilson Comm’r Soc. litigating pro Wright-Hines, presently iswho Sec., Fed.Appx. se, represented by attorney an before here, Cir.2008)(unpublished). duty” "special ALJ. While is thus no there Wright-Hines experience did not claim ALJ, its must still be question cashier her to supported by evidence in the record. substantial experience ascertain whether she such Blakley Sec., Comm’r Soc. relying passing before on what amounts to (6th Cir.2009). support to a decision references the record deny to benefits. Indeed, the fact that never experience claimed to have as a cashier monthly earnings Although Explanation from the work the initial average Deter- specified a falls below amount.3 20 C.F.R. mination on the basis that denied benefits 404.1574(b)(2). Carreno v. Wrighb-Hines See also had been a cashier and was Fed.Appx. 596 still job, able to there was of Soc. (6th Cir.2004) (unpublished). The few ref nothing the record about the nature or in the record to employment. erences duration of that Nor did work a cashier are as to as silent how ever work mention as may much have in that posit length she earned she testified at addition, employment ion.'4 of three experience hearing before the months or less is considered unsuccess relying conclusory ALJ. Before attempt, ful record, and thus in the statements the ALJ should activity, gainful if the claimant “stopped inquired have at least discrepancy into the working, or Wright-Hines’ testimony ] her] reduced [his between and the L earnings gainful below the substantial on which rely. statements he intended to activity earnings im simply level because Had [an] 404.1574(c)(3). pairment ...” C.F.R. at her whether had previously she mentioning the record Because pre- worked as a have could work also refers to work arguments three-month against sented her a finding duration, have inquired ALJ should such work constituted rele- into whether the employment was suffi vant work. The do so failure to contra- gainful cient to activ vened the ALJ’s basic obligation to devel- ity. Given the investigatory nature of So op the record. cial proceedings case, reiterate this is an unusual duty develop an inquiry into and I do not believe that granting re-
WrighWHines’ prior history as a mand treat WrighWHines would different- cashier should have made. ly from other claimants. All claimants coupled ALJ’s failure to do so hearing; deserve a full and fair Wright- lack substantial evidence the Hines did not receive one. that Wrighb-Hines performed conclusion *7 Thus, I respectfully dissent. past relevant work aas cashier warrants a remand.
Finally, respectfully disagree
majority’s conclusion that
counsel’s failure to expe- address
rience as a cashier relieved of all
responsibility
inquire
into the matter.
earnings
trigger
3. The amount of
will
Fred’s
History
Dollar Store. On her Work
adjusted
presumption
yearly
is
aon
basis to
Report,
indicated
average wage growth.
account for national
week,
days
worked as a "clerk” for four
six
As there
is
indication in
record as to
(the
day earning $6.00
per
hours
hour
form
worked
week,
per
is
ap-
$6.00
marked
however
relevant amount for
is
this case
unclear.
mistake).
pears to be a
AR
amount
$700.
December
that amount was
earnings
of her
would
therefore
gainful activity.
brief,
reply
Wright-Hines implies
In her
position
that the cashier
relates to her work at
medical consultation
notes
ALJ’s
not
the
conclusions.
cashier,
Wright-Hines had
as a
worked
though
length
it does not
of
indicate the
Judgment
Default
(AR 108).
employment
her
Wright-Hines
argues
also
the dis
Those sources
record
were
the
court
denying
trict
erred in
motion
her
for
ALJ;
to the
the
one
before
judgment
default
under Federal Civil Rule
those sources was the Social
argument
55. This
is likewise without
explanation
very
Administration’s
Wright-Hines’
for
request
merit.
default
Wright-Hines
asked the ALJ to
judgment was based on the extra time
(who
Thus, Wright-Hines
review.
was
requested
the Commissioner to file a
represented by
hear-
counsel
response
during
brief
the district court
ing)
fully
should have
aware
the
proceedings. The district court concluded
past
record’s indication of her
relevant
was
for entering
there
no basis
a default
cashier,
work
it
as a
and was her burden
the
judgment because
Commissioner had
to
in
rebut that conclusion
order
prevail
to
timely
necessary
filed all
pleadings. The
before the ALJ. Yet she never introduced
supports
the district court’s conclu
any evidence that
work
her
as a cashier
parties requested
sion: both
and were
Indeed,
than
lasted less
months.
three
granted additional time
briefing,
the
point
first time she mentioned this
was
the
filed
within
Commissioner
his brief
the
in
Objection
her
to the Magistrate’s
below
extended deadline.
R,
R &
in
passing.1
and then
Conclusion
ALJ therefore
presented
with uncon-
WrighWHines
tradicted evidence that
reasons,
foregoing
For the
we AFFIRM
relevant
as a cashier.
the decision of the district court.
issue,
magis-
separate
This issue was not addressed in the
district court did not
Wright-Hines
& R
trate’s R
adopting
address it in
its decision
R & R.
during
raise it
in
initial briefs
the district
Nevertheless,
keeping
in mind the liberal
proceedings.
briefly
did
pleadings,
standard accorded to
we will
argument
objections
note this
in her
the R
to
address
contention here.
R,
clearly presented
&
it
but
was not
as a
404.1520(e);
WHITE,
Judge,
SSR 82-62.
N.
Circuit
HELENE
dissenting.
administrative record contains minimal ev-
concurring and
idence that she had been
and no
majority’s
and dis-
join
I
discussion
as a
evidence
her work
cashier met
first,
second
position
to be
regulatory
criteria
considered
would, however, remand
fourth claims.
activity.
gainful
While the ma-
develop
record with
fully
ALJ to
to the
jority is correct that
claimant has the
Wright-Hines’ past
to
relevant
regard
demonstrating
inability
to
burden
logically there
judi
unlike
security proceedings,
first be
evidence that a
must
ones,
adversarial.
inquisitorial,
cial
experience
has
claimant
103,
See,
110—
Apfel,
v.
e.g., Sims
particular employment category.2
(2000)
2080,