News & Information

CCH® UNEMPLOYMENT INSURANCE — 8/23/16

ALJ appropriately evaluated past work according to the "generally performed test," says Ninth Circuit

A former supervisory engineer for the department of corrections suffered from fatigue, gout, chest pains, and heart and vision problems and applied for benefits. The claimant's application was denied at step five of the sequential evaluation process at an initial hearing. Upon remand, the application was denied at step four following a third evidentiary hearing. The district court agreed that the Administrative Law Judge's (ALJ) step four finding was correct and that neither the law of the case doctrine nor the rule of mandate were violated. On appeal to the Ninth Circuit, in a matter of first impression, the court held that both the law of the case doctrine and the rule of mandate apply for purposes of Social Security cases. The claimant argued that the ALJ violated both principles by reevaluating his ability to do his past relevant work at the third administrative hearing. However, the court determined that the ALJ appropriately considered new evidence regarding the claimant's supervisory work and its impact on the vocational expert's opinion that the claimant could perform the work of stationary engineer supervisor as it is generally performed. Further, the court held that, given the expansive remand orders in the case, the rule of mandate also was not violated. Finally, the court determined that the ALJ did not err by classifying the claimant's former work based on the supervisory aspect of the job. At step four, an ALJ can evaluate a claimant's ability to perform his past relevant work by either the "actually performed test" or the "generally performed test." Regardless of the test used, an ALJ may not classify a past job by the least demanding function of the work. Here, however, the least demanding aspect of the claimant's work was the task that he performed most of the time. The evidence showed that the claimant spent most of the time in his former role performing supervisory duties, the least demanding function. Although the parties agreed that the claimant could not perform his past work as it was actually performed, there was substantial evidence that the claimant could perform his past work as it is generally performed in the national economy. Thus, the ALJ appropriately evaluated the past work according to the "generally performed test." The decision of the district court was affirmed (Donald G. Stacy v. Colvin, CA-9, No. 13-36025, June 7, 2016).