Ashton v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 10, 2019
• Docket: 3:19-cv-05255
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOHN G. A., III, CASE NO. 3:19-CV-5255-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 16 Defendant’s denial of her applications for disability insurance benefits (“DIB”) and supplemental 17 security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and 18 Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned 19 Magistrate Judge. See Dkt. 2. 20 The parties agree the Administrative Law Judge (“ALJ”) committed reversible error. 21 Further, the Court finds there are outstanding issues that must be resolved regarding Plaintiff’s 22 ability to perform his past relevant work and other jobs in the national economy. Accordingly, 23 24 1 this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the 2 Commissioner of Social Security (“Commissioner”). 3 FACTUAL AND PROCEDURAL HISTORY 4 On January 13, 2015, Plaintiff filed applications for DIB and SSI, alleging disability

5 beginning June 4, 2013. See Dkt. 10, Administrative Record (“AR”) 17. The applications were 6 denied on initial administrative review and reconsideration. See AR 17. A hearing was held 7 before ALJ S. Andrew Grace on April 6, 2017. See AR 73-105. A supplemental hearing was held 8 before the ALJ on February 1, 2018. See AR 39-72. In a decision dated March 14, 2018, the ALJ 9 determined Plaintiff became disabled on January 13, 2015; however, he found Plaintiff was not 10 disabled prior to this date. AR 17-30. Plaintiff’s request for review of the ALJ’s decision was 11 denied by the Appeals Council, making the ALJ’s decision the final decision of the 12 Commissioner. See AR 1-5; 20 C.F.R. § 404.981, § 416.1481. 13 In the Opening Brief, Plaintiff maintains the ALJ erred by: (1) improperly considering 14 Plaintiff’s past relevant work and improperly applying the grids; and (2) improperly evaluating

15 Plaintiff’s testimony. Dkt. 12, p. 1. Plaintiff requests the Court remand this case for an award of 16 benefits. Id. at p. 18. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 19 social security benefits if the ALJ’s findings are based on legal error or not supported by 20 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 21 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 22 23

24 1 DISCUSSION 2 Plaintiff and Defendant agree the ALJ committed reversible error. Dkt. 12, 19, 20. 3 Plaintiff argues the case should be remanded for payment of benefits, while Defendant asserts 4 the case should be remanded for further administrative proceedings. See Dkt. 12, 19, 20.

5 The Court may remand a case “either for additional evidence and findings or to award 6 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 7 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the 8 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 9 Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when 10 evidence should be credited and an immediate award of benefits directed[.]” Harman v. Apfel, 11 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, under this “credit-as-true” test, benefits should 12 be awarded where: 13 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved 14 before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence 15 credited.

16 Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 17 An ALJ’s errors are relevant, however, only to the extent they impact the underlying 18 question of the Plaintiff’s disability. Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 19 1135, 1138 (9th Cir. 2011). “A claimant is not entitled to benefits under the statute unless the 20 claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.” Id. (citing 21 Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005)). Therefore, even if the 22 “credit-as-true” conditions are satisfied, a court should nonetheless remand the case if “an 23 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” 24 1 Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (citing Connett v. Barnhart, 340 F.3d 2 871, 876 (9th Cir. 2004)). 3 The parties agree the ALJ committed reversible when he improperly considered 4 Plaintiff’s past relevant work and ability to perform work as an estimator. See Dkt. 19, 20.

5 If the claimant cannot perform his or her past relevant work at Step Four of the disability 6 evaluation process, at Step Five, the ALJ must show there are a significant number of jobs in the 7 national economy the claimant is able to do. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 8 Cir. 1999); 20 C.F.R. §§ 404.1520(d)-(e). In doing so, the ALJ considers the claimant’s residual 9 functional capacity (“RFC”), age, education, and work experience to see if the claimant “can 10 make an adjustment to other work.” 20 C.F.R. 404.1520(a)(4)(v), (g)(1). If the claimant can 11 make an adjustment to other work, he or she will be found not disabled. Id. If not, the claimant 12 will be found disabled. Id. 13 In making the determination as to whether a claimant is capable of performing other work 14 existing in significant numbers in the national economy, the ALJ must take into account the

15 claimant’s skills, if any, and their transferability. Social Security Ruling (“SSR”) 82-41, 1982 16 WL 31389 *1. A claimant’s “[s]kills and their transferability relate to” his or her “abilities to do 17 occupations different from those” he or she did “before becoming impaired.” Id. at *1. The term 18 “skills” refers to “experience and demonstrated proficiency with work activities in particular 19 tasks or jobs.” Id. at *3. 20 At Step Four of the sequential evaluation process, the ALJ determined Plaintiff had past 21 relevant work as a truck driver; sales attendant, building materials; and roofer, roofing 22 supervisor, and estimator. AR 25-26. The ALJ determined Plaintiff had acquired work skills 23 from his past relevant work through his date last insured. AR 25. The ALJ stated:

24 1 The vocational expert [Sonja Stratton] was asked if any occupations exist which could be performed by an individual with the same age, education, past relevant 2 work experience, and residual functional capacity as the claimant, and which require skills acquired in the claimant’s past relevant work but no additional skills. 3 The vocational expert responded and testified that representative occupations such individual could perform include: [estimator]. 4 AR 28. The ALJ further stated he did not ask the vocational expert (“VE”) Stratton “about 5 specific skills transfer because the claimant actually performed the job of estimator as a portion 6 of his composite roofing job. Because he actually performed the job for a portion of nine years, 7 he obviously acquired the skills to perform the job.” AR 28. 8 Plaintiff maintains that, if VE Stratton’s testimony is credited as true, Plaintiff must be 9 found disabled. See Dkt. 20. VE Stratton testified Plaintiff would not be able to perform his past 10 work. AR 68. However, she stated a person with Plaintiff’s age, education level, work 11 experience, and RFC could perform the job of an estimator. AR 68-69. VE Stratton concluded 12 that, if the job of estimator was not considered, she was not aware of any jobs Plaintiff could 13 perform, wherein his skills would transfer from his prior skilled work. AR 69. She also stated the 14 estimating skills for a roofer are “really very specific to the construction, home improvement 15 industry, and would not easily transfer.” AR 70. 16 The record also contains testimony from VE Lois Silverstein. VE Silverstein testified 17 Plaintiff would be able to perform the job of sales representative, building equipment and 18 supplies. AR 97, 100. She also testified Plaintiff’s skills could transfer to the job of a chauffeur, 19 buyer, manufacturer’s representative, and sales person, general merchandise. AR 101. While VE 20 Silverstein’s testimony was not based on a complete hypothetical question, including all 21 limitations contained in the RFC assessment, her testimony provides some evidence Plaintiff is 22 able to perform other jobs in the national economy. 23 24 1 Furthermore, the ALJ stated he did not ask VE Stratton about the transferability of skills 2 to the estimator position. See AR 27-28. The record also fails to show specific VE testimony 3 regarding the transferability of Plaintiff’s skills. AR 64-71, 99-104. Additionally, the ALJ did not 4 make explicit findings regarding the transferability of Plaintiff’s skills. See AR 27-28; see also

5 Dkt. 12, p. 9 (Plaintiff asserts the ALJ failed to identify transferable skills). 6 As the record contains conflicting evidence and lacks clarity regarding the transferability 7 of Plaintiff’s skills, the Court concludes remand for further proceedings is appropriate in this 8 case. See Phair v. Colvin, 2013 WL 6185243, *3-4 (W.D. Wash. Nov. 26, 2013) (remanding for 9 further proceedings where the ALJ failed to make findings of fact regarding specific 10 transferrable skills and found the transferability of work skills was not material to the disability 11 determination); McAndrews v. Colvin, 2014 WL 5089745, *5 (E.D. Wash. Oct. 9, 2014) (finding 12 remand for further proceedings appropriate where the record contained contradictory opinions 13 from two vocational experts, one which, if relied on, would result in the plaintiff being able to 14 work and one which would result in the plaintiff being found disabled); Menefee-Arellano v.

15 Astrue, 2011 WL 1337347, at *2 (D. Or. Apr. 7, 2011) (finding outstanding issues must be 16 resolved regarding transferability of skills and stating that “a finding [of disability] and 17 assessment of plaintiff’s skills are not appropriate for this court to make, given testimony by the 18 vocational expert that plaintiff possessed transferable skills at some point. It is the role of the 19 ALJ, not this court, to make such findings.”); SSR 82-41 (the ALJ is required to make findings 20 concerning transferable work skills, and support that determination with appropriate 21 documentation). 22 23

24 1 CONCLUSION 2 Based on the foregoing reason, the Court hereby finds the ALJ improperly concluded 3 Plaintiff was not disabled prior to January 13, 2015. Accordingly, Defendant’s decision to deny 4 benefits prior to January 13, 2015 is reversed and this matter is remanded for further

5 administrative proceedings in accordance with the findings contained herein. On remand, the 6 ALJ shall reconsider Plaintiff’s subjective symptom testimony, reconsider the RFC, and obtain 7 additional testimony from a vocational expert regarding Plaintiff’s past relevant work and the 8 transferability of Plaintiff’s skills. The ALJ shall then continue through the remaining steps of 9 the sequential evaluation process. 10 Defendant’s decision finding Plaintiff disabled as of January 13, 2015 is affirmed. 11 Dated this 10th day of December, 2019. 12 A 13 David W. Christel United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24