1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 MARIA LOURDES DURAN, Case No. 2:23-cv-00373-EJY
5 Plaintiff,
6 v. ORDER
7 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 8 Defendant. 9 10 I. Background 11 Pending before the Court is Plaintiff’s Brief asking the Court to reverse the decision of the 12 Administrative Law Judge (“ALJ”) and award benefits. ECF No. 10. Plaintiff contends that the 13 ALJ’s failure to identify a “significant range of work” she can perform requires a finding of 14 “disabled” under the Social Security Act.1 Id. at 5-6 citing Lounsburry v. Barnhart, 468 F.3d 1111 15 (9th Cir. 2006). Defendant responds and contends “[t]he proper course upon a finding of harmful 16 error is a remand for further administrative proceedings ‘except in rare circumstances.’” ECF No. 17 14 at 2 citing Treichler v. Comm’r of Social Security Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 18 Defendant argues there is an outstanding question of fact regarding the nature of Plaintiff’s 19 transferrable skills. Id. at 3. In support of his position, Defendant quotes an exchange between the 20 21 22
1 To establish a claimant is disabled under the Social Security Act, there must be substantial evidence that: 23
1. the claimant suffers from a medically determinable physical or mental impairment that can be expected to 24 result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and 25 2. the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national 26 economy.
27 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant meets both 1 ALJ and the Vocational Expert (“VE”) who testified during the December 15, 2021 administrative 2 hearing.2 3 In her Reply, Plaintiff argues there is no issue of fact to resolve because the ALJ identified 4 Plaintiff’s acquired skills in his decision as follows: “9. The claimant has acquired work skills 5 from past relevant work (20 CFR 404.1568). The vocational expert testified that the claimant’s 6 past relevant work as composite job of cashier checker and stock clerk was semi-skilled with a 7 Specific Vocational Preparation (SVP) code of 3 and required the following skills: cash register.” 8 ECF No. 15 at 4 citing AR 54 (emphasis in original). Plaintiff says that because the ALJ identified 9 Plaintiff’s acquired skills applicable to only one occupation, Plaintiff must be found disabled. Id. 10 II. Discussion 11 The Court has discretion to remand a case either for additional evidence and findings or to 12 award benefits. Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (internal citation omitted). The 13 Court “may direct an award of benefits where the record has been fully developed and where further 14 administrative proceedings would serve no useful purpose.” Id. (citation omitted). In the past, courts 15 “have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to 16 provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 17 must be resolved before a determination of disability can be made, and (3) it is clear from the record 18 that the ALJ would be required to find the claimant disabled were such evidence credited.” Id. 19 (citations omitted). 20 Plaintiff relies on Lounsburry, 468 F.3d at 1116-17, and Maxwell v. Saul, 971 F.3d 1128, 21 1130-31 (9th Cir. 2020), to support her argument that Defendant committed a critical error when he 22 failed to identify a significant range of work Plaintiff could perform at step five of the sequential 23 process that must be used to determine whether a Social Security claimant is disabled within the 24 meaning of the Social Security Act.3 Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
25 2 Specifically, the VE was asked: “So, since [Plaintiff] worked as a casher checker as part of her work experience 26 for upwards of 12 years, she would have transferable skills, would she not to go to a cashier checker position in a stand- alone position?” Id. quoting the Certified Administrative Record (“AR”) at 89. The VE answered, “Well, certainly, I 27 don’t know if she would say yes, but you could see it that way.” Id. quoting id. 3 Step 5 of the sequential process states: “Is the claimant able to do any other work? If not, then the claimant is 1 404.1520(a). Importantly, while the claimant carries the burden of proof at steps one through four, 2 it is the Commissioner of Social Security who carries the burden of proof at step five. Tackett, 180 3 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520. 4 In Lounsburry, the Ninth Circuit found the plaintiff had skills that transferred to one 5 occupation within that plaintiff’s Residual Functional Capacity, but that one occupation did not 6 constitute a significant range of work required by Rule 202.00(c).4 Lounsburry, 468 F.3d at 1117. 7 The Ninth Circuit confirmed this holding in Maxwell when the court held that “two occupations 8 [also] do not constitute a significant range of work ….” 971 F.3d at 1130-31. 9 In this case, Plaintiff argues that because the ALJ identified only one occupation with 10 significant numbers in the national economy Plaintiff could perform, Defendant did not satisfy his 11 burden of showing a significant range of work was available for Plaintiff. Thus, Plaintiff concludes 12 she, like the plaintiffs in Lounsburry and Maxwell, must be found disabled. 13 As explained in Maxwell,
14 At step five of the sequential process, the [Social Security] agency may meet its burden either “(1) by the testimony of a vocational expert, or (2) by reference to the 15 Medical–Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Tackett, 180 F.3d at 1099. The Medical–Vocational Guidelines, or “the grids,” are a “short- 16 hand method for determining the availability and numbers of suitable jobs for a claimant.” Id. at 1101. Based on a claimant’s functional capacity, age, education, 17 and work experience, the grids direct a determination that the claimant is either “disabled” or “not disabled.” Id. “Where a claimant suffers from both exertional 18 and non-exertional limitations, the ALJ must consult the grids first.” Lounsburry, …, 468 F.3d … [at] 1115 …, as amended (Nov. 7, 2006). “[W]here application of 19 the grids directs a finding of disability, that finding must be accepted by the Secretary” [of Social Security.] Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 20 1989) 21 Maxwell, 971 F.3d at 1130-31. Here, as was true in Maxwell, there is no dispute that Plaintiff was 22 an individual of advanced age at the onset date of disability. AR 54.
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1 UNITED STATES DISTRICT COURT
2 DISTRICT OF NEVADA
3 * * *
4 MARIA LOURDES DURAN, Case No. 2:23-cv-00373-EJY
5 Plaintiff,
6 v. ORDER
7 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 8 Defendant. 9 10 I. Background 11 Pending before the Court is Plaintiff’s Brief asking the Court to reverse the decision of the 12 Administrative Law Judge (“ALJ”) and award benefits. ECF No. 10. Plaintiff contends that the 13 ALJ’s failure to identify a “significant range of work” she can perform requires a finding of 14 “disabled” under the Social Security Act.1 Id. at 5-6 citing Lounsburry v. Barnhart, 468 F.3d 1111 15 (9th Cir. 2006). Defendant responds and contends “[t]he proper course upon a finding of harmful 16 error is a remand for further administrative proceedings ‘except in rare circumstances.’” ECF No. 17 14 at 2 citing Treichler v. Comm’r of Social Security Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 18 Defendant argues there is an outstanding question of fact regarding the nature of Plaintiff’s 19 transferrable skills. Id. at 3. In support of his position, Defendant quotes an exchange between the 20 21 22
1 To establish a claimant is disabled under the Social Security Act, there must be substantial evidence that: 23
1. the claimant suffers from a medically determinable physical or mental impairment that can be expected to 24 result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and 25 2. the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national 26 economy.
27 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing 42 U.S.C. § 423(d)(2)(A). “If a claimant meets both 1 ALJ and the Vocational Expert (“VE”) who testified during the December 15, 2021 administrative 2 hearing.2 3 In her Reply, Plaintiff argues there is no issue of fact to resolve because the ALJ identified 4 Plaintiff’s acquired skills in his decision as follows: “9. The claimant has acquired work skills 5 from past relevant work (20 CFR 404.1568). The vocational expert testified that the claimant’s 6 past relevant work as composite job of cashier checker and stock clerk was semi-skilled with a 7 Specific Vocational Preparation (SVP) code of 3 and required the following skills: cash register.” 8 ECF No. 15 at 4 citing AR 54 (emphasis in original). Plaintiff says that because the ALJ identified 9 Plaintiff’s acquired skills applicable to only one occupation, Plaintiff must be found disabled. Id. 10 II. Discussion 11 The Court has discretion to remand a case either for additional evidence and findings or to 12 award benefits. Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (internal citation omitted). The 13 Court “may direct an award of benefits where the record has been fully developed and where further 14 administrative proceedings would serve no useful purpose.” Id. (citation omitted). In the past, courts 15 “have credited evidence and remanded for an award of benefits where (1) the ALJ has failed to 16 provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that 17 must be resolved before a determination of disability can be made, and (3) it is clear from the record 18 that the ALJ would be required to find the claimant disabled were such evidence credited.” Id. 19 (citations omitted). 20 Plaintiff relies on Lounsburry, 468 F.3d at 1116-17, and Maxwell v. Saul, 971 F.3d 1128, 21 1130-31 (9th Cir. 2020), to support her argument that Defendant committed a critical error when he 22 failed to identify a significant range of work Plaintiff could perform at step five of the sequential 23 process that must be used to determine whether a Social Security claimant is disabled within the 24 meaning of the Social Security Act.3 Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
25 2 Specifically, the VE was asked: “So, since [Plaintiff] worked as a casher checker as part of her work experience 26 for upwards of 12 years, she would have transferable skills, would she not to go to a cashier checker position in a stand- alone position?” Id. quoting the Certified Administrative Record (“AR”) at 89. The VE answered, “Well, certainly, I 27 don’t know if she would say yes, but you could see it that way.” Id. quoting id. 3 Step 5 of the sequential process states: “Is the claimant able to do any other work? If not, then the claimant is 1 404.1520(a). Importantly, while the claimant carries the burden of proof at steps one through four, 2 it is the Commissioner of Social Security who carries the burden of proof at step five. Tackett, 180 3 F.3d at 1098 (internal citation omitted); 20 C.F.R. § 404.1520. 4 In Lounsburry, the Ninth Circuit found the plaintiff had skills that transferred to one 5 occupation within that plaintiff’s Residual Functional Capacity, but that one occupation did not 6 constitute a significant range of work required by Rule 202.00(c).4 Lounsburry, 468 F.3d at 1117. 7 The Ninth Circuit confirmed this holding in Maxwell when the court held that “two occupations 8 [also] do not constitute a significant range of work ….” 971 F.3d at 1130-31. 9 In this case, Plaintiff argues that because the ALJ identified only one occupation with 10 significant numbers in the national economy Plaintiff could perform, Defendant did not satisfy his 11 burden of showing a significant range of work was available for Plaintiff. Thus, Plaintiff concludes 12 she, like the plaintiffs in Lounsburry and Maxwell, must be found disabled. 13 As explained in Maxwell,
14 At step five of the sequential process, the [Social Security] agency may meet its burden either “(1) by the testimony of a vocational expert, or (2) by reference to the 15 Medical–Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Tackett, 180 F.3d at 1099. The Medical–Vocational Guidelines, or “the grids,” are a “short- 16 hand method for determining the availability and numbers of suitable jobs for a claimant.” Id. at 1101. Based on a claimant’s functional capacity, age, education, 17 and work experience, the grids direct a determination that the claimant is either “disabled” or “not disabled.” Id. “Where a claimant suffers from both exertional 18 and non-exertional limitations, the ALJ must consult the grids first.” Lounsburry, …, 468 F.3d … [at] 1115 …, as amended (Nov. 7, 2006). “[W]here application of 19 the grids directs a finding of disability, that finding must be accepted by the Secretary” [of Social Security.] Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 20 1989) 21 Maxwell, 971 F.3d at 1130-31. Here, as was true in Maxwell, there is no dispute that Plaintiff was 22 an individual of advanced age at the onset date of disability. AR 54. There is also no dispute that 23 Plaintiff has a high school education and acquired skills from her past relevant work. Id. There can 24 be no dispute that the ALJ’s decision states: “The vocational expert responded and testified that 25 economy that the claimant can do. There are two ways for the Commissioner to meet the burden of showing that there 26 is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert [(“VE”)], or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the 27 Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. See 20 C.F.R. §§ 404.1520(f), 404.1562. If the Commissioner cannot meet this burden, then the claimant is “disabled” 1 representative occupations such an individual could perform include: cashier checker with … a SVP 2 of three. There would 197,500 jobs in the national economy. The transferable skills included cash 3 register.” AR 54-55. For this reason, the ALJ concluded Plaintiff was not disabled. Id. 4 Because Plaintiff is limited to “light exertional level work” (AR 53), is of advanced age, can 5 no longer perform her past relevant work (AR 54), and has a transferrable skill (AR 55), the Medical- 6 Vocational Guidelines, also known as “the grids,” and specifically grid Rule 202.07, governs 7 Plaintiff’s case. Maxwell, 971 F.3d 1130-31; AR 55 (stating “a finding of ‘not disabled’ is 8 appropriate under the framework of Medical-Vocational Rule 202.07.”). However, as the decision 9 in Maxwell establishes, because Plaintiff is of an advanced age, “[f]ootnote 2 of Rule 202.07 directs 10 … that Rule 202.00(c) also governs whether a claimant like … [Plaintiff] is disabled.” 971 F.3d at 11 1131. This Rule states:
12 [F]or individuals of advanced age who can no longer perform vocationally relevant past work and ... who have only skills that are not readily transferable to a 13 significant range of semi-skilled or skilled work that is within the individual’s functional capacity, ... the limitations in vocational adaptability represented by 14 functional restriction to light work warrant a finding of disabled. 15 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(c) (emphasis added). 16 Simply stated, whether Plaintiff is disabled is dependent upon whether she, an individual of 17 advanced age who can no longer perform past relevant work, has skills transferrable to a significant 18 range of work. If there is a significant range of work Plaintiff can perform, she is not disabled. If 19 there are only one or two occupations Plaintiff can perform, this is not a significant range of work 20 and Plaintiff must be determined to be disabled. At the risk of redundancy, the Ninth Circuit 21 analyzed “the meaning of the phrase ‘significant range of work’” finding one occupation did not 22 meet this requirement. Lounsburry, 468 F.3d at 1117. The court found that because Social Security 23 Ruling 83-10 “defines the phrase ‘Range of Work’ as ‘All or substantially all occupations existing 24 at an exertional level,’” one occupation could not meet the definition of a “range.” Id. The Ninth 25 Circuit confirmed its analysis in Maxwell when it stated two occupations also does not meet the 26 definition of a “range of work.” 971 F.3d at 1131. 27 Given no dispute that the VE testified and identified only one semi–skilled occupation 1 testimony to find Plaintiff was not disabled (AR 55), there is nothing more that must be determined 2 before a contrary finding is entered by the Court. The VE identified, and the ALJ accepted, one 3 occupation Plaintiff could perform as sufficient to establish no disability. AR 54, 55, 89. No conflict 4 is created by the exchange between the ALJ and the VE quoted below at footnote 2. Defendant’s 5 conclusion that this exchange “constitutes an outstanding factual issue that needs to be resolved on 6 remand” is just that, a conclusion unsupported by any argument or law. See ECF No. 14 at 3. 7 Defendant admits the ALJ erred at step five of the sequential process applicable to 8 determining whether Plaintiff is disabled. Id. The Court finds there are no outstanding issues that 9 must be resolved before this error is corrected and a determination of disability can be made. There 10 is one occupation—cashier checker—Plaintiff can perform. This one occupation does not represent 11 a significant range of work. Lounsburry, 468 F.3d at 1117; Maxwell, 971 F.3d at 1131. The Court 12 further finds the record is clear that the ALJ would be required to find Plaintiff disabled were this 13 evidence credited as true in accordance with well-settled law. 14 III. Order 15 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Brief (ECF No. 10), seeking 16 remand and an award of benefits is GRANTED. This case is remanded for an immediate award of 17 benefits. The Clerk of Court must enter judgment accordingly and close this case. 18 DATED this 18th day of October, 2023. 19 20
21 ELAYNA J. YOUCHAH UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27