Sandra Mary Wilson v. Commissioner of Social Security

• Court: District Court, C.D. California
• Decided: July 30, 2020
• Docket: 2:19-cv-07948
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 SANDRA M.W.1, Case No. CV 19-07948-AS 12 Plaintiff, MEMORANDUM OPINION AND

13 v. ORDER OF REMAND

14 ANDREW M. SAUL, Commissioner of the Social Security 15 Administration,2 16 Defendant. 17

18 For the reasons discussed below, IT IS HEREBY ORDERED that, 19 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 20 remanded for further administrative action consistent with this 21 Opinion. 22 23

24 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation 25 of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 26 27 2 Andrew M. Saul, the Commissioner of the Social Security Administration, is substituted for his predecessor. See 42 U.S.C. 28 § 405(g); Fed.R.Civ.P. 25(d). 1 PROCEEDINGS 2 3 On September 13, 2019, Plaintiff filed a Complaint seeking 4 review of the Commissioner’s denial of Plaintiff’s application for 5 disability insurance benefits. (Dkt. No. 1). The parties have 6 consented to proceed before the undersigned United States 7 Magistrate Judge. (Dkt Nos. 8, 10). On January 27, 2020, Defendant 8 filed an Answer and the Certified Administrative Record (“AR”). 9 (Dkt. Nos. 13-14). On April 22, 2020, the parties filed a Joint 10 Stipulation (“Joint Stip.”) setting forth their respective 11 positions regarding Plaintiff’s claim. (Dkt. No. 15). 12 13 The Court has taken this matter under submission without oral 14 argument. See C.D. Cal. L.R. 7-15. 15 16 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 17 18 On December 17, 2015, Plaintiff, formerly employed as a sales 19 clerk, a sales manager, and a stock clerk (AR 38, 45-47, 195-99), 20 filed an application for disability insurance benefits alleging a 21 disability onset date of November 3, 2014. (AR 15, 163-66, 176). 22 After Plaintiff’s application was denied, initially (on June 29, 23 2016), and on reconsideration (on August 1, 2016), (AR 76-79, 82- 24 86), Plaintiff requested a hearing before an Administrative Law 25 Judge (“ALJ”). (AR 88-89). On June 6, 2018, ALJ Gail Reich heard 26 testimony from Plaintiff (represented by counsel), medical expert 27 Durado Brooks, M.D., and vocational expert (“VE”) Katie Macy- 28 Powers. (AR 36-56). 1 On August 28, 2018, the ALJ issued a decision denying 2 Plaintiff’s request for benefits. (AR 15-29). Applying the 3 sequential five-step process for evaluating Plaintiff’s 4 application, the ALJ made the following findings: At step one, 5 Plaintiff had not engaged in substantial gainful activity since 6 the alleged disability onset date, November 3, 2014. (AR 17). At 7 step two, Plaintiff had the following severe impairments: obesity, 8 history of gastric bypass surgery, diabetes mellitus with 9 neuropathy, and degenerative disc disease. (AR 17-20).3 At step 10 three, Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled the severity of any of 12 the listed impairments in the regulations, including Listings 1.04 13 (disorders of the spine) and 9.00 (diabetes mellitus). (AR 20- 14 22). Plaintiff had the Residual Functional Capacity (“RFC”),4 to 15 perform light work5 with limitations.6 (AR 22). At step four, 16 17

18 3 The ALJ found that Plaintiff’s other impairments –- hypertension, elevated lipids, hypothyroidism, and deep vein 19 thrombosis – were non-severe. (AR 20). 20 4 A Residual Functional Capacity is what a claimant can still do despite existing exertional and nonexertional limitations. 21 See 20 C.F.R § 404.1545(a)(1). 22 5 “Light work involves lifting no more than 20 pounds at a 23 time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 24 25 6 The ALJ found that “[Plaintiff] can lift 10 lbs frequently and 20 lbs occasionally; she can stand or walk up to 2 26 hours in an 8 hour workday; and she can sit up to 6 hours. She can occasionally use foot controls; posturals are limited to 27 occasionally; she is precluded from use of ladders, ropes, or 28 scaffolds; she is precluded from working at heights or around 1 Plaintiff was unable to perform any past relevant work (AR 27). 2 At step five, based on Plaintiff’s age (over 60 at the time of the 3 June 6, 2018 hearing and August 28, 2018, the date of the ALJ’s 4 decision), education, work experience, and RFC, and the VE’s 5 testimony, Plaintiff had acquired skills from past relevant work 6 as a sales – home representative (customer service, compiling, and 7 dealing with people) that were transferrable to other jobs existing 8 in significant numbers in the national economy. (AR 27-28, 52-55). 9 Based on these findings, the ALJ concluded that Plaintiff was not 10 disabled, as defined in the Social Security Act, from November 3, 11 2014, the alleged disability onset date, to the date of the 12 decision. (AR 29). 13 14 On July 30, 2019, the Appeals Council denied Plaintiff’s 15 request to review the ALJ’s decision. (AR 1-5). Plaintiff now 16 seeks judicial review of the ALJ decision, which stands as the 17 final decision of the Commissioner. See 42 U.S.C. § 405(g). 18 19 STANDARD OF REVIEW 20 21 This Court reviews the Commissioner’s final decision to 22 determine whether the findings are supported by substantial 23 evidence and whether proper legal standards were applied. See 24 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial 25

26 hazardous machinery; and she occasionally can tolerate cold or vibration.” (AR 22). 27 28 1 evidence” is more than a mere scintilla, but less than a 2 preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 3 2014). To determine whether substantial evidence supports a 4 finding, “a court must consider the record as a whole, weighing 5 both evidence that supports and evidence that detracts from the 6 [Commissioner’s] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 7 1035 (9th Cir. 2001) (internal quotation omitted). As a result, 8 “[i]f the evidence can support either affirming or reversing the 9 ALJ’s conclusion, [a court] may not substitute [its] judgment for 10 that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 11 (9th Cir. 2006). 7 12 13 DISCUSSION 14 15 Plaintiff seeks remand, contending that the ALJ failed to 16 find, at step five, that Plaintiff had acquired skills from past 17 relevant work that were readily transferable to other jobs that 18 Plaintiff could perform “with little or no vocational adjustment.” 19 (Joint Stip. at 4-7). 20 21 A. Transferable Skills 22 23 Transferable skills are skilled or semi-skilled work 24 activities that a claimant did in past work that can be used to 25 7 The harmless error rule applies to the review of 26 administrative decisions regarding disability. See McLeod v. 27 Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(An ALJ’s decision will not be 28 reversed for errors that are harmless). 1 meet the requirements of skilled or semi-skilled work activities 2 of other jobs. 20 C.F.R. § 404.1568(d)(1). Transferability of 3 such skills “depends largely on the similarity of occupationally 4 significant work activities among different jobs.” Id. Skills 5 are most likely transferable to other jobs where: “(i) [t]he same 6 or a lesser degree of skill is required; (ii) [t]he same or similar 7 tools and machines are used; and (iii) [t]he same or similar raw 8 materials, products, processes, or services are involved.” 20 9 C.F.R. § 404.1568(d)(2). “A complete similarity of all three 10 factors is not necessary for transferability.” 20 C.F.R. § 11 404.1568(d)(3). Rather, “[t]here are degrees of transferability 12 of skills ranging from very close similarities to remote and 13 incidental similarities among jobs.” Id. Skills are not 14 transferrable, however, when they “are so specialized or have been 15 acquired in such an isolated vocational setting (like many jobs in 16 mining, agriculture, or fishing) that they are not readily usable 17 in other industries, jobs, and work settings.” Id. 18 19 The Commissioner’s regulations provide that if a claimant is 20 “closely approaching retirement age (age 60 or older)” and has a 21 severe impairment that limits her to no more than light work, “we 22 will find that you have skills that are transferable to skilled or 23 semiskilled light work only if the light work is so similar to your 24 previous work that you would need to make very little, if any, 25 vocational adjustment in terms of tools, work processes, work 26 settings, or the industry.” 20 C.F.R. § 404.1568(d)(4) (citations 27 omitted). Social Security Ruling (“SSR”) 82-41 further explains 28 that: 1 Individuals [who are age 60 and older and are limited to 2 light work exertion] . . . cannot be expected to make a 3 vocational adjustment to substantial changes in work 4 simply because skilled or semiskilled jobs can be 5 identified which have some degree of skill similarity 6 with their [past relevant work]. In order to establish 7 transferability of skills for such individuals, the 8 semiskilled or skilled job duties of their past work must 9 be so closely related to other jobs which they can 10 perform that they could be expected to perform these 11 other identified jobs at a high degree of proficiency 12 with a minimal amount of job orientation. 13 14 SSR 82-41 (Policy Statement (4)(c)). 15 16 In Renner v. Heckler, 786 F.2d 1421 (9th Cir. 1986), the Ninth 17 Circuit held that the standard governing transferability of job 18 skills for persons of advanced age requires the ALJ to “either make 19 a finding of ‘very little vocational adjustment’ or otherwise 20 acknowledge[s] that a more stringent test is being applied which 21 takes into consideration [the claimant’s] age.” Id. at 1424. While 22 conceding that “it serves no purpose to require every step of [the 23 ALJ’s] decisional process to be enunciated with precise words and 24 phrases drawn from relevant disability regulations,” the Court 25 stated that an ALJ’s transferability findings must be sufficiently 26 specific to assure a reviewing court that the ALJ applied the 27 correct standard. Id. Since the record was silent about the 28 amount of vocational adjustment required for the claimant to 1 transfer into the new jobs, the Court concluded that the ALJ’s 2 finding of transferable skills constituted legal error. Id. See 3 also Munson v. Bowen, 1988 WL 33361, *2-*4 (9th Cir. Apr. 11, 4 1988)(following Renner, ALJ applied correct legal standard to 5 assess transferability of skills for persons of advanced age when 6 ALJ specifically concluded that the amount of vocational adjustment 7 required “would not be so significant.”). 8 9 Following Renner, the Ninth Circuit held, in Terry v. 10 Sullivan, 903 F.2d 1273 (9th Cir. 1990), that even though the ALJ 11 acknowledged the more stringent standard governing transferability 12 analysis for claimants approaching retirement age (“We have no 13 doubt that the ALJ attempted to comply with the proper legal 14 standards.”), the record did not support the ALJ’s transferable 15 skills finding where the vocational expert’s testimony failed to 16 mention “vocational adjustment” or “any equivalent phraseology,” 17 and “reflect[ed] no understanding of the applicable legal 18 standards” – Id. at 1279-80. The Court noted that while a 19 vocational expert’s understanding of the applicable standards 20 could, in some cases, be clear from context, it was “impossible” 21 to conclude on the record before it that the claimant’s 22 transferable skill was sufficient to enable her to perform in the 23 new position with a high degree of proficiency and a minimal amount 24 of job orientation. Id. at 1280(quoting SSR 82-41); see also 25 Coletta v. Massanari, 163 F.Supp.2d 1101, 1107 (N.D. Cal. 26 2001)(applying Terry and holding that “it is not clear from the 27 record in this case that the vocational expert understood the 28 1 || applicable standards” governing transferability for claimants of 2 || advanced age). 3 4 B. Analysis 5 6 As an initial matter, Defendant contends that Plaintiff waived 7 | this claim by failing to raise it during the hearing before the 8 || ALJ. (Joint Stip. at 13-14). The Court disagrees. The claim is 9 || not waived because the alleged legal error in the transferability 10 || analysis did not become apparent until the ALJ issued the decision. 11 || See Simpson v. Berryhill, 717 Fed.Appx 670, 673 (9th Cir. □□□□□ 12 || waiver where the claim “did not become apparent until after the 13 | hearing when the ALJ issued her decision”). Moreover, it was the 14 || ALJ’s express duty to make a finding about the nature of any 15 | vocational adjustment. See Renner, 786 F.2d at 1424; Rose v. 16 || Berryhill, 2018 WL 5262580, *3 (C.D. Cal. Oct. 19, 2018)(“Nor is 17 || the Court persuaded by the Commissioner’s contention that Plaintiff 18 || waived this issue by failing to question the VE about transferrable 19 | skills. Here, the ALJ had the express duty to make a finding about 20 || the nature of any vocational adjustment.”) (citations omitted). 21 || Therefore, the claim was not waived. 22 23 Plaintiff acknowledges that the ALJ’s findings may have 24 || satisfied the transferability standard for a younger worker but 25 || contends that the ALJ did not perform the required analysis to 26 || satisfy the more stringent standard for an older worker who is 27 || limited to very little, if any, vocational adjustment. Plaintiff 28 || seeks remand for further proceedings. “[T]Jhe nature of this error

1 s such that it can only be corrected by remanding the case[.]”) 2 Joint Stip. at 10. The Court agrees. 3 4 The ALJ recognized that Plaintiff, who had testified at the 5 hearing that she was 60 years old (AR 37), was an individual 6 “closely approaching retirement age.” (AR 27). The VE testified 7 that Plaintiff’s past relevant work consisted of (1) stock clerk, 8 Dictionary of Occupational Titles [“DOT”], 299.367-014, requiring 9 a heavy level of exertion but performed by plaintiff at a medium 10 level of exertion, and semi-skilled; (2) sales clerk, DOT 290.477- 11 014, light exertion, and semi-skilled; and (3) sales - home 12 representative, 270.357-010, light exertion, and semi-skilled, (AR 13 49-50). Based on the VE’s testimony, the ALJ found that Plaintiff 14 had acquired work skills (customer service, compiling, and dealing 15 with people) from her past relevant work as a sales – home 16 representative that were transferrable to other occupations 17 existing in significant numbers in the national economy, including 18 customer order clerk (DOT 249.362-026, sedentary, semi-skilled), 19 information clerk (DOT 237.367-022, sedentary, semi-skilled); and 20 telephone solicitor (DOT 299.357-014, sedentary, semi-skilled). 21 (AR 27-28, 50-52). 22 23 Here, the ALJ recognized that transferability of skills from 24 past relevant work to other jobs was an issue (see AR 27, citing 25 20 C.F.R. § 404.1568(d); see also AR 28), but did not cite to the 26 particular regulation/standard governing transferability of job 27 skills for persons of advanced age (20 C.F.R. § 404.1568(d)(4)), 28 and failed to “either make a finding of ‘very little vocational 1 adjustment’ or otherwise acknowledge that a more stringent test is 2 being applied which takes into consideration [Plaintiff’s] age.” 3 Renner, 786 F.2d at 1424. This was error. “Although [the 4 claimant’s] age was noted in the ALJ’s decision, merely stating 5 ‘the existence of fact does not mean it was considered,’ pursuant 6 to 20 C.F.R. § 404.1563[e].” Coletta v. Massanari, 163 F.Supp.2d 7 1101, 1106 (N.D. Cal. 2001)(citation omitted); see also Centeno- 8 Gutierrez v. Berryhill, 2017 WL 2903187, *5 (N.D. Cal. May 15, 9 2017)(“While the ALJ acknowledged in her decision that [the 10 plaintiff] was born in 1951 and that she was 50 years old on the 11 alleged date of onset but changed age category to advanced age and 12 closely approaching retirement age, she does not discuss or apply 13 the specific vocational rule for persons who are closely 14 approaching retirement age.”). 15 16 Moreover, the ALJ at the hearing did not ask the VE whether 17 Plaintiff could perform the new jobs with “very little, if any, 18 vocational adjustment”8 (see AR 50-55), and the ALJ did not find 19 that Plaintiff could perform the new jobs with “very little, if 20 any, vocational adjustment” (see AR 27-28). See Coletta, 163 21 F.Supp.2d at 1106 (“[I]n cases involving advanced age individuals, 22 23 24 8 Although the VE testified that one of the new jobs 25 (telephone solicitor) that Plaintiff could perform would require “nothing more” than the transferable skills Plaintiff had acquired 26 from her past relevant work (AR 54), that testimony did not 27 reference Plaintiff’s “closely approaching retirement age” and, in any event, the ALJ did not cite such testimony in her decision. 28 (See AR 28). 1 the ALJ must make a specific finding as to the amount of vocational 2 adjustment required.”). 3 4 Finally, this is not a case where the context clearly shows a 5 vocational expert’s understanding of the stringent standard 6 governing the transferability of skills for a claimant “closely 7 approaching retirement age.” See Terry, 903 F.2d at 1280; Coletta, 8 163 F.Supp.2d at 1106; Deborah S. v. Saul, 2020 WL 2512798, *4 9 (C.D. Cal. May 15, 2020)(“Here, it cannot be assured that the 10 correct legal standard was applied. Neither the ALJ’s decision nor 11 the VE’s testimony suggested that they applied the vocational 12 adjustment standard under a different label. Thus, the deficiency 13 was more than the mere absence of magic words or precise phrases.”); 14 Rose, 2018 WL 5262580, *2 (“It was therefore necessary for the ALJ 15 to make a finding that the occupation of information clerk would 16 require ‘very little’ vocational adjustment in terms of tools, work 17 processes, work settings, or the industry. The ALJ did not make 18 such a finding, and the VE’s testimony did not offer any basis for 19 such a finding.”); Davis v. Berryhill, 2017 WL 1407637, *2 (C.D. 20 Cal. Apr. 19, 2017)(“the ALJ found skill transferability to 21 sedentary work without inquiring of the vocational expert, and 22 without making any finding, concerning the nature of the any 23 vocational adjustment possibly required. This was error.”) 24 (citation omitted); Eshraghi v. Colvin, 2014 WL 1794428, *4 (E.D. 25 Cal. May 6, 2014)(“Because the ALJ failed to discuss whether 26 Plaintiff would be required to make any vocational adjustments 27 prior to determining that Plaintiff is able to perform work in the 28 national economy, the ALJ’s findings were deficient.”). 1 C. Remand Is Warranted 2 3 The decision whether to remand for further proceedings or 4 order an immediate award of benefits is within the district court’s 5 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 6 2000). Where no useful purpose would be served by further 7 administrative proceedings, or where the record has been fully 8 developed, it is appropriate to exercise this discretion to direct 9 an immediate award of benefits. Id. at 1179 (“[T]he decision of 10 whether to remand for further proceedings turns upon the likely 11 utility of such proceedings.”). However, where, as here, the 12 circumstances of the case suggest that further administrative 13 review could remedy the Commissioner’s errors, remand is 14 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 15 Harman v. Apfel, 211 F.3d at 1179-81. 16 17 Since the ALJ failed to make a specific finding with respect 18 to whether Plaintiff could perform the occupations identified by 19 the VE with very little if any vocational adjustment, remand is 20 warranted. Because outstanding issues must be resolved before a 21 determination of disability can be made, and “the record as a whole 22 creates serious doubt as to whether [Plaintiff], in fact, is 23 disabled within the meaning of the Social Security Act,” further 24 administrative proceedings would serve a useful purpose and remedy 25 26 27 28 1 defects.9 Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2 2014)(citations omitted). 3 4 ORDER 5 6 For the reasons discussed above, the decision of the 7 Commissioner is reversed, and the matter is remanded for further 8 proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: July 30, 2020 13 /s/ _________ 14 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 15 16

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