Walker-Earnest v. Colvin

Filing 22

ORDER that the Commissioner's decision in regard to Plaintiff's applications for disability insurance benefits under Title II of the Social Security Act be REVERSED and REMANDED to the Commissioner of Social Security for further administrative proceedings consistent with this decision, including a new hearing and a new decision (see attached Order for complete details). Signed by Magistrate Judge Eric J Markovich on 10/18/2017. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Clara Frances Walker-Earnest,

No. CV-16-00642-TUC-EJM

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Plaintiff Clara Frances Walker-Earnest (“Walker-Earnest”) brought this action

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pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the

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Commissioner of Social Security (“Commissioner”). Walker-Earnest raises one issue on

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appeal: Whether the ALJ committed harmful error by finding that Walker-Earnest was

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not disabled where application of the agency’s medical-vocational guidelines would

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direct a finding of disability. (Doc. 14). The Commissioner concedes that the ALJ’s

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decision is not supported by substantial evidence. (Doc. 20 at 1). Thus, the only issue

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before the Court is whether this case should be reversed and remanded for an award of

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benefits, or for further administrative proceedings.

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Before the Court are Walker-Earnest’s Opening Brief, Defendant’s Response, and

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Walker-Earnest’s Reply. (Docs. 14, 20, & 21). The United States Magistrate Judge has

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received the written consent of both parties and presides over this case pursuant to 28

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U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated

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below, the Court finds that this matter should be reversed and remanded for further

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administrative proceedings.

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I.

Procedural History

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Walker-Earnest filed an application for Disability Insurance Benefits (“DIB”) on

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August 25, 2012. (Administrative Record (“AR”) 32, 78). Walker-Earnest alleged

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disability beginning January 5, 2012 based on hepatitis C, degenerative disc disease in

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the cervical and lumbar spine, arthritis, PTSD, anxiety, suicidal thoughts, homicidal

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thoughts, pain, stiffness, extreme fatigue, and balance issues. (AR 78–79). Walker-

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Earnest’s application was denied upon initial review (AR 77) and on reconsideration (AR

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93). A hearing was held on December 16, 2014 (AR 48), after which ALJ Larry Johnson

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found, at Step Four, that Walker-Earnest was not disabled because she was able to

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perform her PRW as computer data entry (AR 41–42). On July 29, 2016 the Appeals

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Council denied Walker-Earnest’s request to review the ALJ’s decision. (AR 1).

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Walker-Earnest’s date last insured (“DLI”) for DIB purposes is December 31,

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2016. (AR 78). Thus, in order to be eligible for benefits, Walker-Earnest must prove that

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she was disabled during the time period of her alleged onset date (“AOD”) of January 5,

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2012 and her DLI of December 31, 2016.

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Factual History 1

II.

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Walker-Earnest was born on December 3, 1953, making her 58 at the AOD of her

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disability. (AR 78). Walker-Earnest earned a G.E.D. and a bachelor’s degree. (AR 173).

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She worked for 18 years doing computer data entry for the county government. (AR 174,

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184).

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A. Medical Testimony

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On February 24, 2013 Walker-Earnest saw Dr. Jeri Hassman for a physical

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medicine consultation. (AR 452). Walker-Earnest reported that she left her job because

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she had enough points to retire, plus she was becoming less sharp and having mid and

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While the Court has reviewed the entirety of the record in this matter, the
following summary includes only the information most pertinent to the claim at issue in
this appeal.
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low back pain, pain down her right upper extremity, and pain down her right leg. (AR

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452). Walker-Earnest also stated that she had PTSD from a very bad childhood and a

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very aggressive supervisor. Dr. Hassman documented an unremarkable physical exam of

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the cervical, thoracic, and lumbar spine, mild generalized weakness of both upper

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extremities, mild stiffness with ambulation, and multiple psychiatric conditions including

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PTSD, anxiety, and suicidal and homicidal thoughts. (AR 455). Dr. Hassman also

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completed a Medical Source Statement and opined that Walker-Earnest’s conditions

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would not impose limitations for 12 months. (AR 456).

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On March 19, 2013 Walker-Earnest saw Dr. Andrew Jones for a psychological

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evaluation. (AR 463). Walker-Earnest stated that she applied for disability because of

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anxiety, depression, and back pain, and that her last job ended because she retired. Dr.

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Jones noted that Walker-Earnest had low energy, dysphoric mood, and a flat affect, and

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scored 30 out of 30 on the Mini Mental State Exam. (AR 464). He diagnosed PTSD;

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major depressive disorder, recurrent, severe; back pain; hepatitis C; and neck pain. (AR

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465). Dr. Jones also completed a Medical Source Statement and opined that Walker-

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Earnest’s condition would impose limitations for 12 months. (AR 466). He found she had

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no limitations in understanding and memory, but that she was most likely moderately

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limited in her ability to complete a normal workday without interruptions from

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psychologically-based symptoms. Dr. Jones also stated that Walker-Earnest was

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moderately limited in her ability to respond appropriately to criticism from supervisors

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and in her ability to get along with coworkers.

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A letter dated November 6, 2013 from Tides of Change Center of Wellness states

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that Walker-Earnest had been a client since January 2012 and that she continued to suffer

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from anxiety and depression and had panic attacks on a regular basis. (AR 468).

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On November 25, 2013 nurse practitioner Kathleen Oldfather completed a

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Medical Assessment of the Patient’s Ability to Perform Work Related Activity form. (AR

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469). Oldfather opined that Walker-Earnest had severe impairments in the following

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areas: ability to relate to other people, degree of restriction of daily activities,

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deterioration of personal habits, constriction of interests, understand, carry out, and

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remember instructions, respond appropriately to supervision and co-workers, respond to

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customary work pressures, perform complex tasks, repetitive tasks, and varied tasks, and

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complete a normal workday/workweek without interruption from psychologically-based

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symptoms. (AR 469–70). Oldfather also opined that Walker-Earnest had a moderately

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severe impairment in her ability to perform simple tasks, and stated that her limitations

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would last for 12 months or longer. (AR 470).

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A health record dated November 6, 2014 from Dr. Sullivan and nurse practitioner

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Oldfather lists Walker-Earnest’s active problems as: dissociative personality disorder,

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interpersonal problems, major depressive affective disorder recurrent episode, panic

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disorder, unspecified personality disorder, bipolar I disorder, and borderline personality

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disorder. (AR 548).

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A letter dated November 23, 2014 from Twila R. Christman, LCSW, states that

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Walker-Earnest has been a client since January 2012 and suffers from anxiety and

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depression. (AR 547). Christman stated that Walker-Earnest continued to deal with her

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psychiatric issues and was making progress, but would continue to need treatment for an

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extended period of time.

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On December 8, 2014 Dr. William Sullivan completed a Medical Assessment of

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the Patient’s Ability to Perform Work Related Activity form. (AR 583). He found

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Walker-Earnest had mild impairment in the following areas: ability to understand, carry

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out, and remember instructions, and ability to perform simple tasks. (AR 583–84). He

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also found moderate impairment in the following areas: ability to relate to other people,

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restriction of daily activities, and ability to perform complex tasks, repetitive tasks, and

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varied tasks. He also found she had moderately severe impairment in the following areas:

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deterioration in personal habits, constriction of interests, ability to respond appropriately

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to supervision and co-workers, and ability to complete a normal workday/workweek

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without interruptions from psychologically-based symptoms. Dr. Sullivan further found

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that Walker-Earnest was severely impaired in her ability to respond to customary work

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pressures, and stated that her limitations would last for 12 months or longer.

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On December 15, 2014 Dr. Caryl S. Brailsford-Gorman completed a Pain

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Functional Capacity (RFC) Questionnaire. (AR 585). She reported that Walker-Earnest

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had moderately severe pain, defined as “pain seriously affects ability to function.” As to

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whether the degree of pain could reasonably be expected to result from clinical or

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diagnostic findings, Dr. Brailsford-Gorman did not check “yes” or “no,” but wrote

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“probably with anxiety overly amplicating [illegible].” She further opined that Walker-

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Earnest’s pain was frequently severe enough to interfere with her attention and

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concentration, and that based on her subjective complaints and MRI findings, Walker-

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Earnest frequently experienced deficiencies of concentration, persistence, or pace. (AR

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585–86).

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Dr. Brailsford-Gorman also completed a Medical Assessment of Ability to

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Perform Work Related Physical Activities form. (AR 587). She noted that based on

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Walker-Earnest’s subjective complaints, she had the following exertional limitations:

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occasionally and frequently lift less than 10 pounds, stand/walk less than 2 hours, sit less

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than 6 hours, and must alternate sitting with standing every 15 minutes. Dr. Brailsford-

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Gorman also reported that Walker-Earnest had no postural or environmental limitations,

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and was limited to occasionally using both hands for handling, fine manipulation, feeling,

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and reaching. (AR 588–89). Dr. Brailsford-Gorman stated that these limitations were

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supported by Walker-Earnest’s report of her activities, and the MRIs of her cervical and

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lumbar spine. (AR 589).

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B. State Agency Findings

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On March 27, 2013 DDS examiner Victoria Wall made an initial determination

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that Walker-Earnest was not disabled. (AR 77). Wall noted that a finding about capacity

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for PRW was not made, but that “this information is not material because all potentially

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applicable Medical-Vocational guidelines would direct a finding of ‘not disabled’ given

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the individual’s age, education, and RFC. Therefore, the individual can adjust to other

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work.” (AR 90). Wall further opined that Walker-Earnest could perform work where

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interpersonal contact was incidental (such as assembly work), where “tasks should be no

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more complex than those learned and performed by rote, with few variables and little

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judgment, and supervision required is simple, direct, and concrete. This constitutes

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unskilled work.” (AR 91). Wall further noted that Walker-Earnest had no physical

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restrictions, that she could not perform her PRW and the skills did not transfer, and that

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there were other sedentary jobs that did not exceed her functional assessment.

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Dr. Howard Atkins completed a psychiatric review and opined that Walker-

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Earnest’s mental impairments were severe. (AR 86). He found that Walker-Earnest had

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mild restrictions in ADL, moderate difficulties in maintaining social functioning,

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moderate difficulties in maintaining concentration, persistence, or pace, and no repeated

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episodes of decompensation. (AR 86–87). Dr. Atkins opined that Walker-Earnest had no

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limitations in understanding and memory but did have sustained concentration and pace

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limitations. (AR 89). Specifically, she was moderately limited in her ability to carry out

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detailed instructions, maintain attention and concentration for extended periods, and

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complete a normal workday and workweek without interruption from psychologically

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based symptoms. Dr. Atkins also found that Walker-Earnest was moderately limited in

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her ability to interact with the general public, accept instructions and respond

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appropriately to criticism from supervisors, get along with coworkers or peers, and

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maintain socially appropriate behavior. (AR 89–90). Dr. Atkins concluded that Walker-

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Earnest retained the capacity to understand, remember, and carry out detailed and

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complex instructions, relate appropriately to coworkers, supervisors, and the general

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public on a brief and superficial basis, utilize reasonable judgment in a work setting, and

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sustain the level of attention and concentration necessary to complete a routine workday

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without significant interruptions from psychologically-based symptoms. (AR 90).

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On reconsideration, Walker-Earnest was again found not disabled on September 6,

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2013. (AR 93). DDS examiner Stephen Dellinger again noted that a finding about

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Walker-Earnest’s capacity to perform her PRW was not made, but that she could adjust

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to other work. (AR 107). Dellinger opined that Walker-Earnest was not limited to

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unskilled work, and that she could perform semi-skilled work where interpersonal contact

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was routine but superficial (such as grocery checker), where tasks would be no more

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complex than those learned by experience, and where little supervision was required for

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routine tasks but detailed supervision was required for non-routine tasks. (AR 108–09).

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Dellinger further noted that Walker-Earnest could not perform her PRW and that the

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skills did not transfer, but that there were other sedentary, unskilled jobs she could

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perform. (AR 109). Dr. Jerry Henderson reaffirmed Dr. Atkins’ psychiatric assessment

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(AR 104, 106–07).

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C. Plaintiff’s Testimony

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On a Disability Report dated October 19, 2012 Walker-Earnest reported that her

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last job was doing computer data entry work for the government. (AR 174). She spent 7.5

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hours of the workday sitting, walking, and standing, and 8 hours writing, typing, or

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handling small objects. She also spent 25% of her time supervising one other person. On

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a Work History Report, Walker-Earnest stated that she spent 1 hour per day supervising

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one other person. (AR 185). On both forms she reported that her job required technical

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knowledge and skills, writing and completing reports, and that she used machines, tools,

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or equipment. (AR 174, 185).

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D. ALJ’s Findings

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The ALJ found that Walker-Earnest had the severe impairments of hepatitis C,

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osteoarthritis, degenerative disc disease, affective disorder, and anxiety disorder. (AR

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34). The ALJ noted that these impairments constituted more than slight abnormalities and

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caused more than a minimal effect on Walker-Earnest’s ability to do work activities.

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The ALJ also considered the Paragraph B criteria set out in the social security

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disability regulations for evaluating mental disorders. See 20 C.F.R. Pt. 404, Subpt. P,

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App. 1 § 12.00. The ALJ found Walker-Earnest had mild restrictions in ADL, moderate

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difficulties in social functioning, mild difficulties maintaining concentration, persistence,

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or pace, and had no episodes of decompensation of an extended duration. (AR 35–36).

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Because Walker-Earnest did not have at least two “marked” limitations, the Paragraph B

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criteria were not satisfied. 2
The ALJ gave substantial weight to the state agency reviewing physician’s

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assessment, to the extent that the opinion supported the ALJ’s RFC assessment. (AR 41).

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The ALJ gave great weight to Dr. Hassman’s opinion because it was consistent
with the totality of the evidence at the time of the evaluation. (AR 41).

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The ALJ gave partial weight to Dr. Jones’ opinion because it was only partially

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consistent with the evidence of record. (AR 41). The ALJ specifically noted that although

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Walker-Earnest had conflicts with another individual at her last job, it was not indicative

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of an inability to function in a job setting in computer data entry.

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The ALJ gave little weight to nurse practitioner Oldfather’s opinion because it was
too restrictive and not supported by her treatment notes. (AR 41).

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The ALJ gave partial weight to Dr. Sullivan’s opinion because it was overstated

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and not consistent with the treatment records, and partial weight to Dr. Brailsford-

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Gorman’s opinion because it was based entirely on subjective complaints. (AR 41).

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The ALJ found that Walker-Earnest had the RFC to perform the full range of light

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work: she could sit for 6 hours; walk/stand for 6 hours; understand, remember, and carry

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out detailed and complex instructions; relate appropriately to co-workers, supervisors,

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and the general public on a brief and superficial basis; and sustain the level of attention

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and concentration necessary to complete a routine workday of detailed and complex tasks

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without significant interruptions from psychologically-based symptoms. (AR 36).

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The ALJ found that Walker-Earnest could perform her PRW doing computer data

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entry as generally performed. (AR 41–42). The ALJ therefore concluded Walker-Earnest

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was not disabled. (AR 42).

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III.

Standard of Review

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The Commissioner employs a five-step sequential process to evaluate SSI and

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DIB claims. 20 C.F.R. §§ 404.920, 416.1520; see also Heckler v. Campbell, 461 U.S.

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To satisfy the paragraph B criteria, the mental disorder must result in “extreme”
limitation of one, or “marked” limitation of two, of the four areas of mental functioning.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.
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458, 460–462 (1983). To establish disability the claimant bears the burden of showing

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she (1) is not working; (2) has a severe physical or mental impairment; (3) the

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impairment meets or equals the requirements of a listed impairment; and (4) the

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claimant’s RFC precludes her from performing her past work. 20 C.F.R. §§

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404.920(a)(4), 416.1520(a)(4). At Step Five, the burden shifts to the Commissioner to

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show that the claimant has the RFC to perform other work that exists in substantial

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numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

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If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any

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point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§

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404.920(a)(4), 416.1520(a)(4).

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Here, Walker-Earnest was denied at Step Four of the evaluation process. Step Four

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requires a determination of whether the claimant has sufficient RFC to perform past

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work. 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as that which an individual

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can still do despite her limitations. 20 C.F.R. §§ 404.1545, 416.945. An RFC finding is

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based on the record as a whole, including all physical and mental limitations, whether

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severe or not, and all symptoms. Social Security Ruling (SSR) 96-8p. If the ALJ

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concludes the claimant has the RFC to perform past work, the claim is denied. 20 C.F.R.

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§§ 404.1520(f), 416.920(f).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§

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405(g), 1383(c)(3). The court may overturn the decision to deny benefits only “when the

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ALJ’s findings are based on legal error or are not supported by substantial evidence in the

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record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). Finally,

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“[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact,

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disabled, no matter how egregious the ALJ’s errors may be.” Strauss v. Comm’r Soc.

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Sec., 635 F.3d 1135, 1138 (9th Cir. 2011).

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IV.

Analysis

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The limited issue in this appeal is whether this matter should be remanded for

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further administrative proceedings or for an award of benefits. Walker-Earnest argues

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that, “[a]ssuming the agency’s own findings, Walker-Earnest is entitled to a finding of

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disability based on the agency’s own regulations, the medical vocational guidelines,

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commonly known as the ‘grids,’ 20 C.F.R. Pt. 404, Subpt. P, App. 2.” (Doc. 1 at 3).

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Walker-Earnest states that she grids at 202.06 on Table No. 2, which directs that where a

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person is of advanced age, has a high school education or more that does not provide for

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direct entry into skilled work, and who did skilled or semiskilled work but does not have

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transferrable skills, then the person is disabled. Id. Walker-Earnest claims that at both the

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initial and reconsideration levels, the state agency found that she could not perform her

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PRW and that she did not have transferrable skills. Id. at 5. Walker-Earnest further argues

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that the ALJ mischaracterized her PRW as only data entry, because the work was more

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complex than just data entry and it also included supervision. Id.

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The Commissioner concedes that the ALJ’s decision is not supported by

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substantial evidence, but argues that the proper remedy is to remand for further

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administrative proceedings because the ALJ failed to either call a vocational expert

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(“VE”) or consult the Dictionary of Occupational Titles (“DOT”) when he made his Step

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Four finding that Walker-Earnest could perform her PRW as generally performed. (Doc.

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20 at 3). Thus, the Commissioner argues, because the ALJ did not make clear what the

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requirements of computer data entry are as generally performed, the ALJ did not make

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sufficient findings to determine whether Walker-Earnest could perform this job. Id. The

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Commissioner contends that testimony from a VE is needed to determine whether

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Walker-Earnest can perform either her PRW or adjust to other work. Id. at 4. The

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Commissioner further argues that VE testimony is required to determine whether Walker-

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Earnest has any transferrable skills before the grids can be applied to result in a finding of

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disability. Id. at 5. The Commissioner concludes that remanding for an award of benefits

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would be improper where there is no VE testimony and no job identified in the DOT,

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where no Step Five finding was made because the ALJ found Walker-Earnest not

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disabled at Step Four, and because VE testimony is required to determine whether

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Walker-Earnest has any transferrable skills. Id. at 5.

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A. Grids

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“In determining whether a claimant is disabled, the ALJ will usually refer to the

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grids . . . . The grids correlate a claimant’s age, education, previous work experience, and

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residual functional capacity to direct a finding of either disabled or not disabled.” Cooper

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v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989) . “The grids are applied at the fifth step

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of the analysis under 20 C.F.R. § 404.1520.” Lounsburry v. Barnhart, 468 F.3d 1111,

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1114 (9th Cir. 2006). As explained by the court in Tacket v. Apfel, 180 F.3d 1094, 1101

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(9th Cir. 1999):

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The Guidelines present, in table form, a short-hand method
for determining the availability and numbers of suitable jobs
for a claimant. These tables are commonly known as “the
grids.” The grids categorize jobs by their physical-exertional
requirements . . . Each grid presents various combinations of
factors relevant to a claimant’s ability to find work. The
factors in the grids are the claimant’s age, education, and
work experience. For each combination of these factors, e.g.,
fifty years old, limited education, and unskilled work
experience, the grids direct a finding of either “disabled” or
“not disabled” based on the number of jobs in the national
economy in that category of physical-exertional requirements.
This approach allows the Commissioner to streamline the
administrative process and encourages uniform treatment of
claims.

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(internal citations omitted). However, “[t]he ALJ may rely on the grids alone to show the

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availability of jobs for the claimant ‘only when the grids accurately and completely

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describe the claimant’s abilities and limitations.’” Id. at 1102 (quoting Jones v. Heckler,

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760 F.2d 993, 998 (9th Cir. 1985)). If the claimant suffers from non-exertional limitations

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not contemplated by the grids, then the ALJ must call a VE at Step Five to determine

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whether the claimant is disabled. Id.

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At the hearing before the ALJ, Walker-Earnest’s attorney noted the following:
I wanted to point out the grids issue. . . . if she’s limited to
sedentary work and unskilled work with the mental health,
then she grids. So her past relevant work is sedentary, but it’s- I’m going to assume our VE is going to talk to us about a
higher skill level that was government data . . . entry . . . if
she’s limited to sedentary, unskilled work, she grids. She’s 55
plus.

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(AR 50–51). The ALJ then commented: “If this is one of those cases where she can’t do

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her past work, then there probably isn’t any other work out there and the grids are going

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to take the case away.” (AR 51).

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Later in the hearing, the ALJ stated:
Well, this is one of those cases where the VE’s not going to
help me a heck of a lot so -- because she can’t do her past
work pretty much . . . it sounded like it was pretty skilled. . . .
what I’m saying is, her work was skilled -- So I guess what it
boils down to if she can’t do her past work, then the grids are
going to pretty much take the case away so I’ve just got to
look through it and see what I think of the case.
(AR 75). At the ALJ’s request, Walker-Earnest’s attorney stipulated that her past work
was skilled work. (AR 75).
In his written decision, the ALJ found that Walker-Earnest was limited to brief and
superficial contact with coworkers, supervisors, and the general public—a non-exertional
mental impairment. See Cooper, 880 F.2d at 1155 n.7. “[W]here a person with exertional
and non-exertional limitations is ‘disabled’ under the grids, there is no need to examine
the effect of the non-exertional limitations. But if the same person is not disabled under
the grids, the non-exertional limitations must be examined separately.” Lounsburry, 468
F.3d at 1116. Thus, if Walker-Earnest were to be found not disabled based on the grids,
the ALJ would need to separately consider how the limitation to superficial contact with
coworkers, supervisors, and the public might impact her ability to work. See Lounsburry,
468 F.3d at 1115 (“the grids are predicated on a claimant suffering from an impairment
which manifests itself by limitations in meeting the strength requirements of jobs
(‘exertional limitations’); they may not be fully applicable where the nature of a
claimant’s impairment does not result in such limitations (‘non-exertional limitations’).
The reason for this limitation on the grids’ application is that, despite having the residual
functional capacity to perform a full range of unskilled occupations at a given exertional
level, a claimant may not be able to adjust to these jobs because of non-exertional
limitations. . . . non-exertional impairments . . . may, if sufficiently severe, limit a
claimant’s functional capacity in ways not contemplated by the grids.” (internal
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quotations omitted)); but see Lounsburry, 468 F.3d at 1115 n.2 (“Tackett’s bar on

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exclusive reliance on the grids is limited by its requirement that the nonexertional

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impairments invoked must be significant enough to limit further the range of work

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permitted by exertional limitations before precluding application of the grids.”).

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Here, it is unclear whether the ALJ’s finding that Walker-Earnest was limited to

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brief and superficial contact with supervisors, coworkers, and the public is a non-

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exertional impairment significant enough to limit the range of work available to her such

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that application of the grids would be inappropriate. Thus, the undersigned finds that

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remand for further proceedings is appropriate so that a VE may testify as to whether

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Walker-Earnest’s non-exertional impairments would require a finding of disability.

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B. Transferability of Skills

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Walker-Earnest contends that she grids at Rule 202.06, but that rule assumes that

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the claimant does not have any transferrable skills. If Rule 202.06 applies, then the

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claimant is found disabled and the inquiry stops. Conversely, the Commissioner contends

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that no transferability finding has been made here, and that if Walker-Earnest does have

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transferrable skills, Rule 202.07 applies and mandates a finding of not disabled.

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Although both of the DDS examiners noted on the initial and reconsideration

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decisions that Walker-Earnest had no transferrable skills, the ALJ did not make any

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specific findings during the hearing or in his written decision as to whether Walker-

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Earnest had transferrable skills or not. Without a specific finding by the ALJ on this

21

issue, the Court is unable to determine whether Rule 202.06 or Rule 202.07 applies. 3

22
3

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25
26
27
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The undersigned also notes that in Lounsburry, 468 F.3d at 1116–17, the court
found that although the claimant gridded at Rule 202.07,
The ALJ misapplied Rule 202.07 by failing to consider fully
the effect of Rule 202.00(c). Footnote (2) to Rule 202.07
explicitly incorporates language from Rule 202.00(c) that
expands the circumstances under which claimants with
transferrable skills can be found disabled. Rule 202.00(c)
provides:
(c) However, for individuals of advanced age who can
no longer perform vocationally relevant past work and
who have a history of unskilled work experience, or
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1

Accordingly, remand for further proceedings is appropriate so that the ALJ can take

2

testimony from a VE as to whether Walker-Earnest has any transferrable skills.

3

C. Past Relevant Work

4

In addition to Walker-Earnest’s argument that the grids mandate a finding of

5

disability, she also argues that the ALJ’s finding that she could return to her PRW doing

6

computer data entry is inconsistent with the ALJ’s finding that she was limited to

7

interacting with coworkers, supervisors, and the general public on a brief and superficial

8

basis because her PRW included supervising others. (Doc. 14 at 6; AR 36).

9

Pursuant to SSR 00-4P, “[i]n making disability determinations, [the Commissioner

10

relies] primarily on the DOT . . . for information about the requirements of work in the

11

national economy.” Id. at *2. The DOT is used at Steps Four and Five of the sequential

12

evaluation process, and VEs are most often used to provide evidence at a hearing before

13

an ALJ. Id. Because the “DOT lists maximum requirements of occupations as generally

14

performed, not the range of requirements of a particular job as it is performed in specific

15

settings[,]” a VE can “provide more specific information about jobs or occupations than

16

the DOT.” Id. at *3. Where the ALJ’s Step-Four finding rests on a determination that a

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21
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25
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27
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who have only skills that are not readily transferrable
to a significant range of semi-skilled or skilled work
that is within the individual’s functional capacity, or
who have no work experience, the limitations in
vocational adaptability represented by functional
restriction to light work warrant a finding of disabled.
(emphasis added)
Under Rule 202.00(c), although Lounsburry has some
transferrable skills, she will be disabled if those skills “are not
readily transferrable to a significant range of semi-skilled or
skilled work.”
The court then determined that the claimant’s skills would not transfer to a
significant range of work, and thus Rule 202.00(c) directed a finding of disability.
In the present matter, following the court’s reasoning in Lounsburry, the ALJ must
first determine whether Walker-Earnest has transferrable skills and correspondingly
whether she grids at Rule 202.06 or Rule 202.07. If Walker-Earnest does have
transferrable skills, she will still be found disabled unless those skills are readily
transferrable to a significant range of work.
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1

claimant can perform her PRW as generally performed, the ALJ must consult either the

2

DOT or a VE to determine the “‘functional demands and job duties of the occupation as

3

generally required by employers throughout the national economy.’” Pinto v. Massanari,

4

249 F.3d 840, 845 (9th Cir. 2001) (quoting SSR 82-61). Further, while “the best source

5

for how a job is generally performed is usually the [DOT,] . . . ‘[f]inding that a claimant

6

has the capacity to do past relevant work on the basis of a generic occupational

7

classification of the work is likely to be fallacious and unsupportable.’” Id. at 845–46

8

(quoting SSR 82-61).

9

Here, in the ALJ’s written decision, he found that Walker-Earnest was not

10

disabled because she was capable of performing her PRW doing computer data entry, as

11

that work is generally performed. (AR 41). However, the ALJ did not classify the

12

exertional or skill requirement of this work, nor did he cite any testimony from the VE in

13

support of this finding (as there was no VE testimony), or any provision in the DOT.

14

Thus, there is no testimony or other evidence cited in the ALJ’s decision as to what the

15

requirements of computer data entry are, and whether this work requires supervising

16

others, or even whether Walker-Earnest’s PRW is properly classified as computer data

17

entry work.

18

While Walker-Earnest focuses on the fact that her past work involved supervising

19

others, the ALJ found that she could perform her PRW as generally performed, not

20

actually performed. See Pinto, 249 F.3d at 845 (“We have never required explicit

21

findings at step four regarding a claimant’s past relevant work both as generally

22

performed and as actually performed. The vocational expert merely has to find that a

23

claimant can or cannot continue his or her past relevant work . . . ”). It is certainly

24

possible that computer data entry work (assuming this is the correct description of

25

Walker-Earnest’s PRW), as generally performed, does not include supervisory

26

responsibilities and involves only brief and superficial contact with others. However,

27

because the ALJ failed to take any VE testimony on this issue or cite any applicable

28

provision in the DOT, the undersigned cannot determine whether the ALJ’s finding that

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1

Walker-Earnest could perform her PRW as generally performed is inconsistent with the

2

finding that she was limited to brief and superficial contact with others. Accordingly,

3

remand for further proceedings is required.

4
5

V.

Conclusion
A federal court may affirm, modify, reverse, or remand a social security case. 42

6

U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ’s

7

findings, this Court is required to affirm the ALJ’s decision. After considering the record

8

as a whole, this Court simply determines whether there is substantial evidence for a

9

reasonable trier of fact to accept as adequate to support the ALJ’s decision. Valentine,

10

574 F.3d at 690.

11

“‘[T]he decision whether to remand the case for additional evidence or simply to

12

award benefits is within the discretion of the court.’” Rodriguez v. Bowen, 876 F.2d 759,

13

763 (9th Cir.1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.1985)).

14

“Remand for further administrative proceedings is appropriate if enhancement of the

15

record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004).

16

Conversely, remand for an award of benefits is appropriate where:

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24
25
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27
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(1) the ALJ failed to provide legally sufficient reasons for
rejecting the evidence; (2) there are no outstanding issues that
must be resolved 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
credited.
Benecke, 379 F.3d at 593 (citations omitted). Where the test is met, “we will not remand
solely to allow the ALJ to make specific findings.... Rather, we take the relevant
testimony to be established as true and remand for an award of benefits.” Id. (citations
omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995).
“[T]he required analysis centers on what the record evidence shows about the
existence or non-existence of a disability.” Strauss v. Comm. Soc. Sec. Admin., 635 F.3d
1135, 1138 (9th Cir. 2011). “Administrative proceedings are generally useful where the
record has not been fully developed, there is a need to resolve conflicts and ambiguities,
or the presentation of further evidence may well prove enlightening in light of the
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1

passage of time.” Treichler v. Comm. Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir.

2

2014) (internal quotations and citations omitted). “Where there is conflicting evidence,

3

and not all essential factual issues have been resolved, a remand for an award of benefits

4

is inappropriate.” Id. “In evaluating [whether further administrative proceedings would be

5

useful, the Court considers] whether the record as a whole is free from conflicts,

6

ambiguities, or gaps, whether all factual issues have been resolved, and whether the

7

claimant’s entitlement to benefits is clear under the applicable legal rules.” Id. at 1103–

8

04.

9

In this case, significant factual issues remain that make remanding for an award of

10

benefits inappropriate. First, because there was no testimony from a VE or citation to the

11

DOT, it is unclear whether the ALJ properly classified Walker-Earnest’s PRW as

12

computer data entry. Likewise, it is unclear what the exertion and skill requirements of

13

that work are, and whether Walker-Earnest was able to perform it as generally performed.

14

Second, the ALJ failed to make a finding as to whether Walker-Earnest has transferrable

15

skills or not, which prevents this Court from determining whether grid rule 202.06 or

16

202.07 applies. Third, because the ALJ determined that Walker-Earnest was not disabled

17

at Step Four, there was no Step Five finding made. If Walker-Earnest cannot perform her

18

PRW but does have transferrable skills, then VE testimony is required to determine

19

whether those skills are readily transferrable to a significant range of other work existing

20

in the national economy. See Tackett v. Apfel, 180 F.3d 1094, 1100–01 (9th Cir. 1999)

21

(“There are two ways for the Commissioner to meet the burden of showing that there is

22

other work in ‘significant numbers’ in the national economy that claimant can perform:

23

(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational

24

Guidelines . . .”). While “[t]estimony of a VE . . . as to the claimant’s particular

25

limitations is not an absolute-requirement if it is clear from the record that the claimant is

26

unable to perform gainful employment in the national economy,” in this case the Court

27

finds that the record is not clear and further administrative proceedings are required.

28

Stewart v. Colvin, 16 F.Supp.3d 1209, 1217 (D. Or. April 15, 2014) (internal quotations

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1

and citation omitted); see also Bunnell v. Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003)

2

(“[N]o vocational expert has been called upon to consider all of the testimony that is

3

relevant to the case . . . [and] in cases where the vocational expert has failed to address a

4

claimant’s limitations as established by improperly discredited evidence, we consistently

5

have remanded for further proceedings rather than payment of benefits.” (internal

6

quotations and citation omitted)); Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995)

7

(“the use of vocational experts is particularly important where ‘the issue in determining

8

whether you are disabled is whether your work skills can be used in other work and the

9

specific occupations in which they can be used, or there is a similarly complex issue’”

10

(quoting 20 C.F.R. § 404.1566(e))); Treichler, 775 F.3d at 1105 (“Where, as in this case,

11

an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper

12

approach is to remand the case to the agency.”).

13

Accordingly,

14

IT IS HEREBY ORDERED that the Commissioner’s decision in regard to

15

Plaintiff’s applications for disability insurance benefits under Title II of the Social

16

Security Act be REVERSED and REMANDED to the Commissioner of Social Security

17

for further administrative proceedings consistent with this decision, including a new

18

hearing and a new decision.

19

This Court hereby reverses the Commissioner’s decision under sentence four of 42

20

U.S.C. §405(g) with a remand of the cause to the Commissioner for further proceedings.

21

See Melkonyan v. Sullivan, 501 U.S. 89 (1991).

22
23
24

IT IS FURTHER ORDERED the Clerk of the Court shall enter judgment, and
close its file on this matter.
Dated this 18th day of October, 2017.

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