Albert Keshishyan v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. the ALJs decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. (See document for further details). (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALBERT KESHISHYAN,
Plaintiff,

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v.

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CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,

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Defendant.

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Case No. CV 14-2282-PJW
MEMORANDUM OPINION AND ORDER

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Plaintiff appeals a decision by Defendant Social Security

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Administration (“the Agency”), denying his application for Disability

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Insurance Benefits and Supplemental Security Income.

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the Administrative Law Judge (“ALJ”) erred when he concluded that

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Plaintiff had the ability to perform jobs requiring Language Level 1

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because he does not speak English.

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Court concludes that the ALJ erred and remands the case to the Agency

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for further proceedings.

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He claims that

For the following reasons, the

Plaintiff was born in 1950 in Armenia and came to the United

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States in 1991.

(Administrative Record (“AR”) 25.)

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in Armenia and attended some college there.

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read, write, or speak English.

He was educated

He claims that he cannot

(AR 25, 146.)

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The ALJ concluded that Plaintiff could not perform any of his

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past work but could perform three jobs that required Language Level 1.

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(AR 62-63.)

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“[r]ecognize [the] meaning of 2,500 (two- or three-syllable) words.

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Read at rate of 95-120 words per minute.

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differences between words and between series of numbers.”

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of Occupational Titles No. 920.587-018 (hand packager).

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however, did not state any basis for finding that Plaintiff had this

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ability.

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Language Level 1 is defined as the ability to

(AR 63.)

Compare similarities and
Dictionary

The ALJ,

This was error and necessitates remand.

The Agency disagrees.

It points out that Plaintiff has been in

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the United States since 1991 and admits that he speaks and understands

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some English.

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enough to establish that Plaintiff has a working familiarity with

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2,500, two- and three-syllable English words, read 95-12- words a

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minute, or compare the similarities and differences in words.

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possible to live in Los Angeles without speaking English.

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the record establishes that Plaintiff performed jobs that, according

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to the DOT, require Language Levels much higher than Level 1, nowhere

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in the record does it suggest how Plaintiff actually performed those

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jobs.

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(Joint Stip. at 8.)

Though this is true, it is not

It is

And, though

It is possible that he spoke only Armenian at work.
The Agency also notes that the ALJ found that Plaintiff was not

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credible, a finding Plaintiff does not challenge.

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outside of Plaintiff’s testimony, which has been discredited, there is

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no evidence establishing that Plaintiff cannot speak English.

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It argues that,

The Ninth Circuit has made clear that it is the Agency’s burden

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at Step Five to establish that a claimant is literate and can perform

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work in the economy.

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Cir. 2000) (“The Commissioner bears the burden of establishing that

See Silveira v. Apfel, 204 F.3d 1257, 1261 (9th

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[the claimant] is literate.”)

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on Plaintiff’s failure to prove illiteracy and was required, instead,

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to point to some evidence in the record that established his ability

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to speak and read English at Language Level 1.

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Thus, the ALJ was not entitled to rely

The Agency complains that Plaintiff’s counsel never objected to

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the ALJ’s finding that Plaintiff possessed Language Level 1 skills at

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the administrative hearing.

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should have been raised by Plaintiff’s counsel at the hearing and that

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it is too late to raise it now.

It argues that this issue could have and

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Though the Court would agree that counsel has a duty to raise

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issues like the one at bar in the administrative hearing, it notes

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that Plaintiff has jettisoned his counsel from that hearing and

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retained new counsel.

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in this case to punish Plaintiff for the errors of his former counsel.

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For these reasons, the ALJ’s decision is reversed and the case is

The Court does not feel that it is appropriate

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remanded to the Agency for further proceedings consistent with this

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Memorandum Opinion and Order.

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IT IS SO ORDERED.

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DATED: April 29, 2015

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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