Juana Barrera v. Michael J Astrue

Filing 15

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JUANA BARRERA,

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Plaintiff,
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v.
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MICHAEL J. ASTRUE, COMMISSIONER
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OF SOCIAL SECURITY,
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Defendant.
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___________________________________)

NO. ED CV 12-764-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a complaint on May 17, 2012, seeking review of

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the Commissioner’s denial of benefits.

The parties filed a consent to

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proceed before a United States Magistrate Judge on June 15, 2012.

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Plaintiff filed a motion for summary judgment on October 19, 2012.

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Defendant filed a motion for summary judgment on October 29, 2012.

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The Court has taken the motions under submission without oral

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argument.

See L.R. 7-15; “Order,” filed May 21, 2012.

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BACKGROUND

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Plaintiff, a former healthcare worker and carpet packer, asserts
disability since November 1, 1998, based on a combination of alleged

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impairments (Administrative Record (“A.R.”) 36-194).

At an

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administrative hearing, counsel for Plaintiff invited the

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Administrative Law Judge (“ALJ”) to consider Rule 202.09 of the

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Medical Vocational Guidelines (“the Grids”)1 (A.R. 51).

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Plaintiff’s vocational factors and residual functional capacity, Rule

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202.09 would direct a finding of disability as of late 1998 if and

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only if Plaintiff is “illiterate,” within the meaning of the Grids.

Given

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At the administrative hearing, Plaintiff testified that she can

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read and write in Spanish but not in English (A.R. 45).

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asked, “How about short, simple words, like ‘go,’ ‘stop’?,” to which

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Plaintiff responded “Yeah, some.”

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the Administrative Record contains handwriting stating:

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Carbajal completed this form for me because I don’t read english

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[sic]” (A.R. 137).

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ability to understand spoken English (A.R. 42-43) (ALJ questioned

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Plaintiff without translation during part of the administrative

(Id.).

The ALJ then

One of Plaintiff’s forms in
“Priscilla

The record contains some evidence of Plaintiff’s

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The Grids may be found in 20 C.F.R. Part 404, Subpart
P, Appendix 2.
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hearing).

Plaintiff also testified that she used English at work “a

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little” and that she went to “classes in my work [as a caregiver] for

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the people” (A.R. 42, 44).

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Plaintiff’s work or “classes” required reading and writing in English.

The record is silent regarding whether

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The ALJ declined to apply Grid Rule 202.09, finding that

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Plaintiff is not illiterate (A.R. 20-21).

The ALJ reportedly based

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this finding “on [Plaintiff’s] responding to questions before they

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were translated, and her own testimony in English for a while, and her

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having attended classes in English for work and using some English at

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work” (A.R. 20).

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The ALJ found Plaintiff not disabled (A.R. 17-22).

The Appeals

Council denied review (A.R. 1-3).

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see Widmark v. Barnhart,

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454 F.3d 1063, 1067 (9th Cir. 2006).

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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DISCUSSION

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“Illiteracy means the inability to read or write.”

20 C.F.R.

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404.1564(b)(1).

“We consider someone illiterate if the person cannot

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read or write a simple message such as instructions or inventory lists

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even though the person can sign his or her name.”

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regulations, “illiteracy” means illiteracy in English.

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v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000); Chavez v. Department of

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Health and Human Services, 103 F.3d 849, 852 (9th Cir. 1996).

Id.

Under the
See Silveira

The

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Administration “bears the burden of establishing that [the claimant]

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is literate.”

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ability orally to communicate in English does not mean that the

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claimant is literate.

Silveira v. Apfel, 204 F.3d at 1261.

A claimant’s

Id.

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In the present case, the record contains scant evidence of

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Plaintiff’s literacy.

The only direct evidence that Plaintiff can

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read and write in English (despite her denials of such ability)

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consists of Plaintiff’s vague response “Yeah, some” to the ALJ’s

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question regarding whether Plaintiff can read or write “short, simple

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words, like ‘go,’ [and] ‘stop’” (A.R. 45).

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used some English at work and went to English-speaking “classes” in

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her work may or may not betray literacy, depending on the nature of

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the work and the nature of the classes.

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disclose whether Plaintiff’s work or her classes required reading and

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writing.

The evidence Plaintiff

However, the record does not

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Courts have concluded that similarly scant evidence of reading
and writing falls short of carrying the Administration’s burden of
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establishing literacy.

See, e.g., Obispo v. Astrue, 2012 WL 4711763,

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at *4 (C.D. Cal. Oct. 3, 2012) (“plaintiff testified that he can read

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and speak ‘a little bit’ of English . . . [but] it is unclear what

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plaintiff meant by ‘a little bit,’ or how significant this evidence is

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in relation to the other evidence of plaintiff’s English skills, which

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reflects that plaintiff consistently required the assistance of an

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interpreter”); Franco v. Astrue, 2012 WL 3638609, at *13-14 (C.D. Cal.

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Aug. 23, 2012) (the plaintiff reportedly “was able to answer questions

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at the hearing before the interpreter could interpret the questions”

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but “speaking English does not pertain to [the claimant’s] literacy

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ability in reading and writing.

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English, plaintiff stated, ‘[a] little bit yes, but I don’t write it -

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I write it in my form of Spanish’”); Calderon v. Astrue, 2009 WL

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3790008, at *9-10 (E.D. Cal. Nov. 10, 2009) (the plaintiff testified,

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“I can read a little bit and I can write a little bit, not much”; the

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court reasoned that “a vague response of ‘[a] little bit’ in response

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to whether or not a claimant can read or write English is insufficient

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to establish that plaintiff can read or write a simple message in the

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English language . . . Perhaps indeed he can, but the record is far

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from clear”); Delgado v. Barnhart, 305 F. Supp. 2d 704, 715-17 (S.D.

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Tex. Feb. 19, 2004) (“The Plaintiff’s writing abilities in English are

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not clear from the record.

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contradictory assessments of his abilities and then concurred with the

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ALJ’s suggestion of ‘[a] little bit’ . . . Unfortunately ‘[a] little

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bit’ remains unqualified and undefined.

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example, to ‘write a simple message such as instructions or inventory

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lists’?

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literacy”) (citations omitted).

When asked if plaintiff can read in

The Plaintiff initially offered

Is the plaintiff able, for

Such a determination is critical to an assessment of

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“The ALJ has a special duty to fully and fairly develop the

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record and assure that the claimant’s interests are considered.”

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Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).

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exists even when the claimant is represented by counsel.”

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this duty, given the Administration’s burden of proof, and given the

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determinations of other courts on similar facts, this Court finds that

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the present record does not contain substantial evidence to support

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the ALJ’s finding on the literacy issue.2

“This duty
Id.

Given

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Defendant appears to suggest that any Grid-related error

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concerning literacy was harmless because “the vocational expert

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considered Plaintiff’s limited English in eroding the numbers of the

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representative occupations by 90 percent” (Defendant’s Motion at 4).

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Defendant thereby references expert testimony on which the ALJ relied

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in finding that there exist jobs Plaintiff could perform

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notwithstanding her limitations.

Defendant’s apparent suggestion of

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harmless error is not well taken.

A conclusion of disability, when

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directed by the Grids, is irrebuttable.

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468 F.3d 1111, 1115-16 (9th Cir. 2006); Cooper v. Sullivan, 880 F.2d

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1152, 1157 (9th Cir. 1989).

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after fuller development of the record that Plaintiff is illiterate,

See Lounsburry v. Barnhart,

Thus, if the Administration concludes

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Defendant appears to suggest that the ALJ’s “adverse
credibility finding” furnishes substantial evidence to support
the ALJ’s finding on the literacy issue. Any such suggestion
lacks merit. The ALJ’s adverse credibility finding expressly
concerned only the accuracy of Plaintiff’s “statements concerning
the intensity, persistence and limiting effects of these
symptoms” (i.e., the symptoms resulting from Plaintiff’s
“medically determinable impairments”) (A.R. 19). In any event,
an adverse credibility finding, by itself, would rarely if ever
furnish affirmative evidence sufficient to carry a burden of
proof on a contested issue.
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the Administration must find Plaintiff disabled under Grid Rule

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202.09, regardless of any vocational evidence that Plaintiff could

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perform work.

See id.

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Because the circumstances of the case suggest that further

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administrative review could remedy the ALJ’s error, remand is

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appropriate.

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generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an

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administrative determination, the proper course is remand for

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additional agency investigation or explanation, except in rare

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circumstances).

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see

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CONCLUSION

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For all of the foregoing reasons,3 Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: November 1, 2012.

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_____________/S/_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the payment of benefits would not be appropriate at
this time.
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