Lydia J. Davis v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Charles F. Eick. It is Hereby Ordered that 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 LYDIA J. DAVIS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. ED CV 16-2328-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On November 8, 2016, Plaintiff filed a Complaint seeking review 26 of the Commissioner’s denial of disability benefits. 27 2016, the parties consented to a Magistrate Judge. 28 Plaintiff filed a motion for summary judgment. On December 14, On March 21, 2017, On April 12, 2017, 1 Defendant filed a motion for summary judgment. The Court has taken 2 the motions for summary judgment under submission without oral 3 argument. See L.R. 7-15; “Order,” filed November 22, 2016. 4 5 BACKGROUND 6 7 Plaintiff asserts disability based on a combination of alleged 8 impairments (Administrative Record (“A.R.”) 56-58, 183, 292-93). The 9 Administrative Law Judge (“ALJ”) found Plaintiff suffers from severe 10 impairments which preclude the performance of Plaintiff’s past 11 relevant work and which reduce Plaintiff’s residual functional 12 capacity to the “capacity to perform sedentary work as defined in 20 13 C.F.R. 404.1567(a)” (A.R. 24, 26, 33).1 14 15 To determine whether there exist any jobs Plaintiff can perform, 16 the ALJ consulted a vocational expert and used Rules 201.15 and 201.07 17 of the Grids as “the framework” for decision making (A.R. 34-35, 68- 18 73). 19 residual functional capacity found by the ALJ, the vocational expert 20 identified only one job, the sedentary job of “data entry,” as a job a In response to a hypothetical question which assumed the 21 22 23 24 25 26 27 28 1 More specifically, the ALJ found Plaintiff “could lift and/or carry ten pounds occasionally, less than ten pounds frequently; she could sit for six hours out of an eight-hour workday; she could stand and/or walk for four hours out of an eight-hour workday for a maximum of thirty minutes at a time; she could occasionally do all postural activities; use of her hands for handling and fingering is limited to seven hours in an eighthour workday; she is able to extend her neck up to two hours during the course of an eight-hour workday; she is able to rotate her neck up to three hours during an eight-hour workday; she is limited to occasional overhead work; and she may require the use of a self-purchased seat cushion” (A.R. 26). 2 1 person so limited could perform (A.R. 68-72). The vocational expert 2 also opined that Plaintiff’s skill in “inputting information from a 3 numerical or alphabetical [sic] into a computer utilizing a keyboard” 4 would transfer to the “data entry” job (A.R. 72-73). 5 ask the vocational expert whether any vocational adjustment would be 6 required to transfer Plaintiff’s skill from her past relevant work to 7 the “data entry” job. The ALJ did not 8 9 In denying disability, the ALJ concluded Plaintiff could perform 10 the “data entry” job and Plaintiff’s skill in “inputting information, 11 numerical or letters, into the computer with use of a keyboard” would 12 transfer thereto (A.R. 34). 13 regarding whether any vocational adjustment would be required. 14 Plaintiff was 55 years old at the time of the ALJ’s decision (A.R. 35, 15 183). 16 review (A.R. 1-6). The ALJ did not make any finding The Appeals Council considered additional evidence, but denied 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. section 405(g), this Court reviews the 21 Administration’s decision to determine if: (1) the Administration’s 22 findings are supported by substantial evidence; and (2) the 23 Administration used correct legal standards. 24 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 25 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner 26 of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). 27 Substantial evidence is “such relevant evidence as a reasonable mind 28 might accept as adequate to support a conclusion.” 3 See Carmickle v. Richardson v. 1 Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); 2 see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 3 4 If the evidence can support either outcome, the court may 5 not substitute its judgment for that of the ALJ. 6 Commissioner’s decision cannot be affirmed simply by 7 isolating a specific quantum of supporting evidence. 8 Rather, a court must consider the record as a whole, 9 weighing both evidence that supports and evidence that 10 But the detracts from the [administrative] conclusion. 11 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 13 quotations omitted). 14 15 Where, as here, the Appeals Council considered additional 16 evidence but denied review, the additional evidence becomes part of 17 the record for purposes of the Court’s analysis. 18 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 19 new evidence in deciding whether to review a decision of the ALJ, that 20 evidence becomes part of the administrative record, which the district 21 court must consider when reviewing the Commissioner’s final decision 22 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 23 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 24 1228, 1231 (2011) (courts may consider evidence presented for the 25 first time to the Appeals Council “to determine whether, in light of 26 the record as a whole, the ALJ’s decision was supported by substantial 27 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 28 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 4 See Brewes v. 1 information and it became part of the record we are required to review 2 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 3 4 DISCUSSION 5 6 The ALJ erred by failing to address the vocational adjustment 7 possibly required for the transferability of Plaintiff’s skill. 8 Remand is appropriate. 9 10 Where, as here, the claimant is 55 years of age or older, “[i]n 11 order to find transferability of skills to skilled sedentary work 12 . . . there must be very little, if any, vocational adjustment 13 required in terms of tools, work processes, work settings, or the 14 industry.” 15 C.F.R. § 404.1568(d)(4). 16 transferability to sedentary work without inquiring of the vocational 17 expert, and without making any finding, concerning the nature of any 18 vocational adjustment possibly required. 19 Heckler, 786 F.2d 1421, 1424 (9th Cir. 1986) (“It is necessary to 20 assure that the correct legal standard was applied. 21 must either make a finding of ‘very little vocational adjustment’ or 22 otherwise acknowledge that a more stringent test is being applied 23 which takes into consideration appellant’s age”); Barajas v. Colvin, 24 2016 WL 4149959, at *7 (C.D. Cal. Aug. 3, 2016) (“Crucially, the ALJ’s 25 opinion gives no indication that he made any finding as to the level 26 of vocational adjustment necessary for the application of the 27 transferrable skills, nor can this be fairly inferred from the hearing 28 testimony”); Foltz v. Colvin, 2015 WL 1509678, at *5 (D. Colo. 20 C.F.R. pt. 404, Subpt P, App. 2, § 200.00(f); accord 20 In the present case, the ALJ found skill 5 This was error. Renner v. Thus, the ALJ 1 March 30, 2015) (where the vocational expert did not testify as to the 2 degree of vocational adjustment required to move from one job to 3 another, the expert’s testimony was not substantial evidence that a 60 4 year old claimant possessed transferable skills); accord Castellucci 5 v. Colvin, 2014 WL 4371424, at *22-23 (N.D. Cal. Sept. 3, 2014); 6 Little v. Astrue, 2008 WL 253031, at *5 (D. Kan. Jan. 29, 2008); see 7 also Daniels v. Astrue, 854 F. Supp. 2d 513, 527 (N.D. Ill. 2012) 8 (remand required where ALJ failed to find expressly that the jobs 9 proposed by the vocational expert would require very little vocational 10 adjustment, even though the vocational expert had testified that the 11 jobs would require very little vocational adjustment). 12 13 In attempted avoidance of the conclusion that the ALJ erred, 14 Defendant points out that Plaintiff’s residual functional capacity 15 exceeded a sedentary work capacity in one respect: a standing/walking 16 tolerance of four hours rather than two hours. 17 standing/walking tolerance does not materially alter the analysis. 18 The ALJ regarded Plaintiff’s residual functional capacity as “the 19 residual functional capacity to perform sedentary work . . .” (A.R. 20 26). 21 for decision making. 22 would transfer is a sedentary job. 23 sedentary capacity and sedentary jobs here apply. 24 Apfel, 122 F. Supp. 2d 1025, 1029-30 (S.D. Iowa 2000) (where ALJ found 25 claimant had sedentary work capacity except for a lifting capacity 26 that exceeded sedentary levels by five pounds, court held that the 27 ALJ’s findings were “more compatible with the lifting requirements of 28 sedentary work” than light work). Plaintiff’s extra The ALJ applied the grids for sedentary work as the framework The job to which Plaintiff’s skills supposedly Accordingly, the rules regarding 6 Cf. Strong v. 1 Defendant also appears to suggest that Social Security Ruling 2 (“SSR”) 82-41 can supply the missing proof regarding vocational 3 adjustment. 4 applicability across industry lines, e.g., clerical, professional, 5 administrative, or managerial types of jobs, transferability of skills 6 to industries differing from past work experience can usually be 7 accomplished with very little, if any, vocational adjustment where 8 jobs with similar skills can be identified as being within an 9 individual’s RFC.” SSR 82-41 provides that “where job skills have universal SSR 82-41 does not alter the result herein. The 10 vocational expert did not testify, and the ALJ did not find, that 11 Plaintiff’s skill had “universal applicability across industry lines.” 12 Absent such testimony and such a finding, the applicability of SSR 82- 13 41 to the present case remains uncertain. 14 WL 8671487, at *4 (D. Colo. April 15, 2016) (rejecting a proposed 15 application of SSR 82-41 where the ALJ made no finding regarding 16 “universal applicability”). 17 the ruling would establish only that the transferability of skills 18 “usually” may be accomplished with very little, if any vocational 19 adjustment. 20 Astrue, 2008 WL 819035, at *5 (M.D.N.C. March 21, 2008). 21 “usually” the fact may or may not be the fact in the present 22 circumstance. See Stewart v. Colvin, 2016 Moreover, even if SSR 82-41 were applied, “‘Usually’ does not mean ‘always.’” Harrington v. What is 23 24 The Court is unable to deem the error in the present case to have 25 been harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 26 2012) (an error “is harmless where it is inconsequential to the 27 ultimate non-disability determination”) (citations and quotations 28 omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error 7 1 not harmless where “the reviewing court can determine from the 2 ‘circumstances of the case’ that further administrative review is 3 needed to determine whether there was prejudice from the error”); see 4 also Wolfe v. Berryhill, 2017 WL 1074932, at *2 (“The ALJ failed to 5 make required findings concerning the transferability of Plaintiff’s 6 job skills, precluding a finding of harmless error”). 7 a claimant cannot perform her past relevant work, the burden shifts to 8 the Administration to show that the claimant is able to perform other 9 work. Where, as here, See Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985). The 10 evidence in the present record fails to carry this burden. See 11 Castellucci v. Colvin, 2014 WL 4371424, at *23 (“The Commissioner’s 12 harmless error argument is unpersuasive because the ALJ’s failure to 13 inquire about vocational adjustments is material to the disability (or 14 nondisability) determination”); Little v. Astrue, 2008 WL 253031, at 15 *5 (“Remand is necessary for the Commissioner to consider and explain 16 whether moving from plaintiff’s past relevant work to the 17 representative occupations identified by the ALJ would require very 18 little, if any, vocational adjustment in terms of tools, work 19 processes, work settings, or the industry. 20 require the services of a vocational expert, for neither this court 21 nor the Commissioner and his ALJs have the vocational expertise to 22 make such a determination without reliance upon vocational evidence”). Such an inquiry will 23 24 The circumstances of this case suggest that further 25 administrative review could remedy the ALJ’s error. Therefore, remand 26 is appropriate. 27 v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative 28 determination, the proper course is remand for additional agency See McLeod v. Astrue, 640 F.3d at 888; see also INS 8 1 investigation or explanation, except in rare circumstances); Dominguez 2 v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (“Unless the district 3 court concludes that further administrative proceedings would serve no 4 useful purpose, it may not remand with a direction to provide 5 benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th 6 Cir. 2014) (remand for further administrative proceedings is the 7 proper remedy “in all but the rarest cases”). 8 9 CONCLUSION 10 11 For all of the foregoing reasons,2 Plaintiff’s and Defendant’s 12 motions for summary judgment are denied and this matter is remanded 13 for further administrative action consistent with this Opinion. 14 15 LET JUDGMENT BE ENTERED ACCORDINGLY. 16 17 DATED: April 19, 2017. 18 19 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 2 27 28 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 9

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