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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LYDIA J. DAVIS,

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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
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Commissioner of Social Security,
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Defendant.
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____________________________________)

NO. ED CV 16-2328-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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On November 8, 2016, Plaintiff filed a Complaint seeking review

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of the Commissioner’s denial of disability benefits.

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2016, the parties consented to a Magistrate Judge.

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Plaintiff filed a motion for summary judgment.

On December 14,
On March 21, 2017,

On April 12, 2017,

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Defendant filed a motion for summary judgment.

The Court has taken

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the motions for summary judgment under submission without oral

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argument.

See L.R. 7-15; “Order,” filed November 22, 2016.

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BACKGROUND

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Plaintiff asserts disability based on a combination of alleged

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impairments (Administrative Record (“A.R.”) 56-58, 183, 292-93).

The

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Administrative Law Judge (“ALJ”) found Plaintiff suffers from severe

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impairments which preclude the performance of Plaintiff’s past

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relevant work and which reduce Plaintiff’s residual functional

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capacity to the “capacity to perform sedentary work as defined in 20

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C.F.R. 404.1567(a)” (A.R. 24, 26, 33).1

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To determine whether there exist any jobs Plaintiff can perform,

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the ALJ consulted a vocational expert and used Rules 201.15 and 201.07

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of the Grids as “the framework” for decision making (A.R. 34-35, 68-

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73).

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residual functional capacity found by the ALJ, the vocational expert

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identified only one job, the sedentary job of “data entry,” as a job a

In response to a hypothetical question which assumed the

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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).
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person so limited could perform (A.R. 68-72).

The vocational expert

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also opined that Plaintiff’s skill in “inputting information from a

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numerical or alphabetical [sic] into a computer utilizing a keyboard”

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would transfer to the “data entry” job (A.R. 72-73).

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ask the vocational expert whether any vocational adjustment would be

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required to transfer Plaintiff’s skill from her past relevant work to

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the “data entry” job.

The ALJ did not

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In denying disability, the ALJ concluded Plaintiff could perform

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the “data entry” job and Plaintiff’s skill in “inputting information,

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numerical or letters, into the computer with use of a keyboard” would

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transfer thereto (A.R. 34).

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regarding whether any vocational adjustment would be required.

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Plaintiff was 55 years old at the time of the ALJ’s decision (A.R. 35,

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183).

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review (A.R. 1-6).

The ALJ did not make any finding

The Appeals Council considered additional evidence, but denied

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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); see also Brewes v. Commissioner

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of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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Substantial evidence is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.”
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See Carmickle v.

Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

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see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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But the

detracts from the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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Where, as here, the Appeals Council considered additional

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evidence but denied review, the additional evidence becomes part of

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the record for purposes of the Court’s analysis.

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Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

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new evidence in deciding whether to review a decision of the ALJ, that

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evidence becomes part of the administrative record, which the district

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court must consider when reviewing the Commissioner’s final decision

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for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

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F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

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1228, 1231 (2011) (courts may consider evidence presented for the

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first time to the Appeals Council “to determine whether, in light of

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the record as a whole, the ALJ’s decision was supported by substantial

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evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

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957 n.7 (9th Cir. 1993) (“the Appeals Council considered this
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See Brewes v.

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information and it became part of the record we are required to review

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as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

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DISCUSSION

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The ALJ erred by failing to address the vocational adjustment

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possibly required for the transferability of Plaintiff’s skill.

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Remand is appropriate.

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Where, as here, the claimant is 55 years of age or older, “[i]n

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order to find transferability of skills to skilled sedentary work

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. . . there must be very little, if any, vocational adjustment

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required in terms of tools, work processes, work settings, or the

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industry.”

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C.F.R. § 404.1568(d)(4).

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transferability to sedentary work without inquiring of the vocational

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expert, and without making any finding, concerning the nature of any

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vocational adjustment possibly required.

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Heckler, 786 F.2d 1421, 1424 (9th Cir. 1986) (“It is necessary to

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assure that the correct legal standard was applied.

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must either make a finding of ‘very little vocational adjustment’ or

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otherwise acknowledge that a more stringent test is being applied

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which takes into consideration appellant’s age”); Barajas v. Colvin,

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2016 WL 4149959, at *7 (C.D. Cal. Aug. 3, 2016) (“Crucially, the ALJ’s

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opinion gives no indication that he made any finding as to the level

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of vocational adjustment necessary for the application of the

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transferrable skills, nor can this be fairly inferred from the hearing

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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

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This was error.

Renner v.

Thus, the ALJ

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March 30, 2015) (where the vocational expert did not testify as to the

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degree of vocational adjustment required to move from one job to

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another, the expert’s testimony was not substantial evidence that a 60

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year old claimant possessed transferable skills); accord Castellucci

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v. Colvin, 2014 WL 4371424, at *22-23 (N.D. Cal. Sept. 3, 2014);

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Little v. Astrue, 2008 WL 253031, at *5 (D. Kan. Jan. 29, 2008); see

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also Daniels v. Astrue, 854 F. Supp. 2d 513, 527 (N.D. Ill. 2012)

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(remand required where ALJ failed to find expressly that the jobs

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proposed by the vocational expert would require very little vocational

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adjustment, even though the vocational expert had testified that the

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jobs would require very little vocational adjustment).

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In attempted avoidance of the conclusion that the ALJ erred,

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Defendant points out that Plaintiff’s residual functional capacity

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exceeded a sedentary work capacity in one respect: a standing/walking

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tolerance of four hours rather than two hours.

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standing/walking tolerance does not materially alter the analysis.

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The ALJ regarded Plaintiff’s residual functional capacity as “the

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residual functional capacity to perform sedentary work . . .” (A.R.

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26).

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for decision making.

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would transfer is a sedentary job.

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sedentary capacity and sedentary jobs here apply.

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Apfel, 122 F. Supp. 2d 1025, 1029-30 (S.D. Iowa 2000) (where ALJ found

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claimant had sedentary work capacity except for a lifting capacity

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that exceeded sedentary levels by five pounds, court held that the

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ALJ’s findings were “more compatible with the lifting requirements of

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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

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Cf. Strong v.

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Defendant also appears to suggest that Social Security Ruling

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(“SSR”) 82-41 can supply the missing proof regarding vocational

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adjustment.

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applicability across industry lines, e.g., clerical, professional,

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administrative, or managerial types of jobs, transferability of skills

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to industries differing from past work experience can usually be

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accomplished with very little, if any, vocational adjustment where

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jobs with similar skills can be identified as being within an

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individual’s RFC.”

SSR 82-41 provides that “where job skills have universal

SSR 82-41 does not alter the result herein.

The

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vocational expert did not testify, and the ALJ did not find, that

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Plaintiff’s skill had “universal applicability across industry lines.”

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Absent such testimony and such a finding, the applicability of SSR 82-

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41 to the present case remains uncertain.

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WL 8671487, at *4 (D. Colo. April 15, 2016) (rejecting a proposed

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application of SSR 82-41 where the ALJ made no finding regarding

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“universal applicability”).

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the ruling would establish only that the transferability of skills

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“usually” may be accomplished with very little, if any vocational

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adjustment.

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Astrue, 2008 WL 819035, at *5 (M.D.N.C. March 21, 2008).

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“usually” the fact may or may not be the fact in the present

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circumstance.

See Stewart v. Colvin, 2016

Moreover, even if SSR 82-41 were applied,

“‘Usually’ does not mean ‘always.’”

Harrington v.
What is

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The Court is unable to deem the error in the present case to have

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been harmless.

See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir.

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2012) (an error “is harmless where it is inconsequential to the

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ultimate non-disability determination”) (citations and quotations

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omitted); McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error
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not harmless where “the reviewing court can determine from the

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‘circumstances of the case’ that further administrative review is

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needed to determine whether there was prejudice from the error”); see

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also Wolfe v. Berryhill, 2017 WL 1074932, at *2 (“The ALJ failed to

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make required findings concerning the transferability of Plaintiff’s

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job skills, precluding a finding of harmless error”).

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a claimant cannot perform her past relevant work, the burden shifts to

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the Administration to show that the claimant is able to perform other

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work.

Where, as here,

See Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985).

The

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evidence in the present record fails to carry this burden.

See

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Castellucci v. Colvin, 2014 WL 4371424, at *23 (“The Commissioner’s

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harmless error argument is unpersuasive because the ALJ’s failure to

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inquire about vocational adjustments is material to the disability (or

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nondisability) determination”); Little v. Astrue, 2008 WL 253031, at

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*5 (“Remand is necessary for the Commissioner to consider and explain

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whether moving from plaintiff’s past relevant work to the

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representative occupations identified by the ALJ would require very

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little, if any, vocational adjustment in terms of tools, work

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processes, work settings, or the industry.

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require the services of a vocational expert, for neither this court

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nor the Commissioner and his ALJs have the vocational expertise to

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make such a determination without reliance upon vocational evidence”).

Such an inquiry will

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The circumstances of this case suggest that further

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administrative review could remedy the ALJ’s error.

Therefore, remand

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is appropriate.

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

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determination, the proper course is remand for additional agency

See McLeod v. Astrue, 640 F.3d at 888; see also INS

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investigation or explanation, except in rare circumstances); Dominguez

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v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (“Unless the district

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court concludes that further administrative proceedings would serve no

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useful purpose, it may not remand with a direction to provide

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benefits”); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th

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Cir. 2014) (remand for further administrative proceedings is the

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proper remedy “in all but the rarest cases”).

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CONCLUSION

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For all of the foregoing reasons,2 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: April 19, 2017.

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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 immediate payment of benefits would not be
appropriate at this time.
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