Penny Elizabeth Wolfe v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: For the reasons stated above, the decision of the Social Security Commissioner is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.LET JUDGMENT BE ENTERED ACCORDINGLY. See document for further information. (lwag)

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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 Case No. SACV 16-01211-KES PENNY ELIZABETH WOLFE, Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 19 Plaintiff Penny Elizabeth Wolfe (“Plaintiff”) appeals the final decision of the 20 Administrative Law Judge (“ALJ”) denying her application for disability insurance 21 benefits (“DIB”). For the reasons discussed below, the Court concludes that the 22 ALJ failed to make required findings concerning the transferability of Plaintiff’s job 23 skills. The decision of the Social Security Commissioner is therefore REVERSED 24 and the matter is REMANDED for further proceedings consistent with this opinion. 25 I. 26 BACKGROUND 27 28 Plaintiff applied for DIB on July 30, 2013, alleging disability commencing March 1, 2013. Administrative Record (“AR”) 13, 57. An ALJ conducted a 1 1 hearing on October 16, 2014, at which Plaintiff, who was represented by an 2 attorney, appeared and testified. AR 29-56. 3 On January 15, 2015, the ALJ issued a written decision denying Plaintiff’s 4 request for benefits. AR 13-24. The ALJ found that Plaintiff had the following 5 severe impairments: “spondylosis of the cervical and lumbar spine; unspecified 6 myalgia and myositis with a history of fibromyalgia; atypical chest pain; 7 hypertension; and obesity.” AR 15. 8 9 Notwithstanding her impairments, the ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to perform a reduced range of “light” work 10 with the following additional limitations: “lift and/or carry 20 pounds occasionally 11 and 10 pounds frequently; she can stand and/or walk for 2 hours of an 8-hour 12 workday with regular breaks; she can alternate between sitting and standing every 2 13 hours; she can sit for 6 hours out of an 8-hour workday with regular breaks; she can 14 occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; she cannot 15 climb ladders, ropes, or scaffolds; and she cannot work at unprotected heights.” 16 AR 17. 17 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 18 found that Plaintiff could perform her past relevant work as a financial customer 19 service representative. AR 69-70. Therefore, the ALJ concluded that Plaintiff is 20 not disabled. Id. 21 II. 22 ISSUES PRESENTED 23 24 25 Issue One: Whether the ALJ erred in determining that Plaintiff can perform her past relevant work, and if so, whether that error was harmless. Issue Two: Whether the ALJ failed to account for Plaintiff’s hand 26 impairments in formulating the RFC. 27 Joint Stipulation (“JS”) at 7. 28 2 1 III. 2 DISCUSSION 3 A. The ALJ erred in determining that Plaintiff can perform her past relevant 4 work. 5 1. 6 At the hearing, the VE testified that Plaintiff’s past relevant work was “best Relevant Proceedings. 7 categorized” as customer service representative (financial), Dictionary of 8 Occupational Titles (“DOT”) 205.362-026. AR 48. The VE further testified that 9 this job is “skilled” work requiring “light” exertion. Id. The ALJ asked Plaintiff’s 10 counsel if he objected to this classification of Plaintiff’s past relevant work, and 11 counsel responded, “no.” Id. 12 The ALJ next asked the VE three questions concerning whether a 13 hypothetical person with various limitations could perform Plaintiff’s past relevant 14 work. AR 48-50. The first two hypotheticals were not consistent with Plaintiff’s 15 RFC as ultimately determined by the ALJ, because they posited standing/walking 16 for 6 hours each workday rather than only 2 hours. Compare AR 17 with AR 48- 17 49. The third hypothetical question was consistent with Plaintiff’s RFC. Compare 18 AR 17 with AR 50. The VE testified that the third hypothetical person (i.e., 19 someone with Plaintiff’s RFC) could not do Plaintiff’s past work. AR 50. 20 The ALJ next asked the VE if the third hypothetical person (who was 21 assumed to have Plaintiff’s work experience) would have “any transferrable skills.” 22 Id. The VE testified that the hypothetical person would have transferable 23 “customer service skills.” Id. The ALJ asked the VE to “list” the “other work” to 24 which those transferrable skills would apply. The VE identified two sedentary jobs 25 that would fit within the RFC described in hypothetical three: (1) customer service 26 representative (radio and television broadcasting, telephone and telegraph, utilities, 27 waterworks), DOT 239.362-014, and (2) order clerk, DOT 249.362-026. AR 50- 28 51. 3 1 When the ALJ wrote her decision, however, she mistakenly found that the 2 VE testified that someone with Plaintiff’s RFC could perform her past relevant 3 work. AR 23. Even the Commissioner concedes this was error. JS at 19. The 4 Commissioner, however, argues that this error was harmless, because Plaintiff 5 could do the other two jobs identified by the VE as consistent with Plaintiff’s 6 transferable skills. Id. 7 Plaintiff disputes the Commissioner’s assertion of harmless error. Because 8 she was a person of “advanced age” whose RFC limits her to a reduced range of 9 “light” work, Plaintiff contends that the ALJ was required to make special, 10 additional findings concerning the amount of vocational adjustment Plaintiff would 11 need to make to perform the two new jobs identified by the VE. JS at 17 n.11 ¶ 2; 12 at 20-21. 13 B. The ALJ failed to make required findings concerning the transferability 14 of Plaintiff’s job skills, precluding a finding of harmless error. 15 1. 16 When a claimant is older or assessed with an RFC that limits them to Threshold Classifications. 17 sedentary or light work, Social Security regulations require the ALJ to make special 18 findings regarding the transferability of job skills. The Court, therefore, first 19 considers Plaintiff’s age and RFC. 20 21 a. Age. The regulations define a person of “advanced age” as someone age 55 or 22 older. 20 C.F.R. § 404.1563(e). The regulations recognize that advanced age 23 “significantly affects a person’s ability to adjust to other work.” Id. For that 24 reason, there are “special rules for persons of advanced age and for persons … who 25 are closely approaching retirement age (age 60 or older).” Id., citing 20 C.F.R. 26 § 404.1568(d)(4). 27 28 The regulations require the Commissioner to use “each of the age categories that applies” to a claimant “during the period for which [the Commissioner] must 4 1 determine if [the claimant is] disabled.” 20 C.F.R. § 404.1563(b). The relevant 2 period runs from the alleged onset date through the date of the ALJ’s opinion. 3 Lockwood v. Comm’r of SSA, 616 F.3d 1068, 1070 (9th Cir. 2010). 4 Where a claimant is within a few months of reaching an older age category, 5 the claimant is in a “borderline” age situation. 20 C.F.R. § 404.1563(b). In a 6 “borderline” age situation, the ALJ has discretion to apply the older age category, 7 but is not required to do so. Id. An ALJ may demonstrate consideration of a 8 claimant’s age by noting it in the written decision and citing section 404.1563 9 which prohibits applying age categories mechanically in borderline cases. 10 Lockwood, 616 F.3d at 1072. The ALJ need not explain why he/she declined to 11 apply the older age category. Id. 12 On the alleged onset date of March 1, 2013, Plaintiff was 59, making her a 13 person of “advanced age.” AR 57. By January 15, 2015, the date of the ALJ’s 14 decision, she was older than 60, making her a person “closely approaching 15 retirement age.” Id. At some point during the relevant period prior to turning 60, 16 she would have been on the “borderline” of approaching retirement age. 17 18 b. RFC Exertional Level. The regulations define “light” versus “sedentary” work, as follows: 19 (a) Sedentary work involves lifting no more than 10 pounds at a 20 time and occasionally lifting or carrying articles like docket files, 21 ledgers, and small tools. Although a sedentary job is defined as one 22 which involves sitting, a certain amount of walking and standing is 23 often necessary in carrying out job duties. Jobs are sedentary if walking 24 and standing are required occasionally and other sedentary criteria are 25 met. 26 (b) Light work involves lifting no more than 20 pounds at a time 27 with frequent lifting or carrying of objects weighing up to 10 pounds. 28 Even though the weight lifted may be very little, a job is in this category 5 1 when it requires a good deal of walking or standing, or when it involves 2 sitting most of the time with some pushing and pulling of arm or leg 3 controls. To be considered capable of performing a full or wide range 4 of light work, you must have the ability to do substantially all of these 5 activities. If someone can do light work, we determine that he or she 6 can also do sedentary work, unless there are additional limiting factors 7 such as loss of fine dexterity or inability to sit for long periods of time. 8 20 C.F.R. § 404.1567(a)-(b). 9 Social Security Regulation (“SSR”) 96-9p further clarifies that “Jobs are 10 sedentary if walking and standing are required occasionally …. ‘Occasionally’ 11 means occurring from very little up to one-third of the time, and would generally 12 total no more than about 2 hours of an 8-hour workday. Sitting would generally 13 total about 6 hours of an 8-hour workday.” 1996 SSR LEXIS 6, at *8-9. To 14 “perform a full range of sedentary work, an individual must be able to remain in a 15 seated position for approximately 6 hours of an 8-hour workday, with a morning 16 break, a lunch period, and an afternoon break at approximately 2-hour intervals.” 17 Id. at *17. 18 Comparing Plaintiff’s RFC to these requirements, her lifting/carrying 19 abilities are consistent with “light” work. Compare AR 17 with 20 C.F.R. 20 § 404.1567(b). Her walking/standing/sitting abilities (i.e., walking/standing for 21 only 2 hours; sitting for 6 hours with breaks every 2 hours) are consistent with 22 sedentary work. Compare AR 17 with SSR 96-9p. 23 2. 24 A claimant is considered to have “transferable skills” if the “skilled or semi- Regulations Governing the Determination of Transferrable Skills. 25 skilled work activities [he/she] did in past work can be used to meet the 26 requirements of skilled or semi-skilled work activities of other jobs or kinds of 27 work.” 20 C.F.R. § 404.1568(d)(1). Transferability “depends largely on the 28 similarity of occupationally significant work activities among different jobs.” Id. 6 1 Transferability is most probable when: 2 (i) The same or lesser degree of skill is required; 3 (ii) The same or similar tools and machines are used; and 4 (iii) The same or similar raw materials, products, processes or services 5 are involved. 6 Id. at § 404.1568(d)(2). Complete similarity of these three factors, however, is “not 7 necessary for transferability.” Id. at § 404.1568(d)(3). Generally, a VE can provide 8 testimony concerning these factors, comparing the required skills, reasoning level 9 and training for the jobs as identified in the DOT. The ALJ may rely on an ALJ’s 10 testimony concerning these factors without making express findings concerning 11 each factor. Engel v. Colvin, 2015 U.S. Dist. LEXIS 144467, at *14 (C.D. Cal. 12 Oct. 23, 2015); Garcia v. Astrue, 2012 U.S. Dist. LEXIS 132493, at *19-23 (E.D. 13 Cal. Sept. 16, 2012). 14 15 The regulations also contain special provisions for transferability of skills for persons of advanced age, as follows: 16 If you are of advanced age (age 55 or older), and you have a 17 severe impairment(s) that limits you to sedentary or light work, we will 18 find that you cannot make an adjustment to other work unless you have 19 skills that you can transfer to other skilled or semiskilled work … that 20 you can do despite your impairment(s). We will decide if you have 21 transferable skills as follows: 22 [Clause 1] If you are of advanced age and you have a severe 23 impairment(s) that limits you to no more than sedentary work, we will 24 find that you have skills that are transferable to skilled or semiskilled 25 sedentary work only if the sedentary work is so similar to your previous 26 work that you would need to make very little, if any, vocational 27 adjustment in terms of tools, work processes, work settings, or the 28 industry. (See § 404.1567(a) [defining “sedentary” work] and 7 1 § 201.00(f) of appendix 2 [medical-vocational guidelines].) 2 [Clause 2] If you are of advanced age but have not attained age 3 60, and you have a severe impairment(s) that limits you to no more than 4 light work, we will apply the rules in paragraphs (d)(1) through (d)(3) 5 of this section [quoted above] to decide if you have skills that are 6 transferable to skilled or semiskilled light work (see § 404.1567(b) 7 [defining “light” work]). 8 [Clause 3] If you are closely approaching retirement age (age 60 9 or older) and you have a severe impairment(s) that limits you to no more 10 than light work, we will find that you have skills that are transferable 11 to skilled or semiskilled light work only if the light work is so similar 12 to your previous work that you would need to make very little, if any, 13 vocational adjustment in terms of tools, work processes, work settings, 14 or the industry. (See § 404.1567(b) and Rule 202.00(f) of appendix 2 15 to this subpart.) 16 20 C.F.R. § 404.1568(d)(4). 17 Clauses [1] and [3] reference certain Medical-Vocational Guidelines found at 18 20 C.F.R. §404, Subpart P, Appendix 2, Rule 200.00 et seq. Plaintiff cites to Rule 19 201.00(f) which provides as follows: “In order to find transferability of skills to 20 skilled sedentary work for individuals who are of advanced age …, there must be 21 very little, if any, vocational adjustment required in terms of tools, work processes, 22 work settings, or the industry.” JS at 17, n.11 ¶ 2. 23 SSR 82-41 provides a further gloss on transferability of skills. First, SSR 82- 24 41 provides the following definition of a job “skill” that is potentially transferable: 25 A skill is knowledge of a work activity which requires the exercise of 26 significant judgment that goes beyond the carrying out of simple job 27 duties and is acquired through performance of an occupation which is 28 above the unskilled level (requires more than 30 days to learn). It is 8 1 practical and familiar knowledge of the principles and processes of an 2 art, science or trade, combined with the ability to apply them in practice 3 in a proper and approved manner. This includes activities like making 4 precise measurements, reading blueprints, and setting up and operating 5 complex machinery. 6 1982 SSR LEXIS 34 at *4. 7 Next, SSR 82-41 acknowledges that “advancing age” is an important factor 8 “associated with transferability because … advancing age decreases the possibility 9 of making a successful vocational adjustment.” Id. at *13. 10 Finally, SSR 82-41 requires the ALJ to make certain findings of fact and 11 include them in the written decision whenever “the issue of skills and their 12 transferability must be decided.” Id. at *19. Specifically, “when a finding is made 13 that a claimant has transferable skills, the acquired skills must be identified, and 14 specific occupations to which the acquired work skills are transferable must be 15 cited in the … ALJ’s decision.” Id. 16 The Ninth Circuit has determined that the “specific findings on transferable 17 skills” required by SSR 82-41 “are necessary even where the ALJ relies on the 18 testimony of a VE.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225. In Bray, a VE 19 testified that while Ms. Bray could not return to her past work as an insurance 20 underwriter or medical assistant, she had transferrable skills and could work as a 21 file clerk. Id. at 1223. The ALJ accepted this testimony and found Ms. Bray was 22 not disabled. Id. The Ninth Circuit found the ALJ’s determination deficient in 23 several respects. First, the decision failed to identify the “particular skills” that Ms. 24 Bray had acquired from her past work that would transfer to work as a file clerk. 25 While the VE had testified that Ms. Bray’s past work would have “exposed her to 26 computers, customer service, and possibly some data entry,” that testimony was 27 insufficient, because (1) it was impossible from the record to determine if the ALJ 28 adopted that testimony, and (2) there was no discussion as to whether these 9 1 technology-related skills were truly transferrable, given that Ms. Bray’s past work 2 had occurred fifteen years earlier. Id. at 1224. Second, the ALJ failed to make 3 findings under Rule 201.00(f) concerning the degree of vocational adjustment 4 required, as follows: 5 Neither the ALJ’s decision nor the VE’s testimony addresses whether 6 Bray – who was one month from turning 55 at the time of her hearing 7 – would have to undergo more than minimal “vocational adjustment” 8 to perform successfully the tasks required of a file clerk, general clerk, 9 or sales clerk, or otherwise determined whether the skills required of an 10 insurance underwriter are substantially similar to those required of a 11 general, file, or sales clerk. 12 Id. The Ninth Circuit remanded the case “so that the ALJ can further develop the 13 record and make specific findings on whether Bray has transferable skills.” Id. at 14 1226. 15 In Renner v. Heckler, 786 F.2d 1421 (9th Cir. 1986), a VE testified that the 16 claimant, a person of advanced age limited to sedentary work, had acquired the 17 following skills from her past work: “dealing with and selling to the public, 18 handling cash, using a cash register, filling out credit card transactions, completing 19 receipts, inventorying and ordering, inspecting merchandise, answering telephones, 20 and figuring discounts.” Id. at 1423. He opined that “several” of these skills were 21 transferable to work as a box office cashier, telephone operator, or motel clerk. Id. 22 The record, however, was “silent as to the amount of ‘vocational adjustment’ 23 required for Renner to transfer into them.” Id. at 1424. The Ninth Circuit held that 24 because each new job identified by the VE “appears to require some adjustment to 25 new industries and work settings” and the VE “failed to demonstrate that Renner 26 would be able to perform these jobs with very little, if any, vocational adjustment,” 27 the ALJ’s finding of transferable skills “constitutes legal error.” Id. 28 10 1 3. 2 The Court will first consider which clauses of 20 C.F.R. § 404.1568(d)(4) 3 4 Analysis. apply to Plaintiff. Clause 1: As of the onset date, Plaintiff was a person of “advanced age,” but 5 Plaintiff was not limited to “no more than sedentary work.” Her RFC for lifting 6 and carrying exceeds sedentary work. Compare AR 17 with 20 C.F.R. 7 § 404.1567(a)-(b). 8 Clause 2: As of the onset date, Plaintiff was a person of “advanced age” who 9 was not yet 60 and limited to “no more than light work.” Thus, until she turned 60, 10 Clause 2 applied. As she approached age 60, the ALJ had discretion to treat her as 11 a “borderline” case and apply Clause 3. 12 Clause 3: Upon turning 60, Plaintiff was closely approaching retirement age 13 and limited to “no more than light work.” Thus, after she turned 60, Clause 3 14 applied. 15 16 a. Clause 2. For the portion of the relevant period governed by Clause 2, the ALJ was 17 required to apply 20 C.F.R. § 404.1568(d)(1)-(3) to determine if Plaintiff had 18 acquired skills transferable to the new jobs identified by the VE. At a minimum, 19 that analysis required the ALJ to (1) identify in her written decision the skills 20 Plaintiff acquired from her past work and the specific occupations to which those 21 skills might be transferrable, (2) consider whether Plaintiff’s prior work and the 22 new occupations identified involve the same or a lesser degree of skill, and use the 23 same or similar tools, machines, raw materials, products, processes, or services, and 24 (3) in light of those considerations, make a finding that Plaintiff’s skills are actually 25 transferrable to the identified new occupations. 26 The ALJ failed to do any of this, because her decision mischaracterized the 27 testimony of the VE and did not address transferability at all. The record is 28 insufficient for the Court to determine conclusively that this error was harmless. 11 1 First, the VE’s identification of potentially transferable skills as “customer 2 service skills” does not comport with the definition of “skills” in SSR 82-41 or the 3 kinds of skills listed by the Ninth Circuit in Renner. The term “customer service” 4 describes a broad category of work, not specific job activities/skills such as 5 answering phones, researching customer complaints, processing returns, or 6 interacting with the public. 7 Second, there is no indication that the ALJ considered whether Plaintiff’s job 8 skills were truly transferrable in light of the factors listed in 20 C.F.R. 9 § 404.1568(d)(3), because the ALJ did not base her decision on transferability. The 10 VE did provide some helpful testimony, e.g., Plaintiff’s prior work was classified as 11 reasoning level 6, whereas the two new jobs identified required only reasoning level 12 4 or 5. AR 48, 50-51. There is no indication, however, that the ALJ adopted this 13 testimony or considered how changing industries or returning to work after years of 14 not working would affect the transferability of Plaintiff’s job skills. 15 Third and finally, even before Plaintiff turned 60, the ALJ was required by 16 Rule 201.00(f) to assess the degree of vocational adjustment that Plaintiff would 17 require to transition to new work and find that it was “very little, if any … in terms 18 of tools, work processes, work settings, or the industry.” Rule 201.00(f) applies to 19 persons of advanced age who are seeking to transfer skills to “sedentary work,” 20 without regard for whether their RFC is restricted to sedentary work. The VE 21 testified that both proposed new jobs were sedentary. AR 50-51. The ALJ made 22 no findings as to the vocational adjustment Plaintiff would require in terms of tools, 23 work processes, work settings, or the industry, because the ALJ did not rely on 24 transferability to determine that Plaintiff is not disabled. 25 26 b. Clause 3. For the portion of the relevant period governed by Clause 3 (which the ALJ 27 should exercise discretion to decide), the ALJ was required to make findings 28 regarding the degree of vocational adjustment that would be required for Plaintiff to 12 1 transfer her skills. As discussed above, the ALJ failed to do so. 2 C. 3 Remand for Further Proceedings is Appropriate. When an ALJ errs in denying benefits, the Court generally has discretion to 4 remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th 5 Cir. 2000) (as amended). Here, remand for further proceedings is appropriate 6 because the ALJ did not make required findings concerning the transferability of 7 Plaintiff’s job skills. On remand, the ALJ may wish to consider Plaintiff’s other 8 claim of error. 9 IV. 10 CONCLUSION 11 For the reasons stated above, the decision of the Social Security 12 Commissioner is REVERSED and the matter is REMANDED for further 13 proceedings consistent with this opinion. 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: March 21, 2017 17 18 19 _________________________________ KAREN E. SCOTT United States Magistrate Judge 20 21 22 23 24 25 26 27 28 13

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