Otto v. Commissioner Social Security Administration
Filing
16
Opinion and Order. The Commissioner's final decision is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for an immediate calculation and award of benefits. Signed on 7/2/2015 by Judge Malcolm F. Marsh. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL CHARLES OTTO,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
SHARON D. MAYNARD
Bennett, Hartman, Morris & Kaplan, LLP
210 S.W. Morrison Street, Suite 500
Portland, OR 97204
Attorney for Plaintiff
RONALD K. SILVER
Assistant United States Attorney
District of Oregon
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
COURTNEY M. GARCIA
Social Security Administration
Off ice of the General Counsel
701 Fifth Ave., Suite 2900, M/S 98104
Seattle, WA 98104
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:14-cv-01028-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Daniel Charles Otto seeks judicial review of the
final decision of the Commissioner of Social Security denying his
applications for a period of disability and disability insurance
benefits (DIB) under Title II of the Social Security Act, 42 U.S.C.
§§
401-403, and application for Supplemental Security Income (SSI)
disability benefits under Title XVI of the Social Security Act, 42
U.S.C.
§§
1381-1383f.
This Court has jurisdiction pursuant to 42
U.S.C.
§§
405(g) and 1383(c)(3).
For the reasons that follow,
I
affirm in part and reverse in part.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed applications for DIB and SSI on
March 31, 2010, alleging disability beginning February 26, 2009,
due to severe cervical and lumbar spinal disease, obesity,
shoulder
strain,
and bilateral
hand
impairments.
left
Plaintiff's
claims were denied initially and upon reconsideration.
Plaintiff
filed a request for a hearing before an administrative law judge
(ALJ).
An ALJ held a hearing on July 17, 2012, at which plaintiff
appeared with her attorney and testified.
Nancy E.
August
Appeals
A vocational expert,
Bloom, also appeared at the hearing and testified.
20,
2012,
Council
therefore,
On
the ALJ issued an unfavorable decision.
The
denied
and
the ALJ' s
plaintiff's
for
review,
decision became the final decision of the
Commissioner for purposes of review.
2 - OPINION AND ORDER
request
Plaintiff was born on December 3, 1955, and was 53 years old
on his alleged onset of disability date, and 56 years old on the
date of the ALJ' s
adverse decision.
Plaintiff completed high
school and some college courses, and has past relevant work as a
school bus driver, mover,
tractor-trailer driver, census worker,
and census field operations manager.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Each step is potentially dispositi ve.
burden of proof at
§§
Bowen v.
404.1520; 416.920.
The claimant bears the
steps one through four.
See Valentine
v.
Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009);
Tackett v. Apfel,
180 F.3d 1094, 1098
five,
shifts
the burden
to
(9th Cir. 1999).
the Commissioner to
At step
show that
the
claimant can do other work which exists in the national economy.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
The
ALJ
concluded
that
plaintiff met
the
insured
status
requirements of the Social Security Act through June 30, 2014.
claimant
seeking
DIE
benefits
under
Title
II
must
disability on or prior to the last date insured.
42
A
establish
u.s.c.
§
416 (I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
3 - OPINION AND ORDER
At step two, the ALJ found that plaintiff had the following severe
obesity,
impair,ments:
spondylolisthesis
of
foraminal
LS-Sl,
stenosis
degenerative
and anterolisthesis/
disc
cervical spine status post diskectomy and fusion,
left (non-dominant) shoulder strain.
disease
of
the
and history of
At step three, the ALJ found
that plaintiff's impairments, or combination of impairments, did
not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform light work, however, plaintiff can do no more than
four hours of standing or walking in an eight hour workday; he can
do no more than occasional pushing, pulling and overhead reaching
with the left upper extremity; he has postural limitations such
that
he
can
stooping,
engage
in
tasks
requiring
balancing
kneeling,
or
crouching,
climbing
no
crawling,
more
than
occasionally.
At step four,
the ALJ found that plaintiff is capable of
performing his past relevant work as a census enumerator.
The ALJ
made alternative findings at step five, concluding that considering
plaintiff's
functional
age,
education,
capacity,
work
jobs exist
experience,
in significant
and
numbers
residual
in
the
national economy that plaintiff can perform, such as office helper,
cashier II,
and small products assembler.
Accordingly,
the ALJ
concluded that plaintiff has not been under a disability under the
4 - OPINION AND ORDER
Social Security Act from February 26, 2009 through the date of the
decision.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
testimony;
(2)
the
plaintiff contends the following
(1) the ALJ failed to properly evaluate his
ALJ
failed
to
properly
testimony of his wife Denise M. Otto; and
(3)
evaluate
the
lay
the ALJ failed to
find him disabled as of his 55th birthday as directed under the
Medical-Vocational Guidelines
(the grids),
20 C.F.R.
Part
404,
Subpart P, Appendix 2, §§ 200.00 - 204.00.
The
Commissioner
discrediting
contends
plaintiff
and
the
that
lay
the
ALJ
did
testimony,
not
and
err
in
properly
determined that plaintiff could perform his past relevant work.
Additionally, the Commissioner contends that even if the ALJ erred
at step four, it was harmless because the ALJ made alternative step
five findings that are supported by substantial evidence.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
405 (g);
Berry v.
As true,
622
F. 3d 1228,
1231
42 U.S.C. §
(9th Cir.
2010) .
"Substantial evidence is more than a mere scintilla but less than
a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
5 - OPINION AND ORDER
Hill, 698 F.3d
at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690.
The court must weigh all the evidence,
whether it supports or
detracts from the Commissioner's decision.
807 F. 2d 771,
772
(9th Cir.
1986).
Martinez v.
Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational
interpretation.
359 F. 3d 1190,
Admin.,
1193
Batson v.
(9th Cir.
Commissioner Soc.
2004).
Sec.
If the evidence
supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
the Commissioner."
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001).
I.
Plaintiff's Credibility
A.
To
Standards
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
stage
is
a
20 C.F.R.
threshold test
§§
404.1529,
in which
the
416.929.
The first
claimant must
produce
objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged.
Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue,
533 F.3d 1035, 1039 (9th Cir. 2008).
At the second stage of the
credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms.
6 - OPINION AND ORDER
Carmickle v.
Commissioner Soc.
Sec.
Admin.,
533 F. 3d 1155,
1166
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
arbitrarily discredit the claimant's testimony.
the
ALJ did
not
Ghanim v. Colvin,
763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039.
Factors
the
ALJ
determinations
claimant's
may
consider
include
treatment
the
when
making
objective
history,
the
such
medical
claimant' s
credibility
evidence,
the
daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of any pain medication, and relevant character evidence.
Ghanim,
763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.
B.
Analysis
At the hearing, plaintiff testified that he stopped working as
a bus driver on February 29, 2009, after an accident in which he
rear-ended another vehicle.
Tr.
34.
Plaintiff stated that he
worked for the Census Bureau for 30 days in 2010 and that he was
training others to go out and conduct inventory interviews.
35.
Tr.
Plaintiff stated that he previously worked for the Census
Bureau from 1999 to 2005.
Plaintiff described that he has been
unable to find other supervisory-type work.
testified that he settled a
disability
from
the
7 - OPINION AND ORDER
Tr. 37.
union grievance,
Veteran's
Plaintiff
has a
10 percent
Administration,
receives
unemployment,
and has an unresolved workers compensation claim.
Tr. 38.
Plaintiff testified that his worst pain is in his low back,
and it causes burning in his right leg and foot, for which he takes
gabapentin.
Tr. 38.
on a 10-point scale.
Plaintiff rated his low back pain at a five
Tr.
44.
Plaintiff described that the pain
interferes with his concentration, and that he no longer walks with
his wife for exercise.
Tr. 39, 44.
Plaintiff testified that he is
attending Portland Community College to study web design, and that
he previously received straight "A'su taking a full credit load,
but due to medications he was required to take for his pain, his
grades slipped and he reduced his credit hours the previous term.
Tr. 43.
Plaintiff testified that he is able to assist his wife with
chores for approximately 20 to 30 minutes, then needs to sit down
to rest for 20 minutes.
been
diagnosed
with
Tr. 44. Plaintiff described that he has
arthritis,
and
that
writing, or using the computer or a mouse,
hands.
after
20
minutes
of
he needs to rest his
Tr. 46-47.
Plaintiff testified that he is no longer able to work as a bus
driver because of the pain medication he takes, and because of his
neck fusion at C5-6 and C6-7, pain in his shoulders, and his 25pound lifting restriction.
Tr. 48-49.
Plaintiff estimated that he
could lift 10 pounds occasionally, but that 25 pounds would be too
8 - OPINION AND ORDER
much; plaintiff testified that he could sit for 20-30 minutes, then
needs to change position.
Tr. 50.
Plaintiff testified that he
likes to lie down for 20 minutes two or three times a day.
Plaintiff testified that he has depression,
Tr. 56.
for which he takes
prozac, and receives mental health counseling. Tr. 54.
In a June 2, 2010 Function Report - Adult, plaintiff reported
that his sleep is interrupted most nights by pain and tingling, and
that he needs help with foot care, and putting on socks and shoes
because
bending
causes
back pain.
Tr.
Plaintiff
247.
also
described that he tries to walk around the block most days, and can
shop in stores three to four times a month, and that he leans on
the
shopping
frequently
bending,
with
getting
that
his
standing,
climbing,
Tr.
visits
difficulties
indicated
cart.
249.
family
along
completing
tasks,
and
limit
and
Tr.
he
described
no
250.
Plaintiff
squatting,
sitting,
using
that
lifting,
his
walking,
and
described
friends
with others.
conditions
reaching,
Plaintiff
his
kneeling,
hands.
Tr.
stair
251.
Plaintiff estimated that he could lift 20 pounds maximum and that
he could walk one block before needing to rest for five minutes.
Plaintiff indicated that he has no difficulty concentrating, can
follow written and spoken instructions well.
Plaintiff described that in a typical day, he wakes up with
pain,
and
if
it
is
tolerable,
he
will
exercises, then wash up and have breakfast.
9 - OPINION AND ORDER
do
physical
therapy
Plaintiff described
that he usually goes for coffee with his friends to McDonald's,
then returns home and makes phone calls,
and walks around the
block, then works a little on the computer.
Tr. 254.
Plaintiff
then eats lunch with his wife, assists with household chores, then
works on the computer again.
After dinner,
plaintiff described
that
sitting
standing
he
alternates
between
and
to
watch
television, then performs evening physical therapy exercises, and
goes to bed.
Tr.
254.
Plaintiff stated his activity is limited if he takes pain
medication, and that due to nerve "death" in his right foot,
he
trips occasionally and that he takes extra care when getting in and
out of the car, showering, and has difficulty walking and climbing
the stairs.
Plaintiff described visiting with his parents, children, and
grandchildren, and that when he has occasional attacks of gout, he
uses a cane.
for long,
Tr. 255.
Plaintiff also stated that he cannot sit
such as watching a movie or driving long distances.
Plaintiff stated he can mow the lawn with an electric mower twice
a month, and that he helps his wife and parents once a week, but it
takes much longer to perform each task.
Tr. 256.
In the decision, the ALJ found plaintiff partially credible,
noting that his medically determinable impairments could reasonably
be
expected
to
cause
some
symptoms
and
limitations,
but
that
plaintiff's contention that he is incapable of all work activity
10 - OPINION AND ORDER
was not wholly credible.
The ALJ provided several reasons, which
when taken together, constitute clear and convincing support for
the ALJ's partially adverse credibility determination.
First,
the
ALJ
noted
that
the
severity
of
plaintiff's
allegations was not supported by the objective medical evidence.
When the claimant's own medical record undercuts his assertions,
the ALJ may rely on that contradiction to discredit the claimant.
Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); Carmickle,
533 F.3d at 1161.
M.D.,
As the ALJ discussed, the records of David Koon,
are inconsistent with plaintiff's allegations of complete
disability.
As the ALJ noted, Dr. Koon, was plaintiff's workers
compensation treating physician from May of 2009 through March of
2010, for plaintiff's left shoulder, cervical strain, and lumbar
strain after his bus accident.
plaintiff
had
pre-existing
Dr. Koon's records indicate that
cervical
stenosis,
that
he
slowly
improved after the accident, and that plaintiff received injections
in his shoulder which plaintiff indicated were helpful.
Tr. 511.
On July 7, 2009, plaintiff was released to perform sedentary work.
Tr. 511-12.
As the ALJ indicated, on March 19, 2010, plaintiff had
5/5 strength in his lower extremities, and he had been released to
full duty work without restrictions.
correctly noted,
in
Dr.
Koon' s
Tr.
497.
Closing Medical
And, as the ALJ
Examination on
November 13, 2009, plaintiff had attained 5/5 strength bilaterally
in his upper extremities,
11 - OPINION AND ORDER
he was released to full duty without
restrictions, and his residual pain in his neck and shoulders was
being treated with tramadol.
Tr. 499.
Notably, plaintiff does not
challenge the ALJ' s assessment ·of the medical evidence.
The ALJ' s
findings are fully supported by substantial evidence in the record.
Therefore, the ALJ appropriately discounted plaintiff's contention
that he has been unable to work in any capacity following his 2009
accident.
The ALJ also discussed that in January of 2011, plaintiff had
numbness in his right arm,
stenos is
confirmed
by
and that he had significant spinal
imaging.
Tr.
22.
As
the
ALJ
noted,
plaintiff underwent CS-6 and C6-7 anterior cervical diskectomies
with allograft interbody fusion and plating on March 1 7,
Post-operative imaging showed overall
2011.
improvement of the canal
stenosis, and plaintiff reported that the surgery resolved his arm
pain.
The ALJ's findings are backed by substantial evidence and
provide
clear
and
convincing
plaintiff's testimony.
Thus,
support
for
partially
rejecting
the ALJ reasonably concluded that
plaintiff's allegation of total disability is inconsistent with the
objective medical evidence.
Carmickle, 533 F.3d at 1161.
Second, the ALJ discussed that plaintiff's activities of daily
living did not support his allegation of total disability.
a
claimant
is
able
to
perform
everyday
Where
activities
indicating
capacities that are transferrable to a work setting,
an ALJ may
discredit a claimant on that basis.
12 - OPINION AND ORDER
Molina,
674 F.3d at 1113.
And, an ALJ may discredit a claimant who may have some difficulty
functioning to the extent that those activities contradict a claim
Id.; Turner v. Comm'r. Soc. Sec. Admin., 613
of total disability.
F.3d 1217, 1225 (9th Cir. 2010).
As the ALJ accurately noted, and
substantial evidence in the record wholly supports, plaintiff is
fully capable of all self-care,
with the exception of foot care
performed by his wife.
As the ALJ discussed,
plaintiff described an active social
life, including having coffee with friends regularly at McDonald's.
As the ALJ noted, plaintiff uses public transportation, can drive
for short distances, takes Tai Chi classes, and takes
walks.
short daily
The ALJ discussed that plaintiff is capable of assisting
with daily household chores for no longer than 15 minutes, can mow
the lawn twice a month, and shops three or four times a month.
The
ALJ noted that while plaintiff's description of AOL's shows some
limitation,
his
level
of
abilities
are
consistent
required for performing basic work activities.
with
those
Although plaintiff
did not report doing any particular activity for an extended time,
the number of activities performed in a day appear fairly extensive
and the ALJ reasonably discounted plaintiff's credibility on this
basis.
Additionally,
the ALJ found plaintiff's ability to attend
Portland Community College
total disability.
inconsistent with his allegation of
For example, as the ALJ noted, plaintiff took 12
13 - OPINION AND ORDER
credit hours in the fall 2011 term,
and 20 credit hours in the
winter 2012 term, earning a 4.0 grade point average.
In the spring
2012 term he took 14 credit hours and earned a 2. 14 grade point
average, and subsequently reduced his load to eight credit hours.
The ALJ noted that plaintiff testified that the only accommodation
requested was a straight back chair and a recording device,
that plaintiff intended to earn his
associate' s
inconsistent
with
including some on a
plaintiff's
allegation
in web
The ALJ found the
design and earn a multi-media certificate.
evidence of school work,
degree
and
of
full-time basis,
total
disability.
Turner, 613 F.3d at 1225.
Plaintiff
argues
that
the
ALJ
erred
in
discounting
his
testimony on this basis because he testified that his increased
pain caused him to take more pain medication, and that his grades
therefore suffered. Although plaintiff's explanation is reasonable,
the
ALJ' s
interpretation
of
the
conflicting
reasonable and will not be disturbed.
In this regard,
evidence
also
is
Valentine, 574 F.3d at 693.
the ALJ's findings are supported by substantial
evidence in the record.
The ALJ identified specific evidence in
the record that undermines plaintiff's claims that his impairments
were so great that he is completely unable to work,
and the ALJ
appropriately discounted plaintiff's credibility on this basis.
Third, the ALJ discredited plaintiff because he applied for
and received a job with the Census Bureau and worked for 30 days
14 - OPINION AND ORDER
after his alleged onset of disability. Plaintiff argues that the
ALJ erred in discounting plaintiff's credibility on this basis.
I
disagree.
The ALJ may consider work done by a claimant that does not
rise to the level of substantial gainful activity as evidence that
the claimant was able to do more work than alleged.
404.1571.
Here,
the
ALJ cited plaintiff's
20 C.F.R.
testimony
that
§
he
stopped working not because of his impairments, but rather because
the Census Bureau over-hired,
and plaintiff's testimony that he
desired to keep working at that job.
Tr. 22.
This testimony, in
the ALJ's view, was evidence of plaintiff's functional abilities
after his alleged onset date.
I conclude that on the record before
me, the ALJ could consider plaintiff's work attempt and desire to
continue working, as evidence that conflicted with his allegations
of total disability.
In
summary,
the
reasons
supplied by
the
ALJ are
supported by substantial evidence in the record
and
clearly
readily
amount to clear and convincing support for the ALJ' s partially
adverse credibility determination.
II.
Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
the ALJ must take into account.
1113,
1115
(9th
Cir.
15 - OPINION AND ORDER
2009);
See Bruce v.
Stout
v.
Astrue,
Commissioner,
557 F.3d
Soc.
Sec.
Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100
F.3d 1462, 1467
(9th Cir. 1996).
The ALJ is required to account
for competent lay witness testimony, and if it is rejected, provide
Valentine, 574 F.3d at 694.
germane reasons for doing so.
Plaintiff argues that the ALJ erred by failing to provide
germane reasons for discounting the testimony of Denise M. Otto,
his wife.
a
Mrs. Otto did not testify at the hearing, but submitted
Third Party Adult
Function Report
dated
June
14,
2010.
The
limitations described by Mrs. Otto are substantially similar to the
limitations described by plaintiff.
In the decision, the ALJ gave
some weight to Mrs. Otto's statements, noting that she described
some physical limitations, but rejected her statements because the
activities of daily living she described were inconsistent with
total disability, and instead described an individual capable of
performing "basic work-related tasks."
Tr. 20.
I find no error in the ALJ's assessment of the lay testimony.
As
discussed
above,
the
ALJ
properly
discounted
plaintiff's
credibility based on his ability to perform activities of daily
living.
Therefore, in light of my conclusion that the ALJ provided
clear and convincing reasons for rejecting plaintiff's testimony of
similar subjective complaints,
germane
reasons
testimony.
for
Mrs.
it follows that the ALJ provided
Otto's
substantially
Valentine, 574 F.3d at 694.
lay
Consequently, I conclude
the ALJ did not err in assessing plaintiff's RFC.
16 - OPINION AND ORDER
similar
III. Step Four
At step four,
the claimant has the burden to prove that he
cannot perform his past relevant work (PRW) as actually performed
or as generally performed in the national economy.
F.3d at 1166; Pinto v. Massanari,
2001).
Carmickle, 533
249 F.3d 840, 844-45
(9th Cir.
The ALJ must determine whether, in light of a claimant's
RFC, he can return to substantial gainful activity performed in the
20 C.F.R.
past.
§§
404.1520(e);
416.920(e);
Pinto,
249 F.3d at
844-45.
Plaintiff contends that the ALJ erred in finding that he is
capable
of
performing
identified that
work as
his
PRW
because
a
"census
the
ALJ
enumerator."
erroneously
Additionally,
plaintiff argues that the step four finding is not supported by
substantial evidence because the record is devoid of any evidence
that
plaintiff actually performed any statistical
computations
corresponding to the job identified by the VE.
The Commissioner responds that ALJ properly relied upon the
VE's testimony in determining plaintiff's PRW.
The Commissioner
concedes that the VE erroneously identified plaintiff's past work
as that of a census enumerator.
Nevertheless,
the Commissioner
argues that when the record is properly evaluated, plaintiff's PRW
is that of "census clerk," DOT 216. 382-062,
supported by substantial evidence.
17 - OPINION AND ORDER
a
finding that is
Plaintiff testified that in February 2010 he worked for the
Census
Bureau
as
a
senior
field
representative,
and
in
that
capacity he trained and supervised team leaders who would then take
their crews out and conduct inventories for the State of Oregon.
Tr. 34.
In a work history report, plaintiff indicated that he also
worked for the Census Bureau as a census taker, walking from home
to
home
to
complete
representative,
surveys.
census
driving
to
Tr. 281-82.
worker,"
people's
homes
At the hearing;
classify plaintiff's PRW.
"census
inventories,
DOT
and
to
as
a
field
complete
census
the ALJ asked the VE to
The VE testified that plaintiff was a
205.367-054,
light
exertion,
unskilled,
Specific Vocational Preparation (SVP) Level 2, and that plaintiff's
supervisory
position
with
the
enumerator," DOT 216. 382-062,
with an SVP Level 4.
the
VE which
all
Bureau
was
sedentary exertion,
Tr. 59, 60.
included
Census
a
"census
semi-skilled,
After posing a hypothetical to
of plaintiff's
limitations,
the
VE
testified that such a person could perform plaintiff's PRW as a
census enumerator, but that the census worker job would require too
much walking for the person to perform. Tr. 62.
Having carefully reviewed the record and the VE's testimony,
it is clear that the VE mis-identified the job corresponding with
DOT 216.382-062 as a census enumerator.
VE
under
DOT 216. 382-062
"census clerk."
corresponds
The job identified by the
to Statistical Clerk,
See Dictionary of Occupational Titles,
18 - OPINION AND ORDER
or
(4th ed.
1991), 216.382-062, available at 1991 WL 671930.
a
census
clerk
statistics,
abilities.
as
compiles
someone
who
statistics,
compiles
The DOT defines
data
and possesses
and
a
computes
Level. 3 math
While plaintiff testified that he gathered census data
and entered that information into a computer, plaintiff correctly
contends that there is no evidence in the record whatsoever that he
computed statistics and actually compiled data as set forth in the
census clerk description in DOT 216.382-062.
Therefore, there is
no substantial evidence in the record to support the ALJ's step
four finding that plaintiff previously performed the work of a
census clerk as actually or generally performed in DOT 216.382-062.
Accordingly, I conclude that the ALJ's step four finding that
plaintiff could perform his PRW as a census clerk, DOT 216.382-062,
is not supported by substantial evidence and the ALJ erred in
finding that plaintiff was not disabled because he could perform
his PRW.
IV.
Therefore, the ALJ was required to proceed to step five.
Step Five
At step five of the sequential evaluation, the burden shifts
to
the
national
Commissioner
2014).
national
establish
that
there
are
economy that the claimant can perform.
Commissioner of Soc.
Cir.
to
Sec. Admin.,
775 F.3d 1090,
The ALJ must determine whether
economy
that
the
limitations and restrictions.
19 - OPINION AND ORDER
claimant
can
jobs
in
the
Treichler v.
1097 n.
jobs
perform
exist
1
(9th
in the
despite
Tackett, 180 F.3d at 1103-04.
his
In the decision, at step five, the ALJ consulted the MedicalVocational Guidelines
(the ftgrids 0
)
as framework.
The ALJ noted
that if plaintiff were able to perform a full range of li.ght duty
work,
C.F.R.
the grids directed a finding of ftNot Disabled.
Pt.
404,
Subpt.
P,
App.
2,
§
0
See
20
202.00 Medical-Vocational
Guidelines, Table No. 2, Rule 202. 14 (2008) (high school graduate or
more,
skilled or semiskilled without transferrable
disabled).
skills,
not
The ALJ found that plaintiff was born on December 3,
1955, and thus was an individual closely approaching advanced age
on the date of his alleged onset of disability in 2009, had a high
school education,
issue.
and that transferability of skills was not an
Because the light occupational base had been eroded due to
plaintiff's non-exertional requirements, the ALJ then relied upon
VE testimony to find that based on plaintiff's age, education, work
experience
and
RFC,
jobs
existed
in
significant
numbers
that
plaintiff could perform (including office helper, cashier II, and
small
products
assembler)
disabled.
Tr.
step
findings
five
23-24.
and
therefore,
plaintiff
was
not
I find no error in the ALJ's alternative
concerning
advanced age category.
plaintiff's
closely
approaching
However, the ALJ failed to make additional
findings for plaintiff's change in age category to ftadvanced age 0
when he turned 55 on December 3, 2010.
20 - OPINION AND ORDER
Plaintiff argues the ALJ erred in failing to find him disabled
as of his 55th birthday. 1
According to plaintiff, when he changed
to "advanced age," the grids direct a finding of disability at both
the sedentary and light exertion levels under Medical-Vocational
Rules 201.06 and 202.06,
and consulting VE testimony was error.
Plaintiff is correct.
An ALJ is required to use each of the age categories that
apply to the claimant during the period for which the ALJ must
determine if the claimant is disabled.
20 C.F.R. §§ 404.1563(b),
see also id. at§ 404.1563(a)("we consider advancing
416.963(b),
age to be an increasingly limiting factor").
Here, the period of
adjudication started on plaintiff's alleged onset date,
26,
2009,
and continued through the August
20,
February
2012 decision.
Plaintiff was 53 years old on the date of his alleged onset of
disability.
Under
the
regulations,
at
age
53,
categorized as "closely approaching advanced age."
404.1563(d); 416.963(d).
plaintiff
is
20 C.F.R. §§
However, on the date of the ALJ's August
20, 2012 decision, plaintiff was 56 years old, which corresponds to
"advanced age."
ALJ
clearly
20 C.F.R. §§ 404.1563(e), 416.963(e).
erred
in
failing
to
make
additional
Thus, the
findings
considering plaintiff's changed age category.
1
The ALJ's failure to consider plaintiff's advanced age
appears to be an oversight, as demonstrated by the ALJ's inquiry
at the hearing as to whether plaintiff wanted to amend his
alleged onset date to his 55th birthday; plaintiff declined to do
so. Tr. 66-67.
21 - OPINION AND ORDER
The
present
Medical-Vocational
in
table
form
a
Guidelines,
known
shorthand method
as
for
"the
grids,"
determining
the
claimant.
See
availability and number of suitable jobs for
a
Lounsburry v.
(9th Cir.
Barnhart,
Tackett, 180 F.3d at 1101.
468
F.3d
1111,
1114
The grids categorize jobs by
2006);
physical-
exertional levels, and a claimant's placement in the appropriate
table depends upon four factors - age,
experience, and physical ability.
education,
previous work
Lounsburry, 468 F.3d at 1114-15.
For each combination of these factors, the grids direct a finding
of disabled or not disabled based on the number of jobs in the
national economy in the appropriate exertional category.
Id.
If
the grids direct a finding of disabled, other evidence, including
testimony from a VE, cannot be used to change that outcome.
Cooper
v. Sullivan, 880 F.2d 1152, 1156-57 (9th Cir. 1989); Lounsburry,
468 F.3d at 1115-16.
As plaintiff correctly indicates, application of the correct
grid rules after his 55th birthday dictates that he is disabled.
The ALJ found that plaintiff has an RFC to perform modified light
work and has a
high school education with some college.
Rule
202.06 directs a finding of "disabled" for individuals of advanced
age, with a high school education or more, whose education does not
provide for direct entry into skilled work, and whose skilled or
semiskilled previous work experience does not provide transferrable
22 - OPINION AND ORDER
skills.
Moreover, footnote 2 to Rule 202.06 incorporates language
from Rule 202.00(c) which provides:
However, for individuals of advanced age who can no
longer perform vocationally relevant work . . . who have
only skills that are not readily transferrable to a
significant range of semi-skilled or skilled work that is
within the individual's functional capacity, . . . the
limitations in vocational adaptability represented by
functional restriction to light work warrant a finding of
disabled.
During
the
hearing,
the
transferrable skills.
grids,
the
limitations.
court
VE
Tr. 63.
must
testified
that
plaintiff
has
no
Additionally, when considering the
ignore
plaintiff's
Lounsburry, 468 F.3d at 1116.
non-exertional
Therefore, application
of Rule 202.06 dictates that plaintiff is disabled.
This
outcome
is
bolstered
further
by
20
C.F.R.
§
404 .1568 (d) ( 4), which provides that "if you are of advanced age
(age 55 or older), and you have a severe impairment(s) that limits
you to sedentary or light work, we will find that you cannot make
an adjustment to other work unless you have skills that you can
transfer to other skilled or semiskilled work."
As plaintiff
correctly indicates, Medical-Vocational Rule 201.06 for sedentary
work also dictates a finding of "disabled."
Therefore, because plaintiff does not have any transferable
skills,
and
the
grids
direct
a
finding
of
disabled
as
of
plaintiff's 55th birthday, I conclude that a remand for an award of
benefits
is
appropriate.
In
similar
situations,
the
court
has
discretion to remand for an immediate award of benefits where there
23 - OPINION AND ORDER
are no outstanding issues that require resolution and where it
clear that an ALJ would be required to find plaintiff disabled on
remand.
See Garrison v.
Colvin,
759 F.3d 995,
1022
(9th Cir.
20120) (remanding for an immediate payment of benefits appropriate
if credit-as-true conditions are satisfied).
I
have carefully
reviewed the record, and considered the Commissioner's arguments,
and have no basis to doubt that plaintiff is disabled as of his
55th birthday.
Remanding for further proceedings would serve no
useful purpose here.
The record is complete, and application of
the Medical-Vocational Rules require a finding that plaintiff is
disabled as of December 3, 2010.
CONCLUSION
Based
on
the
foregoing
reasons,
the
Commissioner's
final
decision is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for an
immediate calculation and award of benefits based on an onset date
of December 3, 2010.
IT IS SO ORDERED.
DATED this _;{,__ day of JULY, 2015.
:h~7~
fialcolm F. Marsh
United States District Judge
24 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?