The Estate of Beverly Ann Brown v. Commissioner Social Security Administration

Filing 18

Opinion and Order. The Commissioners final decision is AFFIRMED. Signed on 2/15/2021 by Judge Michael J. McShane. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THE ESTATE OF BEVERLY B.,1
Plaintiff,

Civ. No. 3:19-cv-01351-MC

v.

OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Beverly B. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits (“DIB”) and disabled widow’s benefits (“DWB”) under Title II of the Social
Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issue
before the Court is whether the Administrative Law Judge (“ALJ”) erred in finding that Plaintiff
had acquired transferable skills in previous work. Because Plaintiff forfeited this argument, the
Commissioner’s decision is AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for DIB and DWB on January 19, 2011, alleging disability since July 1,
2002. Tr. 163-64, 166.2 Her claim was denied initially and upon reconsideration. Tr. 103, 108,

1

 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the
non-governmental party in this case. 

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118, 122. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) and
appeared before the Honorable Rudolph Murgo on October 16, 2012, with a supplemental
hearing on October 24, 2012.3 Tr. 2164, 2189. The ALJ issued a “partially favorable” decision,
finding Plaintiff was not disabled prior to January 2, 2012, but became disabled on that date and
was disabled until her death on March 29, 2012. Tr. 95; see Tr. 170. To be eligible for DIB,
Plaintiff must have become disabled by September 30, 2008, the date she was last insured. Tr.
21, 32. To be eligible for DWB, Plaintiff must have become disabled by January 31, 2012. Tr.
85-86. The ALJ noted that Plaintiff’s disability did not extend through the five full month
waiting period under 20 CFR §§ 404.315(a)(4) and 404.335(c)(2). Tr. 96.
Plaintiff sought review from the Appeals Council. Tr. 140. The Appeals Council
remanded the case on September 30, 2016, stating that because the file was incomplete, the
Appeals Council could not act on the request for review. Tr. 145, 143. A supplemental hearing
was held before ALJ Murgo on December 4, 2017. Tr. 2215. The ALJ issued another “partially
favorable” decision; this time finding Plaintiff was not disabled until January 12, 2012. Tr. 30,
31. Again, the ALJ noted that Plaintiff’s disability did not meet the waiting period. Id.
Plaintiff again sought review from the Appeals Council. Tr. 2161. Plaintiff’s request for
review was denied on July 19, 2019, rendering the ALJ’s decision final. Tr. 7. Plaintiff now
seeks judicial review of the ALJ’s decision. Plaintiff was 50 years old at the time of her alleged
disability onset. Tr. 32. Plaintiff was 56 years old on the date last insured. Id. Plaintiff completed
one year of college and previously worked as a customer service representative. Tr. 183. Plaintiff

 “Tr.” refers to the Transcript of Social Security Administrative Record, ECF No. 14, provided by the
Commissioner. 
3
Plaintiff passed away before the hearing and a substitute party appeared at all hearings in this case.
2

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alleges disability due to spinal stenosis, fibromyalgia, degenerative disc disease, osteoarthritis,
diabetes, hypertension, sleep apnea, and vision disorder. Tr. 188.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “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.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably
support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for
that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.
2014) (quoting Reddick v. Chater, 157 F.3d 715, 720–21 (9th Cir. 1996)).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden
of proof rests on the claimant for steps one through four, and on the Commissioner for step five.
Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001) (citing Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that

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the claimant can make an adjustment to other work existing in significant numbers in the
national economy after considering the claimant’s residual functional capacity (“RFC”), age,
education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to
meet this burden, then the claimant is considered disabled. Id.
Because Plaintiff stipulates to the ALJ’s findings at steps one through four, the issue
remaining is whether the ALJ’s step five findings were supported by substantial evidence. Pl.’s
Opening Brief 4, ECF No. 15. Here, the ALJ found that Plaintiff “acquired work skills from past
relevant work.” Tr. 28. The ALJ relied on vocational expert (“VE”) testimony about Plaintiff’s
previous work as an administrative clerk, which “included transferable skills.” Id. The ALJ then
found that “there were jobs that existed in significant numbers in the national economy that
[Plaintiff] could have performed.” Id. These jobs included appointment clerk, receptionist, and
data entry clerk. Tr. 29. ALJ Murgo noted that “[s]uch work required very little vocational
adjustment in terms of tools, work processes, work settings or the industry.” Id. Accordingly, the
ALJ found Plaintiff to be non-disabled prior to January 12, 2012. Id.
Plaintiff’s sole argument rests on whether the ALJ made sufficient findings regarding
Plaintiff’s transferable skills. Even when an ALJ relies on the testimony of a vocational expert,
the ALJ must still make specific findings that the plaintiff has transferable skills. Bray v. Comm'r
of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Although the ALJ made an explicit
finding that Plaintiff had transferable work skills, based on the testimony of two VEs, Plaintiff
argues that the ALJ erred by not listing the specific skills. Indeed, SSR 82-41 requires that
“[w]hen a finding is made that a claimant has transferable skills, the acquired work skills must be
identified, and specific occupations to which the acquired work skills are transferable must be

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cited in the… ALJ’s decision.” SSR 82-41, 1982 WL 31389. Defendant argues that Plaintiff
forfeited this argument by failing to take issue with the VE testimony regarding Plaintiff’s
transferable skills during the administrative proceedings.
Claimants who dispute the factual basis of a vocational expert’s testimony must raise this
challenge in the administrative proceedings. Shaibi v. Berryhill, F.3d 1102, 1103 (9th Cir. 2017).
During the administrative hearing in Shaibi, the VE gave three representative occupations. Id. at
1104. The VE testified that those occupations existed in significant numbers in both the regional
and national economies, giving numbers for each. Id. “Although [Shaibi’s attorney] crossexamined the VE briefly, he did not suggest the VE’s job estimates were inaccurate, nor did he
inquire as to the evidentiary basis for those job numbers.” Id. Shaibi was found to be nondisabled and appealed the decision in the District Court. There, for the first time, Shaibi argued
that the ALJ erred in crediting the VE’s testimony regarding the number of existing jobs in the
national economy, citing discrepancies between the VE testimony and job estimates published by
the U.S. Census Bureau and the Bureau of Labor Statistics. Id. at 1105. The Ninth Circuit held
that Shaibi had forfeited his challenge to the VE’s job numbers because he had failed to raise the
issue during the administrative hearing. Id. at 1108-09. “‘[A]t least when claimants are
represented by counsel, they must raise all issues and evidence at their administrative hearings in
order to preserve them on appeal.’” Id. at 1109 (quoting Meanel v. Apfel, 172 F.3d 1111 (9th Cir.
1999)).
Plaintiff argues that the recent Ninth Circuit decision in Maxwell v. Saul overrules Shaibi.
Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020). The issue in Maxwell was whether two
occupations constituted a significant range of work. Id. at 1129. The vocational expert testified

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that Maxwell’s skills were transferable to only two occupations; as a sales representative for
commercial equipment and as a sales person for burial needs. Id. The ALJ found that this
represented a “significant range of work.” Id. On appeal, Maxwell argued that two occupations
were not sufficient to satisfy the “significant range of work” requirement. Id. The Ninth Circuit
held that Maxwell had not forfeited the issue, reasoning that to find otherwise would be
“task[ing] claimants with objecting to the ALJ’s decision before it is written.” Id. at 1130.
Maxwell does not apply here. In Maxwell, the plaintiff objected to the ALJ’s finding, but
did not dispute the underlying factual basis for the conclusion. Here, as in Shaibi, Plaintiff
objects to the facts underlying the ALJ’s finding.
ALJ Murgo took testimony from two vocational experts, at hearings on October 24, 2012
and December 4, 2017. Tr. 2174-87, 2221-26. At each hearing, counsel for Plaintiff was present
and had the opportunity to cross-examine the VE. Id. At the October 24, 2012 hearing, Plaintiff’s
counsel questioned the VE regarding the details of Plaintiff’s past work experience as well as the
requirements for computer use and acuity in hypothetical jobs. Tr. 2179, 2184-87. Counsel did
not, however, take issue with the VE’s testimony that “[t]here would be transferable skills to
sedentary.” Tr. 2181. Counsel was also given the opportunity to cross-examine the VE at the
December 4, 2017 supplemental hearing and had “[n]o questions for the vocational expert.” Tr.
2226. If Plaintiff believed that the VE’s testimony regarding transferable skills was wrong,
counsel should have raised the issue during the administrative proceedings. By failing to do so,
Plaintiff forfeited it on appeal. Cf. Shaibi, 883 F.3d at 1110 (“Shaibi did not even obliquely
suggest that the VE’s job estimates might be unreliable at any point during the administrative
proceedings. His claim is therefore forfeited.”).

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Even if Plaintiff had not forfeited the argument, the ALJ made an explicit finding that
Plaintiff had transferable skills, as required by Bray. This finding was supported by substantial
evidence. The VE looked at Plaintiff’s past work as an administrative clerk and testified that
“[t]here would be transferable skills to sedentary” work. Tr. 2180-81. The VE also testified that
there would not have been any vocational adjustment required for a receptionist, one of the
representative occupations. Tr. 2183-84. SSR 82-41 also supports the finding that Plaintiff had
transferable skills. SSR 82-41 specifically references the clerical skills of an administrative clerk
that “may be readily transferable to such semiskilled sedentary occupations as typist, clerk-typist
and insurance-auditing control clerk.” SSR 82-41 further notes that job skills in clerical and
administrative types of jobs “have universal applicability across industry lines.” To the extent the
ALJ erred by failing to explicitly list transferable skills, such error was harmless.
CONCLUSION
For these reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.

DATED this 15th day of February 2021.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

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