Fischer v. Commissioner Social Security Administration

Filing 25

OPINION AND ORDER: The Commissioner's decision is reversed and remanded for an immediate award of benefits. Signed on 9/13/2016 by Judge Ann L. Aiken. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
RICHARD WILLIAM FISCHER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Nancy J. Meserow
7540 S.W. 5lst Avenue
Portland, Oregon 97219
Attorney for plaintiff
Janice E. Hebert
Assistant United States Attorney
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
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Case No. 6:15-cv-00707-AA
OPINION AND ORDER

Martha A. Boden
Special Assistant United States Attorney
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, Washington 98104
Attorneys for defendant
AIKEN, Judge:
Plaintiff Richard William Fischer brings this action pursuant to the Social Security Act
("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of
Social Security ("Commissioner"). The Commissioner denied plaintiffs application for disability
insurance benefits. For the reasons set forth below, the Commissioner's decision is reversed and
remanded for an immediate award of benefits.

BACKGROUND
Born August 18, 1951, plaintiff was sixty years old on the alleged disability onset date and
sixty-one on the date of his disability hearing. Tr. 44. He completed high school, where he was
enrolled mostly in special education courses.

Tr. 44.

He has past relevant work as a

laborer/equipment operator in the construction industry, as a janitor, and as a school bus driver. Tr.
189. He obtained his jobs through connections to family and friends. See Tr. 59 (obtained
janitor/bus driver job through a friend); Tr. 73 (brother was supervisor in construction industry).
Plaintiff testified that because of these connections, he was given special accommodations that
permitted him to do work he otherwise could not have done. Tr. 73. Letters from his brother and
a former supervisor corroborate this testimony. See Tr. 243 (brother stating that because he was the
project superintendent, he was able to hire plaintiff"for various jobs over the span of approximately
10 years, in spite of the fact that he has serious limitations that I had to accommodate."); Tr. 244
(custodial supervisor at school describing special accommodations related to janitorial and bus
driving work). Plaintiff asserts that when he tells employers about his limitations, "they are not
interested" in hiring him. Tr. 57.
There is substantial ambiguity in the record concerning the precise diagnosis and extent of
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plaintiffs cognitive impairments. However, it is well-documented that plaintiffs ability to read or
write is severely limited. See Tr. 45 (plaintiff testifying that he cannot read or write); Tr. 62
(coworkers or supervisors complete any paperwork and time cards for him); Tr. 65 (plaintiff cannot
read street signs and navigates "by the shapes"); Tr. 211 (plaintiffs wife explaining she filled out
all forms as plaintiff dictated); Tr. 216 (plaintiff pays bills in cash because he cannot write a check);
Tr. 243 (letter from plaintiffs brother explaining plaintiff cannot read or write and that he could not
do any jobs requiring reading installation or assembly instructions); Tr. 244 (letter from custodial
supervisor explaining plaintiff could not mix chemicals because he could not safely follow dilution
instructions and had to paint lines on the street to mark bus stops because he could not read street
signs); Tr. 268 (records from Office of Vocational Rehabilitation Services ("OVRS") stating, in
2012, that plaintiff"cannot read and functions cognitively in the retarded range"); Tr. 269 (OVRS
evaluation specialist opining that based on" 18 years and hundreds of assessments," plaintiffs 1994
evaluation shows he is dyslexic and unable to read).
Plaintiff filed his application for disability benefits November 4, 2011. Tr. 159. He initially
claimed disability beginning January 1, 1997, Tr. 85, but he later amended the disability onset date
to October 7, 2011, the day after he stopped working with his brother, Tr. 42. He alleged he was
unable to work due to dyslexia and lower back pain. Tr. 85. His application was denied initially and
upon reconsideration. Tr. 93, 102. On July 15, 2013, plaintiff was represented by counsel at a
hearing before an administrative law judge ("ALJ"). Tr. 37. The ALJ concluded plaintiff was not
disabled. Tr. 32. The Appeals Council denied review, and plaintiff filed a complaint in this Court.
Tr. 1.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper legal
standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
Berry v. Astrue, 622 F .3d 1228, 1231 (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
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as adequate to support a conclusion." Gutierrez v. Comm 'r ofSoc. Sec., 740 F .3d 519, 522 (9th Cir.
2014) (internal quotation marks omitted). The court must weigh "both the evidence that supports
and the evidence that detracts from the ALJ's" decision. Mayes v. Massanari, 276 F.3d 453, 459
(9th Cir. 2001 ).

If the evidence is susceptible to more than one interpretation but the

Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may
not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152,
1156 (9th Cir. 2001).

COMMISSIONER'S DECISION
The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected . . . to last for a continuous period of not less than 12
months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502(a)(4). At
step one, the ALJ found plaintiff had not engaged in any substantial gainful activity since the alleged
onset date. Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(i), (b). At step two, the ALJ found plaintiff suffers
from a single severe impairment: cervicalgia/history of compression fracture at Ll with mild to
moderate degenerative changes.

Tr. 19; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c).

The ALJ

acknowledged evidence of dyslexia and cognitive impairments (mental retardation) but found neither
impairment to be medically determinable. Tr. 20. At step three, the ALJ determined plaintiffs
impairment did not meet or equal a listed impairment under the regulations such that plaintiff should
be deemed presumptively disabled. Tr. 20; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d).
The ALJ found plaintiff retained the residual functional capacity ("RFC")
to perform less than the full range of medium work as defined in 20 C[.]F[.]R[. §]
404.1567(c). The claimant can perform jobs that do not require complex written or
verbal communication and jobs that involve instruction by demonstration. The
claimant can perform jobs where the assigned work is limited to one-step or two-step
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tasks, as the claimant is able to understand and carry out simple instructions. In
addition, the claimant can perform jobs that involve no production rate or pace work.
Tr. 22; 20 C.F.R. § 404.1520(e). At step four, the ALJ concluded plaintiff could perform his past
relevant work as a bus driver or a janitor. Tr. 30, 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five,
the ALJ found plaintiff could perform a number of jobs existing in significant numbers in the
national economy, including dining room attendant, porter, and bagger. Tr. 31, 20 C.F.R. §§
404.1520(a)( 4 )(v), (g). The ALJ found plaintiff not disabled and denied his application for benefits.
Tr. 32.

DISCUSSION
The scope of this appeal is narrow. Plaintiff neither challenges the ALJ's analysis of the
medical records related to his back pain nor asserts that the RFC fails to account for his exertional
limitations. 1 Accordingly, this Court will not disturb the ALJ's opinion to the extent it addresses
plaintiffs physical impairments.

With respect to the ALJ's evaluation of plaintiffs mental

impairments and limitations, the Commissioner concedes error. Def. 's Br. & Mot. Remand 2. The
only question is whether remand should be for further proceedings or for an immediate award of
benefits.
District courts have discretion to decide whether to remand for further proceedings or for an
awardofbenefits. 42 U.S.C. § 405(g); Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001).
The issue turns on the utility of further proceedings. Treichler v. Comm 'r ofSoc. Sec. Admin., 775
F.3d 1090, 1099-1100 (9th Cir. 2014). Remand for an award of benefits is appropriate when "no
useful purpose would be served by further administrative proceedings and the record has been
thoroughly developed. Id. (quoting Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012)).

1

Plaintiff does challenge the ALJ's decision to discredit his testimony about the extent of
his physical impairments on the basis of inconsistency between his testimony about his physical
pain and his testimony about activities of daily living. See Pl. 's Opening Br. 33-34. However,
plaintiff did not explain how correcting this alleged error would change the formulation of the
RFC or otherwise affect the ultimate disability determination. Accordingly, plaintiff has failed to
carry his burden to show that the purported error was harmful. Molina v. As true, 674 F .3d 1104,
1111 (9th Cir. 2012).
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Further proceedings would serve no useful purpose here because the record unambiguously
shows plaintiff is disabled under the Social Security grids. Specifically, Social Security grid rule
203.01 compels a finding of disability when the claimant (1) is limited to medium work; (2) is "a
person closely approaching retirement age"; (3) has an education level of "marginal or none"; and
(4) has no work history or an unskilled work history. 20 C.F.R. subpt. P, app. 2 table 3, rule 203.01
("grid rule 203.01 "). The record leaves no doubt that plaintiff meets all four of these requirements.
The ALJ limited plaintiff to medium work. Tr. 22. Because he was sixty years old on the
alleged disability onset date, plaintiff is a person "closely approaching retirement age." 20 C.F.R.

§ 404.1563(e). Accordingly, grid rule 203.01 directs a finding of disability if plaintiffs education
level is "marginal or none" and his previous work experience is "unskilled or none."
Despite plaintiffs high school diploma, his education level qualifies as "marginal or none."
Table 3, which applies when there is a restriction to medium work, does not expressly address
illiteracy. However, elsewhere the grids categorize illiteracy as the lowest level of education. See,

e.g., 20 C.F.R. subp. P, app. 2 table 2 (lowest category is "illiterate or unable communicate in
English," followed by "at least literate and able to communicate in English"). The Social Security
regulations define illiteracy as "the inability to read or write." 20 C.F.R. § 416.964(b)(l).
It is evident from the record that plaintiff is illiterate. Plaintiffs own testimony, a note from
his wife, letters from his brother and a former supervisor, and evaluations from literacy professionals
spanning nearly two decades all support this conclusion. Accordingly, plaintiffs education is "none
or marginal."
Finally, plaintiffs work experience qualifies as unskilled. At the hearing, the vocational
expert ("VE") testified that plaintiffs prior work as a construction laborer, janitor, and custodian was
unskilled. Tr. 76. The VE testified that work as a bus driver ordinarily is semi-skilled, but noted
that plaintiff received assistance to do the job and stated that plaintiff had no transferable skills. Tr.
76, 81. "All grid rules are to be interpreted as treating skilled or semi-skilled work history with no
transferable skills as equivalent to an unskilled work history." Silveira v. Apfel, 204 F .3d 1257, 1261
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(9th Cir. 2000). Plaintiff thus has an unskilled work history, and is disabled under the grids.
Because grid rule 203.01 directs a finding of disability, further proceedings would serve no
useful purpose. The Commissioner is correct there are ambiguities in the record, but those
ambiguities do not relate to plaintiffs age, exertional limitations, work history, or illiteracy.
Accordingly, the resolution of those ambiguities would not change the fact that plaintiff is disabled
pursuant to the grids.
CONCLUSION
The Commissioner's decision is REVERSED AND REMANDED for an immediate award
of benefits.
IT IS SO O~~D.,,
Dated this ~Yy'c;fseptember 2016.

Uu£14_J

Ann Aiken
United States District Judge

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