Williams v. Commissioner Social Security Administration
Filing
15
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 10/3/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARSHA W.,1
Plaintiff,
6:17-cv-02012-BR
OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
ROBYN M. REBERS
P.O. Box 3530
Wilsonville, OR 97070
(503) 871-8890
Attorney for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental family
members named in this case.
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
MICHAEL W. PILE
Acting Regional Chief Counsel
LEISA A. WOLF
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 M/S 221A
Seattle, WA 98104-7075
(206) 615-3621
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Marsha W. seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.
For the reasons that follow, the Court REVERSES the
Commissioner's decision and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for the immediate calculation
and award of benefits.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed applications for DIB and SSI on December 2,
2013, alleging a disability onset date of April 13, 2011.
Tr. 231, 234.2
The applications were denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on May 20, 2016.
Tr. 43-88.
was represented by an attorney.
At the hearing Plaintiff
Plaintiff and a vocational
expert (VE) testified at the hearing.
The ALJ issued a decision on September 30, 2016, in which
she found Plaintiff is not disabled and, therefore, is not
entitled to benefits.
Tr. 18-37.
Pursuant to 20 C.F.R.
§ 404.984(d) that decision became the final decision of the
Commissioner on November 30, 2017, when the Appeals Council
denied Plaintiff's request for review.
Tr. 1-6.
See Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
BACKGROUND
Plaintiff was born on November 17, 1959.
Tr. 231.
Plaintiff was 56 years old at the time of the hearing.
graduated from high school and has some college.
Plaintiff
Tr. 49.
Plaintiff has past relevant work experience as a grocery-store
department manager and a customer-service representative.
2
Citations to the official transcript of record filed by
the Commissioner on May 3, 2018, are referred to as "Tr."
3 - OPINION AND ORDER
Tr. 35.
Plaintiff alleges disability due to fibromyalgia, knee
arthritis, obesity, depression, headaches, cervical and lumbar
degenerative disc disease, and asthma.
Tr. 31.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 21-28.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
4 - OPINION AND ORDER
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).
"It is more than a mere scintilla [of
evidence] but less than a preponderance."
Id. (citing Valentine,
574 F.3d at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
5 - OPINION AND ORDER
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
See
also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648
F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
6 - OPINION AND ORDER
regular and continuing basis despite her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
20 C.F.R.
SSR 96-8p,
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).
The Commissioner may satisfy this burden through the
testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
7 - OPINION AND ORDER
20 C.F.R. §§ 404.1520(g)(1),
416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since her April 13, 2011, alleged
onset date.
Tr. 21.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease of her cervical spine
and lumbar spine, degenerative joint disease of the knee and
shoulder, “a history of adhesive capsulitis and bursitis in the
shoulder,” sleep apnea, fibromyalgia, and morbid obesity.
Tr. 21.
The ALJ found Plaintiff’s impairments of asthma and
depression are not severe.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 29.
The ALJ found Plaintiff has the RFC to perform light
work except Plaintiff “can only stand and/or walk for four hours
in an eight-hour workday”; can occasionally reach overhead,
balance, stoop, kneel, crouch, crawl, and climb; and must avoid
concentrated exposure to extreme cold, vibrations, moving
machinery, and unprotected heights.
Tr. 30.
At Step Four the ALJ concluded Plaintiff cannot perform her
past relevant work.
Tr. 35.
8 - OPINION AND ORDER
At Step Five the ALJ found Plaintiff can perform the job of
laundromat manager that exists in significant numbers in the
national economy.
Tr. 36.
Accordingly, the ALJ found Plaintiff
is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) partially
rejected Plaintiff’s testimony; (2) gave “minimal weight” to the
opinion of examining psychologist Peter LeBray, Ph.D.; (3) did
not include all of Plaintiff’s functional limitations in the
ALJ’s assessment of Plaintiff’s RFC; and (4) found at Step Five
that Plaintiff can perform jobs that exist in significant numbers
in the national economy.
I.
The ALJ erred at Step Five.
The ALJ found at Step Five that Plaintiff can perform the
job of laundromat manager.
The Commissioner has the burden at Step Five to demonstrate
that the claimant can perform work that exists in “significant
numbers” in the national economy by taking into account the
claimant's RFC, age, education, and work experience.
§ 404.1560(b)(3), 42 U.S.C. § 423(d)(2)(A).
20 C.F.R.
The Commissioner may
satisfy this burden by obtaining testimony from a VE or by
reference to the Medical–Vocational Guidelines at 20 C.F.R. Part
404, Subpart P, Appendix 2 (commonly known as “the Grids”).
9 - OPINION AND ORDER
An ALJ may rely on the Grids rather than seek VE testimony
only when the Grids “completely and accurately represent a
claimant's limitations.”
(9th Cir. 1999).
Tackett v. Apfel, 180 F.3d 1094, 1101
The Grids “completely and accurately” represent
a claimant's limitations only when the claimant retains the
ability to perform “the full range of jobs in a given
[exertional] category, i.e., sedentary work, light work, or
medium work.”
Id.
When the Grids do not completely and accurately represent a
claimant’s limitations, the ALJ must call on a VE.
The ALJ then
has an affirmative duty to determine whether the VE's testimony
diverges from the DOT.
(9th Cir. 2007).
Massachi v. Astrue, 486 F.3d 1149, 1153
When the VE’s testimony diverges from the DOT,
the ALJ must ask the VE for an explanation of the apparent
conflict.
Id.
“To deviate from the DOT classification, an ALJ
‘may rely on expert testimony which contradicts the DOT, but only
insofar as the record contains persuasive evidence to support the
deviation.’”
Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir.
2008)(quoting Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir.
1995)).
Here the ALJ took VE testimony and also applied the Grids.
Plaintiff, however, contends the ALJ misapplied the rules of the
Grids.
Specifically, Plaintiff asserts the ALJ misapplied Rule
202.07 of the Medical-Vocational Rules at 20 C.F.R. Part 404,
10- OPINION AND ORDER
Subpart P, Appendix 2, by failing to consider the effect of Rule
202.00(c), which, according to Plaintiff, directs a finding of
disability as of Plaintiff’s 55th birthday.
Plaintiff concedes Rule 202.07 “generally directs a finding
of not disabled” when, as here, a claimant is of advanced age
(over 55 years old), is a high-school graduate, has transferrable
skills, and is limited to sedentary work.
Plaintiff, however,
notes Rule 202.00(c) qualifies Rule 202.07 as follows:
[F]or individuals of advanced age who can no
longer perform vocationally relevant past work and
. . . who have only skills that are not readily
transferable to a significant range of
semi-skilled or skilled work that is within the
individual's functional capacity, or who have no
work experience, the limitations in vocational
adaptability represented by functional restriction
to light work warrant a finding of disabled.
Emphasis added.
At the hearing the VE testified Plaintiff had skills that
were transferrable to one job:
laundromat manager.
Tr. 85.
Plaintiff asserts a finding of disabled is directed by Rule
202.00(c) because a single occupation is not a “significant range
of . . . work.”
Plaintiff relies on Lounsburry v. Barnart, 468
F.3d 1111 (9th Cir. 2006), to support her position.
In Lounsburry the plaintiff applied for DIB.
At the hearing
before the ALJ the VE testified the plaintiff had skills that
transferred to one job with 65,855 positions nationally.
F.3d at 1113.
468
On that basis the ALJ found the plaintiff was not
11- OPINION AND ORDER
disabled.
The plaintiff appealed on the ground that the ALJ
erred when he failed to consider the effect of Rule 202.00(c).
The trial court affirmed the Commissioner, and the plaintiff
appealed to the Ninth Circuit.
The Ninth Circuit noted Rule
202.07 applied to the plaintiff’s case, but concluded “the ALJ
misapplied Rule 202.07 by failing to consider fully the effect of
Rule 202.00(c).”
Id. at 1116.
The Ninth Circuit explained:
Footnote (2) to Rule 202.07 explicitly
incorporates language from Rule 202.00(c) that
expands the circumstances under which claimants
with transferable skills can be found disabled
. . . . Under Rule 202.00(c), although [the
plaintiff] has some transferable skills, she will
be disabled if those skills “are not readily
transferable to a significant range of
semi-skilled or skilled work.”
Id. at 1116-17 (quoting rule 202.00(c)).
The Ninth Circuit,
therefore, addressed “the meaning of the phrase ‘significant
range of work’” in Rule 202.00(c).
The court rejected the
Commissioner’s assertion that “the term ‘work’ refers to
individual jobs, and the phrase ‘significant range’ only requires
[the plaintiff] to adjust to other work existing in significant
numbers in the national economy” in as few as one occupation.
Id. at 1117.
The Ninth Circuit explained:
[T]he term “work” under Rule 202.00(c) means
distinct occupations, and “significant numbers” is
no substitute for and cannot satisfy the plain
language of Rule 202.00(c) requiring a
“significant range of . . . work.”
Id. (emphasis in original).
12- OPINION AND ORDER
The court, therefore, construed “the
phrase ‘significant range of . . . work’ in Rule 202.00(c) to
require a significant number of occupations.”
added).
Id. (emphasis
The Ninth Circuit concluded Rule 202.00(c) directed a
finding of disabled for the plaintiff because the record
established the plaintiff’s “skills would transfer to precisely
one occupation at her [RFC].”
Id.
Accordingly, the Ninth
Circuit reversed the trial court, found the plaintiff to be
disabled, and remanded the matter to the Commissioner for the
immediate payment of benefits.
Here, as in Lounsberry, the VE found Plaintiff’s skills
transferred to only one job:
laundromat manager.
As the Ninth
Circuit noted, a single occupation is not “a range of work” as
required by Rule 202.00(c).
The Court, therefore, concludes Rule
202.00(c) directs a finding that Plaintiff is disabled.
Accordingly, on this record the Court concludes the ALJ
erred at Step Five when she found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
II.
The Court remands this matter for the immediate calculation
and award of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
When "the record has been fully developed
and further administrative proceedings would serve no useful
13- OPINION AND ORDER
purpose, the district court should remand for an immediate award
of benefits."
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.
Harman, 211 F.3d 1178.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
Harman, 211 F.3d at 1178.
The
Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
The Court has determined the ALJ erred at Step Five when she
14- OPINION AND ORDER
found Plaintiff can perform jobs that exist in significant
numbers in the national economy.
At the hearing the VE stated
the only light job that satisfied the requirements of the
hypothetical posed by the ALJ was that of a laundromat manager.
Thus, there are not any outstanding issues that must be
resolved before a determination of disability can be made.
The
Court, therefore, concludes this matter should not be remanded
for further proceedings.
(9th Cir. 2000).
See Schneider v. Comm’r, 223 F.3d 968
See also Reddick, 157 F.3d at 729 ("We do not
remand this case for further proceedings because it is clear from
the administrative record that Claimant is entitled to
benefits."); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.
1989)(if remand for further proceedings would only delay the
receipt of benefits, judgment for the claimant is appropriate).
Accordingly, the Court remands this matter for the immediate
calculation and award of benefits to Plaintiff.3
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
3
Because the Court has determined this matter should be
remanded for the immediate calculation and award of benefits due
to the Commissioner’s error at Step Five, the Court does not
address the ALJ’s other alleged errors.
15- OPINION AND ORDER
42 U.S.C. § 405(g) for the immediate calculation and award of
benefits.
IT IS SO ORDERED.
DATED this 3rd day of October, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
16- 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?