Opinion
3:20-cv-01825-HL
01-20-2022
LAURANNA H., [1] Plaintiff, v. COMISSIONER, SOCIAL SECURITY ADMINSTRATION, Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN UNITED STATES MAGISTRATE JUDGE
Plaintiff Lauranna H. brings this action under the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”). The Commissioner denied Plaintiff's application for Disability Insurance Benefits (“DIB”) and Social Security Income (“SSI”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, this case should be REVERSED and REMANDED for additional proceedings to determine whether Plaintiff's past work constituted substantial gainful activity (“SGA”).
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: “The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I. Plaintiff's Application
Plaintiff alleges disability based on back pain, sleep disorder, hypersomnia, knee replacement, arthritis, and bone spurs. Tr. 253. At the time of her date last insured (“DLI”), she was 60 years old. Tr. 29. She has a high school education, is able to communicate in English, and has past relevant work experience as a home health attendant. Id.
Citations to “Tr.” are to the Administrative Record. (ECF 9).
Plaintiff protectively applied for DIB on March 12, 2018, alleging disability beginning on January 9, 2018. Tr. 15. The claim was denied initially on November 19, 2018, and upon reconsideration on February 26, 2019. Tr. 15. A hearing was held before Administrative Law Judge (“ALJ”) Elizabeth Watson on March 17, 2020. Tr. 36-67. Plaintiff appeared and testified at the hearing, represented by counsel; a vocational expert (“VE”), Marilyn Thomas, also testified. Tr. 15, 55. At the hearing, Plaintiff amended her alleged onset date to March 24, 2018. Tr. 15. On April 16, 2020, the ALJ denied Plaintiff's claim. Tr. 30. Plaintiff requested review from the Appeals Council who denied the request for review on August 18, 2020. Tr. 1. Plaintiff then sought review before this Court.
II. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant 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)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141. At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
III.The ALJ's Decision
At step one, the ALJ determined that Plaintiff had not engaged in SGA after her alleged onset date of March 24, 2018, through the date last insured of December 31, 2019. Tr. 18.
At step two, the ALJ found that Plaintiff suffered from the following severe impairments: “history of carpal tunnel syndrome, status/post release; diabetes mellitus; obstructive sleep apnea; obesity; degenerative joint disease left hip, status/post total hip arthroplasty; mild degenerative joint disease right hip; mild cervical and lumbar degenerative disc disease; and degenerative joint disease left knee, status/post total knee arthroplasty.” Id.
At step three, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 20. The ALJ then assessed Plaintiff's residual functional capacity (“RFC”), finding that Plaintiff:
had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: she could occasionally lift/carry 20 pounds, and frequently lift/carry 10 pounds; she could stand/walk for six hours total in an eight hour workday; she could sit for six hours in an eight-hour workday; she could occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl; she could never climb ladders/ropes/scaffolds; and, she should have avoided concentrated exposure to vibration and hazards.Tr. 23.
At step four, the ALJ found that Plaintiff could perform her past relevant work as a Cashier II. Tr. 28. The ALJ also found that at step five-considering Plaintiff's age, education, work experience, and RFC-a significant number of jobs existed in the national economy that Plaintiff could perform, including work as a “Home Health Care Attendant/Companion.” Tr. 28-29. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 29-30.
DISCUSSION
Plaintiff contends that the ALJ committed two errors: First, at step four, the ALJ improperly found that her work as a Cashier II rose to the level of past relevant work because that prior work did not constitute SGA. Pl. Opening Br. 4-6, ECF 10. Second, at step five, the ALJ erred in finding that she was disabled because the ALJ only found that Plaintiff's skills were readily transferable to one occupation. Id. at 6-8. Plaintiff's arguments are well-taken, and this case should be remanded on both grounds. Contrary to Plaintiff's assertions, however, this case should be remanded for additional proceedings rather than for a payment of benefits.
I.Step Four Finding - Plaintiff's Past Relevant Work
A. Applicable Law
Past relevant work is work that was “done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity.” 20 C.F.R. § 416.965(a); see Soc. Sec. Reg. (“SSR”) 82-62, 1982 WL 31386, *2 (1982) (explaining that the three requirements for past relevant work include recency, duration, and SGA). “Substantial gainful activity is work done for pay or profit that involves significant mental or physical activities.” Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1571-72 & 416.971-75). A minimum level of earnings is a presumptive, although not conclusive, sign that a position was SGA. Id. Conversely, if a claimant's earnings fell below the minimum level of earnings, the burden shifts to the Commissioner to identify substantial evidence that the claimant engaged in SGA. See Lewis, 236 F.3d at 515 (“The presumption that arises from low earnings shifts the step-four burden of proof from the claimant to the Commissioner . . . [to] point[ ] to substantial evidence, aside from earnings, that the claimant has engaged in substantial gainful activity.”); see, e.g., Huskins v. Colvin, No. 3:15-CV-02186-SI, 2017 WL 90372, at *7 (D. Or. Jan. 10, 2017). In this analysis, “the ALJ must consider five factors: the nature of the work, how the claimant performs the work, if the work is done under special conditions, if the claimant is self-employed, and the time spent in work.” Huskins, 2017 WL 90372, at *7 (citing 20 C.F.R. §§ 404.1573, 416.973).
B. Analysis
Plaintiff testified that she worked as a Walmart cashier in Nebraska for 15 months from March 2011 through June 2012. Tr. 45-46. Plaintiff testified that she then moved to Oregon in June 2012, and she continued working as a cashier at another Walmart store from June 2012 through November 2012. Tr. 46-47. She testified that she worked on average between 18 to 25 hours per week and was paid between $10-$11 per hour. Tr. 46. The VE testified that this job constituted Plaintiff's past relevant work and that someone with Plaintiff's RFC could perform this job. Tr. 55-57.
The ALJ found that Plaintiff's past work as a Cashier II “meets the requirements of past relevant work because: it was performed within the last 15 years; it was performed long enough to meet the duration requirement; and, [Plaintiff's] earnings met the substantial gainful activity requirements.” Tr. 28. The ALJ did not explain how Plaintiff's earnings met the SGA requirements, even though Plaintiff's counsel raised this issue at the hearing. Tr. 42 (“I did want to point out that [Plaintiff's past work as a cashier] might not be SGA. In her work history report at 7E she suggests that she worked this job for about ten months in 2011, which would average out to not being SGA. Only $940 per month, performed at longer in 2012 with even less earnings.”).
On review, Plaintiff argues that the ALJ improperly found that Plaintiff's work as a Cashier II rose to the level of past relevant work. Pl. Opening Br. 4-6. Plaintiff concedes that the Cashier II position meets the recency and durational requirements: the job was performed within the last 15 years and for a long enough period to learn the job. Id. Plaintiff asserts, however, that the work did not meet the third requirement, and did not constitute SGA, because her income levels were below the minimum level of earnings. Id. In response, the Commissioner acknowledges that Plaintiff's income was below the minimum level of earnings but argues that “Plaintiff's actual earnings are not dispositive.” Def. Br. 4, ECF 11. The Commissioner encourages this Court to evaluate the record as a whole to determine that substantial evidence supports the ALJ's findings and attempts to supply the reasoning that is missing from the ALJ's findings. Def. Br. 3-4.
The ALJ's finding that Plaintiff's past work constituted SGA was not supported by substantial evidence. It is undisputed that Plaintiff's income fell below the minimum level for the presumption to apply. Although this issue is not dispositive, the ALJ was required to point to substantial evidence, aside from Plaintiff's earnings, to conclude that Plaintiff's past work constituted SGA. See Treichler v. Com'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“[T]he ALJ must provide some reasoning in order for us to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.”). The ALJ did not do so here. See Tr. 28 (concluding that Plaintiff's job as a Cashier II met the SGA requirement for past relevant work because “[Plaintiff's] earnings met the substantial gainful activity requirements”) (emphasis added).
On review, the Commissioner asserts that, when applying the Social Security Regulations to the record in this case, it is apparent that Plaintiff's past work as a Cashier II was substantial gainful activity because of the nature of the work and the amount of time Plaintiff was employed. Def. Br. 4-5. This Court cannot rely on the Commissioner's post hoc reasoning to support the ALJ's opinion. See Sunwall v. Colvin, 158 F.Supp.3d 1077, 1081 (D. Or. 2016) (citing Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir.2014) (“The Commissioner attempts to supply the reasoning that is missing from the ALJ's findings. . . . But on judicial review, this court is limited to the reasons asserted by the ALJ.”)). On this record, the ALJ's finding that Plaintiff's past work constituted SGA was not supported by substantial evidence.
II.Step Five - Transferable Skills Finding
“If a claimant is able to do other work [at step five], then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Commissioner may meet the burden of showing that there is other work in “significant numbers” in the national economy that the claimant can do in two ways: “(1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Id.
Here, the VE testified that Plaintiff's skills were transferable only to one occupation: the position of the home health care companion. Tr. 59. The ALJ relied on that testimony to conclude that “representative occupations such an individual [with the same age, education, past relevant work experience, and RFC as Plaintiff] could have performed include: Home Health Care Attendant/Companion (DOT 309.677-014, light, SVP 3, semiskilled)” and that there were “approximately 744, 000 jobs in the national economy.” Tr. 29, 58-60. As a result, using the Medical-Vocational Guidelines as a framework, the ALJ concluded that Plaintiff was not disabled under Medical Vocational Rule (“Rule”) 202.07.2. Tr. 29.
The parties agree that the ALJ's findings were in error. Pl. Opening Br. 6-8; Def. Br. 5-6. As noted by the Commissioner, “[t]he Ninth Circuit held that in cases governed by Rule 202.07 of the Medical-Vocational Guidelines, a claimant can only be found not disabled if her skills are readily transferable to a ‘significant range' of semiskilled or skilled work; and ‘[o]ne occupation does not constitute a significant range of work.'” Def. Br. 6 (citing Lounsburry v. Barnhart, 468 F.3d 1111, 1116-17 (9th Cir. 2006)). The parties agree that because the ALJ only found that Plaintiff's skills were readily transferable to one occupation, the ALJ erred in concluding that she was not disabled under Rule 202.07. This Court should accept the parties' concession and conclude that the ALJ's step five analysis was in error.
III.Remand for Additional Evidence
Within the Court's discretion under 42 U.S.C. § 405(g) is the “decision whether to remand for further proceedings or for an award of benefits.” Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to the agency for additional investigation or explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Id. at 1100. In conducting this analysis, the Court “cannot substitute [its] conclusions for the ALJ's, or speculate as to the grounds for the ALJ's conclusions.” Id. at 1100-01.
Here, Plaintiff asks this Court to remand for payment of benefits. With respect to the step four analysis, she argues that further development of the record is unnecessary based on her assertion that her past work as a Cashier II “was not performed at SGA levels.” Pl. Opening Br. 8-9. With respect to the step five analysis, she argues that the VE has already testified that no other past relevant work could be performed, compelling a conclusion that she is disabled under Rule 202.07. The Commissioner disagrees, at least with respect to the step four analysis, and notes that the presumptive amounts for SGA are not dispositive. Def. Br. 7. The Commissioner also points to additional evidence in the record that could have been used to overcome the presumption that Plaintiff's past work rose to the level of SGA. Id. at 7 n. 1 (noting additional earnings in 2012); id. at 7-8 (noting prior employment as an apartment manager). Accordingly, the Commissioner asks this Court to remand for further proceedings as to the step four analysis.
The Commissioner does not argue, and this Court can see no basis, to remand for further proceeding as to the step five analysis. Thus, if on remand the ALJ concludes that Plaintiff's past work did not constitute SGA, then Plaintiff would be entitled to benefits.
This case should be remanded for additional proceedings to determine whether Plaintiff's past work constituted SGA. The ALJ's error in this case was one of omission: As discussed above, she failed to analyze whether Plaintiff's past relevant work was SGA under the correct legal standard. Not only will the ALJ need to analyze Plaintiff's past relevant work under the correct standard, but there also may be a need for further factual development regarding Plaintiff's past work. This Court cannot speculate what the ALJ's decision would be on remand, and it cannot substitute its own conclusions for the ALJ's. See Treichler, 775 F.3d at 1100. To be sure, the ALJ should have addressed the SGA issue in the prior proceeding, particularly given that the issue was specifically identified by Plaintiff. But a “claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138-39 (9th Cir. 2011). This case should therefore be remanded for additional proceedings to determine whether Plaintiffs past work was SGA and constituted past relevant work.
RECOMMENDATION
This case should be REVERSED and REMANDED for further proceedings.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED