Opinion
No. C 01-01394 CRB
August 2, 2002
ORDER
On November 5, 2001, plaintiff Ida L. Jones moved for summary judgment in the above-referenced proceeding. Defendant Larry G. Massanari, in his capacity as Acting Commissioner of Social Security, filed an opposition to plaintiff's motion for summary judgment and a cross-motion for summary judgment on January 7, 2002. Plaintiff responded to defendant's cross-motion on February 14, 2002. Pursuant to Civil Local Rule 16-1(e), the matter was deemed submitted for decision by this Court without oral argument. After careful review and consideration of the papers submitted, plaintiff's motion for summary judgment is GRANTED, and defendant's cross-motion for summary judgment is DENIED.
BACKGROUND
A. Procedural History
Plaintiff filed applications for supplemental security income ("SSI") under Title XVI of the Social Security Act on February 9, 1999, alleging disability beg inning on December 8, 1998. Plaintiff's application was denied at the initial level and again on reconsideration. Plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). The hearing was conducted on February 3, 2000. The ALJ found that plaintiff had the capacity to do a number of jobs in the national economy, and was not disabled within the meaning of the Social Security Act. The Social Security Administration Appeals Council denied review of the unfavorable decision on February 7, 2001.
Plaintiff then appealed to this Court, seeking review of SSA's decision on the basis that the ALJ erred in (1) finding that the plaintiff's previous unskilled work provided transferable skills, (2) failing to obtain the appropriate code numbers from the Dictionary of Occupational Titles ("DOT") so that specitic jobs and job skills associated with those jobs could be accurately discussed, and (3) failing to consider all of plaintiff's impairments.
B. Factual Background
1. Plaintiffs Disability Claim
Plaintiff alleges she has been disabled since December 8, 1998, due to coronary artery triple bypass surgery, hypothyroidism, and diabetes. Record of Social Security Administration proceedings at 12 (hereafter "A.R."). In particular, she alleges that she is unable to work because of her myocardial infarction status post the triple bypass operation, neck and shoulder pain, and shortness of breath. A.R. at 15.
2. Plaintiffs Testimony
Plaintiff was born in 1942. At the administrative hearing, plaintiff testified that she stopped working on December 7, 1998 because she had a heart attack and the subsequent recovery resulted in various complications related to plaintiff's diabetes and congestive heart failure ("CHF") condition. Plaintiff testified that she has difficulty doing the dishes, suffers from shortness of breath, and can only stand for a few minutes at a time. Plaintiff completed high school and has received some basic bookkeeping training, but does not know how to use a computer or a cash register. A.R. at 27. She was previously employed as a manager of a gas station, a boat painter, and a house cleaner. A.R. at 28. In her capacity as the manager of a gas station, plaintiff testified that she added up purchases using pencil and paper and made change for customers. A.R. at 49-50.
3. Medical Evidence
The plaintiff's treating physician, Dr. Newman, stated in March 1999 that plaintiff was disabled from working given her various medical problems that stemmed primarily from her heart surgery. A.R. at 15. In August 1999, however, Dr. Newman noted that her heart failure had resolved and that her diabetes was improving.
Dr. Newman's notes indicate that plaintiff complained of shoulder pain in August 1998, and he referred her to physical therapy. A.R. at 165. His notes indicate that the pain persisted during the next year, and reduced range of motion persisted after therapy. A.R. at 399.
4. Vocational Expert's Testimony
The vocational expert, Mr. Hughes, testified that plaintiff's past relevant work was performed at a level that ranged from light to medium. He testified that plaintiff would not be capable of performing that work given her residual functional capacity. A.R. at 15. Mr. Hughes, however, did testify that plaintiff could "participate in a group of cashiering jobs that are semiskilled." A.R. at 43. He further testified that Ms. Jones could perform the demands of the full range of sedentary work, and would be able to perform other sedentary work, such as a hospital cashier, of which there are 10,000 jobs in the United States. A.R. at 16.
5. The ALJ's Decision
In determining whether a claimant is disabled and entitled to benefits, the ALJ conducts a five-step sequential inquiry. 20 C.F.R. § 416.920. At the first step, the ALJ considers whether the claimant is engaged in substantial gainful activity. If the claimant is not engaged in substantial gainful activity, the second step involves a determination of whether the claimant has a severe impairment (i.e., an impairment that has a significant effect on the claimant's ability to function). If the claimant has a severe impairment, the third step requires the ALJ to determine whether the impairment meets or equals a condition listed in the Listings of Impairments in Appendix I of the Regulations. If the claimant does not have such a condition, the fourth step involves a determination of whether the claimant is capable of performing his past relevant work. Finally, if the claimant is not capable of performing his past relevant work, the ALJ must determine whether the claimant is capable of performing other work which exists in substantial numbers in the national economy. 20 C.F.R. § 404.1520(b)-(f); §§ 416.920(b)-(f).
If the claimant has a severe impairment that meets or equals a condition listed in the Listings of Impairments, the claimant is disabled and entitled to benefits.
Here the ALJ found that plaintiff had not engaged in any substantial painful activity since the alleged onset date of disability. He found that the plaintiff has an impairment or a combination of impairments considered "severe" based on the requirements in the Regulations. 20 C.F.R. § 416.920(b). These medically determinable impairments do not meet or equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. The ALJ found that the plaintiff is precluded from her previous employment, is an "individual of an advanced age." and has sedentary residual functional capacity. At the fifth stage, the ALJ found that the plaintiff has transferable skills from previous skilled work and based on an exertional capacity for sedentary work, the plaintiff's age, education, and work experience. he concluded that plaintiff was "not disabled."
DISCUSSION
I. Standard of Review
This Court's jurisdiction is limited to determining whether the Social Security Administration's denial of benefits is supported by substantial evidence in the administrative record. See 42 U.S.C § 405(g). A district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995):Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Ninth Circuit defines substantial evidence as "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." Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. See id.; Magallanes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040. Plaintiff bears the burden of establishing that the ALJ's decision was not based on substantial evidence or was the result of legal error. See generally Andrews, 53 F.3d at 1039. The claimant bears the initial burden of establishing disability by showing that a physical or mental impairment prevents her from pursuing her customary occupation. Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982). If this burden is met, the burden then shifts to the Secretary to show that the claimant can engage in other types of substantial gainful work that exists in the national economy. Id. The Secretary must consider the age, education, work experience and residual functional capacity of the claimant. 42 U.S.C. § 423(d)(2)(A); see also, 20 C.F.R. § 404.1520(f)(1).
To meet his burden, the Secretary may rely on medical-vocational guidelines in certain circumstances. 20 C.F.R. § 404, Subpart P, Appendix 2. The guidelines are a set of tables that direct a conclusion of disability or non-disability based on four factors: physical ability, age, education, and work experience. However, if the guidelines fail to accurately describe a claimant's particular limitations, the Secretary may not rely on them alone to show the availability of jobs for that claimant. Heckler v. Campbell, 461 U.S. 458, 462 n. 5 (1983); Stone v. Heckler, 722 F.2d 464, 468 (1983). If a claimant is incapable of prolonged sitting or standing, for example, the ALJ may not rely on the guidelines to find the claimant not disabled. Gallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). In such cases, the Secretary must show specific jobs within the claimant's capabilities. Kail v. Heckler, 722 F.2d 1496 (9th Cir. 1984).
II. Alleged Errors
In going through the steps for determining whether plaintiff qualifies for disability benefits, the ALJ found that plaintiff was not engaged in substantial gainful activity as required by the first step. In the second and third steps, the ALJ found that plaintiff had medically severe impairments, but that those impairments did not match up with one of the listed impairments that are conclusively presumed to be disabling. In the fourth step, the ALJ found that the plaintiff's impairments did prevent her from returning to work previously performed. Under the fifth and final step, however, the ALJ found that plaintiff is able to perform other sedentary work in the national economy because she has transferable skills, and therefore should be denied disability benefits.
Plaintiff alleges that the ALJ made three errors. First, plaintiff argues that the ALJ's finding that she has transferable skills is erroneous as a matter of law. Second, she argues that she is limited to less-than-sedentary work, and the ALJ failed to take into consideration all of her impairments when finding that she could perform sedentary work. Lastly, plaintiff argues that the ALJ erred in failing to obtain the appropriate code numbers from the Dictionary of Occupational Titles ("DOT") so that specific jobs and job skills associated with those jobs could be accurately discussed. Because the Court finds that this case should be remanded for an award of benefits on the first ground, we need not evaluate whether the ALJ did, in fact, err with respect to the second and third allegations.
III. Whether the ALJ Erred in Finding That Plaintiff Has Transferable Skills
Plaintiff contends that the ALJ erred in the fifth step in finding that she has transferable skills, which would enable her to perform other work that exists in substantial numbers in the national economy.
A. Terry v. Sullivan
In Terry v. Sullivan, 903 F.2d 1293, the Ninth Circuit, in a case very similar to plaintiffs, held that sixty-four year old plaintiff Terry qualified as disabled despite the fact that she was still capable of doing sedentary work. The Secretary found that Terry had skills from her previous job as a retail clerk that could be transferred to other positions in the national economy, including a Cashier II position.
The Ninth Circuit held that the Cashier II position is an unskilled position. Under federal regulations, a job is considered unskilled if a person can usually learn to do the job in 30 days or less, and little specific vocational preparation and judgment are needed. 20 C.F.R. § 404.1568(a). Further, the court held "[s]kills are not transferable to unskilled work because, by definition, unskilled work requires no skills. See Allen v. Bowen, 881 F.2d 37, 42 (3d Cir. 1989) ("if the only jobs that a claimant can presently perform are of an unskilled nature . . . then plainly his former employment has transferred no skills of present value")." Id. at 1277 (emphasis in original). Because Terry's skills were not transferable to the identified positions, she was in the same position as an unskilled person. If a claimant of advanced age is unskilled, she is considered disabled. See 20 C.F.R. § 404, Subpart P, App. 2, Rule 201.01 (Table No. 1). Accordingly, the court held that Terry was entitled to benefits.
B. Plaintiffs Case
The vocational expert ("VE") contends that plaintiff's previous work makes her semi-skilled, and contends that she therefore has transferable skills. This contention is not supported with any evidence. Plaintiff's testimony indicates that her previous job at the gas station most closely matched the DOT description for "Cashier II," DOT 211.462-010, an unskilled job. An individual limited to sedentary work and of advanced age (age 55 or older) will be considered unable to adjust to another type of work unless she has skills from previous skilled or semi-skilled work. 20 C.F.R. § 404.1568(d)(4)). Though she may have acquired some abilities in her previous capacity according to Terry, "[a]bilities required in an unskilled position are. by definition, not "skills." Id. By definition, one gains no skills doing an unskilled job. See 20 C.F. R. 404.1568(a). Therefore. plaintiff is unskilled.
The regulations make it clear that a person of advanced age, limited to sedentary work, and with no transferable skills is usually considered disabled. See 20 C.F.R. pt 404, subpt. P, App. 2 § 201.00(c), (d) (1988): see also Ellison v. Sullivan, 921 F.2d 816, 820 (8th Cir 1990).
In Terry, the Ninth Circuit held:
As age is one of the factors that must be considered, it should surprise no one that the Secretary faces a more stringent burden when denying disability benefits to older claimants. Thus, while the Secretary can find younger claimants not disabled so long as they can perform unskilled work, se 20 C.F.R. § 404.1565(a), the same is not true of claimants of advanced age (fifty-five or over). Agency regulations consider this "the point where age significantly affects a person's ability to do substantial gainful activity." 20 C.F.R. § 404.1563(d). Accordingly, it is not enough that persons of advanced age are capable of doing unskilled work; to be not disabled, they must have acquired skills from their past work that are transferable to skilled or semi-skilled work. 20 C.F.R. § 404, Subpart P, App. 2, Rules 201.04-.08 (Table No. 1). See also 20 C.F.R. § 404.1568(d).Terry at 1275.
Because plaintiff's previous work was unskilled, she is therefore unskilled, and thus has no transferable skills. Furthermore, the work identified by the vocational expert was also unskilled, and therefore plaintiff could have no relevant "skills" to bring to it. As the Ninth circuit held in Terry, "[s]kills are not transferable to unskilled work because, by definition, unskilled work requires no skills." Id. at 1277;see also Allen v. Bowen, 881 F.2d 37, 43 (3d Cir. 1989) ("if the only jobs that a claimant can presently perform are of an unskilled nature, . . . then plainly his former employment has transferred no skills of present value"). If plaintiff was not of advanced age, the fact that she is unskilled would not be relevant. However, given her advanced age, she must have some transferable skills in order to not be disabled. See Terry at 1275. As discussed previously, because plaintiff's previous work was unskilled, she acquired no skills, and therefore, has no skills which can be considered transferable.
CONCLUSION
The only remaining question is whether the Court should remand for additional fact finding or simply for an award of benefits. When "no useful purpose would be served by further administrative proceedings and the record has been fully developed" this Court may remand for an award of benefits. Van Ausdle v. Shalala, 19 F.3d 32, 3 (9th Cir. 1994) (citingSwenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). If the record is unclear as to the plaintiff's entitlement to benefits, the court may remand for further fact-finding. When a plaintiff has already experienced lengthy, burdensome litigation, such a remand for benefits is particularly appropriate. Id.; see also, Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990) (remanding for benefits where the claimant had applied almost four years ago). Examining the record as a whole, there are no "outstanding issues which must be resolved before a proper disability determination can be made." Varney v. Secretary, 859 F.2d 1396. 1400 (9th Cir. 1988). Plaintiff's claims have been developed by two separate evidentiary hearings, and in light of these circumstances, the Court remands for an award of benefits. Accord Van Ausdle v. Shalala 19 F.3d 32;Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Terry, 903 F.2d at 1280; Boyes v. Sullivan, 901 F.2d 717, 722-23 (9th Cir. 1989); Swenson 876 F.2d at 689; Perminter v. Sprague, 765 F.2d 870 (9th Cir. 1985).
REVERSED and REMANDED.
IT IS SO ORDERED