Opinion
Case No. CV 14-2282-PJW
04-29-2015
ALBERT KESHISHYAN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance Benefits and Supplemental Security Income. He claims that the Administrative Law Judge ("ALJ") erred when he concluded that Plaintiff had the ability to perform jobs requiring Language Level 1 because he does not speak English. For the following reasons, the Court concludes that the ALJ erred and remands the case to the Agency for further proceedings.
Plaintiff was born in 1950 in Armenia and came to the United States in 1991. (Administrative Record ("AR") 25.) He was educated in Armenia and attended some college there. He claims that he cannot read, write, or speak English. (AR 25, 146.)
The ALJ concluded that Plaintiff could not perform any of his past work but could perform three jobs that required Language Level 1. (AR 62-63.) Language Level 1 is defined as the ability to "[r]ecognize [the] meaning of 2,500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers." Dictionary of Occupational Titles No. 920.587-018 (hand packager). The ALJ, however, did not state any basis for finding that Plaintiff had this ability. (AR 63.) This was error and necessitates remand.
The Agency disagrees. It points out that Plaintiff has been in the United States since 1991 and admits that he speaks and understands some English. (Joint Stip. at 8.) Though this is true, it is not enough to establish that Plaintiff has a working familiarity with 2,500, two- and three-syllable English words, read 95-12- words a minute, or compare the similarities and differences in words. It is possible to live in Los Angeles without speaking English. And, though the record establishes that Plaintiff performed jobs that, according to the DOT, require Language Levels much higher than Level 1, nowhere in the record does it suggest how Plaintiff actually performed those jobs. It is possible that he spoke only Armenian at work.
The Agency also notes that the ALJ found that Plaintiff was not credible, a finding Plaintiff does not challenge. It argues that, outside of Plaintiff's testimony, which has been discredited, there is no evidence establishing that Plaintiff cannot speak English.
The Ninth Circuit has made clear that it is the Agency's burden at Step Five to establish that a claimant is literate and can perform work in the economy. See Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000) ("The Commissioner bears the burden of establishing that [the claimant] is literate.") Thus, the ALJ was not entitled to rely on Plaintiff's failure to prove illiteracy and was required, instead, to point to some evidence in the record that established his ability to speak and read English at Language Level 1.
The Agency complains that Plaintiff's counsel never objected to the ALJ's finding that Plaintiff possessed Language Level 1 skills at the administrative hearing. It argues that this issue could have and should have been raised by Plaintiff's counsel at the hearing and that it is too late to raise it now.
Though the Court would agree that counsel has a duty to raise issues like the one at bar in the administrative hearing, it notes that Plaintiff has jettisoned his counsel from that hearing and retained new counsel. The Court does not feel that it is appropriate in this case to punish Plaintiff for the errors of his former counsel.
For these reasons, the ALJ's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order.
IT IS SO ORDERED.
DATED: April 29, 2015
/s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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