Opinion
CV 22-08215 PCT SPL (CDB)
09-14-2023
Tammy Lay, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE STEVEN P. LOGAN, JUDGE.
REPORT AND RECOMMENDATION
Camille D. Bibles, United States Magistrate Judge.
Lay seeks judicial review of the final decision of the Commissioner of the Social Security Administration (the “Commissioner”), to the extent the Commissioner denied her claim for Supplemental Security Income benefits for a period prior to her 55th birthday in 2019. Lay does not contest the Commissioner's conclusion that she was not disabled prior to her date last insured and she is not, therefore, eligible for disability insurance benefits pursuant to Title II. Lay asks the Court to “reverse the decision and award Title XVI benefits alone with an onset date of July 27, 2014,” her 50th birthday. (ECF No. 20 at 3). The Commissioner allows the ALJ's decision denying benefits prior to 2019 contained legal error, arguing the matter should be remanded for further proceedings rather than for an immediate award of benefits dating from July 27, 2014.
I. Procedural History
Lay filed applications for disability insurance and Supplemental Security Income benefits on May 30, 2014, alleging she became unable to work on December 31, 2004. See Lay v. Commissioner of Soc. Sec. Admin., 2:18-cv-00847, ECF No. 19-3 at 31, 33-34. A hearing was conducted before an Administrative Law Judge (“ALJ”) on September 20, 2016 and in a decision entered October 26, 2016, the ALJ determined Lay was not disabled. Id., ECF No. 19-3 at 41. The Appeals Council denied review, Lay appealed to the District Court, and the matter was remanded pursuant to sentence four of 42 U.S.C. § 405(g). See id., ECF No. 26.
Lay's date last insured for disability insurance benefits was December 31, 2013.
The decision remanding the matter states:
.... Although the parties concede, and the record reflects that the ALJ erred in failing to provide adequate reasons for his assessment of Dr. Gomez's opinion, the parties have identified conflicting evidence in the record that precludes application of the credit-as-true rule, and may support a non-disability finding.Lay v. Commissioner of Soc. Sec., 2:18-cv-00847, ECF No. 26 at 2.
On remand, a new hearing before a different ALJ was conducted, and and an unfavorable decision issued October 23, 2020. See Lay v. Commissioner of Soc. Sec. Admin., 3:20-cv-08282, ECF No. 26-10 at 4-20, 28-62. The Appeals Council denied review and Lay appealed to the District Court. On November 12, 2021, the matter was remanded pursuant to sentence four of 42 U.S.C. § 405(g). See id., ECF No. 35. In determining that the matter should be remanded the Court noted that the parties agreed the ALJ did not properly consider testimony from a vocational expert (“VE”) regarding Lay's ability to perform her past relevant work. However, the Commissioner argued that remand was necessary so that the ALJ could fully and fairly determine whether Lay could perform her past relevant work, while Lay asserted the matter should be remanded for an immediate award of benefits. Id., ECF No. 35 at 13-14. The Commissioner asserted:
.. [E]ven if Plaintiff cannot perform her past relevant work, that does not mean she is entitled to an award of benefits. Instead, the regulations provide that if a claimant cannot perform her past relevant work, the ALJ must proceed to step five and consider whether the
claimant can perform other jobs that exist in significant numbers in the national economy, given her age, education, work experience, and RFC. See 20 C.F.R. § 404.1520(g). In the present case, the ALJ did not proceed to step five or make any findings regarding Plaintiff's ability to perform other work. Thus, if the ALJ should find that Plaintiff cannot perform her past relevant work he would need to proceed to step five and consider whether other jobs exist in significant numbers that Plaintiff could perform.Id., ECF No. 35 at 13-14. The Court agreed with the Commissioner that the record had not been fully developed with regard to whether Lay could perform her past relevant work and could perform work existing in the national economy, and remanded the matter for additional proceedings. Id., ECF No. 35 at 14-15.
On remand, the ALJ conducted a hearing and took testimony from a vocational expert. In the decision under consideration in the instant matter matter, the ALJ noted, found, and concluded:
Pursuant to the District Court remand order, the Appeals Council has directed the undersigned to: 1) Comply with the remand order and conduct an analysis of the claimant's history alcohol abuse in accordance with SSR 13-2p; 2) Proceed with sequential evaluation process per SSR 86-8; 3) Give further consideration to whether the claimant has past relevant work and, if so, can perform it (20 CFR 404.1560(a)-(b) and 416.960(a)-(b)). If warranted, obtain vocational expert evidence to assist in evaluating whether the claimant can perform past relevant work; and 4) If warranted by the expanding record, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base per SSR 83-14.(ECF No. 15-16 at 5). The ALJ concluded:
After careful consideration of all the evidence, the Administrative Law Judge concludes that the claimant was not disabled prior to July 27, 2019 [age 55], but became disabled on that date and has continued to be disabled through the date of this decision. The claimant was not under a disability within the meaning of the Social Security Act at any time through December 31, 2013, the date last insured.(ECF No. 15-16 at 7).
II. Governing Law
A. Standard of review
The Court's jurisdiction extends to review of the final decision of the Commissioner denying Lay's application for a period of Social Security disability-based benefits. See 42 U.S.C. § 405(g). Judicial review of a decision of the Commissioner is based upon the pleadings and the administrative record of the contested decision. See Id. The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards to Lay's claims and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
B. Determining whether a claimant is “disabled”
Supplemental Security Income (“SSI”) benefits pursuant to Title XVI are paid to disabled “financially needy individuals,” regardless of their insured status. 42 U.S.C. §§ 1382-1383; Smith v. Berryhill, 139 S.Ct. 1765, 1771-72 (2019). Disability is defined as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a).
To establish eligibility for Social Security benefits based on disability, the claimant must show: (1) she suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months, see 20 C.F.R. § 423(d)(1)(A); and (2) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Id. § 423(d)(2)(A). If a claimant meets both of these requirements, she is by definition “disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002).
A five-step sequential evaluation governs eligibility for disability-based benefits under Title XVI. See 20 C.F.R. § 416.920; Barnhart v. Thomas, 540 U.S. 20, 24 (2003). First, the claimant must establish she is not gainfully employed at the time of her application. See 20 C.F.R. § 404.1520(a)(4)(i). Next, the claimant must be suffering from a “medically severe” impairment or “combination of impairments.” Id. § 404.1520(a)(4)(ii). The third step is to determine whether any of the claimant's impairments meets or equals one of the “listed” impairments included in Appendix 1 to this section of the Code of Federal Regulations. See id. § 404.1520(a)(4)(iii). If any of the claimant's impairments meets or equals one of the impairments listed in Appendix 1, the claimant is conclusively “disabled.” See id. The fourth step of the process requires the ALJ to determine whether the claimant, despite her impairments, can perform work similar to that performed in the past. This requires the ALJ to make an assessment of the plaintiff's “residual functional capacity” to do work-related tasks on a sustained basis. A claimant whose “residual functional capacity” allows her to perform her “past relevant work,” despite her impairments, is not “disabled.” Id. § 404.1520(a)(4)(iv).
The claimant bears the burden of proof throughout the first four steps of the evaluation. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Valentine v. Social Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). If the claimant cannot perform her past relevant work because of her impairments, the Commissioner proceeds to step five. At step five of the evaluation the burden shifts to the Commissioner to demonstrate that the claimant can perform other substantial gainful work that exists in the national economy, given her residual functional capacity (the relevant “occupational base”). See 20 C.F.R. § 404.1520(a)(4)(v); Garrison v. Colvin, 759 F.3d 995, 1101 (9th Cir. 2014). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education, past work experience, and whether, in performing their past relevant work, a claimant acquired “relevant skills,” i.e., skills which relevant to performing work other than their past relevant work. Id. § 416.920(a)(4)(v). If the claimant can perform other work, the Commissioner must find that the claimant is not disabled. Id. §§ 404.1520(g)(1) & 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. Id.
For purposes of the requisite analysis, “work” is classified as being performed, inter alia, at the “light” exertional level and at the “sedentary” exertional level, as skilled or unskilled, and at levels of “specific vocational preparation” (“SVP”), i.e., proficiency with regard to particular work tasks. In determining whether a successful adjustment to other work can be made, the ALJ should consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, found at 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either “disabled” or “not disabled” depending upon the claimant's specific vocational profile, i.e., their age, education, past work experience, and transferable skills. When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has non-exertional limitations, such as mental health impairments, the medical-vocational rules are used as a framework for decision-making unless there is a rule that directs a conclusion of “disabled” without considering the additional exertional and/or non-exertional limitations. See SSR 83-12 & 83-14.
“SVP” refers to the “specific vocational preparation” level which is defined as “the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.” Dictionary of Occupational Titles, Appendix C, at 1009 (4th ed. 1991). The Dictionary of Occupational Titles (“DOT”) lists a specific vocational preparation (SVP) time for each described occupation. Using the skill level definitions in 20 C.F.R. § 404.1568 and § 416.968, unskilled work corresponds to an SVP of 1-2, and semi-skilled work corresponds to an SVP of 3-4.
Additionally, with regard to the consideration of a claimant's age at the fifth step of the sequential evaluation, special rules apply when a claimant is “approaching advanced age” and when the claimant is classified as being at an “advanced age.” If a claimant is closely approaching advanced age, i.e., is 50 to 54 years of age, and has no transferable skills, and is limited to work classified as “sedentary,” the ALJ must find that claimant disabled. However, if a claimant with the same characteristics is able to perform a full range of light work, the Medical-Vocational Guidelines (the “grids”) direct a conclusion of not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.14 (directing a finding of “not disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally capable of performing light work); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g) (directing a finding of “disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally limited to only sedentary work). See also Selimovic v. Colvin, 2014 WL 4662251, at *11 (D. Ariz. Sept. 18, 2014).
In determining whether the claimant retains the ability to perform other work, the ALJ may refer to the Medical Vocational Guidelines (“the grids”) promulgated by the SSA. See 20 C.F.R. Pt. 404, Subpt. P, App.2; Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576-577 (9th Cir. 1988). The grids categorize jobs according to their exertional requirements such as sedentary work, light work, or medium work. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The grids calculate whether or not the claimant is disabled based on the claimant's exertional ability, age, education, and work experience. Id. The grids are a valid basis for denying claims where they completely and accurately describe the claimant's abilities and limitations. Id. at 1101-02. If the claimant has only exertional limitations, the claim may be resolved based only on the grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006).
If the claimant has significant non-exertional limitations, the grids do not apply. Penny v. Sullivan, 2 F.3d 953, 958-959 (9th Cir. 1993). “Non-exertional limitations are limitations that do not directly affect a claimant's strength.” Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). Mental limitations, for example, are non-exertional. Id. at 1340-41. If significant nonexertional limitations prevent the claimant from performing the full range of work in any exertional category, the ALJ must take the testimony of a vocational expert to deny the claim. Id. at 1341Petty v. Colvin, 954 F.Supp.2d 914, 922 (D. Ariz. 2013).
The ALJ may rely on the grids “only when the grids accurately and completely describe the claimant's abilities and limitations.” Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). When a claimant's residual functional capacity is not described in the grids, such as when a claimant is not able to perform the “full range” of work-related activities in either the “sedentary” or “light” work categories, inter alia due to non-exertional limitations such as mental health or pain, the grids do not apply. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). In that circumstance the ALJ must seek the opinion of a vocational expert as to whether there are jobs the claimant can perform, given the assessed residual functional capacity, and whether those jobs exist in the national economy. See, e.g., Petty v. Colvin, 954 F.Supp.2d 914, 922 (D. Ariz. 2013).
III. Analysis
A. Lay's claim for relief
At the first step of the evaluation the ALJ determined Lay had not engaged in substantial gainful employment since the alleged onset of disability. The ALJ determined, at the second step of the sequential evaluation, that Lay had the following severe impairments: osteoarthritis of the right knee status post fracture of the right fibula and femur with open reduction internal fixation, non-union of fibula fracture with repair, major depressive disorder, intermittent explosive disorder, anxiety disorder, and cognitive disorder from traumatic brain injury. (ECF No. 15-16 at 9).
With regard to one of the issues the Appeals Council required the ALJ to address, i.e., alcohol abuse, the ALJ found and concluded:
The record shows the claimant has also been assessed with lateral epicondylitis and alcohol abuse disorder. However, the undersigned finds available evidence of record does not contain significant evidence of record to support a finding that these impairments, unlike the claimant's severe impairments, result in more than mild limitation with the claimant's ability to perform basic work activity for the requisite durational period. ... the record shows the claimant has a history of alcohol abuse. (Exhibits 1F; 2F; 4F; 5F; 7F; 10F). However, the undersigned finds the history of abuse, which is denied by the claimant, is not material to the determination of disability because available evidence of record indicates that the severity and limiting effects of the claimant's severe impairments remain present with or without the presence of the history of alcohol abuse. Accordingly, the undersigned finds the overall record supports a finding that the claimant's lateral epicondylitis and alcohol abuse disorder are non-severe.(ECF No. 15-16 at 10). Lay does not challenge this finding.
At the third step of the sequential evaluation the ALJ concluded Lay did not have a listed impairment.
Lay does not dispute the validity of the ALJ's conclusions at the first, second, and third steps of the requisite evaluation.
At the fourth step of the sequential evaluation, the ALJ concluded:
... since December 31, 2004, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can lift and carry 20 pounds occasionally, 10 pounds frequently, stand and walk for 6 hours in an eight hour day, and sit for 6 hours in an eight hour day. She can occasionally climb, frequently balance, crouch, stoop, kneel, and crawl. She can follow simple instructions, perform simple tasks, have occasional contact with coworkers and public, no teamwork or interactive work with others, and adapt to simple changes in a routine work environment.(ECF No. 15-16 at 15).
Lay does not contend the ALJ's assessment of Lay's specific residual functional capacity was not supported by substantial evidence or constituted legal error.
The ALJ further determined: “On July 27, 2019, the claimant's age category changed to an individual of advanced age [age 55] (20 CFR 404.1563 and 416.963).” (ECF No. 15-16 at 22). The ALJ further concluded, considering Lay's age, education, residual functional capacity and transferable work skills, she could perform work available in the national economy:
The claimant has at least a high school education (20 CFR 404.1564 and 416.964). Prior to July 27, 2019 [when Lay turned 55], transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled” whether or not the claimant has transferable job skills. Beginning on July 27, 2019, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). The VE testified that there were no transferrable skills from the claimant's past work that would transfer to any jobs within the parameters of the adopted residual functional capacity.(ECF No. 15-16 at 22) (emphasis added).
The ALJ also concluded:
Prior to July 27, 2019, the date the claimant's age category changed, considering the claimant s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569a, 416.969, and 416.969a).
In determining whether a successful adjustment to other work can be made, the undersigned must consider the claimant's residual functional capacity, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2. If the claimant can perform all or substantially all of the exertional demands at a given level of exertion, the medical-vocational rules direct a conclusion of either “disabled” or “not disabled” depending upon the claimant's specific vocational profile (SSR 83-11). When the claimant cannot perform substantially all of the exertional demands of work at a given level of exertion and/or has non-exertional limitations, the medical-vocational rules are used as a framework for decision-making unless there is a rule that directs a conclusion of “disabled” without considering the additional exertional and/or non-exertional limitations (SSRs 83-12 and 83-14). If the claimant has solely non-exertional limitations, section 204.00 in the Medical-Vocational Guidelines provides a framework for decision-making (SSR 85-15). Prior to July 27, 2019, if the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.21. However, the claimant's ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations. To determine the extent to which these limitations eroded the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs existed in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would have been able to perform the requirements of representative occupations that are light and unskilled with an SVP of two such as Cleaner, DOT 389.687-010, with 360,000 jobs in the national economy; Office Clerk, DOT 209.667-014, with 200,000 jobs in the national economy; and Production Worker, DOT 706.684-022, with 190,000 jobs in the national economy.
The vocational expert's testimony was generally consistent with information contained in the Dictionary of Occupational Titles (DOT). However, that publication does not address contact with the public as a vocational factor. In this regard, the vocational expert relied on his years of professional experience, education, and other jobs resources as a basis for the views expressed. Pursuant, to SSR 00-4p, this represents a reasonable explanation for divergence between vocational expert's testimony and the DOT.
Based on the testimony of the vocational expert, the undersigned concludes that, prior to the established onset date of disability, considering the claimant's age, education, work experience, and residual functional capacity, the claimant was capable of making a successful adjustment to
other work that existed in significant numbers in the national economy. Prior to July 27, 2019, a finding of “not disabled” is therefore appropriate under the framework of the above-cited rule in the Medical-Vocational Guidelines.(ECF No. 15-16 at 24) (emphasis added).
In the instant action Lay contends that the ALJ erred at the fifth step of the sequential evaluation with regard to whether she was disabled prior to July 27, 2019. She asserts the ALJ's conclusion that Lay was capable of performing work available in the national economy was not supported by substantial evidence. (ECF No. 16 at 11). Lay contends the jobs identified by the vocational expert as within Lay's abilities exceed the residual functional capacity assessed at step four. Lay argues the ALJ failed to resolve conflicts between the vocational expert's testimony and the Dictionary of Occupational Titles. (ECF No. 16 at 8-9). Lay contends the matter should be remanded for an immediate award of SSI benefits beginning on her 50th birthday.
In her opening brief Lay also asserted the ALJ should have considered she was approaching advanced age at the time of her date last insured for disability insurance benefits. (ECF No. 16 at 11-12). However, Lay withdrew this claim in her reply brief. (ECF No. 21 at 1).
Defendant allows that the ALJ's determination at the fifth step of the required evaluation is not supported by substantial evidence. (ECF No. 20 at 4). Defendant contends, inter alia:
Plaintiff argues that a reversal for the award of benefits is warranted in this case because the ALJ and the vocational expert were unable to identify any light, unskilled job that Plaintiff could perform, and Grid Rule 201.14 requires a finding of disability around Plaintiff's 50th birthday. Plaintiff's argument fails for multiple reasons. [First], Grid Rule 201.14 requires of finding of disabled for individuals limited to sedentary work who are aged 50-54, and who cannot perform skilled or semi-skilled work. 20 C.F.R. Pt. 404, Subpt. P App. 2 § 201.14; 20 C.F.R. § 404.1563(e). The ALJ found that Plaintiff had the RFC to perform a range of light work, and, on this basis, applied Grid Rule 202.06 to find Plaintiff disabled at age 55 because she was limited to light, unskilled work (AR 1682, 1690). Plaintiff does not challenge the ALJ's formulation of the RFC or the assessment of the medical evidence.(ECF No. 20 at 4).
Defendant contends “the appropriate remedy is remand for further proceedings in order to perform further factual development regarding whether there are jobs that Plaintiff could perform that exist in significant numbers in the national economy.” (ECF No. 20 at 9).
In her reply Lay asserts, in pertinent part, that she
.. meets the criteria to be awarded benefits on her 50th birthday, July 27, 2014. ... The Commissioner argues that an applicant can be denied under the light GRID category despite additional limitations that preclude all jobs performed at a light exertional level. The vocational expert was unable to testify to any jobs at a light residual functional capacity that are within the ALJ's findings at Step Four.(ECF No. 21 at 2).
Defendant's emphasis on the fact that Lay is not per se disabled if, at age 50, she is capable of light work with some additional limitations, is well-taken. Per the Social Security regulations, an individual capable of performing only sedentary work becomes per se disabled only at age 55, not at age 50. See Marshall v. Colvin, 2016 WL 6212006, at *5 (W.D. Wash. Oct. 25, 2016); Selimovic, 2014 WL 4662251, at *11. Lay does not “grid out” at age 50 because the residual functional capacity, which she does not contest, found she was capable of a range of light work, with additional, non-exertional limitations. In that circumstance, an ALJ should obtain the evidence of a vocational expert to determine the claimant's occupational base. “When the grids do not match the claimant's qualifications, the ALJ can either (1) use the grids as a framework and make a determination of what work exists that the claimant can perform, or (2) rely on a vocational expert when the claimant has significant non-exertional limitations.” Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007). When “a claimant's exertional limitation falls between two grid rules,” such as those governing a full range of light work and the full range of sedentary work, “the ALJ fulfills his obligation to determine the claimant's occupational base by consulting a vocational expert regarding whether a person with claimant's profile could perform substantial gainful work in the economy.” Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (“When they do not adequately take into account claimant's abilities and limitations, the Grids are to be used only as a framework, and a vocational expert must be consulted”). See also Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1998) (“[T]he grids will be inappropriate where the predicate for using the grids - the ability to perform a full range of either medium, light, or sedentary activities -is not present.”).
If a claimant is closely approaching advanced age, has no transferable skills, and is limited to sedentary work, the ALJ must find that claimant disabled based on the sedentary grid. However, if a claimant with the same characteristics is able to perform light work, the Medical-Vocational Guidelines direct a conclusion of not disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.14 (directing a finding of “not disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally capable of performing light work); 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(g) (directing a finding of “disabled” for claimant who is closely approaching advanced age, who has no transferable skills, and who is functionally limited to sedentary work).Selimovic v. Colvin, 2014 WL 4662251, at *11 (D. Ariz. Sept. 18, 2014).
The problem in this matter is that the testimony of the vocational expert was insufficient to support the ALJ's conclusion regarding work in the national economy that Lay could perform given her residual functional capacity. The only issue for the Court's consideration is whether this matter should be remanded for further proceedings to determine if Lay should be awarded benefits beginning on July 27, 2014, based on Lay obtaining “approaching advanced age” on that date, or for an immediate award of SSI benefits beginning on July 27, 2014. The issue on remand would be whether, beginning on July 27, 2014, there were jobs in the national economy which Lay could perform, given her residual functional to perform unskilled “light” work, as impeded by her specific additional limitations.
B. Remanding for further proceedings or an award of benefits
When an ALJ's denial of benefits is found wanting, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (internal quotation marks omitted). The decision whether to remand a case for additional evidence or for an award of benefits is within the discretion of the Court. E.g., Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). The Court may exercise its discretion and direct an award of benefits “where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.” Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). Remand for further proceedings is appropriate where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009).
The Ninth Circuit Court of Appeals has
.. devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison, 759 F.3d at 1020. See also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014). “If additional proceedings can remedy defects in the original administrative proceedings, a social security case should be remanded. Where, however, a rehearing would simply delay receipt of benefits, reversal [and an award of benefits] is appropriate.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). “Remand for further proceedings is appropriate where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find claimant disabled if all the evidence were properly evaluated.” Hill, 698 F.3d at 1162, citing Vasquez, 572 F.3d at 593.
The Garrison standard most clearly applies when the ALJ improperly rejected evidence, such as a claimant's symptom testimony or a medical source opinion as to a claimant's limitations, and upon remand the ALJ must “credit as true” the rejected evidence.
In Treichler, relying primarily on Garrison, the Ninth Circuit arguably specified an order for evaluating the three parts of the rule listed in Garrison: “we first ask whether the ‘ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion;” “Second, if the ALJ has erred, we determine whether ‘the record has been fully developed' ... and whether further administrative proceedings would be useful;” and “Third, if we conclude that no outstanding issues remain and further proceedings would not be useful, we . [find] the relevant testimony credible as a matter of law, and . determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty as to the outcome of [the] proceeding.” Id. at 1100-01 (citations omitted).
In this matter, the ALJ did not fail to provide legally sufficient reasons for rejecting evidence. The record in this matter is not fully developed such that further administrative proceedings would not be useful. Further proceedings are required, inter alia, because the issue is whether the residual functional capacity assessed by the ALJ, which Lay does not challenge, would allow Lay to perform work available in the national economy. The residual functional capacity assessed by the ALJ provided Lay could perform a limited range of light, unskilled work, with a SVP of two; there is inadequate evidence in the record to support a conclusion that there were no jobs available in the national economy that involved light, unskilled work, with a SVP of two, with the additional limitations assessed by the ALJ, i.e., with regard to limitations on interacting with others. With regard to the third step of the Garrison/Treichler test, there is no “relevant testimony credible as a matter of law” to be considered, as the issue is not the ALJ's rejection of evidence but rather the ALJ's reliance on faulty evidence. In this matter, the outcome of any proceeding on remand is not certain.
Although it is lamentable that Ms. Lay's application for benefits has involved eleven years of proceeding through administrative and District Court proceedings, she has been awarded to benefits accruing in 2019, and there is no certainty that she is entitled to benefits dating from 2014.
IV. Conclusion
The parties agree that this matter should be remanded, but disagree as to whether the matter should be remanded for an additional award of benefits or for further proceedings. Because the record before the Court does not support a conclusion that an additional award of benefits is a certainty, the matter should be remanded for further proceedings. On remand the ALJ should be instructed to conduct a hearing and obtain testimony from a vocational expert as to whether an individual with Lay's assessed residual functional capacity could, as of her 50th birthday, perform work available in the national economy.
Therefore, IT IS RECOMMENDED that the decision of the Commissioner denying claims for disability-based benefits be vacated insofar the ALJ denied an award of benefits for the period July 27, 2014 through July 26, 2019.
IT IS FURTHER RECOMMENDED that the matter be remanded to the Commissioner for further proceedings consistent with the findings in this Report and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).