ROBERT S. LASNIK, Magistrate Judge.
Plaintiff appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and REMANDED for further administrative proceedings.
At the time of the administrative hearing, plaintiff was a sixty-four year old man with a high school education. Administrative Record ("AR") at 72, 76. He has no formal work experience, but has performed light janitorial duties in his family's auto shop and helped to care for his aging parents. AR at 77-78, 108.
On May 1, 2014, plaintiff filed a claim for SSI payments, alleging disability as of May 4, 2004. AR at 54. However, during the administrative hearing he amended his alleged onset date to his protective filing date. AR at 25, 115. Plaintiff asserts that he is disabled due to a learning disability, thoracic scoliosis, lumbar degenerative disc disease, right shoulder joint arthrosis, occlusion of left carotid artery, diabetes, essential hypertension, and headaches. Dkt. 10 at 2 (citing AR at 27, 384, 551).
The Commissioner denied plaintiff's claim initially and on reconsideration. AR at 25. Plaintiff requested an administrative hearing. The first hearing took place on November 2, 2015, was conducted so the ALJ could advise plaintiff to retain a representative. AR at 52-64. After he retained an attorney to assist him, the second hearing was conducted on March 30, 2016. AR at 65-117. On August 22, 2016, the ALJ issued a decision finding plaintiff not disabled and denied benefits based on her finding that plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 22-51. Plaintiff's request for review was denied by the Appeals Council, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On April 13, 2018, plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 4.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
The claimant bears the burden of proving that he is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if his impairments are of such severity that he is unable to do his previous work, and cannot, considering his age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether he can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On August 22, 2016, the ALJ issued a decision finding the following:
The principal issues on appeal are:
Dkt. 10 at 1; Dkt. 11 at 1.
Plaintiff alleges that the ALJ erred by failing to discuss why 20 C.F.R. § 416.962(b) is not applicable in plaintiff's case. Specifically, this regulation recognizes two very specific categories of cases which mandate a finding of disability outside the normal five-step analysis. Plaintiff contends that he falls into one of these two categories:
20 C.F.R. 416.962(b).
There is no dispute that plaintiff has been much older than 55 at all relevant times, has numerous severe medically determinable impairments, and has no past relevant work. AR at 27, 44. Thus, it is undisputed that under this regulation, the ALJ must find plaintiff disabled if he has no more than a limited education.
Although plaintiff graduated from high school forty years ago, evidence in the record indicates that he has problems with simple math and written language skills. AR at 76. It is also unclear whether, based on the ALJ's own findings, he meets the regulatory definition of a limited education. Specifically, the ALJ's RFC assessment in this case limited plaintiff to performing "no mathematics," and also limited plaintiff to performing simple, routine tasks. AR at 29. In addition, at step five, the ALJ found that he could perform only unskilled jobs with Specific Vocational Preparation (SVP) levels of 2. AR at 45. SVP level 1 or 2 describes unskilled work, 3 or 4 semi-skilled, and 5 or more defines skilled jobs. Thus, it appears that plaintiff may satisfy the regulatory definition of a limited education:
20 C.F.R. § 416.964(b).
The Commissioner argues post hoc that because plaintiff performed odd menial jobs in the family business, helped care for his elderly parents in their home, and was financially supported by his family, he "had abilities in reasoning, math and language above the limited definition." Dkt. 11 at 4. However, the ALJ found that plaintiff has no past relevant work, and there is no evidence that his efforts on behalf of his family (either cleaning in the family auto shop or helping to care for his parents at home) amounted to either skilled or semi-skilled activities as defined in 20 C.F.R. § 416.964(b)(3). Moreover, Commissioner's contention that a "limited education" cannot be found in this case because plaintiff graduated high school and obtained a welding certificate — which he has never used — ignores the language of the regulation providing that "formal education that you completed many years before your impairment began . . . may no longer be useful or meaningful in terms of your ability to work. Therefore, the numerical grade level that you completed in school may not represent your actual educational abilities. These may be higher or lower . . ." Indeed, evidence in the record suggests that plaintiff needed the assistance of SSI Facilitator Sue Newkirk at DSHS to help him complete his function report form for SSA. AR at 249-55. Dr. Wheeler suspected that plaintiff has borderline IQ functioning. AR at 336. Moreover, plaintiff testified that he never used the certificate he received from completing a welding class several decades ago. AR at 77.
The Court declines to usurp the ALJ's role as fact-finder and decide the issue of plaintiff's education level in the first instance without first providing the ALJ with an adequate opportunity to discuss the issue. However, this case should be remanded for the ALJ to conduct another administrative hearing and explicitly discuss whether the regulatory definition of "limited education" is satisfied, and plaintiff should be found disabled based upon the proper application of 20 C.F.R. 416.962(b). As this issue is likely to be dispositive of plaintiff's claim, it is unnecessary for the Court to reach the remaining assignments of error.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit by no later than February 13, 2019. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motion calendar for the third Friday after they are filed. Responses to objections may be filed within
This Report and Recommendation is not an appealable order. Thus, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge acts on this Report and Recommendation.
The Court, after careful consideration of the plaintiff's complaint, the parties' briefs, all papers and exhibits filed in support and opposition thereto, the Report and Recommendation of the Honorable James P. Donohue, United States Magistrate Judge, and the balance of the record, does hereby find and ORDER:
(1) The Court adopts the Report and Recommendation.
(2) The final decision of the Commissioner is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with the Report and Recommendation.
(3) The Clerk of the Court is directed to send copies of this Order to the parties and to Judge Donohue.
_____
THE COURT HAS ORDERED THAT
The Report and Recommendation is adopted and approved. The final decision of the Commissioner is REVERSED and this case is REMANDED to the Social Security Administration for further proceedings consistent with the Report and Recommendation.
