EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Widow's Disability Insurance benefits and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act. For the reasons discussed below, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands the case for further proceedings.
Plaintiff Vicki Thompson filed an application for Widow's Disability Insurance benefits and SSI on July 7, 2008, alleging that she had been disabled since November 3, 2007. Administrative Record ("AR") 79, 151. Plaintiff's application was initially denied on August 19, 2008, and upon reconsideration on January 23, 2009. Id. at 90, 95, 101, 106. On January 19, 2010, a hearing was held before administrative law judge ("ALJ") Timothy S. Snelling. Id. at 43. Plaintiff, who was represented by attorney Ann M. Cerney, testified at the hearing. Id. at 43-78.
On April 16, 2010, the ALJ issued a decision finding that plaintiff was not disabled under sections 202(e), 223(d), and 1614(a)(3)(A) of the Act.
Id. at 36-41.
Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 28. The Appeals Council granted plaintiff's request and issued a decision on January 13, 2011. Id. at 4-6. The Appeals Council agreed with the ALJ that plaintiff had not engaged in substantial gainful activity since November 3, 2007, and that plaintiff had severe impairments that did not meet or equal the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. Id. at 4-5. However, the Appeals Council disagreed with the ALJ's findings and conclusions at the fourth step of the sequential evaluation. Contrary to the ALJ's determination, the Appeals Council found that plaintiff had past relevant work as a tomato inspector and had the residual functional capacity ("RFC") to perform her past relevant work. Id. In reaching this conclusion, the Appeals Council did not adopt the ALJ's RFC assessment. Rather, the Appeals Council concluded that "[t]he claimant's combination of impairments results in the following limitations on her ability to perform work-related activities: light work as defined in 20 CFR 404. 1567(b) and 416.967(b) except she can have no more than frequent interaction and communication with supervisors, coworkers, and the general public." Id. Thus, the Appeals Council did not agree with the ALJ's finding that plaintiff had limitations in bending and stooping.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "`It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff contends that the Appeals Council erred in finding that she had the RFC to perform past relevant work. Pl.'s Mot. for Summ. J., Dckt. No. 17-1 ("Pl.'s Mot.") at 14. Plaintiff also argues that the ALJ committed error by: 1) failing to give proper weight to the opinion of the consultative physician, 2) failing to find plaintiff disabled in accordance with Rule 202.02, and 3) rejecting plaintiff's testimony. Pl.'s Mot. at 18, 20-21.
Plaintiff argues the Appeals Council erred in finding that she had the RFC to perform past relevant work because her job as a tomato inspector was an "unsuccessful work attempt" and not evidence that she could engage in substantial gainful activity. Pl.'s Mot. at 14.
The ALJ found that plaintiff had no past relevant work, but concluded that plaintiff was disabled because there were jobs that existed in significant numbers in the national economy that plaintiff could perform. AR 40-41. Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 28. On November 16, 2010, the Appeals Council issued a Notice of Appeals Council Action, which stated that the Appeals Council intended to find that plaintiff's prior work as a tomato inspector constituted past relevant work and that plaintiff had the ability to perform such work. AR 87. On December 20, 2010, plaintiff's counsel submitted a letter in response to the Appeals Council's notice. Id. at 253-54. In the letter, plaintiff's attorney argued that plaintiff's prior work as a tomato inspector constituted an unsuccessful work attempt and therefore could not be considered past relevant work. Id. Specifically, plaintiff's attorney argued that the position was an unsuccessful work attempt because the job lasted for less than 3 months and plaintiff was laid off because of her impairments. Id. at 253. In support of this argument, plaintiff submitted a letter to the Appeals Council which stated:
AR 255.
The Appeals Council ultimately concluded that plaintiff's job as a tomato inspector was past relevant work and that she was capable of performing such work. Id. at 5. The Appeals Council wrote:
AR 5.
Plaintiff does not dispute that she worked as a tomato inspector within the 15 year period or that she held the position long enough to learn how to perform the job. Rather, plaintiff contends her prior work as a tomato inspector did not constitute substantial gainful activity, but was merely an unsuccessful work attempt. "[S]ubstantial gainful activity means more than merely the ability to find a job and physically perform it; it also requires the ability to hold the job for a significant period of time." Gatliff v. Commissioner of Social Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999). "The [unsuccessful work attempt] concept was designed as an equitable means of disregarding relatively brief work attempts that do not demonstrate substantial gainful activity." Social Security Ruling ("S.S.R.") 84-25.
Plaintiff's prior work as a tomato inspector appears to fit the definition of an unsuccessful work attempt. As noted by the Appeals Council, plaintiff worked as a tomato inspector from June 28, 2007 through September 21, 2007, less than 3 months. AR 5. This hardly demonstrates "the ability to hold the job for a significant period of time." Gatliff, 172 F.3d at 694. Furthermore, the letter plaintiff submitted to the Appeal's Council supports the finding that plaintiff was terminated from this job because of her impairments. Id. at 255. Plaintiff states in her letter that she was having problems with headaches and that her depression caused her to feel fatigued. Id. Plaintiff further states that her exhaustion caused her to leave work early one day and that she was subsequently given notice that she had been terminated. Id.
Defendant argues that plaintiff has failed to satisfy her burden of showing that her work as a tomato inspector was an unsuccessful work attempt. Relying on Social Security Ruling 05-02, defendant contends that plaintiff was required to submit evidence from her past employer or a physician corroborating her claim that she was terminated because of her impairments. Dckt. No. 20 at 8. According to defendant, without independent confirmation, the Appeals Council was not permitted to find that her prior work was an unsuccessful work attempt. Social Security Ruling 05-02 states:
S.S.R. 05-02.
Contrary to defendant's contention, Social Security Ruling 02-05 does not require plaintiff to submit evidence from her employer or a physican corroborating her claim that her impairments resulted in her being terminated from her job. The ruling simply states that if the record does not already contain evidence supporting plaintiff's information, the Social Security Administration, not the plaintiff, may seek confirmation from the employer or a physician.
Here, neither the ALJ nor the Appeals Council sought evidence identifying the reason plaintiff was terminated from her position as a tomato inspector. At the hearing, plaintiff's counsel told the ALJ that all of plaintiff's past work was short term and would probably constitute unsuccessful work attempts. AR 47-48, 61. The ALJ decided, without explanation, that plaintiff had no past relevant work and made no further inquiry into the matter. Id. at 40. Although the Appeals Council disagreed with the ALJ's findings, it did not consider whether plaintiff's work as a tomato inspector was an unsuccessful work attempt or whether further development of the record was needed to determine if the job constituted past relevant work.
Whether plaintiff's prior job was an unsuccessful work attempt is pertinent to the determination of whether plaintiff could perform past relevant work. Because the Appeals Council gave no consideration to this important issue, the matter must be remanded to determine whether plaintiff's work as a tomato inspector was an unsuccessful work attempt or substantial gainful activity. Should the Appeals Council determine that plaintiff's letter is insufficient to support a finding that she was terminated due to her impairment, the Appeals Council, in accordance with Social Security Ruling 05-02, may seek confirmation of plaintiff's statements from her employer or a physician.
Plaintiff further argues that the ALJ committed error by: 1) failing to give proper weight to the opinion of the consultative physician, 2) failing to find plaintiff disabled in accordance with Rule 202.02, and 3) rejecting plaintiff's testimony. Pl.'s Mot. at 18, 20-21. These arguments address whether the ALJ committed error at the fourth and fifth steps of the sequential evaluation. A district court may only review final decisions of the Commissioner. Klemm v Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008). "[I]f the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision." Sims v. Apfel, 530 U.S. 103, 106-07 (2000). Here, the Appeals Council issued a decision in which it rejected the ALJ's RFC assessment and concluded that plaintiff was not disabled at the fourth step. Thus, the Commissioner's final decision does not include the ALJ's findings and conclusions at the fourth and fifth step of the sequential evaluation. Accordingly, the undersigned does not address the parties' arguments with respect to the ALJ's decision.
The Appeals Council's decision is not fully supported by substantial evidence in the record nor based on the proper legal standards. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment is granted;
2. The Commissioner's cross-motion for summary judgment is denied;
3. The Clerk is directed to enter judgment in plaintiff's favor; and
4. This action is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
