EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for a period of disability and Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. The parties have filed cross-motions for summary judgment. For the reasons discussed below, plaintiff's motion for summary judgment is granted, the Commissioner's motion is denied, and the matter is remanded for further proceedings.
Plaintiff filed applications for a period of disability, DIB, and SSI, alleging that she has been disabled since May 31, 2011. Administrative Record ("AR") 244-261. Her applications were denied initially and upon reconsideration. Id. at 168-172, 180-186. On October 8, 2014, a hearing was held before administrative law judge ("ALJ") David G. Buell. Id. at 26-55. Plaintiff was represented by counsel at the hearing, at which a vocational expert and plaintiff, with the assistance of a language interpreter, testified. Id.
On November 21, 2014, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.
Id. at 14-21.
Plaintiff's request for Appeals Council review was denied on March 8, 2016, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 1-6.
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). ECF No. 13 at 15-22.
Plaintiff argues that the ALJ erred in (1) finding that she is literate and able to communicate in English, and (2) assessing her mental and (3) physical limitations. ECF No. 16 at 6-13.
Plaintiff first argues that the ALJ erred in finding that she is literate and able to communicate in English. ECF No. 16 at 6-8. Plaintiff contends that a prior decision from the Commissioner finding that she was illiterate compelled the same finding in this case based on principals of res judicata. She argues that the error is significant because, based on the ALJ's residual functional capacity ("RFC") determination, a finding of illiteracy or inability to communicate in English compels a finding of disability pursuant to Vocational Rule 202.09 as of the date she turned 50.
At step-five of the sequential evaluation process, the Commissioner carries the burden of showing that the claimant, based on her age, education, work history, and RFC, has the ability to perform work available in the national economy. See Yuckert, 482 U.S. at 146 n.5. This burden can be satisfied in two ways: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P. app. 2." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). The Medical-Vocational Guidelines, often referred to as "the grids," present "a short-hand method for determining the availability and numbers of suitable jobs for a claimant." Id. at 1101. In assessing whether the claimant maintains the ability to work, the ALJ is required to first consult the grids, and only where the application of the grids is inappropriate— such as when the claimant suffers from only non-exertional limitations—may the ALJ rely on testimony of a vocational expert. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). Accordingly, where application of the Grids directs a finding of disability, that finding must be accepted by the Secretary." Id. (quoting Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989)).
Of relevance here, Rule 202.09 directs a finding of disabled where the claimant is (1) limited to light work (2) closely approaching advanced age (50-54), (3) illiterate or unable to communicate in English, and (4) previous work experience was unskilled or there is no prior work. 20 C.F.R. Part 404, Subpart P, App. 2, Table No. 2, Rule 202.09.
"The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than judicial proceedings." Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir.1988). A prior finding that a claimant is not disabled creates a presumption of nondisability. Lester, 81 F.3d at 827. A claimant can overcome this presumption by showing that there has been a "change in circumstances," such as an increase in the severity of an impairment or a change in the claimant's age category. Id. Even if the presumption of continuing disability is rebutted, the ALJ is still required to adopt the prior decision's findings as to education (including literacy and ability to communicate in English) and work experience "with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding." Acquiescence Ruling 97-4(9), 1997 WL 742758, at *3.
In his decision, the ALJ acknowledged that a prior decision concluded that plaintiff was illiterate. AR 19. The ALJ found, however, that there "is new evidence regarding [plaintiff's] ability to speak and understand the English language" that rebutted the presumption that plaintiff continues to be illiterate. Specifically, the ALJ observed that:
AR 19-20.
The majority of the evidence discussed by the ALJ is only relevant to plaintiff's ability to speak English, and has no bearing on her literacy. This is significant as plaintiff satisfies Vocational Rule 202.09 if she illiterate or unable to communicate in English. 20 C.F.R. Part 404, Subpart P, App. 2, Table No. 2, Rule 202.09; see also Silveira v. Apfel, 204 F.3d 1257, 1261 n.13 ("[T]he `or' in `illiterate or unable to communicate in English' [is] `conjunctive,' [meaning] that claimants meet that criterion if they are illiterate or unable to communicate in English or both."); Garcia v. Astrue, 2013 WL 394517, at *7 (E.D. Cal. Jan. 30, 2013) ("[T]he determination of Plaintiff's literacy and English communication abilities is key to assessing" applicability of Rule 202.09, and the "ALJ's failure to make a finding as to literacy and to provide reasons for the finding made as to English communication abilities warrant remand for determination of these issues.").
An ability to verbally communicate in English "does not mean that the claimant is literate." Rodriguez v. Astrue, 2013 WL 458176, at *1 (C.D. Cal. 2013) (citing Silveira, 204 F.3d at 1261 n.13). Instead, an individual is "illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling." 20 C.F.R. § 416.964(b)(1).
Accordingly, the ALJ's finding that plaintiff demonstrated a general ability to understand questions at the administrative hearing and that medical records evidenced an ability to speak some English, even if supported by substantial evidence,
At the hearing, the ALJ briefly inquired into plaintiff's ability to write as follows:
Q [ALJ:] Okay. All right. While you were working as a caregiver in the home. Did you have to write things down —write things down about what you had done for your patient? Did you write that down?
A: Yeah.
Q: Okay. Are — you able to write a grocery list in English now?
A: Sorry, sorry, sorry. How about she translate a little bit for me?
Plaintiff's immediate response to the first question may suggest that she can "write things down," but the subsequent response shows that she was having difficulty understanding the ALJ's questions. Significantly, it became apparent to the ALJ that plaintiff required the assistance of a translator, as evidenced by the ALJ's instruction to the translator to translate the simple question of whether plaintiff is able to write a grocery list.
As previously noted, to satisfy Vocational Rule 202.09 plaintiff must also be over 50 years of age, limited to light work, and have either unskilled or no prior work. See 20 C.F.R. Part 404, Subpart P, App. 2, Table No. 2, Rule 202.09. Plaintiff turned 50 in May 2014, and the ALJ found that she was limited to light work. However, the vocational expert testified that plaintiff's prior work as a caregiver has a specific vocational preparation ("SVP") level of 3, which corresponds with semi-skilled work. AR 49; SSR 00-4p ("semi-skilled work corresponds to an SVP of 3-4"). However, that fact alone does not preclude a finding that she is disabled under the grids. Plaintiff may still be found disabled if her prior work did not provide transferable skills. See Silveira v. Apfel, 204 F.3d 1257, 1260 (9th Cir.2000) ("The grid rules are ambiguous with regard to the treatment of skilled or semi-skilled work histories with no transferable skills. We hold that, as a matter of interpretation, in applying the grid rules the Commissioner must treat a skilled or semi-skilled work history with no transferable skills as equivalent to an unskilled work history.").
Accordingly, plaintiff satisfies Vocational Rule 202.09 if the caregiver position did not provide transferable skills. The ALJ did not make any findings as to whether plaintiff had transferable work skills, and therefor remand is necessary to permit the ALJ to consider this issue.
Plaintiff next argues that the ALJ erred in assessing her mental impairments. ECF No. 16 at 8-10. Specifically, plaintiff contends that the ALJ's RFC analysis completely failed to address evidence related to her mental impairments. Id. at 8-9. Plaintiff also argues that the ALJ erred by rejecting medical opinion evidence without explanation. Id. at 9-10.
In his decision, the ALJ discussed two medical opinions concerning plaintiff's mental limitations. Dr. Timothy Canty, M.D., an examining physician, completed a psychiatric evaluation of plaintiff. AR 823-826. He diagnosed plaintiff with mood disorder, not otherwise specified, and opined that she would not have difficulty performing simple, straightforward work. Id. at 825-826. It was also Dr. Canty's opinion that plaintiff would not be able to tolerate public work due to her inability to speak English, but would not have difficulty "with a few coworkers and supervisors." Id. at 826. He further opined that she was able to concentrate on predictable tasks, but could not tolerate stressful or complex work. Id.
Dr. Pail Klein, Psy.D., a non-examining physician, reviewed plaintiff's medical records and opined that she was able to understand and remember simple and detailed work; sustain concentration, persistence, and pace for simple and some detailed tasks; accept instructions in the Russian language from supervisors when motivated to do so; interact with coworkers in Russian language but with limited public contact; and adapt to normal work-related changes in most routine work-like settings. Id. at 163.
Plaintiff first argues that the ALJ erred by failing to discuss Dr. Canty and Dr. Klein's opinions in the portion of the decision addressing her residual functional capacity. ECF No. 16 at 8-9. Plaintiff's objection is over the decision's organization, and not a failure to address these physicians' opinions. In the section of the decision analyzing step-three of the sequential evaluation process, the ALJ discussed in detail the opinions provided by both physicians. AR 15. The ALJ also explained that little weight was given to Dr. Klein's non-examining opinion, while Dr. Canty's opinion was accorded great weight. Id. The ALJ concluded that Dr. Canty's opinion was entitled to more weight because it was substantiated by the evidence of record and consistent with plaintiff's lack of psychiatric treatment and ability to socialize. Id. Thus, the ALJ fully considered both opinions and explained the weight each opinion was given. Although this discussion was not contained in the section of the decision addressing plaintiff's RFC, it is clear from the decision that the ALJ intended to rely on Dr. Canty's opinion in assessing plaintiff's RFC.
However, plaintiff correctly argues that despite giving great weight to Dr. Canty's opinion, the ALJ rejected portions of Canty's opinion without comment. As discussed above, Dr. Canty opined that plaintiff would not be able to tolerate public work due to her inability to speak English, but would not have difficulty "with a few coworkers and supervisors." AR 826. He also opined that plaintiff would not tolerate stressful work. Id. These opinions are not reflected in plaintiff's RFC, and the ALJ was not permitted to reject these opinions without explanation. See AR 16 (limiting plaintiff to simple, routine repetitive work; work that doesn't require on-the-job independent judgment and can be learned by simple demonstration (without instructions provided in English)); Trevizo v. Berryhill, ___ F.3d ___, 2017 WL 4053751, at *7 (if an "examining doctor's opinion is contracted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence."); Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) ("Where an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one medical opinion over another, he errs."); Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) (An ALJ "may not reject `significant probative evidence' without explanation.").
The Commissioner argues that the ALJ properly rejected Dr. Canty's opinion that plaintiff could not tolerate working with the public. The Commissioner contends that the opinion was based on Dr. Canty's finding that plaintiff does not speak English, and the ALJ reasonably determined that plaintiff could communicate in English. ECF No. 23 at 7. The argument is unpersuasive for a number of reasons. First, the ALJ did not rely on this reason for rejecting Dr. Canty's opinion, and this court's review is limited to the rationale provided by the ALJ. See Bray, 554 F.3d at 1225; Connett, 340 F.3d at 874. Even if he had, as discussed above, the transcript from the administrative hearing demonstrates that plaintiff is extremely limited in her ability to communicate in English. This is further confirmed by the ALJ's own finding that plaintiff lacks the ability to follow job instructions provided in English. AR 16. Lastly, the argument fails to account for Dr. Canty's opinion that plaintiff was limited to interacting "with a few coworkers and supervisors," and could not tolerate stressful work. These limitations were also omitted, without explanation, from the ALJ's determination of the plaintiff's RFC.
As the ALJ erred by rejecting significant portions of Dr. Canty's opinion without explanation, remand is also appropriate for further consideration of plaintiff's RFC. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("A district court may reverse the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing, but the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.").
Accordingly, it is hereby ORDERED that:
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. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
