(SS) Sanguras v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 SHELLEY ANN SANGURAS , ) Case No.: 1:19-cv-1036 JLT ) 12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S APPEAL ) (DOC. 10) AND REMANDING THE ACTION 13 ) PURSUANT TO SENTENCE FOUR OF 42 U.S.C. v. ) § 405(g) 14 ) ANDREW SAUL, ) ORDER DIRECTING ENTRY OF JUDGMENT IN 15 Commissioner of Social Security, ) FAVOR OF PLAINTIFF SHELLEY ANN ) SANGURAS AND AGAINST DEFENDANT 16 Defendant. ) ANDREW SAUL, THE COMMISSIONER OF ) SOCIAL SECURITY 17 ) 18 Shelley Ann Sanguras asserts she is entitled to disability insurance benefits and a period of 19 disability under Title II of the Social Security Act. Plaintiff argues the administrative law judge erred 20 in evaluating her non-severe mental impairments and erred in finding at step five that Plaintiff had 21 transferable skills. For the reasons set forth below, the matter is REMANDED for further proceedings 22 pursuant to sentence four of 42 U.S.C. § 405 (g). 23 BACKGROUND 24 In August 2015, Plaintiff filed an application for benefits, alleging she became disabled as of 25 March 2014 due to constant lower back pain with radiculopathy, two microdiscectomy procedures on 26 her lumbar spine, fusion in her lumbar-sacral spine, a shattered patella, glaucoma, and severe chronic 27 migraines. (Doc. 7-4 at 3) The Social Security Administration denied the application at the initial level 28 and upon reconsideration. (See generally Doc. 7-4) Plaintiff’s request for an administrative hearing 1 was granted, and she testified before an ALJ on January 16, 2018. (See Doc. 7-3 at 29, 46) The ALJ 2 also called a vocational expert to testify at the hearing. (Id. at 36, 69) The ALJ found Plaintiff was not 3 disabled and issued an order denying benefits on April 16, 2018. (Id. at 29-37) Plaintiff requested 4 review of the ALJ’s decision with the Appeals Council, which denied the request on May 31, 2019. 5 (Id. at 2-5) Therefore, the ALJ’s determination became the final decision of the Commissioner. 6 STANDARD OF REVIEW 7 District courts have a limited scope of judicial review for disability claims after a decision by 8 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 9 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 10 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405 (g). The 11 ALJ’s determination that the claimant is not disabled must be upheld by the Court if the proper legal 12 standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of 13 Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 14 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 16 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 17 must be considered, because “[t]he court must consider both evidence that supports and evidence that 18 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 19 DISABILITY BENEFITS 20 To qualify for benefits under the Social Security Act, Plaintiff must establish she is unable to 21 engage in substantial gainful activity due to a medically determinable physical or mental impairment 22 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 23 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 24 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 25 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 26 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. [27] 28 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 1 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 2 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 3 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 4 ADMINISTRATIVE DETERMINATION 5 To achieve uniform decisions, the Commissioner established a sequential five-step process for 6 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520 (a)(4), 416.920(a)(4). The process 7 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had 8 medically determinable severe impairments (3) that met or equaled one of the listed impairments set 9 forth in 20 C.F.R. § 404 , Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional 10 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant 11 numbers at the state and national level. Id. 12 Pursuant to this five-step process, the ALJ determined first that Plaintiff had “not engaged in 13 substantial gainful activity since March 7 2014, the alleged onset date.” (Doc. 7-3 at 31) Second, the 14 ALJ found Plaintiff’s severe impairments included: “degenerative disc disease of the lumbar spine 15 status post three surgeries; left knee degenerative joint disease; [and] migraines.” (Id.) The ALJ noted 16 Plaintiff also had a medically determinable impairment of depression, but found it was “nonsevere.” 17 (Id. at 32) At step three, the ALJ determined Plaintiff’s impairments did not meet or medically equal a 18 Listing. (Id.) Next, the ALJ found: 19 [T]he claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she can frequently climb ramps and stairs, 20 never climb ladders, ropes or scaffolds, frequently balance, occasionally stoop, frequently kneel, occasionally crouch and frequently crawl, and must avoid 21 concentrated exposure to extreme cold and wetness. 22 (Id.) With this residual functional capacity, the ALJ determined at step four that Plaintiff was “unable 23 to perform [her] past relevant work” as a registered nurse. (Id. at 36) At step five, the ALJ found 24 Plaintiff had “acquired work skills from past relevant work that are transferable to other occupations 25 with jobs existing in significant numbers in the national economy,” such as outpatient admitting clerk, 26 hospital admitting clerk, and rehabilitation clerk. (Id. at 36-37) Thus, the ALJ concluded Plaintiff was 27 not disabled as defined by the Social Security Act. (Id. at 37) 28 /// 1 DISCUSSION AND ANALYSIS 2 Plaintiff contends the ALJ failed to evaluate “the impact of a non-severe mental impairment on 3 the ability to perform semi-skilled work.” (Doc. 10 at 4, emphasis omitted) In addition, Plaintiff 4 asserts the ALJ erred in evaluating her transferable skills from past relevant work. (Id. at 7-14) The 5 Commissioner asserts that substantial evidence supports the ALJ’s findings, including the residual 6 functional capacity and that Plaintiff acquired transferable skills. (Doc. 11 at 6-10) Further, the 7 Commissioner argues Plaintiff fails to show any error for failure to follow agency policy to determine 8 transferability of skills. (Id. at 11-12) 9 A. Nonsevere Mental Impairment and the RFC 10 Plaintiff notes that at step two, the ALJ determined she “had a medically determinable mental 11 impairment but that the impairment did not rise to the level of severe.” (Doc. 10 at 4) Plaintiff asserts 12 that later in the decision, “[t]he ALJ did not consider the presence of a non-severe mental impairment in 13 finding the ability to perform other work.” (Id.) Plaintiff argues the positions of “outpatient admitting 14 clerk, hospital admitting clerk, or rehabilitation clerk do not qualify as basic work activity.” (Id., 15 emphasis omitted) Thus, Plaintiff asserts the matter should be remanded for an ALJ to evaluate her 16 nonsevere impairment and the effect on her ability to perform the work identified. (Id. at 7) 17 1. ALJ’s step two findings 18 At step two, a claimant must make a “threshold showing” (1) she has a medically determinable 19 impairment or combination of impairments and (2) the impairment or combination of impairments is 20 severe. Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); see also 20 C.F.R. §§ 404.1520 (c), 416.920(c). 21 Thus, the burden of proof is on the claimant to establish a medically determinable severe impairment 22 that significantly limits her physical or mental ability to do basic work activities, or the “abilities and 23 aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521 (a), 416.921(a). 24 An impairment, or combination thereof, is “not severe” if the evidence establishes the 25 impairment has “no more than a minimal effect on an individual's ability to do work.” Smolen v. 26 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). For an impairment to be “severe,” it must “significantly 27 limit[]” the claimant’s “ability to do basic work activities.” 20 C.F.R. §§ 404.1520 (c), 416.920(c). 28 Basic work activities are ‘the abilities and aptitudes necessary to do most jobs.” Id., §§ 404.1522(b), 1 416.922(b). These activities include “[u]nderstanding, carrying out, and remembering simple 2 instructions;” “[u]se of judgment;” “[r]esponding appropriately to supervision, co-workers and usual 3 work situations;” and “[d]ealing with changes in a routine work setting.” Id. 4 The “Paragraph B” criteria set forth in 20 C.F.R., Pt. 404, Subpart P, App. 1 are used to evaluate 5 the mental impairments of a claimant, and include the ability to: “[u]nderstand, remember, or apply 6 information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself.” 7 See id., §12.00(A)(2)(b) (2018). The Regulations inform claimants: 8 If we rate the degrees of your limitation as “none” or “mild,” we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates 9 that there is more than a minimal limitation in your ability to do basic work activities. [10] 20 C.F.R. §§ 404 .1520a(d)(1); 416.920a(d)(1). Here, the ALJ found Plaintiff’s “medically determinable 11 mental impairments of depression… caused no limitations in understanding, remembering or applying 12 information” and “no limitations in interacting with others.” (Doc. 7-3 at 32) In addition, the ALJ 13 found Plaintiff had “mild limitations” with “concentrating, persisting, or maintaining pace” and 14 “adapting or managing oneself.” (Id.) The ALJ concluded that because Plaintiff’ “mental impairment 15 of depression does not cause more than minimal limitation in … [her] ability to perform basic mental 16 work activities and is therefore nonsevere.” (Id.) 17 Plaintiff does not challenge the ALJ’s findings regarding the Paragraph B criteria or the 18 conclusion at that her mental impairment is “nonsevere.” (See Doc. 10) However, Plaintiff asserts the 19 ALJ erred by not incorporating the mild limitations into her residual functional capacity. (Id. at 6-7) 20 2. Plaintiff’s mental impairment and her RFC 21 A claimant’s residual functional capacity (“RFC”) is “the most [a claimant] can still do despite 22 [her] limitations.” 20 C.F.R. §§ 404.1545 (a), 416.945(a); see also 20 C.F.R. Part 404, Subpart P, 23 Appendix 2, § 200.00(c) (defining an RFC as the “maximum degree to which the individual retains the 24 capacity for sustained performance of the physical-mental requirements of jobs”). In formulating an 25 RFC, the ALJ weighs medical and other source opinions, as well as the claimant’s credibility. See, e.g., 26 Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). Further, the ALJ must 27 consider “all of [a claimant’s] medically determinable impairments,” whether severe or not, when 28 determining a claimant’s RFC. 20 C.F.R. §§ 405.1545 (a)(2), 416.945(a)(2). 1 Plaintiff asserts the ALJ erred because she “found mild limitations in concentration, persistence, 2 or pace and mild limitations in adapting or managing oneself,” and Plaintiff believes “[t]he ALJ did not 3 consider the presence of a non-severe mental impairment” in evaluating her RFC. (Doc. 10 at 6) 4 According to Plaintiff, “the ALJ should [have] inquired about the impact of a non-severe mental 5 impairment on the ability to perform semi-skilled work.” (Id.) In support of this assertion, Plaintiff 6 relies upon Hutton v. Astrue, 491 Fed. App’x 850 (9th Cir. 2012). (See id. at 6-7 ) The Commissioner 7 asserts Hutton is inapplicable because “the ALJ did not exclude Plaintiff’s mental impairments from 8 consideration when assessing her RFC.” (Doc. 11 at 8) 9 In Hutton, the ALJ determined at step two that the claimant had a medically determinable 10 mental impairment of PTSD, which caused “‘mild’ limitations in the area of concentration, persistence, 11 or pace.” Id., 491 Fed. App’x at 850. The Ninth Circuit observed that under the Regulations, all 12 impairments must be considered—whether severe or not—in formulating the RFC, and explained: 13 Regardless of its severity, however, the ALJ was still required to consider Hutton’s PTSD when he determined Hutton’s RFC. See 20 C.F.R. § 404.1545 (a)(2) ("We will 14 consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe[.]’”). The ALJ, 15 however, failed to do so. Instead, the ALJ discredited Hutton, his treating physicians' opinions, and the VA’s disability rating. [16] Id. Importantly, the Court indicated it did “not base [its] action… on any of these determinations by the [17] ALJ.” Id. The Court explained: [18] [T]he the ALJ then mischaracterized Mrs. Hutton’s testimony at least five times. 19 Finally, the ALJ concluded that, based on Hutton’s lack of credibility, his PTSD claims were in “great doubt.” On that basis, the ALJ excluded Hutton’s PTSD from 20 consideration. This exclusion was legal error. To determine Hutton’s RFC properly, the ALJ was required to consider Hutton’s physical impairments and the “mild” 21 limitations his PTSD caused with concentration, persistence, or pace, regardless of whether the ALJ doubted that they were caused by Hutton’s ever-shifting military 22 history. See 20 C.F.R. § 404.1545 (a)(2). Further, while the ALJ was free to reject Hutton’s testimony as not credible, there was no reason for the ALJ to disregard his 23 own finding that Hutton’s nonsevere PTSD caused some “mild” limitations in the areas of concentration, persistence, or pace. [25] Id. at 850-851 . Therefore, the Court vacated the decision of the ALJ and remanded the action to an 26 ALJ to reconsider the evidence. Id. at 850 . 27 Following Hutton, district courts in the Ninth Circuit “found reversible error where the ALJ 28 failed to include mild mental limitations in the assessment of the RFC.” Thompson v. Saul, 2019 WL 1 3302471, at *7 (E.D. Cal. July 23, 2019); see also Gates v. Berryhill, 2017 WL 2174401 , at *2 (C.D. 2 Cal. May 16, 2017); Smith v. Colvin, 2015 WL 9023486 , at *8-9 (N.D. Cal. Dec. 16, 2015); Kramer v. 3 Astrue, 2013 WL 256790 , at *2-3 (C.D. Cal. Jan. 22, 2013). However, courts determined Hutton is 4 “inapplicable where the record demonstrates that the ALJ considered a claimant's non-severe mental 5 impairments before concluding that they did not cause any significant limitation necessitating inclusion 6 in the RFC.” Thompson, 2019 WL 3302471 at *7 (quoting George A. v. Berryhill, 2019 WL 1875523 , 7 at *5 (C.D. Cal. Apr. 24, 2019)); see also Denney v. Saul, 2019 WL 4076717 , at *6-8 (E.D. Cal. Aug. 8 28, 2019); Malherek v. Comm’r of SSA, 2019 WL 5078223 (D. Az. June 5, 2019); Jones v. Berryhill, [9] 2018 WL 3956479 , at *3 (C.D. Cal. Aug. 15, 2018). 10 For example, this Court found Hutton was distinguishable where the ALJ found at step two that 11 the claimant had nonsevere mental impairments at step two and considered additional evidence related 12 to her mental impairment elsewhere in the decision. Denney, 2019 WL 4076717 , at *7. The Court 13 noted the ALJ found at step two that “any limitation resulting from Plaintiff’s mental impairments 14 alone was at most mild.” Id. The ALJ also considered Denney’s treatment records that indicated she 15 did not take medication prescribed for depression, and found Denney “maintained activities of daily 16 living that were inconsistent with a conclusion that her mental impairments severely impacted her 17 functional abilities.” Id. The court explained: “District courts in this circuit have generally declined to 18 find reversible error when an ALJ found the claimant’s mental impairments to be non-severe at step 19 two and considered related, additional evidence of the claimant’s mental impairments at step four.” Id. 20 at *8 (citations omitted). Because the ALJ discussed Plaintiff’s mental impairments at step two and 21 additional evidence “briefly at step four,” the Court concluded “the ALJ adequately considered 22 Plaintiff’s mental impairments in formulating her residual functional capacity.” Id. at *7-8 . 23 The Central District found in George A. that Hutton did not apply where the ALJ considered 24 evidence related to the claimant’s mental impairments at step two and elsewhere in the record. George 25 A., 2019 WL 1875523, at *4-5. The claimant asserted “the ALJ erred by failing to include his non26 severe mental impairments in assessing Plaintiff’s RFC and in the hypothetical posed to the [vocational 27 expert].” Id. at *4 . The ALJ found at step two that the “Plaintiff’s mental impairments caused no more 28 than mild limitations in daily living; social functioning; and concentration, persistence or pace, and 1 therefore, were not severe.” Id. The court noted that “in assessing Plaintiff’s RFC at step four, the ALJ 2 considered Plaintiff’s mental impairments again.” Id. Specifically, after step two, the ALJ considered 3 both the medical record and “other evidence… relevant to Plaintiff’s non-severe mental impairments,” 4 including the claimant’s activities. Id. at *5 . The ALJ found “Plaintiff’s daily activities required the 5 same mental and social abilities ‘necessary for obtaining and maintaining employment,’ such as running 6 errands, going to malls, attending college, and performing household chores.” Id. The court found no 7 error because “the ALJ considered the evidence related to Plaintiff’s mental impairments before 8 concluding not to include any mental limitations in the RFC or in the hypothetical to the VE.” Id. 9 Similarly, here, the ALJ identified “mild limitations in concentrating, persistence, or 10 maintaining pace” and “mild limitations in adapting or managing oneself” in evaluating the Paragraph 11 B criteria at step two. (Doc. 7-3 at 32) The ALJ indicated that in formulating the RFC, she considered 12 “all symptoms” and “the entire record.” (Id.) For example, the ALJ noted Plaintiff reported she was 13 “able to finish what she starts and she could follow instructions very well.” (Id. at 33, citing Exh. 2E 14 and 6E) The ALJ also noted Plaintiff took Xanax “to help with anxiety and sleep, but she was down to 15 taking them as needed.” (Id. at 35) Further, ALJ noted Plaintiff was “able to prepare simple meals, do 16 housework such as dishes, dusting, laundry and ironing, go outside, shop in stores and by computer, 17 and socialize with others.” (Id. at 33; see also id. at 35 ) The ALJ found some of the “mental abilities 18 and social interactions required in order to perform these activities are the same as those necessary for 19 obtaining and maintaining employment.” (Id. at 35) As in Denney and George A., it is clear the ALJ 20 considered evidence related to Plaintiff’s mental impairments after step two, including her activities of 21 daily living and evidence concerning her ability to complete tasks and follow instructions. Thus, the 22 record does not support Plaintiff’s assertion that the ALJ did not consider her nonsevere mental 23 impairment in formulating the RFC. See Denney, 2019 WL 4076717 at *8 (finding no error where the 24 ALJ discussed additional evidence related to the claimant’s mental impairment after step two). 25 3. Conclusion 26 The ALJ made an affirmative finding that Plaintiff’s mental impairment was nonsevere, which 27 Plaintiff does not dispute. The omission of mental limitations from the RFC rather reflects the 28 conclusion that the impairments would not interfere with the ability to perform basic work activities, 1 which the ALJ reached at step four after considering Plaintiff’s ability to complete tasks, follow 2 instructions, medical record, and daily activities. Consequently, the Court finds Plaintiff fails to show 3 the ALJ did not adequately consider her mental impairments with the RFC. See Denney, 2019 WL 4 4076717, at *8; George A., 2019 WL 1875523 , at *4-5; Dray v. Astrue, 353 Fed. Appx. 147 , 150-51 5 (10th Cir. 2009) (evidence of mild mental impairments did not contradict ALJ’s RFC determination 6 omitting any limitations related to mental impairments). 7 Only limitations supported by substantial evidence must be included in questions presented to 8 vocational experts. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). An ALJ need not 9 include “any impairments that the ALJ has properly rejected.” Thomas v. Barnhart, 278 F.3d 947 , 956 10 (9th Cir. 2002). Thus, if an ALJ finds a mild mental impairment is adequately addressed in an RFC 11 that omits mental limitations, the hypothetical questions posed to the vocational expert need not include 12 mental limitations. See Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001) (explaining it is 13 “proper for an ALJ to limit a hypothetical” and finding the ALJ did not err by omitting any limitations 14 for depression when questioning the vocational expert where the record showed Osenbrock’s 15 “depression [was] a mild impairment, which presented no significant interference with the ability to 16 perform basic work-related activities”); Bias v. Astrue, 484 Fed. Appx. 275, 276 (10th Cir. 2012) (when 17 the ALJ finds there are no work-related limitations related to a nonsevere mental impairment, “the ALJ 18 is not required to include that impairment in his hypothetical”). Because the ALJ determined Plaintiff’s 19 nonsevere depression did not require limitations in the RFC, the ALJ did not need to include mental 20 limitations in the hypothetical questions posed to the vocational expert to determine Plaintiff’s ability to 21 perform work in the national economy. Plaintiff fails to show any reversible error on these grounds. 22 B. Transferable Skills 23 At step five, the Commissioner bears the burden “to show that the claimant can perform some 24 other work that exists in ‘significant numbers’ in the national economy, taking into consideration the 25 claimant’s [RFC], age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th 26 Cir. 1999) (quoting 20 C.F.R. § 404.1560 (b)(3)). The Commissioner may satisfy this burden by (1) 27 referring to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 28 (known as “the Grids”); or (2) calling a vocational expert to testify about specific representative 1 occupations that a claimant could perform, as well as the availability of such jobs in the national 2 economy. Osenbrock, 240 F.3d at 1162 (citing Tackett, 180 F.3d at 1100-01 ). 3 The ALJ called a vocational expert, who testified regarding Plaintiff’s past relevant work and 4 availability of other work in the national economy. (See Doc. 7-3 at 36) Plaintiff asserts that the ALJ 5 erred at step five by misstating the testimony of the vocational expert related to the skills obtained in 6 Plaintiff’s past relevant work as a registered nurse or nurse practitioner. (Doc. 10 at 7-8) In addition, 7 Plaintiff asserts the ALJ failed to comply with Agency policy set forth in POMS DI 25015.017, which 8 is “a directive describing how to assess the materiality and process for a transferability of skills 9 assessment.” (Id. at 9-10) 10 1. ALJ’s findings on Plaintiff’s transferable skills 11 Occupations are classified as “unskilled,” “semiskilled,” or “skilled.” 20 C.F.R. § 404.1568 . 12 Unskilled work is the least complex work, consisting of tasks that can be learned on the job in 30 days 13 or less. See § 404.1568(a); SSR 82-411, 1982 WL 31389 at *2 (Jan. 1, 1982). “Semiskilled 14 occupations” are “distinctly simpler than the more highly skilled type of jobs” but still “contain more 15 variables and require more judgment than do unskilled occupations.” SSR 82-41, 1982 WL 31389 at 16 *2; see also 20 C.F.R. § 404.1568 (b) (semiskilled work requires “some skills”). Skilled work is the 17 most complex type of work, requiring “qualifications in which a person uses judgment to determine 18 the machine and manual operations to be performed in order to obtain the proper form, quality, or 19 quantity of material to be produce.” Id. § 404.1568(c). 20 If a claimant is unable to perform past relevant work “and that work has been determined to be 21 skilled or semiskilled,” the ALJ must consider whether the skills acquired are transferable to a new 22 position. SSR 82-41, 1982 WL 31389 at *1. “A skill is knowledge of a work activity which requires 23 the exercise of significant judgment that goes beyond the carrying out of simple job duties and is 24 acquired through performance of an occupation which is above the unskilled level.” SSR 82-41, 1982 25 WL 31389 at *2. The transferability of skills to a new occupation is evaluated based on a likelihood [26] 27 1 Social Security Rulings (SSRs) are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 C.F.R. § 402.35 (b)(1). The Ninth Circuit gives the Rulings deference “unless they are 28 plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 1 that: “(1) the new job requires the same or a lesser degree of skill than the old job; (2) the same or 2 similar tools and machines are used in both jobs; and (3) the same or similar raw materials, products, 3 processes, or services are involved in both jobs.” Aldrich v. Barnhart, 151 Fed. App’x 561, 562 (9th 4 Cir. 2005). When considering transferable skills, the claimant’s age, education level, and prior work 5 experience are all relevant factors. 20 C.F.R. §§ 404.1563 , 404.1564, and 404.1565. 6 If an ALJ determines that a plaintiff has acquired transferable work skills from past employers, 7 the ALJ must expressly identify the acquired skills. Bray v. Comm’r of Soc. Sec., 554 F.3d 1219 , 12238 26 (2009). “When a finding is made that a claimant has transferable skills, the acquired work skills 9 must be identified, and specific occupations to which the acquired work skills are transferable must be 10 cited in the … ALJ’s decision.” Id. at 1223 , quoting SSR 82-41, 1982 WL 31389 at *7. “It is 11 important that these findings be made at all levels of adjudication to clearly establish the basis for the 12 determination or decision for the claimant and for a reviewing body including a Federal district court.” [13] Id. Even where the ALJ relies on vocational expert testimony to determine a claimant has transferable 14 skills from past work, the ALJ must identify in the decision what work skills are transferable and to 15 what specific occupations those acquired skills apply. See id. at 1225 . 16 The ALJ purported to rely on the vocational expert testimony from Jeff Beeman (“the VE”) to 17 support her finding that Plaintiff “has acquired work skills from past relevant work.” (Doc. 7-3 at 36) 18 The ALJ indicated: 19 The vocational expert testified that the claimant’s past relevant work as a registered nurse was skilled with a specific vocational preparation (SVP) code of 7 and required 20 the following skills: lifting patients, moving equipment, passing instruments, and coordinating. [21] 22 (Id.) The ALJ then determined Plaintiff had “acquired work skills from past relevant work that are 23 transferable to other occupations with jobs existing in significant numbers,” including outpatient 24 admitting clerk, hospital admitting clerk, and rehabilitation clerk. (Id. at 36-37) 25 However, the VE did not identify the skills acquired or that were transferable to the positions 26 identified. (See Doc. 7-3 at 69-75) The ALJ asked the VE to describe Plaintiff’s past relevant work, 27 and the VE indicated he had “a couple preliminary questions” before he could do so. (Id. at 69-70) 28 The VE noted Plaintiff worked at a hospital and surgery centers and the following testimony was 1 obtained: 2 [VE]: For all intents and purposes, from 2003 to 2014, your various work at the hospital and surgery centers, can you give me, as best you can, the range of the most that you 3 had to lift by yourself? 4 CLMT: I had to help, I had to lift patients, assisted with patients, equipment. I don’t – we had all kinds of equipment in the OR we had to lift and move around. I had to lift 5 extremities. I had to lift like patient’s legs to prep by myself because when you prepped them, you had to be sterile to prep them by yourself, so we did that. And then 6 we were always moving equipment around, and repositioning patients, and so we were always doing that in the OR. [7] VE: Well, when you say by yourself, 50 pounds or more than 50 pounds? [8] CLMT: Probably 50 pounds and less. [9] VE: Okay. On a consistent basis? [10] CLMT: Yes. [11] VE: Are any of your credentials current? [12] CLMT: Yes. [13] 14 (Doc. 7-3 at 70) The VE then proceeded to describe Plaintiff’s past relevant work as a “Registered 15 Nurse, or Nurse Practitioner, which Plaintiff “performed at medium, or even heavy [exertion].” (Id. at 16 71) The VE explained. “When you’re taking the weight of somebody who is non-ambulatory, or 17 needing to move, move somebody on a surgical table, or whatever, it can be more than, more than 18 medium, rise to heavy.” (Id.) The ALJ then asked if “the claimant acquire[d] any transferable skills in 19 her past work,” which the VE responded: “Yes. I mean with her nurse background, there are, you know, 20 through the hierarchy, there are various positions that she could do, Your Honor.” (Id. at 71-72) The 21 VE stated Plaintiff had skills that would transfer to sedentary jobs, and stated such jobs included 22 outpatient admitting clerk, hospital admitting clerk, and rehabilitation clerk. (Id. at 73-74) 23 Although the VE testified Plaintiff had acquired transferable skills, the VE did not identify these 24 skills at any point during the hearing, or explain the “hierarchy” to which he referred. Rather, it 25 appears that the ALJ gleaned “skills” from Plaintiff’s testimony regarding the amount of weight she 26 was required to lift, and the tasks she performed while doing so. Further, it is unclear from the record 27 whether the “skills” are transferable to the positions identified by the VE. See SSR 82-41, 1982 WL 28 31389 at *2; Aldrich, 151 Fed. App’x at 562 (explaining transferability is evaluated, in part, based on 1 the likelihood that a new job requires “the same or similar” processes, products, services, materials, 2 tools, and machines). Indeed, because Plaintiff is limited to less than the full range of sedentary work, 3 it is unlikely that the skills of “lifting patients” and “moving equipment” are transferable to the 4 sedentary positions identified by the VE and the ALJ at step five. 5 Because the record is insufficient for the Court to determine what skills Plaintiff obtained from 6 her past relevant work, and whether the skills were transferable to the positions available in the national 7 economy, the ALJ’s findings at step five are not supported by substantial evidence in the record. See 8 Bray, 554 F.3d at 1125 (“[w]hen the issue of skills and their transferability must be decided, ... [the] 9 ALJ is required to make certain findings of fact and include them in the written decision. Findings 10 should be supported with appropriate documentation.”) (quoting SSR-82-41, 182 WL 31389 at *7). 11 2. Compliance with POMS 12 It is well-established in the Ninth Circuit that agency policy set forth in the Program Operations 13 Manual System (“POMS”) “does not impose judicially enforceable duties on either [the] court or the 14 ALJ.” Carillo-Yeras, 671 F.3d 731, 735 (9th Cir. 2011); see also Lockwood v. Comm’r, 616 F.3d 1068 , 15 1073 (9th Cir. 2010) (“POMS does not impose judicially enforceable duties on the SSA”); Durden v. 16 Colvin, 549 Fed. App’x 690, 690-91 (9th Cir. 2013) (“the POMS does not have the force and effect of 17 law and, thus, does not impose judicially enforceable duties on the ALJ”). Thus, the Court is unable to 18 find error to the extent Plaintiff challenges step five finding “based on alleged violations of the agency 19 manuals.” See Deuschel v. Comm’r of SSA, 526 Fed. App’x, 715, 718-719 (2013). 20 C. Remand is Appropriate 21 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405 (g) or to 22 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, [23] 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 24 agency determination, the proper course is to remand to the agency for additional investigation or 25 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 26 12, 16 (2002)). Generally, an award of benefits is directed when: “(1) the ALJ has failed to provide 27 legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be 28 resolved before a determination of disability can be made, and (3) it is clear from the record that the 1 ALJ would be required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 2 1292. In addition, an award of benefits is directed where no useful purpose would be served by further 3 administrative proceedings, or where the record is fully developed. Varney v. Sec’y of Health & 4 Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 5 The ALJ failed to support her findings at step five with findings sufficient for the Court to find 6 Plaintiff had acquired transferable skills from her past relevant work, including what skills were 7 acquired and the specific positions to which the skills could be transferred. The matter should be 8 remanded for the ALJ to set forth facts sufficient to support the step five findings. See Bray, 554 F.3d 9 at 1226 (remanding the action for the ALJ to “make specific findings on whether [the claimant] has 10 transferable skills,” and noting that “meaningful review of an administrative decision requires access to 11 the facts and reasons supporting that decision”). 12 CONCLUSION AND ORDER 13 The ALJ erred in evaluating the vocational expert’s testimony and finding Plaintiff had acquired 14 transferable skills. Because the step five findings are not supported by substantial evidence, the ALJ’s 15 decision cannot be upheld. See Sanchez, 812 F.2d at 510 . Accordingly, the Court ORDERS: 16 1. Plaintiff’s appeal of the administrative decision (Doc. 10) is GRANTED; 17 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405 (g) for further 18 proceedings consistent with this decision; and 19 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Shelley Ann 20 Sanguras, and against Defendant Andrew Saul, the Commissioner of Social Security. [21] 22 IT IS SO ORDERED. 23 Dated: March 15, 2021 /s/ Jennifer L. Thurston 24 UNITED STATES MAGISTRATE JUDGE