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Mort v. Astrue


September 30, 2009



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will deny plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g) .

I. Factual and Procedural Background

In a decision dated January 23, 2007, the ALJ determined plaintiff was not disabled.*fn1 The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has severe impairments of degenerative knee changes, obesity, diabetes, cuboid subluxation of the right foot, and history of bilateral inguinal hernia surgeries, but these impairments do not meet or medically equal a listed impairment; plaintiff can perform light work and can sit six of eight hours with normal breaks and requires a sit/stand option not requiring leaving the work stations, no climbing ladder/ropes/scaffolds, crawling or concentrated exposure to extreme cold, and occasional stooping, kneeling, crouching or exposure to vibration; plaintiff is not totally credible; plaintiff cannot perform his past relevant work; based on the testimony of a vocational expert, there are a significant number of jobs in the national economy plaintiff can perform; and plaintiff is not disabled. Administrative Transcript ("AT") 20-25. Plaintiff contends the ALJ failed to set forth an adequate basis for the determination that there were other jobs plaintiff could perform.*fn2

II. Standard of Review

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

III. Analysis

Plaintiff contends the ALJ did not set forth a proper evidentiary foundation for the finding under step five of the sequential evaluation that there were other jobs in the national economy plaintiff could perform. Under Social Security Ruling ("SSR") 82-41,*fn3 transferability of skills is at issue when a plaintiff has severe impairments that are not presumptively disabling but has a residual functional capacity that prevents the performance of past relevant work that was skilled or semiskilled. When the issue of transferability of skills must be decided, the ALJ must set forth specific findings of fact including identification of the acquired work skills that are transferable. SSR 82-41. These findings are required even where the ALJ relies on the testimony of a vocational expert. See Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1223-27 (9th Cir. 2009).

The ALJ specifically found that transferability of job skills was not material to the determination of disability. AT 25. This finding was in error. Transferability was not at issue only if the ALJ was relying exclusively on the Medical-Vocational Guidelines.*fn4 See Rules 202.14, 202.21 (under grid rules, plaintiff would be considered not disabled even with no transferable skills). However, the ALJ expressly acknowledged that plaintiff had non-exertional limitations, which eroded the occupational base, and that vocational expert testimony was required. AT 25. The vocational expert identified all of plaintiff's past relevant work as being skilled. AT 364. In posing the hypothetical to the vocational expert, the ALJ did not identify any transferable skills nor did the vocational expert do so in describing jobs available to plaintiff.

AT 364-365. The ALJ set forth no findings of fact on this issue in his decision. AT 25. Plaintiff's past relevant work included mechanic, truck driver, logging truck driver, diesel mechanic and lawn service worker. AT 364. The jobs relied on by the ALJ at step five were dispatcher, data entry clerk and billing clerk, all of which were designated as semiskilled jobs. AT 25, 364-365. No explanation is provided, however, as to which skills plaintiff had acquired as a truck driver or mechanic that would be transferable to these semiskilled jobs. As such, this matter must be remanded for findings on this issue.

For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and further findings addressing the deficiencies noted above.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment is denied;

2. The Commissioner's cross-motion for summary judgment is denied; and

3. This matter is remanded for further proceedings consistent with this order.

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