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Casillas v. Astrue

March 10, 2010


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.


The lengthy procedural history of this case is detailed in the Joint Stipulation. [See JS 2-5]. Plaintiff filed her benefits application on September 8, 1998, alleging disability commencing on December 31, 1997. [JS 2]. Plaintiff returned to work on March 1, 2004, and therefore seeks disability benefits for the closed period between December 31, 1997 and that date. After numerous administrative hearings and three remands at the administrative level, an Administrative Law Judge (the "ALJ") issued a written hearing decision on November 29, 2006 that constitutes the final decision of the Commissioner in this case.

[Administrative Record ("AR") 17-30]. The ALJ found that during the closed period, plaintiff had severe impairments consisting of status post bilateral carpal tunnel release, degenerative disc disease and degenerative arthritis of the neck and low back, surgically treated right ring trigger finger, obesity, abnormal liver enzymes due to steroid hepatitis, left modified radical mastectomy in 1997, recurrence of breast cancer in 2001, a depressive reaction to physical condition, and a psycho-physiological reaction to pain. [JS 3; AR 21]. The ALJ determined that during the closed period, plaintiff retained the residual functional capacity ("RFC") for a restricted range of sedentary work. Based on the testimony of a vocational expert, however, the ALJ further found that plaintiff's RFC did not preclude her from performing work available in significant numbers in the national economy, specifically, the jobs of "space scheduler" and "information clerk.". [See JS 2-4; AR 22-30]. Therefore, the ALJ concluded that plaintiff was not disabled at any time during the closed period. [JS 4; AR 30].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "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, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Transferability of Skills

Plaintiff contends that the record lacks substantial evidence supporting the ALJ's finding that plaintiff had transferable skills that could meet the requirements of the alternative jobs of space scheduler and information clerk identified by the vocational expert, and that the ALJ erred in failing to explain the conflict between the vocational expert's testimony and the Dictionary of Occupational Titles ("DOT"). [See JS 5-16; AR 29-30].

Whether or not a claimant has transferable work skills is relevant in assessing the claimant's capacity to perform alternative work at step five of the sequential evaluation procedure. See generally 20 C.F.R. §§ 404.1568, 416.968; SSR 82-41, 1982 WL 31389, at *1. "Skills refer to experience and demonstrated proficiency with work activities in particular tasks or jobs. In evaluating the skill level of past relevant work or potential occupations, work activities are the determining factors." SSR 82-41, 1982 WL 31389, at *3. "The claimant is in the best position to describe just what he or she did in past relevant work, how it was done, what exertion was involved, [and] what skilled or semiskilled work activities were involved," but the ALJ also may consult the DOT or a vocational expert for assistance in determining skill levels. SSR 82-41, 1982 WL 31389, at *4.

A claimant's acquired skills are transferable to other jobs when the skilled or semiskilled work activities the claimant performed in past relevant work "can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs." 20 C.F.R. §§ 404.1568(d)(1), 416.968(d)(1); see SSR 82-41, 1982 WL 31389, at *2. Transferability "is most probable and meaningful among jobs in which: (1) the same or a lesser degree of skill is required, because people are not expected to do more complex jobs than they have actually performed (i.e., from a skilled to a semiskilled or another skilled job, or from one semiskilled to another semiskilled job); (2) the same or similar tools and machines are used; and (3) the same or similar raw materials, products, processes or services are involved. A complete similarity of all these factors is not necessary." SSR 82-41, 1982 WL 31389, at *5; see 20 C.F.R. §§ 404.1568(d)(2)-(3), 416.968(d)(2)-(3). Some acquired job skills are "unique to a specific work process in a particular industry or job setting," while others "have universal applicability across industry lines . . . ." SSR 82-41, 1982 WL 31389, at *6. A claimant who does not have skills that are transferable to other work is considered unskilled for purposes of the step five determination. See Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000); see also SSR 82-41, 1982 WL 31389, at *1-*2.

When transferability of skills is an issue and must be decided, the ALJ is required to make certain findings of fact and include them in the written decision. Findings should be supported with appropriate documentation. [¶] When a finding is made that a claimant has transferable skills, the acquired work skills must be identified, and specific occupations to which the acquired work skills are transferable must be cited in the ALJ's decision.

Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d. 1219(9th Cir. 2009)(ellipses omitted)(quoting SSR ...

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