Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kersey v. Astrue

March 28, 2010



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 for further proceedings.

I. Factual and Procedural Background

In a decision dated June 24, 2008, 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 diabetes mellitus, hypertension, mild osteoarthritis of the lumbar spine, glaucoma in the left eye, and obesitybut these impairments do not meet or medically equal a listed impairment; plaintiff can perform sedentary work; plaintiff is generally credible but is not credible with respect to his claims regarding limitations in sitting and the need to elevate his legs or take naps; and based on Medical-Vocational Rule 201.21, plaintiff is not disabled. Administrative Transcript ("AT") 10- 17. Plaintiff contends the ALJ committed error in mechanically applying the Medical-Vocational Guidelines.*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, 91 S.Ct. 1420 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206 (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 committed error in that he failed to consider whether plaintiff should be considered to be a person closely approaching advanced age under the grids. The Medical-Vocational Guidelines ("the grids") are in table form. Appendix 2 to Subpart P of Part 404--Medical-Vocational Guidelines. The tables present various combinations of factors the ALJ must consider in determining whether other work is available. See generally Desrosiers, 846 F.2d at 577-78 (Pregerson, J., concurring). The factors include residual functional capacity, age, education, and work experience. For each combination, the grids direct a finding of either "disabled" or "not disabled."

The ALJ found plaintiff was not disabled under Rule 201.21 (younger individual, limited to sedentary work, high school education, skills not transferable). At the time of the decision, plaintiff was three months and eleven days shy of his fiftieth birthday.*fn3 AT 16, 17. Under the grids, a person aged 50 is considered to be closely approaching advanced age. 20 C.F.R. § 404.1563. Under Rule 201.14, plaintiff would be considered disabled if he were in the higher age category and had no transferable skills. See AT 11, 16 (plaintiff limited to sedentary work, high school education, skills not transferable); cf. Rule 201.15 (plaintiff not disabled if skills are transferable).*fn4

The regulations governing application of the grids provide that where a claimant is "within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of all the factors of your case." 20 C.F.R. § 404.1563(b). ALJs are supposed to apply a two-part test in identifying borderline age situations: (1) determine whether plaintiff is within a few days or a few months of a higher age category, and (2) if so, determine whether using the higher age category would result in a decision of "disabled." HALLEX II-5-3-2. If a borderline situation is found, a "sliding scale" approach is then used, where additional vocational adversity must be shown as the time period between the plaintiff's actual age and the attainment of the next higher category lengthens. Id.

Plaintiff was within a few months of reaching the older age category, and if plaintiff is found to have no transferable skills, he would be disabled under the grids. There is, however, no evidence in the record that the ALJ considered plaintiff's borderline status despite the presence of possible additional vocational adversity. See e.g., Gonzalez v. HHS, 784 F.2d 1417, 1420 (9th Cir. 1986) (in borderline cases, secretary should decrease reliance on grids to demonstrate ability to perform substantial work); cf. Bowie v. Commissioner of Social Security, 539 F.3d 395, 400-02 (6th Cir. 2008) (although no per se requirement for ALJ to discuss borderline status, where additional vocational adversity is evident in record, lack of explanation may in some cases mean ultimate decision is not supported by substantial evidence). Such vocational adversity may be found because of plaintiff's morbid obesity*fn5 and associated health problems, including diabetes mellitus, hypertension, and mild osteoarthritis of the lumbar spine.*fn6

AT 10, 234 (at consultative exam in August 2006, plaintiff presented with weight of 430 pounds on 76 inch frame). In addition, plaintiff's obesity makes it difficult for him to sit in armed chairs, although he is able to sit on stools, a factor that may contribute to vocational adversity given the ALJ's finding that plaintiff could perform only sedentary jobs. See AT 234. In the circumstances of this case, the court finds it was incumbent upon the ALJ to consider whether grid rule 201.14 should be applied to plaintiff, at least for some portion of the time for which he is claiming disability. Because there is no evidence the ALJ ever undertook this analysis, the matter will be remanded for consideration of plaintiff's borderline age status.

For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. ยง 405(g) for consideration of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.