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Juana Barrera v. Michael J. Astrue

November 1, 2012

JUANA BARRERA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on May 17, 2012, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on June 15, 2012.

Plaintiff filed a motion for summary judgment on October 19, 2012. Defendant filed a motion for summary judgment on October 29, 2012. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed May 21, 2012.

BACKGROUND

Plaintiff, a former healthcare worker and carpet packer, asserts disability since November 1, 1998, based on a combination of alleged impairments (Administrative Record ("A.R.") 36-194). At an administrative hearing, counsel for Plaintiff invited the Administrative Law Judge ("ALJ") to consider Rule 202.09 of the Medical Vocational Guidelines ("the Grids")*fn1 (A.R. 51). Given Plaintiff's vocational factors and residual functional capacity, Rule 202.09 would direct a finding of disability as of late 1998 if and only if Plaintiff is "illiterate," within the meaning of the Grids.

At the administrative hearing, Plaintiff testified that she can read and write in Spanish but not in English (A.R. 45). The ALJ then asked, "How about short, simple words, like 'go,' 'stop'?," to which Plaintiff responded "Yeah, some." (Id.). One of Plaintiff's forms in the Administrative Record contains handwriting stating: "Priscilla Carbajal completed this form for me because I don't read english [sic]" (A.R. 137). The record contains some evidence of Plaintiff's ability to understand spoken English (A.R. 42-43) (ALJ questioned Plaintiff without translation during part of the administrative hearing). Plaintiff also testified that she used English at work "a little" and that she went to "classes in my work [as a caregiver] for the people" (A.R. 42, 44). The record is silent regarding whether Plaintiff's work or "classes" required reading and writing in English.

The ALJ declined to apply Grid Rule 202.09, finding that Plaintiff is not illiterate (A.R. 20-21). The ALJ reportedly based this finding "on [Plaintiff's] responding to questions before they were translated, and her own testimony in English for a while, and her having attended classes in English for work and using some English at work" (A.R. 20).

The ALJ found Plaintiff not disabled (A.R. 17-22). The Appeals Council denied review (A.R. 1-3).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).

DISCUSSION

"Illiteracy means the inability to read or write." 20 C.F.R. 404.1564(b)(1). "We consider someone 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." Id. Under the regulations, "illiteracy" means illiteracy in English. See Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000); Chavez v. Department of Health and Human Services, 103 F.3d 849, 852 (9th Cir. 1996). The Administration "bears the burden of establishing that [the claimant] is literate." ...


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