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Erik S. Nielsen v. Carolyn W. Colvin

March 18, 2013


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court now rules as follows with respect to the disputed issue listed in *fn2 the Joint Stipulation ("JS").*fn3 / / /


As reflected in the Joint Stipulation, the sole issue raised by Plaintiff as the ground for reversal and/or remand is whether the Administrative Law Judge's ("ALJ") step five determination of not disabled, as of Plaintiff's 50th birthday on January 16, 2011, is supported by substantial evidence. (JS at 4.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ's Findings.

The ALJ found that Plaintiff had the impairments of insulin dependent diabetes mellitus; clinically significant macular edema; severe non-proliferative diabetic retinopathy; non-clinically significant asteroid hyalosis; age-related nuclear sclerosis; hyperlipidemia; and hypertension, that "at least in combination, are 'severe.'" (Administrative Record ("AR") at 16-17.) The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform light work, except that he must avoid duties requiring fine vision, such as reading small print or using small tools, but he has no limitation in his near acuity. (Id. at 19.) The ALJ also found Plaintiff to be illiterate but able to communicate in English. (Id. *fn4 at 22.)

Relying on the testimony of the vocational expert ("VE"), "in conjunction with the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2," and specifically inquiring of the VE whether the representative occupations could be performed by someone who is illiterate, the ALJ determined Plaintiff was able to perform such unskilled occupations as Basket Filler (Dictionary of Occupational Titles ("DOT") 529.687-010), Bakery Racker (DOT No. 524.687-018), and Base Filler (DOT No. 732.687-018). (AR at 23.)

B. The ALJ Utilized the Wrong Grid Rule After Plaintiff's 50th Birthday.

When Plaintiff filed his protective application for Supplemental Security Income on March 19, 2009, alleging disability beginning on January 1, 2006, he was classified as a "younger individual," aged 18-49. (Id. at 22.) On January 16, 2011, just prior to the supplemental hearing held on March 16, 2011, Plaintiff turned 50 years old, changing age category to "closely approaching advanced age," for individuals aged 50-54. (Id. at 14, 21.)

Plaintiff contends, and Defendant concedes, that the ALJ erred at step five of the sequential evaluation process, by applying Grid Rule 202.11 to Plaintiff after his 50th birthday on January 16, 2011. (JS at 6 (citing AR at 23).) Rule *fn5 202.11 applies to an individual who is closely approaching advanced age (aged 50-54), able to perform a full range of light work, of limited or less education, and with skills from past work that are not transferable. (Id. (citations omitted).) Plaintiff argues that because he was given the benefit of the doubt and classified as illiterate and able to communicate in English, the ALJ should have used Grid Rule 202.09, applicable to an illiterate person closely approaching advanced age, with no transferable skills from past work, and able to perform a full range of light work. (Id. at 6-7 (citation omitted).) Grid Rule 202.09 under these circumstances, would direct a finding of disabled. Plaintiff contends that this "error" requires reversal. (Id. at 6.) The Commissioner requests that the matter instead be remanded. (Id. at 7.)

The Court notes, however, that Grid Rule 202.09 only applies where the plaintiff's past work experience also coincides completely with Rule 202.09, i.e., unskilled work, or skilled or semi-skilled work with no transferable skills. See Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). In this case, the VE testified, and the ALJ found, that Plaintiff's prior work was semi-skilled work. (AR at 21.) As a result, it does not completely coincide with Rule 202.09, which on its face applies to previous work experience that is "Unskilled or none." 20 C.F.R. pt. 404, subpt. P, app. 2, § 202.09. Accordingly, whether Grid Rule 202.09 applies to Plaintiff after his 50th birthday, turns on whether his skills from his past work are "readily transferable to a significant range of semi-skilled or skilled work that is within [his] functional capacity." Id. §§ 202.00(d), 202,09; see also Silveira v. Apfel, 204 F.3d 1257, 1261 n.11 (9th Cir. 2000) ("Rule 202.09 applies to a claimant who ...

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