United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS
C. SPERO CHIEF MAGISTRATE JUDGE
Meaza Sega Bihil challenges the decision of Defendant Carolyn
Colvin, Acting Commissioner of Social Security (the
"Commissioner"), finding Bihil not disabled and
ineligible for disability benefits. Bihil argues that the
administrative law judge ("ALJ") who denied her
application for benefits erred-first, in finding that work
Bihil can perform exists in significant numbers in the
national economy and second, in failing to call a medical
expert to testify as to whether Bihil's impairments are
as severe as impairments the Commissioner recognizes as
disabling. The parties have filed cross motions for summary
judgment pursuant to Civil Local Rule 16-5. For the reasons
stated below, Bihil's motion is GRANTED, the
Commissioner's motion is DENIED, and the case is REMANDED
for further administrative proceedings to clarify Bihil's
eligibility to receive benefits and the positions and numbers
of jobs available to Bihil.
Meaza Sega Bihil filed for Social Security Disability
Insurance ("SSDI") benefits on May 4, 2010,
alleging she became disabled on December 20, 2000 due to
"back problems, dislocated disc, asthma, myopathy,
diabetes, chronic pain, hyperlipidemia, gastroesophageal
reflux disease, and gastro intestinal [sic] disease."
Administrative Record ("AR, " dkt. 13) at 84.
Bihil's last date insured was March 31, 2006.
Id. Bihil's initial claim was denied by the
Social Security Administration ("SSA") on September
17, 2010 and the denial was affirmed on reconsideration on
July 8, 2011. Id. at 84, 88. Bihil requested a
hearing before an ALJ; a hearing was held on March 15, 2013
and a supplemental hearing was held August 7, 2013.
Id. at 43, 58. The ALJ denied Bihil's request
for benefits on August 26, 2013. Id. at 28. The
SSA's Appeals Council declined to review the ALJ's
decision on March 9, 2015. Id. at 2. Bihil now
requests that the Court review the ALJ's decision
pursuant to 42 U.S.C. § 405(g).
The Administrative Hearings
Initial Hearing, March 15, 2013
held an initial hearing on March 15, 2013 with Bihil, her
counsel, a vocational expert, and an interpreter.
Id. at 60. The hearing began with Bihil's
testimony about about her personal background. She testified
that she received up to a third grade education in Asmara,
Eritrea. Id. at 62. Bihil worked as a housekeeper in
a hotel in the United States from 1988 until 2001.
Id. at 63. Bihil testified that she stopped working
after sustaining a back injury at work. Id. She
described unrelenting pain in her lower back and left leg
that made it impossible for her to work. Id. Bihil
testified that she was unable to prepare meals for herself
without sitting down and unable to go grocery shopping
because she could not carry any items. Id. at 65.
Bihil also testified that she was unable to sleep due to the
pain in her back and legs. Id. at 66. Bihil
explained that she declined to have elective back surgery
after speaking to others who still experienced pain after
surgery. Id. She was prescribed pain medication by
her doctors and received shots which relieved her pain for
one week. Id. She testified that she attended
physical therapy which was unsuccessful in relieving her pain
for more than one day. Id.
questioned Bihil about why she waited nine years to file for
disability benefits. Id. at 68. Bihil responded that
she thought that she would "be okay and then [she could]
go back to work." Id. The ALJ also asked about
the status of Bihil's worker's compensation claim.
Bihil's counsel informed the ALJ that Bihil received
worker's compensation benefits from 2001 through 2004.
Id. at 69.
then questioned Vocational Expert Lawrence Hughes (the
"VE"). The VE testified that the plaintiff's
past relevant work as a housekeeping cleaner in a hotel was
unskilled light work. Id. at 72-73. The VE also
testified that Bihil worked as a back-up cashier at a
family-owned deli after March 31, 2006, her last date
insured. Id. Working as a cashier is also unskilled
light work. Id. The VE also suggested that Bihil may
have completed vocational rehabilitation training as a
daycare assistant but testified that it appeared that Bihil
never actually worked in that capacity. Id. at 72.
The ALJ asked Bihil why she didn't pursue a job as a
childcare provider and Bihil responded that her injuries made
it difficult for her to keep up with the children and that
she was "unable to move around." Id. at
asked the VE about the occupations available to a person with
a residual functional capacity ("RFC") similar to
Bihil's. The ALJ asked about an RFC based on the
An individual of the claimant's age, education and
experience who can lift up to ten pounds frequently, twenty
occasionally, stand and walk six hours out of eight with
normal breaks, bend and stoop occasional[ly], sitting up to
six hours per day, no manipulative limitations, no limitation
in speech, hearing or vision, simple repetitive tasks not
requiring the use of English.
Id. at 74. The VE testified that a person with those
limitations would still be able to work as a housekeeping
cleaner. Id. The VE also testified that such a
person could work as a cashier in the manner in which Bihil
did since her job was in a specialty shop or limited area
which required little use of English. Id. The VE
also claimed that "there are some other jobs of
counsel posed a slightly different set of limitations,
Aged 43, limited English, marginal education, past work
unskilled, can lift ten pounds occasionally, less than ten
pounds frequently, stand and/or walk less than two hours in
an eight-hour workday, sit less than six hours in an eight
hour workday, occasionally climb stairs, ladders, ropes and
scaffolds, occasionally balance, occasionally kneel, never
crouch, never crawl, occasionally stoop, with limited
exposure to temperature extremes, dust, vibration, humidity
and wetness and hazards such as machinery and height, fumes,
odors, chemicals and gases.
Id. at 74-75. The VE testified that with such
limitations, a person could not perform Bihil's past
relevant work. Id. at 75. The VE also testified that
there would be no other work that such a person could do.
Supplemental Hearing, August 7, 2013
held a supplemental hearing on August 7, 2013 during which
she questioned Bihil further about the vocational training
she received and clarified the hypotheticals posed to the VE
at the prior hearing.
the ALJ elicited further testimony from Bihil about her
vocational training as a childcare provider. Bihil testified
that she was trained over a period of three months in 2002.
Id. at 48-49. She explained that she performed an
unpaid internship at the completion of the training program
which involved watching over young children and reading to
them. Id. Bihil testified that she had difficulty at
this position because she was unable to keep up with the
children's physical activities and was unable to read to
others. Id. at 49. Bihil explained that she was able
to communicate with the children but when posed certain
questions she was unable to give an answer because she could
not comprehend the question. Id.
the ALJ clarified the hypothetical limitations posed to the
VE in the prior hearing. The ALJ explained that she intended
the VE to testify about the availability of sedentary jobs
with no English or skills required. Id. at 52. The
VE testified that a person with those limitations would be
able to perform three specific jobs: a "cable worker in
fabrication, " a "glass products waxer, " or a
stuffer. Id. at 52-53. The VE testified that there
are 200 jobs as a "cable worker in fabrication" in
California and 2, 900 jobs nationwide. Id. The VE
testified that there are between 150 and 200 jobs as a glass
products waxer statewide and 2, 100 nationally. Id.
The VE testified that a stuffer works in the toys and games
industry. Id. There is a discrepancy between the
transcript of the hearing and the ALJ's decision
regarding the number of jobs available as a stuffer. The
transcript of the hearing reflects that the VE testified that
there are 300 jobs statewide and 36, 000 nationally.
Id. The ALJ's decision indicates that there are
300 stuffer jobs statewide but 3, 600 nationally.
Id. at 28. The VE additionally testified that there
are 100 to 120 additional occupation titles that fit the
ALJ's hypothetical that account for about 100, 000 total
jobs nationwide. Id. at 53. Bihil's counsel
re-posed the same hypothetical from the initial hearing to
the VE and the VE confirmed that with such limitations a
person would be unable to perform Bihil's past work and
there is no other work that person could perform.
The ALJ’s Analysis and Findings
Legal Standard for Disability
insurance benefits are available under the Social Security
Act when an eligible claimant is unable "to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has
lasted or can be expected to last for a continuous period of
not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
see also 42 U.S.C. § 423(a)(1). A claimant is
only found disabled if his physical or mental impairments are
of such severity that he is not only unable to do his
previous work but also "cannot, considering his age,
education, and work experience, engage in any other kind of
substantial gainful work which exists in the national
economy." 42 U.S.C. § 423(d)(2)(A). The claimant
bears the burden of proof in establishing a disability.
Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996).
Commissioner uses a "five-step sequential evaluation
process" to determine if a claimant is disabled. 20
C.F.R. 404.1520(a)(4). At Step One, the ALJ must determine if
the claimant is engaged in "substantial gainful
activity." 20 C.F.R. 404.1520(a)(4)(I). If so, the ALJ
determines that the claimant is not disabled and the
evaluation process stops. If the claimant is not engaged in
substantial gainful activity then the ALJ proceeds to Step
Two, the ALJ must determine if the claimant has a
"severe" medically determinable impairment. An
impairment is "severe" when it "significantly
limits [a person's] physical or mental ability to do
basic work activities. 20 C.F.R. 404.1520(c). If the claimant
does not have a "severe" impairment then the ALJ
will find that the claimant is not disabled. If the claimant
does have a severe impairment, the ALJ proceeds to Step
Three, the ALJ compares the claimant's impairment with a
listing of severe impairments (the "Listing").
See Appendix 1, Subpart 1 of 20 C.F.R. Part 404. If
the claimant's impairment is included in the Listing,
then the claimant is disabled. The ALJ will also find a
claimant disabled if the claimant's impairment or
combination of impairments equals the severity of a Listed