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Bihil v. Colvin

United States District Court, N.D. California

August 5, 2016

MEAZA SEGA BIHIL, Plaintiff,
v.
CAROLYN COLVIN, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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.[1]

         II. BACKGROUND

         A. Procedural Background

         Plaintiff 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).

         B. The Administrative Hearings

         1. Initial Hearing, March 15, 2013

         The ALJ 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.

         The ALJ 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.

         The ALJ 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 73.

         The ALJ 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 following limitations:

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 course." Id.

         Bihil's counsel posed a slightly different set of limitations, including:

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. Id.

         2. Supplemental Hearing, August 7, 2013

         The ALJ 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.

         First, 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.

         Second, 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. Id.

         C. The ALJ’s Analysis and Findings

         1. Legal Standard for Disability

         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).

         The 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.

         At 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.

         At 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 ...


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