United States District Court, E.D. California
ORDER DENYING THE COMMISSIONER'S MOTION FOR
SUMMARY JUDGMENT AND REMANDING THE ACTION PURSUANT TO
SENTENCE FOUR OF 42 U.S.C. § 405(G) ORDER DIRECTING
ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF MARIA CISNEROS-BELLO
AND AGAINST DEFENDANT NANCY BERRYHILL, ACTING COMMISSIONER OF
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE
Cisneros-Bello asserts she is entitled to a period of
disability, disability insurance benefits, and supplemental
security income under Titles II and XVI of the Social
Security Act. Plaintiff argues the administrative law judge
erred in evaluating illiteracy as a vocational factor, and
seeks review of the decision to deny her applications for
benefits. For the reasons set forth below, the
Commissioner's motion for summary judgment is DENIED and
the ALJ's decision is REMANDED pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings.
filed her applications for benefits on August 6, 2012,
alleging disability beginning on April 5, 2010. (Doc. 9-3 at
15) The Social Security Administration denied Plaintiff's
applications at both the initial level and upon
reconsideration. (See generally Doc. 9-4) Plaintiff
testified at hearings before an ALJ on October31, 2013, and
March 18, 2014. (Doc. 9-3 at 15) The ALJ determined she was
not disabled and issued an order denying benefits on April
25, 2014. (Id. at 15-27) When the Appeals Council
denied Plaintiff's request for review of the decision on
September 15, 2015 (id. at 2-4), the ALJ's
findings became the final decision of the Commissioner of
Social Security (“Commissioner”).
courts have a limited scope of judicial review for disability
claims after a decision by the Commissioner to deny benefits
under the Social Security Act. When reviewing findings of
fact, such as whether a claimant was disabled, the Court must
determine whether the Commissioner's decision is
supported by substantial evidence or is based on legal error.
42 U.S.C. § 405(g). The ALJ's determination that the
claimant is not disabled must be upheld by the Court if the
proper legal standards were applied and the findings are
supported by substantial evidence. See Sanchez v.
Sec'y of Health & Human Serv., 812 F.2d 509, 510
(9th Cir. 1987).
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as
a whole must be considered, because “[t]he court must
consider both evidence that supports and evidence that
detracts from the ALJ's conclusion.” Jones v.
Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
qualify for benefits under the Social Security Act, Plaintiff
must establish he is unable to engage in substantial gainful
activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of not less than 12 months. 42 U.S.C.
§ 1382c(a)(3)(A). An individual shall be considered to
have a disability only if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work,
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a
claimant to establish disability. Terry v. Sullivan,
903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant
establishes a prima facie case of disability, the burden
shifts to the Commissioner to prove the claimant is able to
engage in other substantial gainful employment. Maounois
v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
achieve uniform decisions, the Commissioner established a
sequential five-step process for evaluating a claimant's
alleged disability. 20 C.F.R. §§ 404.1520,
416.920(a)-(f). The process requires the ALJ to determine
whether Plaintiff (1) engaged in substantial gainful activity
during the period of alleged disability, (2) had medically
determinable severe impairments (3) that met or equaled one
of the listed impairments set forth in 20 C.F.R. § 404,
Subpart P, Appendix 1; and whether Plaintiff (4) had the
residual functional capacity (“RFC”) to perform
to past relevant work or (5) the ability to perform other
work existing in significant numbers at the state and
national level. Id. The ALJ must consider
testimonial and objective medical evidence. 20 C.F.R.
§§ 404.1527, 416.927.
to the five-step process, the ALJ determined Plaintiff did
not engage in substantial gainful activity after the alleged
onset date of April 5, 2010. (Doc. 9-3 at 17) At step two,
the ALJ found Plaintiff's severe impairments included:
“degenerative disc disease (DDD), bilateral carpal
tunnel syndrome (CTS), myofacial pain syndrome (MPS),
affective disorder and anxiety disorder.”
(Id.) At step three, the ALJ determined Plaintiff
did not have an impairment, or combination of impairments,
that met or medically equaled a Listing. (Id. at 18)
Next, the ALJ determined:
[T]he claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) with the following limitations: [she] can lift and
carry occasionally 20 pounds and frequently 10 pounds; stand
or walk 2 hours of an 8hour workday with the understanding
you can stand or walk no more than 30 minutes continuously;
no restrictions in sitting; never climb ladders, ropes, or
scaffolding; occasionally climb stairs, balance, stoop,
crawl, crouch, or kneel; no exposure to unprotected height;
avoid concentrated exposure to extremes of heat, cold, or
vibrations; can perform no more than occasionally complex
tasks; can constantly perform simple repetitive tasks; no
employments were the job duties shall require life or death
decisions; and no employments involving confrontational
situations such as security work.
(Id. at 19) In addition, the ALJ found Plaintiff was
“not able to communicate in English, and [was]
considered in the same way as an individual who is illiterate
in English.” (Id. at 25) With these factors in
mind, the ALJ concluded Plaintiff was “unable to
perform any past relevant work.” (Id.)
However, the ALJ determined Plaintiff was able to perform
other “jobs that exist in significant numbers in the
national economy, ” such as small product assembler I,
DOT 706.684-022, and final inspector, DOT 727.687-054.
(Id. at 25-26) Consequently, the ALJ found Plaintiff
was not disabled as defined by the Social Security Act.
(Id. at 22)
sole argument on appeal is that the ALJ erred at step-five of
the sequential evaluation in finding that she is able to
perform work as a small product assembler and final
inspector. (Doc. 18 at 5-12) According to Plaintiff, the ALJ
failed to address conflicts between the testimony of the
vocational expert-who opined Plaintiff could work with the
residual functional capacity identified by the ALJ- and the
language requirements of these jobs as defined by the
Dictionary of Occupational Titles. (See
Five of the Sequential Evaluation
five, the burden shifts to the Commissioner to show that
Plaintiff can perform other substantial gainful activity and
a “significant number of jobs exist in the national
economy” which Plaintiff can perform. Kail v.
Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984); see
also Osenbrock v. Apfel,240 F.3d 1157, 1162 (9th Cir.
2001) (discussing the burden shift at step five). To make
this determination, the ALJ may rely upon job descriptions in
the Dictionary of Occupational Titles, which
classifies jobs by their exertional and skill requirements,
and is published by the United States Department of Labor,
Employment & Training Administration. Terry v.
Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); 20 C.F.R.
§ 404.1566(d)(1). In the alternative, the ALJ may call a
vocational expert “to testify as to (1) what jobs the
claimant, given his or her functional capacity, would be able
to do; and (2) the availability of such jobs in the national
economy.” Tackett v. Apfel, 180 F.3d 1094,