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Wolfe v. Berryhill

United States District Court, C.D. California

March 21, 2017

PENNY ELIZABETH WOLFE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Penny Elizabeth Wolfe ("Plaintiff) appeals the final decision of the Administrative Law Judge ("ALJ") denying her application for disability insurance benefits ("DIB"). For the reasons discussed below, the Court concludes that the ALJ failed to make required findings concerning the transferability of Plaintiff's job skills. The decision of the Social Security Commissioner is therefore REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

         I. BACKGROUND

         Plaintiff applied for DIB on July 30, 2013, alleging disability commencing March 1, 2013. Administrative Record ("AR") 13, 57. An ALJ conducted a hearing on October 16, 2014, at which Plaintiff, who was represented by an attorney, appeared and testified. AR 29-56.

         On January 15, 2015, the ALJ issued a written decision denying Plaintiffs request for benefits. AR 13-24. The ALJ found that Plaintiff had the following severe impairments: "spondylosis of the cervical and lumbar spine; unspecified myalgia and myositis with a history of fibromyalgia; atypical chest pain; hypertension; and obesity." AR 15.

         Notwithstanding her impairments, the ALJ concluded that Plaintiff had the residual functional capacity ("RFC") to perform a reduced range of "light" work with the following additional limitations: "lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for 2 hours of an 8-hour workday with regular breaks; she can alternate between sitting and standing every 2 hours; she can sit for 6 hours out of an 8-hour workday with regular breaks; she can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; she cannot climb ladders, ropes, or scaffolds; and she cannot work at unprotected heights." AR17.

         Based on this RFC and the testimony of a vocational expert ("VE"), the ALJ found that Plaintiff could perform her past relevant work as a financial customer service representative. AR 69-70. Therefore, the ALJ concluded that Plaintiff is not disabled. Id.

         II. ISSUES PRESENTED

         Issue One: Whether the ALJ erred in determining that Plaintiff can perform her past relevant work, and if so, whether that error was harmless.

         Issue Two: Whether the ALJ failed to account for Plaintiff's hand impairments in formulating the RFC. Joint Stipulation ("JS") at 7.

         III. DISCUSSION

         A. The ALJ erred in determining that Plaintiff can perform her past relevant work.

         1. Relevant Proceedings.

         At the hearing, the VE testified that Plaintiff's past relevant work was "best categorized" as customer service representative (financial), Dictionary of Occupational Titles ("DOT") 205.362-026. AR 48. The VE further testified that this job is "skilled" work requiring "light" exertion. Id. The ALJ asked Plaintiffs counsel if he objected to this classification of Plaintiff s past relevant work, and counsel responded, "no." Id.

         The ALJ next asked the VE three questions concerning whether a hypothetical person with various limitations could perform Plaintiffs past relevant work. AR 48-50. The first two hypotheticals were not consistent with Plaintiffs RFC as ultimately determined by the ALJ, because they posited standing/walking for 6 hours each workday rather than only 2 hours. Compare AR 17 with AR 48-49. The third hypothetical question was consistent with Plaintiffs RFC. Compare AR 17 with AR 50. The VE testified that the third hypothetical person (i.e., someone with Plaintiffs RFC) could not do Plaintiffs past work. AR 50.

         The ALJ next asked the VE if the third hypothetical person (who was assumed to have Plaintiffs work experience) would have "any transferrable skills." Id. The VE testified that the hypothetical person would have transferable "customer service skills." Id. The ALJ asked the VE to "list" the "other work" to which those transferrable skills would apply. The VE identified two sedentary jobs that would fit within the RFC described in hypothetical three: (1) customer service representative (radio and television broadcasting, telephone and telegraph, utilities, waterworks), DOT 239.362-014, and (2) order clerk, DOT 249.362-026. AR 50-51.

         When the ALJ wrote her decision, however, she mistakenly found that the VE testified that someone with Plaintiffs RFC could perform her past relevant work. AR23. Even the Commissioner concedes this was error. JS at 19. The Commissioner, however, argues that this error was harmless, because Plaintiff could do the other two jobs identified by the VE as consistent with Plaintiff's transferable skills. Id.

         Plaintiff disputes the Commissioner's assertion of harmless error. Because she was a person of "advanced age" whose RFC limits her to a reduced range of "light" work, Plaintiff contends that the ALJ was required to make special, additional findings concerning the amount of vocational adjustment Plaintiff would need to make to perform the two new jobs identified by the VE. JS at 17 n.1112; at 20-21.

         B. The ALJ failed to make required findings concerning the transferability of Plaintiffs job skills, precluding a finding of harmless error.

         1. Threshold Classifications.

         When a claimant is older or assessed with an RFC that limits them to sedentary or light work, Social Security regulations require the ALJ to make special findings regarding the transferability of job skills. ...


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