Walter McKenna v. Carolyn W Colvin, No. 2:2013cv06224 - Document 18 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The decision of the Commissioner cannot stand. Accordingly, the matter is remanded for further proceedings consistent with this opinion. The Courts disposition makes it unnecessary to resolve the other complaints of error which Plaintiff makes on this appeal. On remand, however, the Commissioner may well wish to revisit those areas as well. IT IS SO ORDERED. (mz)
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Walter McKenna v. Carolyn W Colvin Doc. 18 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WALTER McKENNA, 12 Plaintiff, 13 14 15 vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. CV 13-06224 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Walter Michael McKenna asserts four ways in which the 18 Commissioner of Social Security erred in denying his application for disability benefits. 19 The Court need only discuss the first of those, for the Commissioner s error in that respect 20 requires remand regardless of the outcome as to the other asserted errors. 21 The Administrative Law Judge found that Plaintiff had acquired work skills 22 from past relevant work and that those were transferable to other occupations with jobs 23 existing in significant numbers in the national economy. [AR 28] In so finding, the 24 Administrative Law Judge did not comply with the regulations and controlling case 25 authority. 26 The following findings form the basis for the legal error: 27 1. 28 In Social Security lingo, Plaintiff was a person of advanced age. He was a few days shy of 56 years old on his date last insured. [AR 28 (birthday of April 3, Dockets.Justia.com 1 1954); AR 22 (date last insured of March 31, 2010)] Under the regulations, a person 55 2 or older is considered a person of advanced age. 20 C.F.R. § 404.1563(e). The 3 Administrative Law Judge said that Plaintiff was a person closely approaching advanced 4 age [AR 28](a category for ages 50-54), but this was wrong, and the parties in this Court 5 have treated the matter as if the Administrative Law Judge had correctly stated that Plaintiff 6 was a person of advanced age. 7 2. 8 work. [AR 24] 9 3. 10 Plaintiff retained the residual functional capacity to perform sedentary Plaintiff was unable to perform any past relevant work. All of Plaintiff s past relevant work was skilled work. [AR 27-28] 11 A person in Plaintiff s position who does not have transferable skills is 12 deemed disabled according to the Medical Vocational Guidelines ( the grids ). 20 C.F.R. 13 Part 404, Subpart P, Appendix 2 at § 201.06. If a person is disabled according to the grids, 14 the grids are controlling. Cooper v. Sullivan, 880 F.2d 1152 (9th Cir. 1989). If a person 15 in Plaintiff s position does have transferable skills, then the grids provide that he is not 16 disabled, 20 C.F.R. Part 404, Subpart P, Appendix 2 at § 201.07, and the Administrative 17 Law Judge must determine whether the grids govern and, if not, proceed with vocational 18 expert testimony. Plaintiff asserts that the Administrative Law Judge erred in his 19 assessment of the transferability of Plaintiff s skills, and the Court agrees. 20 21 The governing regulation covering a person with these characteristics provides in pertinent part as follows: 22 23 If you are of advanced age (age 55 or older), and you have 24 a severe impairment(s) that limits you to sedentary or light 25 work, we will find that you cannot make an adjustment to other 26 work unless you have skills that you can transfer to other skilled 27 or semiskilled work . . . that you can do despite your 28 impairments(s). We will decide if you have transferable skills -2- 1 as follows. If you are of advanced age and you have a severe 2 impairment(s) that limits you to no more than sedentary work, 3 we will find that you have skills that are transferable to skilled 4 or semi-skilled sedentary work only if the sedentary work is so 5 similar to your previous work that you would need to make very 6 little, if any vocational adjustment in terms of tools, work 7 processes, work settings, or the industry. . . . 8 9 20 C.F.R. § 404.1568(d)(4) (emphasis in original). Plaintiff s previous work was as an 10 HVAC maintenance technician, an exhibit builder and a refrigeration mechanic. [AR 27] 11 The Administrative Law Judge found that Plaintiff could perform the alternate jobs of 12 maintenance scheduler and maintenance dispatcher. [AR 28] However, he made no 13 determination as to whether these jobs were so similar to your previous work that you 14 would need to make very little, if any vocational adjustment in terms of tools, work 15 processes, work settings or the industry. 20 C.F.R. § 404.1568(d)(4). He did not identify 16 the skills that Plaintiff had gained from his past relevant work. He also did not identify any 17 tools, work processes, work settings or industries for the alternate jobs. 18 In Bray v. Commissioner of Social Security, 554 F.3d 1219 (9th Cir. 2009), 19 the Court of Appeals held that this failure to make such specific findings was error, 20 requiring a remand to the agency. The Commissioner seeks to distinguish Bray on two 21 grounds. Neither is persuasive. 22 First, the Commissioner says that unlike in Bray, here the vocational expert s 23 testimony was not brief. But Bray made clear that it was the findings of the administrative 24 law judge that the Court must review, not post hoc rationalizations that attempt to intuit 25 what the adjudicator may have been thinking. Bray, 554 F.3d at 1225-26, citing SEC v. 26 Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947); see also 27 Ceguerra v. Secretary of Health & Human Services, 933 F.2d 735, 738 (9th Cir. 1991). 28 -3- 1 Brief or not, the testimony of a witness, even an expert witness, does not substitute for the 2 findings of the agency. 3 Second, the Commissioner says that, unlike in Bray, the Administrative Law 4 Judge s decision was not silent on whether the particular skills that the VE identified 5 would be transferable . . . .[T]he ALJ questioned the VE at the hearing on the transferability 6 of Plaintiff s skills to other work, and then made a specific finding in the decision that 7 Plaintiff had acquired work skills from past relevant work. (AR 28 ¶8.) (Joint Stipulation 8 at 9:5-10) As noted, however, the decision is silent on any specific findings, such as what 9 transferable skills Plaintiff has, and how those skills could be transferable to the alternate 10 jobs. Even assuming that the decision somehow could incorporate the not brief 11 testimony of the vocational expert, moreover, the findings still would be insufficient. Like 12 the Administrative Law Judge, the vocational expert although he said Plaintiff had 13 transferable skills [AR 102] did not identify what those skills were. The closest he 14 came was in response to questions from Plaintiff s attorney: 15 16 Q. . . . What are those skills that are transferable from, 17 you know, heavy and medium to the sedentary? I know they are 18 in the same kind of industry, but what are the specific skills that 19 transfer? 20 A. The specific skills have to do with the job that he s 21 been doing, the fabrication, installation and repair of this 22 equipment. In scheduling the work he has those skills. He also 23 used a computer on the job. 24 25 [AR 104] Further on, however, he did not appear to assert that the skills were the ability 26 to fabricate or install or repair equipment, but rather that Plaintiff would have knowledge 27 of those tasks and be able to use that knowledge in other jobs. [AR 105-06] This itself is 28 questionable. Cf. Villano v. Astrue, 556 F.3d 558, 563-64 (7th Cir. 2009) ( judgment -4- 1 acquired from past work is not a skill. ) The jobs he identified were not jobs using the 2 skills of fabricating, installing and repairing, but rather were maintenance scheduler and 3 maintenance dispatcher. [AR 38-39] 4 The regulations are much more precise, however: 5 6 Skilled work requires qualifications in which a person 7 uses judgment to determine the machine and manual operations 8 to be performed in order to obtain the proper form, quality, or 9 quantity of material to be produced. Skilled work may require 10 laying out work, estimating quality, determining the suitability 11 and 12 measurements, reading blueprints or other specifications, or 13 making necessary computations or mechanical adjustment to 14 control or regulate the work. Other skilled jobs may require 15 dealing with people, facts, or figures or abstract ideas at a high 16 level of complexity. needed quantities of materials, making precise 17 18 20 C.F.R. § 404.1568(c). A maintenance scheduler or dispatcher might involve skills that 19 require dealing with people, facts, or figures or abstract ideas at a high level of 20 complexity. A person who has been doing the fabrication, installation and repair of this 21 equipment [AR 104] might have different skills, and mere knowledge might not make the 22 skills transferable. See 20 C.F.R. § 404.1568(d)(2) (transferability most probable and 23 meaningful if same or lesser degree of skill required, same or similar tools and machines 24 used, and same or similar raw products used). Furthermore, there are degrees of 25 transferability of skills, ranging from very close similarities to remote and incidental 26 similarities among jobs, 20 C.F.R. § 404.1568(d)(3) and, for a person of Plaintiff s age, 27 there must be very little, if any vocational adjustment required in terms of tools, work 28 processes, work settings, or the industry. 20 C.F.R. Part 404, Subpart P Appendix 2 at -5- 1 201.00(f). And the fact that Plaintiff used a computer reveals nothing; everyone uses a 2 computer, but not everyone is adept at different programs or processes, or can learn new 3 programs or processes just because they use a computer the same way that the fact that 4 a person knows how to use a telephone does not mean that he has transferable skills to be 5 a dispatcher. 6 In short, the requisite findings that Bray requires cannot be located by 7 importing the vocational expert s testimony into the decision of the Administrative Law 8 Judge, even if SEC v. Chenery and Ceguerra would allow it. The Commissioner s efforts 9 to escape from Bray s holding thus are unsuccessful. See also Renner v. Heckler, 786 F.2d 10 1421 (9th Cir. 1986). 11 In light of the foregoing, the decision of the Commissioner cannot stand. 12 Accordingly, the matter is remanded for further proceedings consistent with this opinion. 13 The Court s disposition makes it unnecessary to resolve the other complaints of error which 14 Plaintiff makes on this appeal. On remand, however, the Commissioner may well wish to 15 revisit those areas as well. 16 IT IS SO ORDERED. 17 18 DATED: October 15, 2014 19 20 21 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -6-
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