Steve Adams v. Nancy A. Berryhill, No. 2:2017cv08724 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of SocialSecurity is REVERSED in part, and this matter is REMANDED for furtheradministrative action consistent with this Opinion. (See document for details.) (sbou)
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Steve Adams v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 15 16 Case No. CV 17-8724 JC STEVE ADAMS, v. MEMORANDUM OPINION AND ORDER OF REMAND NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, 17 18 I. 19 Defendant. SUMMARY On December 4, 2017, plaintiff Steve Adams filed a Complaint seeking 20 review of the Commissioner of Social Security’s denial of plaintiff’s application 21 for benefits. The parties have consented to proceed before the undersigned United 22 States Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) 25 (collectively “Motions”). The Court has taken the Motions under submission 26 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; 12/6/17 Case 27 Management Order ¶ 5. 28 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 17, 2012, plaintiff filed an application for Supplemental 7 Security Income alleging disability beginning on September 20, 2012, due to 8 bipolar disorder, osteoarthritis, ADHD, and depression. (Administrative Record 9 (“AR”) 19, 223, 247-48). The Administrative Law Judge (“ALJ”) examined the 10 medical record and heard testimony from plaintiff (who was represented by 11 counsel) and a vocational expert. (AR 36-90). 12 On February 26, 2016, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 19-30). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: degenerative disc 15 disease of the lumbar spine, degenerative joint disease of the acromioclavicular 16 joint, and cervical osteoarthritis (AR 21); (2) plaintiff’s impairments, considered 17 individually or in combination, did not meet or medically equal a listed 18 impairment (AR 24); (3) plaintiff retained the residual functional capacity to 19 perform medium work (20 C.F.R. § 416.967(c)) with additional limitations1 (AR 20 25); (4) assuming plaintiff has past relevant work as a painter, he is capable of 21 performing that past relevant work (AR 28); (5) alternatively, assuming plaintiff 22 has no past relevant work, there are jobs that exist in significant numbers in the 23 national economy that plaintiff could perform (AR 29); and (6) plaintiff’s 24 25 26 27 28 1 The ALJ determined that plaintiff also could (i) frequently lift and/or carry 25 pounds and occasionally lift and/or carry 50 pounds; (ii) stand and/or walk for six hours in an eight-hour workday with normal breaks; (iii) sit for six hours in an eight-hour workday with normal breaks; (iv) push and/or pull within the lifting and/or carrying limitations; and (v) frequently reach overhead with the left, non-dominant, upper extremity with the weight restricted to 35 to 40 pounds. (AR 25). 2 1 statements regarding the intensity, persistence, and limiting effects of his 2 subjective symptoms were not entirely credible (AR 25). 3 On October 11, 2017, the Appeals Council denied plaintiff’s application for 4 review. (AR 1). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that he is unable “to Administrative Evaluation of Disability Claims 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than 11 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 12 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R. 13 § 416.905(a). To be considered disabled, a claimant must have an impairment of 14 such severity that he is incapable of performing work the claimant previously 15 performed (“past relevant work”) as well as any other “work which exists in the 16 national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 17 42 U.S.C. § 423(d)). 18 To assess whether a claimant is disabled, an ALJ is required to use the five- 19 step sequential evaluation process set forth in Social Security regulations. See 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citations omitted). The steps are typically followed in order. 22 20 C.F.R. § 416.920(a)(4). The claimant has the burden of proof at steps one 23 through four – i.e., determination of whether the claimant was engaging in 24 substantial gainful activity (step 1), has a sufficiently severe impairment (step 2), 25 has an impairment or combination of impairments that meets or medically equals 26 one of the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 27 (“Listings”) (step 3), and retains the residual functional capacity to perform past 28 relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 3 1 (citation omitted). The Commissioner has the burden of proof at step five – i.e., 2 establishing that the claimant could perform other work in the national economy. 3 Id. 4 “If the ALJ determines that a claimant is either disabled or not disabled at 5 any step in the process, the ALJ does not continue on to the next step.” Bray v. 6 Commissioner of Social Security Administration, 554 F.3d 1219, 1226 (9th Cir. 7 2009) (citing 20 C.F.R. § 416.920(a)(4)). If a disability determination cannot be 8 made at a particular step, however, the ALJ must proceed “to the next step.” 9 20 C.F.R. § 416.920(a)(4). 10 B. 11 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 12 Commissioner’s “final decision” was “based on legal error or not supported by 13 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 14 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 15 standard of review in disability cases is “highly deferential.” Rounds v. 16 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 17 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 18 upheld if the evidence could reasonably support either affirming or reversing the 19 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 20 decision contains error, it must be affirmed if the error was harmless. Treichler v. 21 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 22 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability 23 determination; or (2) ALJ’s path may reasonably be discerned despite the error) 24 (citation and quotation marks omitted). 25 Substantial evidence is “such relevant evidence as a reasonable mind might 26 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 27 “substantial evidence” as “more than a mere scintilla, but less than a 28 preponderance”) (citation and quotation marks omitted). When determining 4 1 whether substantial evidence supports an ALJ’s finding, a court “must consider the 2 entire record as a whole, weighing both the evidence that supports and the 3 evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 4 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 5 Federal courts review only the reasoning the ALJ provided, and may not 6 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 7 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 8 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 9 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 10 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099); see also 11 42 U.S.C. § 405(b)(1) (ALJ’s unfavorable decision must “set[] forth a discussion 12 of the evidence” and state “reason or reasons upon which it is based”); 20 C.F.R. 13 § 416.1453(a) (“The administrative law judge shall issue a written decision that 14 gives the findings of fact and the reasons for the decision.”); Securities and 15 Exchange Commission v. Chenery Corp., 332 U.S. 194, 196-97 (1947) 16 (administrative agency’s determination must be set forth with clarity and 17 specificity). 18 A reviewing court may not conclude that an error was harmless based on 19 independent findings gleaned from the administrative record. Brown-Hunter, 806 20 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 21 conclude that an error was harmless, a remand for additional investigation or 22 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 23 (9th Cir. 2015) (citations omitted). 24 IV. DISCUSSION 25 Plaintiff contends that the ALJ erred at step four in assuming that plaintiff’s 26 work as a self-employed painter was past relevant work. (Plaintiff’s Motion at 227 5). The Court agrees and, notwithstanding the ALJ’s alternative step five 28 determination, concludes that the error was not harmless and warrants a remand. 5 1 2 3 A. Pertinent Law 1. Step Four At step four, claimants have the burden to show that they are unable to 4 engage in past relevant work. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) 5 (citations omitted); 20 C.F.R. § 416.920(e)-(f). Social Security regulations define 6 past relevant work as “work that [a claimant has] done within the past 15 years, 7 that was substantial gainful activity, and that lasted long enough for [the claimant] 8 to learn it.” 20 C.F.R. §§ 416.960(b)(1), 416.965(a); see also Lewis, 236 F.3d at 9 515 (“A job qualifies as past relevant work only if it involved substantial gainful 10 activity.”). Whether particular work involves substantial gainful activity (“SGA”) 11 is determined differently depending on whether or not the individual performing 12 the work is self-employed. See Le v. Astrue, 540 F. Supp. 2d 1144, 1149 (C.D. 13 Cal. 2008) (citing, in part, 20 C.F.R. §§ 416.974, 416.975). 14 Specifically, when a claimant is self-employed, whether a particular job 15 involves SGA is essentially determined by evaluating the work activities a 16 claimant performed and their value to the particular business using three tests – 17 namely, “Test One,” “Test Two,” and “Test Three.” 20 C.F.R. § 416.975(a)(2); 18 SSR 83-34, 1983 WL 31256, at *2-*9. If work is deemed SGA under Test One, 19 the ALJ need not proceed to Tests Two and Three. Le, 540 F. Supp. 2d at 1150 20 (citation omitted). Conversely, if it is “clearly established” under Test One that a 21 claimant was not engaged in SGA, both the second and third SGA tests must be 22 considered. 20 C.F.R. § 416.975(a)(2); SSR 83-34, 1983 WL 31256, at *9. 23 Under Test One, work activity is considered SGA when the claimant 24 (i) “renders services that are significant to the operation of the business”; and 25 (ii) “receives a substantial income from the business.” 20 C.F.R. § 416.975(a)(1); 26 SSR 83-34, 1983 WL 31256, at *2.; Le, 540 F. Supp. 2d at 1149 (citations 27 omitted). The services of a sole proprietor are necessarily considered 28 “significant.” 20 C.F.R. § 416.975(b)(1); SSR 83-34, 1983 WL 31256, at *3; Le, 6 1 540 F. Supp. 2d at 1149 n.5 (citations omitted). Under the second part of Test 2 One, income is generally considered “substantial” if the average monthly 3 “countable income” (as defined in Social Security regulations) from a claimant’s 4 business is more than the amount shown for the particular calendar year in the 5 Commissioner’s SGA Earnings Guidelines in 20 C.F.R. § 416.974(b) (“SGA 6 Earnings Guidelines”). 20 C.F.R. § 416.975(c)(1); SSR 83-34, 1983 WL 31256, 7 at *4. A claimant may still have “substantial income,” however, even if his 8 countable income does not average more than the amount shown in the SGA 9 Earnings Guidelines. 20 C.F.R. § 416.975(c)(2); SSR 83-34, 1983 WL 31256, at 10 *4. For instance, countable income amounts below SGA Earnings Guidelines 11 levels may be deemed substantial when the “livelihood” a claimant derives from 12 his business is either (a) “comparable to what it was before [the claimant] became 13 seriously impaired” (i.e., the “personal standard”), or (b) “comparable to that of 14 unimpaired self-employed persons in [the] community who are in the same or a 15 similar business as their means of livelihood” (i.e., the “community standard”). 16 20 C.F.R. § 416.975(c)(2); SSR 83-34, 1983 WL 31256, at *4. 17 Under Test Two, a self-employed claimant is deemed to engage in SGA “if 18 [the claimant’s] work activity, in terms of factors such as hours, skills, energy 19 output, efficiency, duties, and responsibilities, is comparable to that of unimpaired 20 individuals in [the claimant’s] community who are in the same or similar 21 businesses as their means of livelihood.” 20 C.F.R. § 416.975(a)(2); SSR 83-34, 22 1983 WL 31256, at *9; Le, 540 F. Supp. 2d at 1149 (citations omitted). 23 Under Test Three, a claimant engages in SGA “if [the claimant’s] work 24 activity, although not comparable to that of unimpaired individuals, is clearly 25 worth the amount shown in [the SGA Earnings Guidelines] when considered in 26 terms of its value to the business, or when compared to the salary that an owner 27 would pay to an employee to do the work [the claimant is] doing.” 20 C.F.R. 28 /// 7 1 § 416.975(a)(3); SSR 83-34, 1983 WL 31256, at *9; Le, 540 F. Supp. 2d at 11492 50 (citations omitted). 3 At step four, although a claimant has the ultimate burden to prove inability 4 to perform past relevant work, “an ALJ still has a duty to make the requisite 5 factual findings to support his [or her] conclusion[s].” Pinto v. Massanari, 249 6 F.3d 840, 844 (9th Cir. 2001) (citing, in part, SSR 82-62; 20 C.F.R. §§ 416.971, 7 416.974, 416.965); Browning v. Colvin, 228 F. Supp. 3d 932, 945 (N.D. Cal. 8 2017) (same) (citing id.); see generally SSR 82-62, 1982 WL 31386, at *4 (“The 9 rationale for [an ALJ’s step four] disability decision must be written so that a clear 10 picture of the case can be obtained.”); Pinto, 249 F.3d at 847 (“[R]equiring the 11 ALJ to make specific findings on the record at each phase of the step four analysis 12 provides for meaningful judicial review.”) (quoting Winfrey v. Chater, 92 F.3d 13 1017, 1025 (10th Cir. 1996)). More specifically, when a claimant is found not 14 disabled at step four, the rationale for such finding “must be [] explained fully in 15 the [ALJ’s] decision[]” and the ALJ “must . . . show clearly how specific evidence 16 leads to [the ALJ’s] conclusion.” SSR 82-62, 1982 WL 31386, at *3-*4 (emphasis 17 added). In addition, the ALJ’s decision at step four “must describe the weight 18 attributed to the pertinent medical and nonmedical factors in the case and 19 reconcile any significant inconsistencies.” Id. at *4 (emphasis added). The ALJ’s 20 rationale may rely on “[r]easonable inferences” but not “presumptions, 21 speculations and suppositions . . . .” Id. 22 Consistently, when evaluating whether a self-employed claimant’s work 23 involved SGA, development of the “[c]omparability” factors used in Tests Two 24 and Three “must be specific.” SSR 83-34, 1983 WL 31256, at *9; see, e.g., id. 25 (“Evidence of the impaired individual’s activities accompanied by a statement that 26 the work is comparable to the work of unimpaired persons is insufficient for a 27 sound decision.”). “If only a general description is possible or available, any 28 doubt as to the comparability of the factors should be resolved in favor of the 8 1 impaired individual.” Id. Hence, “[t]he lack of conclusive evidence as to the 2 comparability of the required factors will result in a finding that work performed is 3 not SGA.” Id. 4 5 2. Step Five If, at step four, a claimant proves he is unable to do any past relevant work, 6 or the claimant has no past relevant work at all, the ALJ then has the burden at 7 step five to prove that plaintiff could adjust to other available work despite 8 plaintiff’s identified limitations. Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 9 2015) (citations omitted). At step five, the ALJ must first consider whether one of 10 the two “special medical-vocational profiles” applies. See 20 C.F.R. 11 §§ 416.920(g)(2), 416.962; see SSR 82-63, 1982 WL 31390, at *4-*5 (describing 12 “special policy” for “No Work Experience Cases”); see also POMS DI 13 25005.005(C) (“Before proceeding to step 5, [ALJ must] consider whether any of 14 the special medical-vocational profiles . . . might be applicable.”). For one 15 example, where, like here, a claimant is of “advanced age” (i.e., “at least 55 years 16 old”), has “no more than a limited education,” and assertedly has “no past relevant 17 work experience,” the claimant may be deemed unable to make an adjustment to 18 other work – and thus disabled – without the need for further consideration. See 19 20 C.F.R. § 416.962(b) (citing 20 C.F.R. § 416.965); SSR 82-63, 1982 WL 31390, 20 *2, *4-*5 (“special policy [applied] to disability claimants [] who are of advanced 21 age and have no recent and relevant work experience”); see generally 20 C.F.R. 22 416.963(e) (“[Advanced] age significantly affects a person’s ability to adjust to 23 other work.”). 24 If the ALJ determines that neither of the special medical-vocational profiles 25 applies, the ALJ then must determine whether an individual with the claimant’s 26 background (i.e., age, education, and work experience) and residual functional 27 capacity could adjust to other work which exists in “significant numbers” in the 28 national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(a)(4)(v) & 9 1 (g), 416.960(c); Heckler v. Campbell, 461 U.S. 458, 461-62 (1983); Zavalin, 778 2 F.3d at 845 (citations omitted). The Commissioner may satisfy this burden either 3 by (1) referring to the Medical-Vocational Guidelines in 20 C.F.R. Part 404, 4 Subpart P, Appendix 2 (commonly known as “the Grids”); or (2) obtaining 5 testimony from an impartial vocational expert (“vocational expert” or “VE”) about 6 the type of work such a claimant is still able to perform, as well as the availability 7 of related jobs in the national economy. See Gutierrez v. Colvin, 844 F.3d 804, 8 806-07 (9th Cir. 2016) (citation omitted); Osenbrock v. Apfel, 240 F.3d 1157, 9 1162 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1100-01). If the ALJ proves that 10 the claimant “can make an adjustment to other work,” the claimant is found “not 11 disabled,” otherwise the claimant is disabled. 20 C.F.R. §§ 416.920(a)(4)(v) 12 & (g). 13 B. 14 Preliminarily, defendant contends that plaintiff forfeited any challenge to Analysis 15 the ALJ’s assumption that plaintiff had past relevant work as a painter because 16 plaintiff failed to raise the issue during the administrative proceedings. 17 (Defendant’s Motion at 10-12). The Court disagrees. Where, like here, an ALJ’s 18 decision violates a specific requirement clearly mandated by Social Security 19 regulations (i.e., failure to articulate specific factual findings based on record 20 evidence to support ALJ’s conclusions on dispositive issue at step four), and no 21 specific issue exhaustion requirement is provided by statute, regulation, and/or 22 agency/court ruling, a plaintiff’s challenge to the ALJ’s error is not forfeited in 23 federal court simply because the claimant’s attorney failed to raise the specific 24 issue during the administrative proceedings. See Lamear v. Berryhill, 865 F.3d 25 1201, 1206-07 (9th Cir. 2017) (“law [] clear” that counsel’s failure to object 26 during administrative proceedings does not relieve ALJ of “express duty” to 27 obtain “reasonable explanation” for apparent conflicts in vocational evidence); cf., 28 e.g., Sims v. Apfel, 530 U.S. 103, 105-06, 112 (2000) (Social Security claimants 10 1 need not exhaust specific issues before Appeals Counsel in addition to exhaustion 2 of administrative remedies prior to seeking judicial review of ALJ legal error); 3 Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (holding that plaintiff 4 may not challenge validity of vocational expert’s “job numbers” based on new 5 evidence presented for first time on appeal (i.e., economic data gleaned from 6 Occupational Outlook Handbook and U.S. Census Bureau’s County Business 7 Patterns) when claimant’s attorney failed entirely to challenge vocational expert’s 8 job numbers during administrative proceedings, “no case, regulation, or statute” 9 required ALJ to sua sponte take administrative notice of job data in government 10 publications other than Dictionary of Occupational Titles); Meanel v. Apfel, 172 11 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff waived challenge to ALJ’s 12 job numbers where claim in reviewing court necessarily relied on new evidence 13 plaintiff had not presented to ALJ or Appeals Council). 14 Furthermore, at step four the ALJ determined that plaintiff retained the 15 residual functional capacity to return to past relevant work as a self-employed 16 painter, but pointed to nothing in the record which supported finding that 17 plaintiff’s painting job could qualify as past relevant work at all. (AR 28). Absent 18 some explanation regarding how the ALJ arrived at such a fundamental 19 assumption regarding plaintiff’s work history, the Court is unable to conduct a 20 meaningful review of the ALJ’s non-disability determination at step four. See, 21 e.g., Bray, 554 F.3d at 1226 (reviewing court cannot properly determine whether 22 substantial evidence supports non-disability decision where ALJ’s decision 23 erroneously fails “to articulate a clear basis to support [factual assumption]” as 24 required by Social Security regulations); Montoya v. Colvin, 649 Fed. Appx. 429, 25 430-31 (9th Cir. 2016) (ALJ erred at step four in finding claimant could perform 26 past relevant work where ALJ stated that claimant’s prior jobs were “past relevant 27 work . . . without addressing the substantial gainful activity issue or developing 28 the record on it,” and record was “unclear” whether claimant’s earnings met 11 1 amount specified in the SGA Earnings Guidelines) (citations omitted); see 2 generally Brown-Hunter, 806 F.3d at 492 (“A clear statement of the [ALJ’s] 3 reasoning is necessary because [courts] can affirm the agency’s decision to deny 4 benefits only on the grounds invoked by the agency.”) (citation omitted); Bray, 5 554 F.3d at 1226 (“[M]eaningful review of an administrative decision requires 6 access to the facts and reasons supporting that decision.”) (citing Chenery, 332 7 U.S. at 196). 8 The Court cannot confidently conclude that the ALJ’s error was harmless. 9 For example, there is uncontroverted evidence in the record which suggests that 10 plaintiff’s prior work might not have involved SGA. Under Test One, while 11 plaintiff (apparently a sole proprietor) necessarily rendered “significant” services 12 to the operation of his business, the record does not reasonably support a finding 13 that plaintiff received “substantial income” under the circumstances. As plaintiff 14 notes (Plaintiff’s Motion at 2), the summary of earnings currently in the record 15 reflects that plaintiff’s average total monthly income for 2011 (i.e., the pertinent 16 year with the highest total “earnings”) was approximately $800.75 (based on 17 $9,609.00 annual earnings). (AR 241). Defendant does not reasonably dispute 18 that such average monthly income falls well below the average amount listed in 19 the SGA Earnings Guidelines for 2011 (i.e., $900 per month). See 20 C.F.R. 20 § 416.974(b)(2)(ii); POMS § DI 10501.015(B). Indeed, the ALJ essentially 21 acknowledged as much both in her decision and during the administrative hearing. 22 (See AR 27-28 [plaintiff’s “earnings are generally well below the substantial 23 gainful activity level for a year”]; AR 77 [observing plaintiff’s “earnings record” 24 reflected that “covered earnings . . . from [] self employment as a painter [were] 25 very minimal”]). 26 Defendant argues that even if plaintiff’s countable income did not average 27 more than the amount shown in the SGA Earnings Guidelines there is sufficient 28 other evidence in the record from which to find that plaintiff’s prior painting work 12 1 involved SGA (i.e., under the “personal standard” or the “community standard” in 2 the second part of Test One). (Defendant’s Motion at 13-17). Nonetheless, since 3 the ALJ did not expressly make such a finding, much less provide any specific 4 rationale for doing so, this Court may not affirm the ALJ’s non-disability 5 determination on such additional grounds. See Trevizo, 871 F.3d at 675 (citations 6 omitted). In addition, defendant points to nothing else in the record which might 7 unmistakably support a finding under any of the three pertinent tests that plaintiff 8 necessarily worked at a SGA level. Cf., e.g., Pinto, 249 F.3d at 846 (remand 9 warranted where ALJ found claimant not disabled at step four based “largely” on 10 inadequate vocational expert testimony and ALJ otherwise “made very few 11 findings”). 12 The ALJ’s alternative findings at step five of the sequential evaluation 13 process do not render harmless the ALJ’s errors at step four. For example, to the 14 extent plaintiff had no past relevant work (as the ALJ necessarily assumed in order 15 to proceed to step five), and plaintiff was “closely approaching retirement age” 16 (i.e. of advanced age) and had “limited education” (as the ALJ found) (AR 28), an 17 ALJ may have been required to find plaintiff disabled under the rules for “special 18 medical-vocational profiles” without considering whether plaintiff could adjust to 19 other work in light of his background and residual functional capacity. See 20 20 C.F.R. § 416.962(b) (ALJ “[does] not need to assess [claimant’s] residual 21 functional capacity or consider [the Grids]” where claimant meets special medical22 vocational profile for “no past relevant work experience” cases); SSR 82-63, 1982 23 WL 31390, at *4-*5 (describing “special policy” for “No Work Experience 24 Cases”). Moreover, even if the Grids were applicable, the most relevant to 25 plaintiff’s case appears to be Rule 203.02, which directs a finding of “disabled” 26 where, like here, a claimant “closely approaching retirement age” with “limited or 27 less” education assertedly has no “[p]revious work experience.” 28 /// 13 1 Accordingly, a remand is warranted, at least to permit the ALJ to reassess 2 plaintiff’s claim at step four. 3 V. CONCLUSION2 4 For the foregoing reasons, the decision of the Commissioner of Social 5 Security is REVERSED in part, and this matter is REMANDED for further 6 administrative action consistent with this Opinion.3 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: February 19, 2019. _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. 3 When a court reverses an administrative determination, “the proper course, except in rare 26 circumstances, is to remand to the agency for additional investigation or explanation.” 27 Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in 28 Social Security cases) (citations omitted). 14
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