Black v. Berryhill, No. 3:2018cv01673 - Document 20 (S.D. Cal. 2019)

Court Description: ORDER GRANTING JOINT MOTION TO REMAND AND ENTERING FINAL JUDGMENT re ECFs 15 and 19 . This matter is remanded to Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, for further administrative proceedings pursuant to senten ce four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Signed by Judge Jeffrey T. Miller on 3/12/2019. A certified copy of the Order has been mailed to the Acting Commissioner of Social Security Administration. (sjm) (sjt).

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Black v. Berryhill Doc. 20 1 2 3 4 UNITED STATES DISTRICT COURT 5 SOUTHERN DISTRICT OF CALIFORNIA 6 7 CHARLES BLACK, Case No.: 18cv1673 JM (LL) Plaintiff, 8 9 10 11 ORDER GRANTING JOINT MOTION TO REMAND AND ENTERING FINAL JUDGMENT v. NANCY A. BERRYHILL, Defendant. 12 13 Plaintiff Charles Black and Defendant Nancy A. Berryhill, Acting Commissioner of 14 Social Security, jointly move the court to remand this action for further administrative 15 proceedings pursuant to sentence four of section 205(g) of the Social Security Act, 16 42 U.S.C. § 405(g). (Doc. No. 15.) On February 25, 2019, the court requested further 17 briefing on the reasons for the parties’ joint request. (Doc. No. 16.) The parties filed 18 supplemental briefing on this issue. (Doc. Nos. 17, 19.) For the reasons discussed below, 19 the court grants the joint motion to remand. Defendant’s motion to appear telephonically 20 (Doc. No. 18) is denied as moot. 21 On November 7, 2013, Plaintiff applied for supplemental security income under 22 Title XVI of the Social Security Act. (Administrative Record (“AR”) 16.) The 23 Commissioner denied Plaintiff’s application initially and upon reconsideration. (AR 102- 24 12.) After a hearing, an administrative law judge (“ALJ”) determined Plaintiff was not 25 disabled. (AR 13-29.) The ALJ’s decision became the Commissioner’s final decision after 26 the Appeals Council denied Plaintiff’s request for review. (AR 1-6.) 27 Sentence four of 42 U.S.C. § 405(g) provides that “[t]he court shall have power to 28 enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or 1 18cv1673 JM (LL) Dockets.Justia.com 1 reversing the decision of the Commissioner of Social Security, with or without remanding 2 the cause for a rehearing.” “A sentence four remand has thus been characterized as 3 essentially a determination that the agency erred in some respect in reaching a decision to 4 deny benefits.” Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). 5 Here, the parties agree that the agency erred when it failed to adequately develop the 6 factual record on the issue of Plaintiff’s past relevant work history. At step four of the five- 7 step disability analysis required by 20 C.F.R. § 416.920(a), the ALJ found that Plaintiff 8 could perform past relevant work. (AR 25.) If a claimant can perform any of his past 9 relevant work, he is not disabled. 20 C.F.R. § 416.920(f). “Past relevant work” is defined 10 as work that was performed “within the past 15 years, that was substantial gainful activity, 11 and that lasted long enough for [the claimant] to learn to do it.” 20 C.F.R. § 416.960(b)(1). 12 Work presumptively qualifies as “substantial gainful activity” when the claimant’s 13 monthly average earnings are higher than the threshold earnings amount set by the Social 14 Security Administration. See 20 C.F.R. § 416.974. 15 It is not disputed that Plaintiff worked as a telemarketer over the relevant 15-year 16 period and that he learned how to do this work. (Doc. Nos. 17, 19.) However, the parties 17 agree that it is not clear from the record whether this work qualified as “substantial gainful 18 activity.” During the relevant 15-year period, Plaintiff earned between $3,882.66 and 19 $10,729.89 per year as a telemarketer. (AR 189.) Plaintiff made the most money, 20 $10,729.89, in 2007. During that year, the substantial gainful activity amount was $900 21 per 22 https://www.ssa.gov/oact/cola/sga.html. 23 slightly less than $900 a month, if we assume that he worked all twelve months as a 24 telemarketer.1 But at the hearing, Plaintiff represented that prior to 2009 he worked as 25 telemarketer for less than the full year. (AR 38, 48-50.) As a result, the parties agree that 26 27 28 month. Social Security Administration, Substantial Gainful Activity, Plaintiff’s annual 2007 earnings average to Plaintiff’s earning records reveal his total annual earnings, but do not break down his earnings by month. (AR 186-89.) 1 2 18cv1673 JM (LL) 1 it is unclear whether Plaintiff’s monthly telemarketing earnings met the minimum threshold 2 amount for substantial gainful activity in 2007. In addition, because the ALJ found 3 Plaintiff was not disabled at step four, the ALJ did not reach the issue of whether there was 4 “other work” Plaintiff could perform. 5 Accordingly, the court reverses the decision of the ALJ and remands for further 6 proceedings. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099, 1105 7 (9th Cir. 2014). The parties’ motions to remand (Doc. Nos. 15, 19) are granted. This 8 matter is remanded to Defendant Nancy A. Berryhill, Acting Commissioner of Social 9 Security, for further administrative proceedings pursuant to sentence four of section 205(g) 10 of the Social Security Act, 42 U.S.C. § 405(g). On remand, the Appeals Council will 11 remand the case to an ALJ. The Appeals Council will instruct the ALJ to further assess 12 the record, to offer Plaintiff the opportunity for a new hearing, to take further action as 13 14 15 16 17 18 warranted to complete the administrative record, and to issue a new decision. The Clerk of the Court is ordered to enter a final judgment in favor of Plaintiff, and against Defendant. IT IS SO ORDERED. DATED: March 12, 2019 JEFFREY T. MILLER United States District Judge 19 20 21 22 23 24 25 26 27 28 3 18cv1673 JM (LL)

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