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remanding to the ALJ for a determination of whether a plaintiff who was slightly shy of the next age category qualified for benefits as a "borderline" claimant
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No. C 03-1518 CRB
November 14, 2003
MEMORANDUM AND ORDER
BACKGROUND
In this Social Security case, plaintiff brings an action pursuant to 42 U.S.C. § 405(g) appealing a final decision by the Commissioner of Social Security which denied her claims for disability insurance under Title II of the Social Security Act (42 U.S.C. § 400 et seq.).Now before the Court is plaintiffs motion for judgment on the pleadings and defendant's cross-motion for summary judgment.
A. Procedural History
Plaintiff Sharon A. Carter filed an application for disability insurance benefits under Title VII of the Social Security Act (the "Act") on January 24, 2001, alleging disability since June 23, 2000 due to lumbar disc disease and resulting back and leg pain. The Social Security Administration ("SSA") denied her application initially and upon reconsideration. Subsequently, plaintiff filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). On May 7, 2002, Ms. Carter, a vocational expert, and a witness for the plaintiff appeared before an ALJ. Plaintiff was not represented at the time of this hearing. In a decision dated September 24, 2002, the ALJ found the plaintiff not disabled and denied her application. The ALJ's decision became final when the Appeals Council declined to review it on February 7, 2003. Plaintiff then filed this timely action for judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
B. Factual Background
1. Plaintiffs Disability Claim
In her application for benefits, plaintiff alleged that she became disabled on June 23, 2000 due to lumbar disc disease and resulting pain. Transcript of the Record of the SSA proceedings, hereafter "Tr.," at 12. Plaintiff alleged that she is unable to work because of leg pain, back pain, and hypertension. Tr. 13.
2. Plaintiff's Testimony
Plaintiff was born on January 10, 1951, and was 51 years old when she appeared before the ALJ. At the administrative hearing, plaintiff claimed that she had stopped working in June 2000 due to constant leg and back pain. Plaintiff claimed that the pain precluded her from sitting more than 1 hour, standing more than 45 minutes, walking more than 1/8 mile, or lifting more than 10 pounds. Plaintiff explained that she takes Motrin for her pain and has received physical therapy and acupuncture treatments for her symptoms. Tr. 13.
Plaintiff reported that she attended one year of college. Id. Plaintiff has held two jobs since 1979. Tr. 13, 60. She worked at her first job, as a billing and accounting clerk, for approximately 9 years. She worked at her second job, as a computer technician and computer peripheral equipment operator, for approximately 12 years. Tr. 60. Since June 2000, the claimed onset of disability, plaintiff has been in two automobile accidents which she states have exacerbated her injuries. Plaintiff has not looked for any other work since the claimed onset of disability. Finally, despite her injuries, plaintiff testified that she can still perform household chores. Tr. 15.
3. Medical Evidence
a. Treating Physician
Plaintiff was originally a patient at Kaiser Hospital. Medical records from Kaiser indicate lower back and leg problems, dating back to April 1997, which were later diagnosed as "left sciatica." Tr. 134. An MRI of the lumbar spine on April 29, 1997, revealed a "[s]mall broad-based central, left paramedian and lateral disc protrusion at the L5-S1 level." Tr. 132. The MRI also revealed "[g]rade I L3-4 and L4-5 spondylolistheses with evidence of minor bilateral facet arthropathy at these levels."Id.
In May 1999, plaintiff underwent physical therapy for approximately two months for her symptoms. Tr. 159-64. Plaintiff was also prescribed Motrin for her pain. In July 1999, an examination by Dr. Yu, plaintiffs treating physician at Kaiser, revealed "mild left buttock tenderness" and a positive straight leg raise ("SLR") test in the left leg at 80 degrees. Tr. 159. In addition to prescribing Motrin, Dr. Yu recommended a work schedule of six hours per day for one month, and then alternating between six and eight hours per day the following month. Id. Subsequent examinations at Kaiser revealed a worsening condition of the left leg. Starting August of 1999, plaintiffs SLR was positive at 45 degrees and her modified work schedule was extended at each visit. Tr. 140, 141, 144, 148, 149, 157.
Plaintiff began to see Dr. Hood, a private doctor, as a follow up to her visits with Dr. Yu at Kaiser. In fact, in one of Dr. Yu's examinations, he recommends that plaintiff "follow-up with Dr. Hood as she is doing." Tr. 140. Plaintiff began undergoing electro-acupuncture treatments with Dr. Hood in early June 2000. Tr. 126. Later that same month, Dr. Hood gave the plaintiff a disability slip. Tr. 125. Finally, during one of plaintiff's last visits with Dr. Yu, he reported that plaintiffs SLR was positive at 30 degrees. Tr. 134. He affirmed that plaintiff "had worsening of left sciatica" and that she was "now on disability till June next year." Id. Dr. Yu again acknowledged that Dr. Hood would be following the condition. Id.
b. Consulting Physicians
In June 2001, consulting physician Dr. Burton Brody examined plaintiff. Dr. Brody reported that plaintiffs examination was a "[b]asically normal physical examination," Tr. 171, and that plaintiff was essentially unlimited in her capability to work, excluding certain lifting restrictions. Tr. 173.
Dr. Brody reported that plaintiff should not lift/carry more than 50 pounds occasionally, or more than 25 pounds, frequently. Dr. Brody also reported that plaintiff should have a stand/sit option at work, wherein she should not sit or stand more than 6 hours per day.
A year later, in June 2002, plaintiff underwent another consultative examination, performed by Dr. Michael Ran. Dr. Han reported: (1) a significantly decreased range of motion in the spine and back; (2) pain with minimal or no extension; (3) decreased sensation in the left foot and calf; and (4) a "strongly positive" SLR test. Tr. 198-99. Dr. Han concluded that plaintiff could be suffering from lumbar radiculopathy due to a possible herniated lumbar disc. Tr. 199. He recommended that plaintiff restrict her lifting/carrying to 20 pounds occasionally, and 10 pounds frequently. Id. Dr. Han also recommended that plaintiff sit less than six hours per day (over an eight hour workday), and have periodic alternating sitting and standing options. Id. Finally, Dr. Han recommended that plaintiff "restrict her bending, stooping, kneeling, crouching, crawling, and squatting to only intermittently." Id.
II. STANDARD OF REVIEW
This Court's jurisdiction is limited to determining whether the Social Security Administration's denial of benefits is supported by substantial evidence in the administrative record. 42 U.S.C. § 405(g). A district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Ninth Circuit defines substantial evidence as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. Id.; Magallenes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040.III. DISCUSSION
A. The AL J's Decision
In determining whether a claimant is entitled to benefits, an ALJ conducts a five-step sequential inquiry. 20 C.F.R. § 416.920. At the first step, the ALJ considers whether the claimant is currently engaged in substantial gainful activity (i.e., if the plaintiff is currently working); if the claimant is not engaged in substantial gainful activity, the second step asks if the claimant has a severe impairment or combination of impairments (i.e., an impairment that has a significant effect on the claimant's ability to function); if the claimant has a severe impairment, the third step asks if the claimant has a condition which meets or equals the conditions outlined in the Listings of Impairments in Appendix 1 of the Regulations (the "Listings"); if the claimant does not have such a condition, the fourth step asks if the claimant is capable of performing his past relevant work; if the claimant is not capable of performing his past relevant work, the fifth step asks if the claimant has a residual functional capacity ("RFC"), i.e., whether plaintiff is capable of performing other work which exists in substantial numbers in the national economy, despite his limitations. Id. §§ 404.1520(b)-404.1520(f)(1).
In the instant case, there is no disagreement concerning the first four steps of the analysis. First, the ALJ found that plaintiff had not been engaged in substantial gainful activity since June 23, 2000. Tr. 13, Second, the ALJ concluded that plaintiff suffers from a degenerative disc disease, which significantly limits her ability to work, and which he deemed "severe." Id. Third, the ALJ found that the plaintiff did not suffer from any condition that meets or equals the conditions outlined in the Listings. Tr. 13-14. Fourth, the ALJ determined that the plaintiff could not perform her past relevant work due to her condition. Tr. 14. And finally, the ALJ found that plaintiff, at all relevant times, was capable of performing a "limited range of light work" that existed in substantial numbers in the national economy. The ALJ thereby concluded that plaintiff was not disabled under the Act. Id.
Plaintiff contends that the ALJ should have found her disabled under the Act by applying Rule 201.14 of the Medical-Vocational Guidelines. 20 C.F.R. Part 404, Subpart P, Appendix 2 (2003) (hereafter "the Grids"). Failure to apply Rule 201.14, plaintiff argues, constituted legal error. It is the plaintiffs burden to establish this error. See Andrews, 53 F.3d at 1039; Magallenes, 881 F.2d at 750.
B. Plaintiff's Residual Functional Capacity
1. Using the Grids
The fifth step in the sequential inquiry above requires the ALJ to determine the plaintiff's RFC, i.e., whether the plaintiff is capable of performing other work, which exists in substantial numbers in the national economy, despite any limitations caused by plaintiffs condition. In determining the plaintiffs RFC, an ALJ must consider plaintiffs age, education, and work experience. 42 U.S.C. § 423(d)(2)(A); see also 20 C.F.R. § 404.1520(e)-(f).
The Grids are an administrative tool on which the Commissioner must rely when considering claimants' RFC. See Swenson v. Sullivan, 876 F.2d 683, 688 (9th Cir. 1989). When the claimant only suffers from an "exertional impairment," the ALJ must apply the Grids. Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). Where the girds dictate a finding of disability, claimant is eligible for benefits; and where the grids indicate that claimant is not disabled, benefits may not be awarded. Id. at 1155. On the other hand, when a claimant suffers only from a "non-exertional impairment," the ALJ may not rely solely on the Grids, and must make further inquiries, usually through the testimony of a vocational expert. Swenson, 876 F.2d at 688. In cases where the the ALJ consults a vocational expert, the ALJ must still use the Grids as a framework. Cooper. 880 F.2d at 1155.
Exertional limitations are those that directly affect the claimant's strength. They generally involve the strength requirements of sitting, standing, walking, lifting, carrying, pushing, and pulling.Cooper, 880 F.2dat 1156; see also 20 C.F.R. § 404.1567 (1988). However, non-exertional limitations, such as pain, can be exertional limitations to the extent they prevent the claimant from engaging in strength-related activities (e.g., if pain prevents claimant from lifting an object, it will also be considered an "exertional limitation").Id.
Non-exertional limitations are "non-strength related limitations." These limitations include mental, sensory, postural, manipulative, and environmental. Cooper, 880 F.2d 1155 n. 6 (citation omitted).
2. After Plaintiff Reached Age 50
It is undisputed in the record that plaintiff's limitations are exertional in nature. Plaintiff has been diagnosed with left sciatica, degenerative disc disease, and hypertension. Tr. 13. The record indicates that her physiological condition, as well as her feelings of pain, prevent plaintiff from lifting much weight, sitting or standing for long periods of time, or bending, kneeling, crawling, and squatting. Tr. 14. Therefore, the Grids are controlling, and must be applied.
Both parties agree that the plaintiff, after reaching the age of 50, was "closely approaching advanced age" under the Grids, § 201.00(g). Further, plaintiff has one year of college education, but that education does not provide for direct entry into skilled work. Finally, both parties agree that plaintiffs past work experience falls under the "skilled or semi-skilled" category, and those skills are not transferable for the careers suggested by the vocational expert.
The careers that the vocational expert suggested were both "unskilled" jobs. Tr. 240. As such, plaintiffs skills from her previous work would not be transferable.
At controversy is whether plaintiff is limited to "sedentary" work, or is capable of "light" work. If plaintiff is limited to sedentary work, then Rule 201.14 of the Grids is controlling: Plaintiff would be deemed disabled and entitled to benefits. If plaintiff is capable of light work, then Rule 202.14 of the Grids is controlling: Plaintiff would be deemed not disabled, and would not be entitled to benefits.
This Court accepts the factual findings of the ALJ, especially with respect to resolving conflicts in medical testimony. The Ninth Circuit has consistently held that "[t]he ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallenes, 881 F.2d at 750; see also Alien v. Heckler, 749 F.2d 577, 580 n. 1 (9th Cir. 1985) ("questions of credibility and resolutions of conflicts in the testimony are functions solely for the Secretary").
In resolving some contradictions in the medical evidence, the ALJ found that the plaintiff had "the residual functional capacity to perform a limited range of light work, as defined at 20 C.F.R. § 404.1567(b), with sitting for 1 hour at a time up to 6 hours per day, standing for 45 minutes at a time up to 8 hours per day, and occasional walking, bending, stooping, kneeling, crouching, crawling, and squatting." Tr. 17. In reaching this decision, the ALJ relied on the testimony of a vocational expert. Id.
Defendant maintains that a claimant need not be able to perform all types of light work to be found capable of performing "light work;" rather if a claimant can perform some types of light work, an ALJ can find that claimant capable of "light work." Defendant's Opposition Brief to Plaintiffs Motion for Summary Judgment at 4, Carter (No. 03-1518). Defendant urges that because the ALJ found the plaintiff capable of a limited range of "light work," Rule 202.14 applies, and plaintiff is not disabled under the Act. Defendant contends that Rule 201.14 is inapplicable because it applies to persons limited to sedentary work, which is not the finding of the ALJ here.
Defendant does not accurately state the law. Defendant correctly asserts that a claimant does not have to be capable of all types light work in order to be found capable of performing "light work." However, being capable of only a few types of light work does not necessarily mean that a claimant is capable of "light work." The Grids only offer two categories of light work: claimants with "the functional capacity to perform a full range of light work," or claimants with the "functional capacity to perform a wide or full range of light work." See the Grids, § 202.00(a) and (b) (emphasis added). The latter is a lower standard than the former. See id.
The Ninth Circuit used these categories as the standard for "light work" in Cooper, 880 F.2d at 1158. Mrs. Cooper, the plaintiff in that case, appealed the decision of the ALJ under facts materially similar to the instant case; plaintiff had high school or above education, had non-transferable skilled or semi-skilled past experience, and claimed benefits during the "closely approaching advanced age" period. See id. The ALJ had found that plaintiff's impairments limited her "to at most light work." Id. at 1157. The Ninth Circuit stated that the plaintiff "would not be disabled if she could perform a full range of light work." Id. at 1158 (citing the Grids § 202.00(b)) (emphasis added). Because there was nothing in the record, the Ninth Circuit remanded the case, instructing the ALJ to make clear "whether Mrs. Cooper can perform the full range of light work."Id. Thus the question before this Court is whether the plaintiff in the instant case can perform a "wide" or "full" range of light work. If she cannot, she is disabled under the Grids.
In fact, there is an immaterial difference between the two cases. Mrs. Cooper, unlike plaintiff in the instant case, also claimed benefits for a period of time in which she was over 55. Admittedly, for the period during which Ms. Cooper was 55 years old and above, the rules are slightly different. However, this opinion only cites that portion ofCooper in which the plaintiff was under 55, similar to the plaintiff at bar. Therefore the difference between the two cases is immaterial.
"Light work" requires: (1) occasional lifting of 20 pounds and frequent lifting/ carrying of objects weighing 10 pounds; (2) a good deal of walking or standing; and/or (3) pulling of arm or leg controls. 20 C.F.R. § 416.967(b) (1988). To be considered capable of performing a "full range" of light work, a person must be able to perform substantially all these activities. Id. The record shows, and the ALJ never disputed, that the plaintiff had difficulty picking up objects weighing 10 pounds or more, that she could not sit or stand for long periods of time, that she could not walk very far, and that she could only bend, stoop, kneel, crouch, or squat occasionally. Under the findings of the ALJ, it is clear that plaintiff was unable to perform a "full" or "wide" range of light work.
This conclusion is supported by further findings of the ALJ. First, the ALJ found, and defendant concedes, that plaintiff only has the capacity to perform "a limited range" of light work. Tr. 15. Second, the ALJ classified the types of work available to the plaintiff as those light jobs "performed at the sedentary level." Tr. 16. Finally, when the vocational expert was asked to give examples of jobs that plaintiff could perform, the expert cited two jobs, categorized as "light," but which were in fact subsets of that category, and performed at the "sedentary level." Id. Thus, when the vocational expert cited the number of jobs available in the national and local economies, he only cited examples which were "performed at the sedentary level."
There was no finding or evidence that plaintiff could perform a full or wide range of light work. The evidence only indicated that she could perform work at the sedentary level. Further, the ALJ's findings concerning the plaintiffs injuries are inconsistent with a finding that she can perform a full or wide range of light work. Accordingly, the ALJ's finding that plaintiff is capable of performing light work is not supported by substantial evidence. Thus, this Court concludes that plaintiff is limited to sedentary work-so long as that work is consistent with the remaining limitations found by the ALJ (e.g., sit/stand option, weight restrictions, etc.).
Having determined that the plaintiff is limited to sedentary work, this Court must determine which Grid Rule must be applied. Because the record "only produced evidence of sedentary work available to [plaintiff], the use of grid rule 202.14 as a framework for decision making [would] not [be] based on substantial evidence." Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995). Given a plaintiff "closely approaching advanced age," with a high school or above education, and "non-transferable" skilled or semi-skilled past work experience, Rule 201.14 of the Grids mandates a finding of disabled.
Defendant alternatively argues, however, that Rule 201.14 may not apply, because plaintiffs past work experience may be transferable to a sedentary job. This Court agrees. As discussed above, the vocational expert testified about "unskilled" light work performed at the sedentary level. Because the expert's findings were limited to "unskilled" jobs, plaintiff's past work experience was considered "not transferable." However, in light of this Court's finding that plaintiff is limited to sedentary work, rather than light work, it is possible for plaintiffs past work experience to be transferable. If so, plaintiff would be found not disabled under Rule 201.15 of the Grids. As such, further proceedings are required to determine if plaintiff's past work experience is transferable for sedentary work consistent with her limitations.
If the ALJ finds that plaintiff has skills transferable to a sedentary job — which she may perform given her specific limitations — then Rule 201.15 mandates a finding of not disabled. However, if the ALJ finds that plaintiff's skills are not transferable to a sedentary job given her specific limitations, then he must find plaintiff disabled under Rule 201.14.
Whether to remand a case for additional evidence or simply to award benefits is in the Court's discretion. Swenson, 876 F.2d at 689. Since there are outstanding issues which preclude this Court from making a disability determination on the merits, the issue is remanded for additional evidence and administrative proceedings consistent with this order. See id.: see also Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1400 (9th Cir. 1988) ("the only reason to remand for further administrative proceedings would be to allow the ALJ to make specific findings").
3. Before Plaintiff Reached Age 50
For some period of time for which the plaintiff is claiming benefits, she was 49 years old. For this period of time plaintiff was considered a "younger individual" under the Grids, § 201.00(h)(1). The rules determining qualification of benefits are different for "younger individuals" than for those "closely approaching advanced age." Keeping all other factors constant, and changing plaintiffs age category to "younger individual," the Grids require application of Rule 202.21. Rule 202.21, in turn, mandates a finding of not disabled.
Plaintiff maintains that she is eligible to recover benefits under Rule 201.14 (the Rule applying to those "closely approaching advanced age"), since the Grids may be modified to apply to claimants who are slightly younger than the required age. In other words, the Grids may be modified in "borderline situations." Plaintiffs Brief for Summary Judgment at 8,Carter (No. 03-1518). A "borderline situation" is one in which the claimant is "a few days to a few months of reaching an older age category." 20 C.F.R. § 404.1563(b). In borderline situations, age categories are not applied "mechanically" if the higher age category can help the claimant attain disability status. Id. Thus, plaintiff is correct in stating that she may be eligible for disability under Rule 201.14 of the Grids.
Whether or not to consider a borderline situation is not the province of this Court. Borderline situations are considered in light of "evaluating the overall impact of all the factors" of claimant's case. Id. Factual findings and considerations are within the sound discretion of the ALJ, and this Court will defer to such findings. Thus the Court remands for further administrative proceedings for a determination of whether plaintiff qualifies for benefits as a "borderline" claimant under Rule 201.14.
C. Attorney's Fees and Costs
Plaintiff also moves for an award of attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant has not replied to the motion.
The EAJA provides that a prevailing party in a civil action brought against the United States is entitled to an award of attorney's fees and costs, unless the position of the United States was substantially justified or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). "Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought." Id. § 2412(d)(1)(B).
"The EAJA creates a presumption that fees will be awarded to prevailing parties. . . . However, Congress did not intend fee shifting to be mandatory. . . . Fees are not available if the position of the United States is `substantially justified.'" Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). "The burden is on the Secretary to prove that her position was substantially justified." Yang v. Shalala, 22 F.3d 213, 217 (9th Cir. 1994). "To meet this burden, the Secretary must prove that her position had a reasonable basis in both law and fact," Id. In other words, the government's position must be "justified in substance or in the main" or "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
As noted, the EAJA creates a presumption that fees go to the prevailing party. The Commissioner bears the burden of proving that the Commissioner's position was substantially justified. Defendant failed to address the issue of attorney fees and costs altogether. If defendant wishes to address the issue of attorneys fees and costs, defendant must file a brief with the Court by November 24, 2003. Plaintiff then has until December 1, 2003 to reply.
IV. CONCLUSION
Plaintiff's claim for disability benefits for the "closely approaching advanced age" period is remanded for additional evidence and further administrative proceedings consistent with this order. See Varney v. Secretary of Health and Human Services. 859 F.2d 1396. 1400 (9th Cir. 1988): see also Swenson v. Sullivan. 876 F.2d 683, 689 (9th Cir. 1989).
Plaintiff's claim for disability benefits for the pre-50 age period is remanded to the sound discretion of the ALJ for further administrative proceedings in light of this order. See id.
Plaintiffs claim for reasonable attorney's fees and costs will be decided by the Court after further briefing by the parties on the matter.
For the foregoing reasons, plaintiffs motion for summary judgment is GRANTED in part, the defendant's cross-motion for summary judgment is DENIED in part, and the matter is remanded for further consideration consistent with this order.
IT IS SO ORDERED.