Bray v. Commissioner of Social Security Administration

for eligible proceeding deportation ain 212(c) if offense which relief

section would also render deportable him

makes 212(c) section Applying

him excludable. using an deportation proceedings

relief to analysis is the constitu-

offense-based of the statute. interpretation

tional

addition, that Abebe exhaust- I would hold withholding of removal his claim for

ed that claim pursue allow him to 228, and 640 F.2d Tapia-Acuna,

remand.

Ladha, rightly were decided.

Komarenko, over- should be

ruled. Blake, the Second Circuit

Like Judge Learned Hand’s I find

F.3d “It well apt here: particularly

caution free to rid ourselves

that we should be it is hospitality; but

those who abuse our enjoy the continued important that

more shall hospitality granted, once

ment of and irration subject meaningless

not be Karnuth, Pasquale

al hazards.” Di Cir.1947). (2d is no There perma treating for a lawful

rational basis the border steps resident who across

nent who does not. day better than one reasons, dissent. respectfully I

For these

Mary BRAY, Plaintiff-Appellant, SE-

COMMISSIONER OF SOCIAL ADMINISTRATION,

CURITY

Defendant-Appellee.

No. 06-36072. Appeals, Court of

United States

Ninth Circuit. 23, 2008. and Submitted Oct.

Argued 6, 2009.

Filed Feb.

Betsy NM, Stephens, Albuquerque, the plaintiff-appellant. Edwards,

L. Jamala Regional Assistant Counsel, Administration, Security Social Seattle, WA, defendant-appellee. for the Before: A. WALLACE TASHIMA and SMITH, JR., MILAN D. Judges, Circuit WU,* Judge. and GEORGE H. District TASHIMA; Opinion by Judge by Judge Concurrence WU. TASHIMA, Judge: Circuit Mary Bray (“Bray”) appeals the district judgment affirming court’s the Commis- (“Commission- Security’s sioner of Social er”) final denying application decision for social security disability insurance ben- supplemental security efits and un- income der II Titles and XVI of the Social Securi- ty 401^34, §§ Act. 42 U.S.C. 1381-1383Í. Bray contends that the administrative law (“ALJ”) judge failed to findings make con- cerning possesses whether she “transfer- able Security skills” as Social Ruling (“SSR”) expressly 82-^41 requires. Bray argues also the ALJ erred in dis- counting testimony, disregarding a treating physician’s opinion, medical failing to account impair- for her mental ments in determining her residual func- capacity. tional Lastly, Bray contends applied that the governing Medi- cal Vocational “mechanically” Guidelines a borderline situation in violation of 20 404.1563(b), including her * Wu, fornia, George The Honorable H. silting by United designation. States Judge District for the Central District of Cali- tolerating exposure keeping pace though she category even age gro- fumes. worked as chemical turning a month than was less January cery August clerk from 2002 to the ALJ’s decision. the time of 2003, to a medical from 1993 assistant 28 U.S.C. jurisdiction under have We 2001, an underwriter and as insurance erred 1291, hold that the ALJ and we to to 1991. has been unable from 1986 She issue of findings on the make failing to job full-time for more than six a hold Bray possessed whether losing her medical since assistant months reverse and remand. We thus skills. 2001; thus, in the ALJ position deter- engaged that she had not “sub- mined BACKGROUND activity” since the gainful stantial onset 25, 2003, appli- an Bray filed On March disability.1 alleged of her date al- benefits disability insurance cation hearing, Bray testified that she At her since she had been disabled leging that half a block walk more than without cannot claim was 2001. After her November making or use stopping to catch her breath reconsideration, initially and on denied also of- an inhaler or nebulizer. She an hearing before ALJ. requested a Bray prescription from treat- a written fered 7, 2003, Bray protectively On November 13, 2004, May ing physician, issued in- security social supplemental filed for day, per of work limiting her to four hours application and that come payments, wrote days physician a week. The five and ex- prior with claim her consolidated Bray after visited emer- prescription hearing level. pedited reporting up a flare her room gency date of her On March Oregon A with the Dis- physician COPD. ap- Bray years was 54 old hearing, (“DDS”) ability Determination Service turning 55. a month from proximately condition and Bray’s physical evaluated one high school education She has standing capable that she was concluded as- training as a medical vocational year’s eight- out of an walking for six hours obstruc- suffers from chronic sistant. She day sitting hours out of work six hour (“COPD”), asthma, disease pulmonary tive day. work eight-hour and ar- anxiety, depression, hypertension, testimony re- Bray’s found filing her The ALJ recently, Most before thritis. “not symptoms to be entire- ill friend garding for an worked application, inconsistencies with ly due that she credible” caregiver; before part-time as a activities, daily of her handling evidence at a call center record briefly worked objective medical history, and but was termi- treatment inquiries, service customer also discounted the when condition. after three weeks on nated four Bray to hours limiting prescription accommodations requested workplace she day, concluding that lim- per work breathing. Subse- difficulty related with evidence was inconsistent train- itation enrolled a custodial she quently, large Relying Bray’s medical record. pro- dropped out of ing program, assessment, physician’s difficulty on the DDS part after three weeks due gram gainful notes, to "substantial that did not amount the ALJ found concurrence 1. As the such, grocery Bray’s time as a activity.” As grocery less clerk for worked as "past relevant cannot be considered job "due to her clerk lost than six months and Concur, 404.1560(b)(1) (ex- See 20 C.F.R. Accord- work.” op. at 1234. impairments.” must in- "past work” gro- plaining that Bray's as a stint ingly, the ALJ deemed gainful activity”). attempt” "substantial volve cery “an clerk unsuccessful Bray’s constructed residual a reasonable mind might accept as ade (“RFC”), i.e., functional capacity quate her abil- to support a conclusion.” Andrews ity Shalala, accounting work after for her veri- Cir. 1995). impairments. fiable The ALJ also deter- “Where the evidence as a whole Bray’s mined that employment history denial, can support grant either a aor we provided “previous had her with skilled judgment substitute our for the experience.” expert Astrue, A vocational ALJ’s.” Massachi v. (“VE”) Cir.2007) (internal a person testified quota RFC, education, omitted). age, and work tion marks experience general could find work as a (all clerk, DISCUSSION file or sales clerk “semi- jobs), skilled” jobs and that such were apply five-step ALJs are to sequential in significant available numbers both process review in determining whether a regional the national and economies.2 qualifies claimant as disabled.3 Bowen v. Relying opinion, on the VE’s the ALJ Yuckert, 137, 140-42, 482 U.S. 107 S.Ct. Bray determined that capable of 2287, (1987); 96 L.Ed.2d 119 20 C.F.R. performing a range light modified 404.1520, §§ 416.920. The proof burden of

work and found her not disabled. is on steps the claimant at through one four, but shifts to the Commissioner at Security The Social Administration (“SSA”) Tackett, step five. See 180 F.3d at 1099. Appeals Council Bray’s pe- denied If the review, ALJ determines that tition for a claimant making the is ALJ’s order either disabled or not any step the final disabled at agency Bray order. then com- process, the ALJ court, menced this does not continue action in the district on to the next step. See 20 which affirmed the C.F.R. Bray ALJ’s order. 416.920(a)(4). § timely appealed. step first is not at Bray issue. Both

STANDARD OF REVIEW and the agree Commissioner that Bray is currently not performing gain- substantial We review a district judgment court’s 416.920(a)(4)(i). ful § work. See upholding the denial security of social ben At steps three, two and the ALJ found efits de novo. Apfel, Tackett v. that Bray’s COPD depression and her Cir.1999). “We set anxiety impairments, were severe but that aside a denial of benefits if it is not corresponded neither impair- listed supported by substantial evidence or is ments in the regulations. See 20 C.F.R. legal based on error.” Robbins v. Soc. 404.1520(d). § Bray does not challenge Admin., Sec. Cir. finding. this 2006). “Substantial evidence means more than a mere scintilla but less than pre steps four, Between three and ponderance; it is must, such relevant evidence as step, intermediate assess the that, although The VE Bray testified could 3. The Security Social "disability” Act defines past not inability engage any return to her as the work as a medical "in substantial gainful underwriter, activity by any medically reason of assistant or insurance she could physical impairment determinable or mental (six- general transition ato as a clerk expected which can be to result in death or jobs million economy), in the national file expected which has lasted or can be to last for (288,000 (500,000 jobs), clerk or sales clerk period a continuous of not less than 12 jobs). 1382c(a)(3)(A). § months.” 42 U.S.C. Accordingly, the ALJ determined 20 C.F.R. See RFC. claimant’s Bray disabled. is not 416.920(e). the ALJ’s contests step At four RFC. of her construction to Follow SSR The ALJ’s Failure I. whether, must determine ALJ 82-41 RFC, can return she the claimant’s 82-41, Bray con Relying on SSR activity performed gainful substantial reversible that the ALJ committed tends 404.1520(e). past. Bray pos he when assumed error capa- ALJ determined making skills without sessed returning to her ble assump findings in support under- or insurance assistant as a medical states, part: in relevant tion. SSR disputes writer, party neither and their trans the issue of skills When five, Commissioner step At finding. decided, ... ferability must be capable that the claimant establish must findings of certain make work.4 gainful substantial performing in the written include them fact and supported Findings should decision. way: in this Bray’s RFC ALJ stated The appropriate documentation. 20 to lift the [RFC] claimant has The a claimant finding is made that When fre- pounds 10 occasionally and pounds skills, acquired the transferable has 6 and walk can stand She quently. identified, spe- and must work skills be day and sit 6 out of an 8-hour hours acquired occupations cific to which day. can an 8-hour She out of hours cit- must be work skills are transferable avoid should occasionally climb. She It is in the ... ALJ’s decision.... ed ir- respiratory to exposure concentrated made at findings that these be important out, carry attend is able She to ritants. adjudication clearly estab- all levels of most de- on all but the concentrate or basis for determination lish the complex tasks. tailed a re- and for for the claimant decision district body including a Federal viewing the above statement presented ALJ court. an VE, considered whether who then 31389, limita- 82^1, the stated at *7. The burdened with individual 1982 WL na- “previous work has skilled gainful could obtain that tions found ALJ made no as testified but economy. experience,” The VE work tional any acquired skills. transferability gainful Bray could not return to particu- identify does not as medical assistant The decision capacity former it nor does Bray possesses, underwriter, had transfer- lar skills she or the determination basis for explain as to work and could transition able skills experience. possesses skilled clerk, that she or sales clerk. file a general perform- determination, capable of is not the claimant the Where making step five 4. In in one grids range at work included may rely ing listed the entire on the decisional 2, 404, (as case), Subpart Appendix grids in this categories C.F.R. Part 20 on the hypotheti- present a alternatively, the ALJ given types can must be consideration further lim- the claimant’s question Tackett, that describes cal 180 may precluded. of work Tackett, 180 F.3d VE. See to a itations cases, may use F.3d at 1101. such determine grids are used to framework, deter- and make a grids as a to substan- can a claimant transition whether capa- the claimant of what work mination respect gainful activity with to substantial- tial Astrue, Hoopai v. 499 F.3d performing. ble of v. Moore impairment. levels of ly uniform Cir.2007). 1071, Cir.2000). Apfel, At Bray’s hearing, the VE testified that similar to file, those of a general, Bray’s experience as an insurance under- or sales clerk. approximately fifteen years prior writer — SSRs, according to the governing to the hearing exposed date —had her to regulations, binding “are on compo all computers,5 service, possibly customer nents of Security the Social Administra entry, some data and that her work as a tion” “represent precedent opin final medical assistant exposed also have ions and orders and policy statements of her to similar impossible skills. It is interpretations” of the SSA.620 C.F.R. discern whether the VE’s brief commen- 402.35(b)(1); see also Heckler v. Ed tary represents the sole basis for the wards, 465 U.S. 873 n. 104 S.Ct. assumption had transfer- (1984) 79 L.Ed.2d 878 (noting able skills. The decision similarly silent SSRs). function of reflect “SSRs the offi on the issue of whether the particular cial interpretation of the [SSA] and are skills that the VE identified would be entitled to ‘some long they as deference’ given case age are consistent with the Security Social Act and medical impairments. 82-41, See SSR and regulations.” Barnhart, Avenetti (“[A] *2at person special has no advantage 1122, 1124(9th Cir.2006) (quoting

if he or she is skilled or semiskilled but Barnhart, Ukolov n. can qualify only unskilled be- (9th Cir.2005)). SSRs do not carry the cause his skills cannot be any used to law,” “force of but they binding significant degree in jobs.”). other ALJs nonetheless. Quang See Van Han Moreover, the Guidelines state that “[i]n Bowen, 1453, v. 1457 n.& 6 order to find transferability of skills to Cir.1989). sedentary skilled work for individuals who (55 are of age over), advanced there The Commissioner concedes that the little, very must be any, if ad- vocational ALJ did not follow express the require- justment required tools, in terms 82-41, ments of SSR argues that the processes, settings, industry.” the SSR not applicable is in this Citing case. 404, 20 pt. C.F.R. subpt. 2 app. a Sixth opinion Circuit for support, 201.00(f). The skills that the VE cited argues Commissioner that SSR 82-41 does at the hearing derived from Bray’s work not require specific findings when the ALJ insurance underwriter more than relies testimony on the of a VE to deter- years fifteen earlier. Neither the ALJ’s mine whether a claimant has transferable decision nor testimony the VE’s addresses skills. See Sec., Wilson v. Comm’r Soc. whether was one 541, Cir.2004). month from 378 F.3d 549-50 In —who turning 55 at the time of her hearing— Wilson, argued Commissioner would have to undergo more than minimal requires SSR 82-41 specific findings only “vocational adjustment” perform suc- when the ALJ relies exclusively on the cessfully the required clerk, tasks of a grids file to reach a determination. See id. at general clerk, or sales or otherwise 549. The court concluded that the Com- determined whether the required skills of missioner’s reading of SSR 82-41 was enti- an insurance underwriter are substantially tled to substantial deference and that the 5. The ALJ no any made published whether skills are SSRs Register, Federal Bray acquired by being "exposed comput- although publication their therein is not statu- years current, ago ers” fifteen were still torily much compelled. See 20 they less that 402.35(b)(1). were transferable.

1225 documentation.” appropriate ported with reasonable. interpretation proffered 31389, 82-41, (empha- at *7 1982 WL at 549-50. Id. added); v. Harris see also Christensen sis below, howev- forth reasons set For the 576, 588, 120 S.Ct. County, 529 U.S. opinion Circuit’s er, Second believe the we (2000) that no (holding L.Ed.2d 621 146 (2d Barnhart, 468 311 v. Draegert under Auer where is due deference approach. Cir.2002), a sounder offers unambiguous). is underlying regulation find- specific held that the court Draegert, “[cjonsulta- Further, states that the SSR necessary skills are on transferable ings necessary to ascer- may be a[YE] tion the testimo- relies on the ALJ where even or set of skills given skill tain” whether a 475-77; see also at See id. ny of a YE. particular in a claimant’s transferable are Heckler, 976- F.Supp. Botefur 82-41, at *4. WL case. SSR (D.Or.1985) (concluding will be Thus, that ALJs presumes the SSR under SSR findings testimony to determine relying expert testimony). relies on a VE’s when skills, has a claimant whether Court Supreme In Auer Robbins interpret sense to it makes little of its interpretation an agency’s held that specific written requiring provision SSR’s interpreta even when regulations, own an ex- inapplicable whenever findings as litigation, position as a adopted tion ALJ, It is the pert is involved. 519 U.S. deference. entitled to substantial making YE, responsible for who is L.Ed.2d 462-63, 117 S.Ct. findings. that, in (1997). opinion implies The Auer deference, an receive substantial order to court, the district According to its represent must interpretation agency’s transfer- had assumption rather judgment,” considered “fair and sufficiently reviewable. skills able merely that is convenient position than a the dis- logic, the Sixth Circuit’s Adopting 462, 117 519 U.S. dispute. See given “in the absence explained trict court Georgetown (citing Bowen v. S.Ct. testimony a voca- supplementary of 204, 212, 109 S.Ct. Hosp., 488 U.S. Univ. obligated be the ALJ would expert, tional (1988)); Bigelow 493 102 L.Ed.2d to finding related specifically to include 875, 878-79 Def., 217 F.3d Dep’t skills” but where transferable (stat J., (D.C.Cir.2000) (Tatel, dissenting) of evidence “the source expert, on an relies there due “where that no deference ing apparent skills is regarding in agency’s that an suspect” is reason district court.” The by the and reviewable repre regulation of its own terpretation “it was correct then concluded court litigation position” a “convenient sents Bray had to assume that the [VE] agency’s expression of the than an rather This is computer skill.” degree of some judgment”). “fair and considered however, that finding, the precisely sort ALJ, the and not the requires inter- SSR 82-41 large measure granting Even principles court, Long-standing make. deference, the Commissioner’s pretive us to review require law administrative credulity. strains reading of SSR reasoning based the ALJ’s decision application, qualify not its The does the ALJ— n by offered findings and factual of skills the issue stating “[w]hen attempt decided, hoc post not rationalizations be transferability must and their may have adjudicator intuit what certain make ... ALJ is Chenery Corp., SEC thinking. See in the been them and include findings of fact L.Ed. 194, 196, 91 67 S.Ct. 332 U.S. sup- Findings should written decision. (1947) (“[I]n dealing with a determi- Court has discretion to remand for further nation or judgment which an administra- finding, fact if the record is unclear as to a agency tive make, alone is authorized to claimant’s entitlement to disability bene- must judge propriety fits). [courts] of such solely by

action grounds by invoked the agency. If grounds those are inade- II. The Residual Capacity Functional quate or improper, the powerless court is Determination to affirm the administrative action sub- non-disability ALJ’s stituting what it considers to be a more flowed from the presentation of a hypo adequate basis.”); or proper Apfel Snell v. VE, thetical RFC to a who then identified (2d Cir.1999) (“The re- specific jobs Bray perform. Bray could quirement exists, of reason-giving part, contests representativeness of the to let claimants understand disposition ALJ’s hypothetical by challenging three ”). of their cases.... 1) predicate findings: that Bray’s testimo departure from established ny regarding the severity of her symptoms procedure SSA thwarts this ability court’s 2) credible; was not entirely that a treat to determine whether or Bray possess not ing physician’s prescription note was not es transferable dispositive skills—a issue 3) entirely credible; severe, medi for her claim. Chiappa v. Sec’y Cf. cally determinable mental impairments Health, Dep’t Educ. & Welfare, 497 notwithstanding, Bray is “able to carry (S.D.N.Y.1980) (“The F.Supp. fail out, attend and concentrate on but all ure of ALJs to [specific] make findings most complex detailed and tasks.” We disability cases among principal agree with the district court that substan causes of the delay and uncertainty ... in tial supports evidence the ALJ’s construc law.”). this area of the The district court tion of Bray’s RFC. chose to review the transferable skills find ing based on what it assumed the ALJ to 1. Bray’s Testimony determined, have meaningful review of The ALJ found Bray’s description an administrative requires decision access of her symptoms was entirely credible. to the facts and reasons supporting that Specifically, the ALJ discounted Chenery, decision. See U.S. statement that she is incapable of walking S.Ct. 1575. SSR 82-41 articulates this more than half a block without stopping to principle in a clear form. The ALJ erred catch her breath and using a nebulizer or in disregarding regulation and the dis inhaler, that she is unable to twenty lift trict court erred in disregarding the un pounds, and that she carry cannot as much derlying principle. as ten pounds “very far.” Substantial evi- We thus remand this case to the Com- dence supports the ALJ’s to give decision missioner so that the ALJ can further weight limited to Bray’s characterization of develop record and make specific find- symptoms. her ings on whether Bray has transferable skills.7 Terry Sullivan, See If an ALJ a finds claimant’s char (9th Cir.1990) (holding that this acterization his or her symptoms own 7. The concurrence identifies brief; an additional Bray’s thus, not in opening made we ground for reversal based on an inconsistency deem it waived. See Rattlesnake Coal. v. U.S. concur, ALJ's findings. factual op. See EPA, (9th Cir.2007). F.3d however, argument, 1234-35. This was smoking). The continued claimant’s credibili a must make unreliable, the ALJ respiratory Bray’s that if ALJ reasoned specific up backed ty determination claimed, she severe as Sullivan, were as 947 ailments Bunnell See findings. It smoking. Cir.1991). likely refrain would (9th she “[0]nee 341, 345 F.2d so ad- Bray was that certainly possible evi medical objective produces claimant she continued cigarettes an dicted ad impairment, underlying anof dence debilitating the face smoking even in sub reject a claimant’s not judicator acute chemical and lack of shortness breath on a solely based complaints jective so, presented sensitivity. Even fully corrobo evidence objective medical for discount- independent bases In Id. four other allegations. claimant’s rate” the ample each finds testimony, and determination, Bray’s ing an credibility reaching Thus, the ALJ’s in the record. support between inconsistencies may weigh ALJ smoking, even Bray’s continued or her reliance his testimony and claimant’s error. erroneous, record, to harmless amounts if activities, work conduct, daily Admin., Soc. Sec. v. Comm’r Batson v. Soc. See Light See other factors. among Cir.2004) (con- 1190, 1197 Cir. 359 Admin., Sec. not that, if record did even cluding 1997). stated reasons the ALJ’s one of support findings sup- made The ALJ testimony, the disbelieving claimant’s for Bray’s tes- to discount of his decision port harmless). error was 1) Bray continued noting that: timony, month be- until one up cigarettes smoke Treating Physician complaining despite hearing, fore the ALJ erred Bray contends acute of breath debilitating shortness above contrary evidence elevating 2) active an she leads sensitivity; chemical At treating physician. opinion of cooking, walk- cleaning, including lifestyle, a prescription hearing, introduced driving appointments; dogs, and ing her daily limiting her Seyer, by Dr. written care- 3) as a personal recently worked she five day, per hours activity to four work sought out and has years, two giver for contrast, physi- DDS days a week. 4) then; she re- since employment other impair- Bray’s physical cian evaluated physician she evaluating an ported to capable reported ments engaging wheezy when only becomes fre- pounds, lifting twenty occasionally re- exertion, other occasions and on heavy standing lifting pounds, ten fine”; quently “going that her COPD ported eight-hour an out of six hours walking for do hearing 5) at her Bray’s statements out of six hours sitting day, in her objective evidence comport day. eight-hour findings are above medical record. The record, belie by the supported grant- reasons several gave illness. debilitating respiratory claim of “little note Seyer’s prescription ing Dr. Bray’s 1) note was written weight”: for improper that it was maintains Bray 2) medical records request; smoking continued to cite her severe only experiences that she reveal credibility. See adversely impacting heavy after exertion of breath 809, shortness 226 Apfel, F.3d v. Shramek usual activ- conjunction with dicta, and not nico- Cir.2000) (noting, in 3) Seyer’s pre- Dr. living; daily ities of it “ex- made properties tine’s addictive an exacerbation after written scription was a claimant’s to discredit tremely tenuous” 4) not seek COPD; Bray did and on of her based impairments of her description 1228

medical again treatment eight for months 3. Consideration Bray’s Mental Im- after Seyer pairments Dr. wrote the prescription, suggesting a lack of need for a continued If ALJ finds a impair severe limitation of her work hours. two, ment at step impairment must be

considered the remaining steps of the A treating physician’s opinion is en sequential analysis. 20 404.1523, §§ titled to “substantial weight.” 416.923. Embrey v. The ALJ Bray found that pos Bowen, sessed (9th Cir.1988). two impairments F.2d severe —COPD adjustment and an (i.e., When disorder symp evidence in the record contradicts toms of anxiety depression). and Bray opinion of a treating physician, the argues that the ALJ failed to account for present must “specific legitimate adjustment disorder in the final con reasons” for discounting the treating phy RFC, struction of her and thus ran afoul of opinion, sician’s supported by substantial the governing regulations. Hypothetical Chater, evidence. Lester v. 81 F.3d questions posed to a VE must out “set all (9th Cir.1995).8 However, “[t]he ALJ the limitations and restrictions of the par need accept opinion not any physi ticular claimant....” Sullivan, Russell v. cian, including a treating physician, if that Cir.1991). If an opinion brief, conclusory, and inade ALJ’s hypothetical not does reflect all of quately supported by findings.” clinical limitations, claimant’s then “the ex Barnhart, Thomas 957 pert’s testimony has no evidentiary value (9th Cir.2002). support a finding that the claimant can perform jobs in the national economy.” Bray argues that the ALJ’s stated rea- Sullivan, DeLorme sons are legitimate neither nor sufficient (9th Cir.1991). justify discounting Seyer’s Dr. prescrip- The ALJ adequately accounted for tion note. Specifically, Bray contends that Bray’s adjustment disorder in his con- the fact that Seyer Dr. wrote the note at struction of her RFC and in hypotheti- her request is not legitimate reason for presented cal he to the VE. He asked the it, disbelieving because a treating physi- VE to Bray assume that out, “carry could cian prescribe would not medically unwar- attend [sic] concentrate on all ranted restrictions. As the district court most detailed complex Bray tasks.” noted, however, treating physician’s argues that this statement contradicts the prescribed work restrictions were based ALJ’s earlier finding at step two that on Bray’s subjective characterization of Bray’s mental impairments were “severe.” her symptoms. theAs ALJ determined posits She that a severe impairment, by that Bray’s description of her limitations definition, inhibits a claimant engag- entirely credible, it is reasonable ing in “basic work activities,” and the physician’s discount a prescription that ALJ’s statement of her RFC does not based those less than credible capture that limitation. offers no statements. authority support the proposition that a a treating Where physician's opin- medical examined opinion contradicts the re- ion is not contradicted the opinion of an- flected Seyer’s note; Dr. prescription thus, other physician, the ALJ must forth set "clear only provide ALJ need "specific legiti- convincing” reasons for disbelieving the mate” reasons discounting Seyer’s Dr. physician. Thomas, treating 278 F.3d at 956- Lester, prescription note. F.3d 830. Here, 57. report the a physician of DDS who assumption, that support clear basis to corre- must impairment mental severe 82-41. ability requirement contrary to the a claimant’s on to limitations spond properly cannot result, Court activities. this work As a basic perform to evidence substantial whether determine record medical the importantly, More Bray decision the ALJ’s supports Bray’s that conclusions the ALJ’s supports transferability The issue not disabled. her from prevented impairments mental now Bray is as dispositive, tasks. is skills complex the most completing RFC, in ALJ re- be considered old, the thus should Bray’s and constructing years Krishnan, a Dr. According opinion category. age” the on “advanced lied the Bray August in evaluated who with psychiatrist 58-year-old a grids, that: concluded Krishnan Dr. of 2003. skills lacks who limitations accept instructions can claimant The as disabled.9 qualifies with co- interact and supervisors from of the district judgment the reverse We claimant The public. the workers instruc- case with the and remand court on activities work perform to will be able case to this it remand that further tions or ad- special basis without a consistent proceedings for further the Commissioner claimant The supervision. ditional opinion. this regular with maintain consistent to able likely be would is she as workplace, in the attendance and REMANDED. REVERSED to com- is able working. She currently with- workday/workweek a normal plete concurring: WU, Judge, District psychiatric interruptions

out to able be would also She condition. holdings and the with agreement I in am in encountered usual stress with the deal (“The II Discussion—Part reasoning the work. competitive Determina- Capacity Functional Residual to controvert offer evidence Bray not does Likewise, I concur tion”) Opinion. of the assessment, the ALJ’s Krishnan’s Dr. Discussion— in the reached the result out, “carry attend Bray can that conclusion (“The Follow SSR to Failure I Part most de- the all but on and concentrate ie., should below 82-41”), decision a represents complex tasks” tailed Commis- remanded be reversed in the admin- grounded finding, reasonable However, proceedings. further sioner record. istrative entirely by an conclusion at that I arrive here problem CONCLUSION approach. different failure of to a fundamentally due trans- Bray had ALJ assumed finding regarding to make ALJ to articulate skills, failed ferable disability on benefits claimant old, awarded ALJ issue years Bray now 58 is Because age remand, the claimant's part, because placed category she should age which A longer proceedings). i.e., during moot, category no age is advanced had should de (although age limited case over claimant borderline be), before Bray remand, became disabled (as termine whether the ALJ determined work con 55). ALJ should turning quali On past relevant perform unable pur category for the 55-60 sider the claim ALJ finds unless the disabled fies disabled. determining she whether pose of "readily transfer possesses skills ant 864, 868 F.3d Apfel, Moore See range of semi-skilled significant to a able age cate Cir.2000) adjusted (noting individual's within that is skilled claim remand because gory determination pt. capacity." Bowen, advanced); Brouwers age had ant's 202.00(c). app. 2 subpt. 1987) (noting Cir. 1230 skills,1

transferable you inconsistent where the telemarketing findings erroneous actually made by field. the ALJ in his written decision and by

adopted the district court.2 And her date employment of was March I. ADDITIONAL BACKGROUND of 2004 for I guess a duration of three 25, At the March hearing, 2005 the VE’s weeks. Caregiver, light level, exertional testimony specifically based in part three, semi-skilled, SVP 8 of '02 to some upon the “Dictionary of Occupational Ti- period in 2004. Grocery meat de- (“DOT”).3 tles” VE summarized partment, medium level[,] exertional Bray’s relevant work history as follows: two, SVP unskilled, 8 of '02 to 1 of '03. Her [job] most recent was telemarket- Medical level, exertional assistant^] ing, sedentary exertion level. That six, skilled, is SVP 3 of 1993 to 11 of '01. defined in the as an DOT SVP three Underwriter, sedentary exertional lev- .... in my opinion vocationally goes elf,] it seven, skilled, SVP 8 of through '86 between a two and a three depending on 10 of 1991.[4] 1. I concur the majority rejecting the occupations "unskilled, lar being as semi- holding Sec., in Wilson v. skilled, skilled,” Comm’r Soc. 378 [or] the of SSA also uses the (6th Cir.2004), that, 549 (such under SSR DOT) materials published as the by the (1982 *7), WL 31389 at Department of § Labor. 20 C.F.R. 404.1568. regards to a claimant’s transferable skills is The DOT "includes jobs information about only required "when solely (classified an ALJ relies by their exertional and skill re- grid, in which cases ALJ must ascer- quirements) that exist in the national econo- tain whether the claimant has my.” 20 C.F.R. 404.1569. The DOT is con- skills in apply grid.” order sidered to be the “best job for source how a generally performed.” Comm’r, Carmickle v. 2. While majority finds the ALJ’s failure to SSA, 533 F.3d Cir.2008) 1166 specifically identify Bray’s transferable skills (quoting Massanari, Pinto v. 249 F.3d to be a reversing sufficient basis for and re- (9th Cir.2001)). "The DOT creates re- manding for findings, further as discussed in buttable presumption as to the classifica- this concurrence that failure would not con- Astrue, tion.” Tommasetti v. grounds stitute for such reversal but for (9th Cir.2008). underlying findings erroneous which are delineated herein. 4."SVP” refers to the "specific vocational preparation” level which is defined in the Astrue, As noted in Massachi v. DOT as "the lapsed amount of time (9th Cir.2007), 8n. “The Social by typical worker to the techniques, learn Security Administration has taken administra- acquire information, develop the fa- tive notice Dictionary Occupational cility needed average performance in a Titles, published which by Department specific job-worker Dictionary situation.” gives Labor and physical detailed require- Titles, Occupational C, Appendix page 1009 variety jobs." ments for a The DOT can be (4th ed.1991). SVP means "anything be- utilized the VE in and/or determin- yond a short up demonstration to and includ- claimant, ing whether a given his or her re- month;” ing 1 SVP 3 means "over 1 month sidual capacity, perform can his or up months;” to and including 3 SVP 6 means relevant work. 20 C.F.R. year up "over 1 to and including years” § 404.1560(b)(2). Likewise, the Social Secu- SVP 7 years means up "over to and includ- rity ("SSA”) Administration classifications of ing 4 years.” Id. physical requirements exertion of various jobs being medium, "sedentary, light, As stated 00-4p, in SSR 2000 WL 1898704 heavy, very heavy” [or] have the same mean- at *3: ing as in the DOT. 404.1567. In The DOT lists a prepa- vocational designating requirements the skill particu- (SVP) ration time for each described oc- Bray “has the re- that ALJ found hypothetical response In sig- to a capacity perform of dis- functional at onset sidual Bray’s age included which noted work....” He education, residu- of experience, range nificant work ability, “at- ability to capacity, that: al functional most all but the on and concentrate

tend giv- that expert testified The vocational tasks,” indi- the VE complex detailed ca- residual functional claimant’s en the cated: performing incapable is of pacity, she the care perform could That individual grocery a work as past her relevant companion. they call job or what giving clerk, and insurance medical assistant perform to be able would This individual of capable would be She underwriter. I do not of work. telemarketing types as a telemark- past work performing on a limitation person believe this However, these caregiver. eter and handle could you mentioned the detail at the substan- jobs performed were assistant. the medical the underwriter are thus activity level and gainful tial assistant, that way, medical by the And past relevant work. not considered exertional at the medium many times is returning to her incapable of claimant is level.... work.[6] relevant past assis- and medical the underwriter As to that: ultimately decided The ALJ that: opined VE jobs, tant the testimony on the credible in relation- Based are skills There con- undersigned responsibility. expert, vocational clerical ship to office medical the claimant’s job considering as a underwriting even cludes that our computers, expe- assistant, exposed background, work educational age, she service, possibly capacity, typing, customer filing, and residual rience of skills. entry, making those kinds a successful data capable some she [Emphasis signifi- added.] to work that exists adjustment economy. in the national cant numbers concluded Ultimately, VE therefore “not disabled” is A clerk, clerk or file general could work as Medi- the framework within reached em- was available and there sales 202.15.[7] Rule cal-Vocational fields.5 ployment those may have eery assumed clerk. The Using level definitions the skill cupation. testimony that VE’s 416.968, of the because conclusion un- 404.1568 and C.F.R. "medium” grocery clerk of 1- corresponds an SVP skilled work However, be- as discussed level. exertional 2; corresponds an semi-skilled low, testimony was erroneous. 3-4; corre- and skilled SVP of in the DOT. of 5-9 sponds to an SVP Rule_” a refer- 7."Medical-Vocational clas- a reason for Although there rules/categories found in of the ence to one differ- occupation's level sifying an skill P, 404, Subpart Part C.F.R. the tables DOT, regulatory ently in the than in- indicates “whether Appendix which controlling. skill levels definitions not disabled” based is or is dividual education, residual functional age, person's in Febru- hearing, Bray testified 5. At the experience. previous work capacity and seeking employ- she was ary/March of App. § 200.00. Subpt. Pt. service, office involving "customer ment concomitant their rules/cate- The tables with scheduler, work, receptionist, office medical as "the referenced gories are sometimes phones.” grids.” Lounsburry v. grids, finding, VE never As to use Contrary the ALJ's Cir.2006), Barnhart, incapable of expressly stated that: gro- cautions work as performing II. DISCUSSION -!- * ^{[*] [*]} (4).... If you of are advanced age Applicable A. Law (age older), 55 you or have a severe concept of transferability of skills is impairment(s) that you limits to seden- 404.1568(d) § delineated 20 C.F.R. as work, tary or we will you find that follows: cannot adjustment make an to other (1).... We [the SSA] consider you work unless you have skills that can you[the to claimant] have skills that can transfer other skilled or semiskilled be used in jobs, other when the skilled you work ... can despite your do you semi-skilled work activities did impairment(s). past work can be used to meet the re- SSR 82^41 states that “[w]hen the issue quirements of skilled or semi-skilled of skills and their transferability must be work activities jobs of other or kinds of decided,” the “ALJ is to make work. depends This largely on the simi- certain findings of fact and include them in larity occupationally of significant work the written decision.” 1982 WL 31389 at activities among jobs. different *7; Barnhart, see also Jensen v. (2).... Transferability proba- is most Cir.2005). Also, 1165 “[w]hen ble and among jobs meaningful in which- a finding is made that a claimant has skills, the acquired work skills (i) The same or a degree lesser identified, must be occupations required;

skill is to which the acquired work skills are (ii) The same or similar tools and transferable must be cited in the ... used; machines are ALJ’s decision.” 1982 WL at *7. (iii) The same or similar raw mate- However, SSR 82^41 additionally indicates rials, products, processes, or ser- that: vices are involved. Transferability of skills is an only issue

(3).... degrees There are of transfer- when an individual’s impairment(s), ability of skills ranging very close though severe, does not equal meet or similarities to remote and incidental sim- the criteria in the Listing of Impair- ilarities among jobs. A complete simi- Appendix ments in regulations larity of all three factors is not neces- [20 C.F.R. Pt. P, Subpt. App. 1] sary for transferability. prevent does performance grids predicated [T]he are aon claimant 1983). Sec. (January Rui. 83-10 partic- suffering impairment from an which ular, mani- impairments non-exertional —includ- by fests itself meeting limitations in ing postural manipulative limitations strength requirements ("exertional jobs such difficulty reaching, handling, stoop- limitations”); they may fully applica- not be ing, climbing, crawling, or crouching— ble where the impair- nature a claimant’s may, severe, if sufficiently limit a claimant's ment does not result in such limitations capacity functional ways contemplat- ("non-exertional limitations”). 20 C.F.R. by grids. ed [ci- 404.1569 P, Subpart Appx. 200.00(e) Part Thus, tation omitted]. the Tackett court [citation omitted]. reason for this limi- grids held that applied ”[t]he should be that, grids’ application tation de- where a claimant’s functional limitations spite having the residual capacity fall pattern into standardized 'accurately perform range a full occupa- of unskilled and completely’ grids.” described given level, tions at a exertional a claimant Apfel, [Tackett v. adjust not be able jobs to these Cir.1999).] because of non-exertional limitations. Soc. Revised [the the SCO publication panion has (PRW), and that Titles]) in- Occupational Dictionary or semi- be skilled determined been of work (PRW regulations requirements defined in about formation skilled. 416.965.) When economy. use these We 404.1565 in the national sections Appendix [20 the se- rules 4 and 5 of Steps table publications applicable 404, Subpt. App. 2] Pt. 2000 WL process.” evaluation quential be decisive case, transferability will to a evidence occupational at *2. The or “not of “disabled” conclusion in the be generally should by VE provided a in- relatively few only a disabled” informa- occupational consistent with because, determined if it is even stances there Id. When by the DOT. supplied tion skills, a no transferable there are evidence and the VE a conflict between may be based disabled” finding of “not inquire DOT, the ALJ to duty it is of a work. unskilled ability to do for the to the reason record as on the Further, recognizes SSR at *1. Id on the VE’s inconsistency relying before involving occasion, in situations that on Id. evidence. may be jobs, certain skills types of similar readily transferable. Analysis B. ap- job skills have universal where ... (that Bray’s prior lines, e.g., testimony industry The VE’s across

plicability administrative, clerk, department” or meat clerical, job “grocery as a professional, transferability “medium” jobs, of level of types exertion managerial physical had a unskilled”) past differing “two, to industries of of skills an SVP level accom- be usually can experience classification the DOT contrary to both little, any, if vocational very plished in the topic only on the evidence similar jobs with adjustment where lists the The DOT record. administrative within being as can be identified skills a occupation of rating for strength [residual RFC individual’s trade)” (retail “L” as or “sales food capacity]. or “semi- of “3” SVP level “light” and an Ti- Occupational Dictionary Id. at *6.8 skilled.” ed.1991). § 290.477-018 tles the SSA relies 00-4p states (re- clerk, food the “sales notes that (including its com- DOT DOT on the “primarily of force negligible a amount quently, is: and/or given in SSR 82-41 example An activity or condi- (Constantly: constantly (ad- general clerk office semiskilled [A] time) to move work, of the or more clerk), tion exists ordi- doing 2/3 ministrative in, requirements are spends Physical demand objects. equally proficient narily is filing, Sedentary tab- Work. Even doing, typing, those for time in excess of considerable books, data in record a ulating posting weight lifted though the statements, operat- preparing amount, invoices job be rated negligible should machines, calculating etc. ing adding and (1) walking requires it Light when Work: readily transfer- may be These clerical skills (2) degree; significant or standing ato occupa- sedentary semiskilled able to such sitting the time but requires most when it insurance typist, clerk-typist and tions as leg pulling of arm or pushing entails and/or auditing clerk. control controls; (3) requires job when the and/or at *3. WL 31389 entailing pace working production rate pulling of ma- Titles, pushing Ap- the constant and/or Occupational Dictionary 9. The ma- ed.1991), though weight of those C, even states terials page 1013 pendix capacity for: negligible. "L-Light work” indicates terials is pounds occasion-

Exerting up of force pounds force fre- up ally, to 10 and/or trade)” job tail classification also covers could later be part considered of Bray’s (retail trade)” “grocery clerk and “meat past However, work.10 assuming (retail trade).” counter clerk Id. In the arguendo be, it can the ALJ’s conclu- History Report” “Work which she filled sion—that Bray’s residual functional ca- out and submitted to the in April SSA (which pacity the ALJ later found allowed 2003, Bray grocery described her job clerk her to “light do work” in general, file as requiring her to occasionally lbs, lift 20 or sales clerk occupations) barred her from to frequently lift 10 lbs and to stand and/or performing a grocery walk up to 8 hours. description Her upon clerk—is based the VE’s erroneous job places it within “light work” testimony that grocery clerk re- 404.1567(b). category. See 20 C.F.R. quires “medium” physical require- exertion

Because testimony the VE’s as to the ments.11 requirements of grocery position clerk addition, the ALJ’s conclusion—that was in conflict with the specifica- DOT’s Bray was incapable of performing past tions, the had “an respon- affirmative work as a grocery clerk yet and that she sibility” to inquire as to the reasons and perform could work as a sales clerk—is on evidentiary basis for the VE’s deviation. its face inconsistent. The gro- duties of a See 00-4p, *2; WL 1898704 at cery clerk, (retail trade) food clerk/sales Tommasetti, 1042; Massachi, F.3d at are described in the Dictionary Occupa- of 486 F.3d at 1153. The ALJ did not make (4th ed.1991) § tional Titles 290.477-018 any inquiry, such which constitutes error. as follows: The ALJ in his conclusion stated that “given prepares Obtains claimant’s or request- residual food items functional capacity, she ed incapable performing store, customers in of retail food past relevant work as a grocery bill, totals customer payment, receives medical assistant and insurance underwrit- change: order, makes fills customer First, er.” it is noted that in the begin- performing duties such as obtaining ning decision, of his the ALJ wrote that: shelves, items freezers, coolers,

After the date of alleged bins, of tables, onset disabil- containers; or cleaning ity, the claimant worked as a grocery poultry; scaling fish; and trimming slic- clerk. The work performed during ing cheese, meat or using slicing ma- period temporary of remissions from chine; preparing take-out sandwiches symptoms and ended after less than 6 salads; dispensing beverages; and months due to her impairments. This warming food items in Weighs oven. job is considered unsuccessful work items, produce, meat, such as and poul- attempt. try to price. determine Lists and totals questionable It whether grocery prices, using paper pencil, calcula- job, clerk if it had been correctly tor, charac- or register. cash Informs customer terized as an “unsuccessful attempt,” of total purchases. price Receives 404.1560(b)(1) 10. "past defines (when capacity evaluated) correctly relevant work” as "work you [the claim- would perform allow her past occupa- ant] have within years, done tion, then she could be "not found disabled” gainful activity, substantial and that last- step of the step four five evaluation of long ed enough you for to learn to do it.” disability analysis. See 20 C.F.R. 404.1520(a)(4)(iv). grocery If the clerk part is held to be Bray's past relevant work and if her residual amount cash and records Removes purchases for from customer payment May calculate of shift. at end wraps pur- register Bags or change. and makes May shelves, price. to determine discount Cleans sales customer. chases sales, inventory prepare Stamps, tables, keep record of coolers. bins, May stock, merchandise. merchandise. or order marks, tags on. price or shelves, sold produce and stocks according displays designated up Sets freezers, tables, bins, counter, coolers, type of store. or merchan- containers, with new trays or (without rea- any or explanation A to customer make deliveries May dise. re- the work Bray could do soning) May of business.... place home or job of a not the clerk but of a sales quired cakes, or describe orders, decorate write clerk is error. grocery such as products, specialty available transferability the issue of Finally, as to merchandise May order cakes. birthday Rule skills, placed May be supplier. from warehouse to be found her grids of the 202.15 food sold type according designated 404, Subpt. Pt. (retail trade); “not disabled.” Meat Grocery Clerk 202.15 covers No. 2. Rule trade); (retail App. Produce Table clerk Counter ad- “closely approaching Clerk, trade) who are I; Fish claimants (retail Sales Clerk 404.1563(d) (age § trade). age,” 20 C.F.R. (retail vanced high school 50-54), at a minimum who are trade) (retail clerk of a sales The duties skilled had who have and graduates, those of substantially the same as are their skills jobs where or semi-skilled (retail food grocery clerk/sales 82-41, plac- by transferable. Under trade) in Section are delineated and grids of the rule/category in a Bray ing as: 290.477-014 requirement transfer- contains which merchandise, totals or receives Obtains skills, have made the ALJ should able and makes bill, payment, accepts involved the work skills identifying store in retail for customers change they applied. to which occupations and store, candy drug shop, tobacco such as here, which consti- sodo did not ALJ shelves, Stocks store, liquor store: or was However, that omission error. tutes counters, with merchandise. or tables source of or the that time significant not or ar- displays advertising up Sets if one were Even error. reversible or ta- counters on merchandise ranges identify the ALJ’s failure conclude marks, Stamps, promote sales. bles to be treated should skills the transferable Obtains merchandise. price oh tags or skills, Bray transferrable Bray had no if or by customer requested merchandise 202.14 of Rule within then fall would by cus- selected merchandise receives her in place still would which grids questions customer’s Answers tomer. Pt. See category. “not disabled” location, use of price, concerning 2, 2. Conse- P, Table No. App. Subpt. and tax price Totals merchandise. here problem fundamental quently, customer, us- purchase merchandise identify the failure ALJ’s not the or register, cash pencil, ing paper rather whether skills Accepts bill. calculator, to determine (or for 202.15 into Rule Bray placement Wraps or change. makes payment 202.14) or Rules 202.13 into matter for customers. merchandise bags wheth- concerns issue This correct.12 counters, shelves, tables. Cleans job as grocery clerk Bray’s prior categorized addition, erroneously VE because er the ALJ properly considered the re- quirements 404.1563(b) 20of C.F.R. STEWART; Trevor D. Phillips; Todd 20 C.F.R. Pt. Subpt. App. Phillips; Lefevre, Joe H. Dell individ- 202.00(c) (d).13 However, in light of ually and in capacity his as member footnote 9 of majority’s opinion, the County of the Board of Commission- placement into Rule 202.15 County; ers of Garfield Worth W. moot becomes and the issue of transfer- Brown; Brown; James N. F. William ability of skills is moved from the backbur- Alleman; Ray Spencer, in his official ner to the front.14 capacity as member of the Board of County Commissioners of Kane Coun-

III. CONCLUSION ty; Habbeshaw, Mark In his official above, For the reasons stated I concur capacity as member of the Board the decision of the district court County Commissioners of Kane Coun- should reversed and the case remanded ty; Hulet, Daniel capac- his official proceed- Commissioner further ity ings. as member of the County Board of County;

Commissioners of Kane D. Maloy Dodds, in capacity his official as member County of the Board of County; Commissioners of Garfield ' (which being unskilled” accepted), App. Table through No. Rules 202.09 could not acquired find that Therefore, had 202.15. transferability of skills is any transferable occupation skills from that particularly not category to that person gain "[a] because does skills However, claimants. for individuals who are by doing jobs.” unskilled 20 C.F.R. age work, advanced light limited to 404.1568(a). However, § because the DOT they will generally be considered to be dis- grocery classifies the job being clerk as "semi- they when abled past cannot return to their skilled,” Bray could be found to have ob- they work unless have transferable tained transferable employed skills while skills or some education which provides for occupation. Although the ALJ character- entry direct into skilled work. Id. Rules plus ized five grocery months of clerk Thus, through 202.01 202.08. the decision as employment as an "unsuccessful work at- whether to person treat as a who is tempt,” position the DOT treats that having closely approaching age advanced rather than SVP which typical means that a a person age paramount advanced was of worker could techniques "learn the ... and importance. 404.1563(b) pro- develop facility average per- needed for age vides that the categories are not to be formance” in that after one to three applied "mechanically in a borderline situa- months. tion.” grids, 13. In the where a claimant is found As noted the SSA when it amended 20 have a residual capacity which is 404.1563(b): C.F.R. work, limited to treatment of persons “closely that, who are new approaching paragraph explains age” per- advanced if 54) age {i.e. greatly category differs son's changes during pe- those who (i.e. are age” over). of "advanced 55 or riod for which we adjudicating are a dis- former generally claim, will ability not be considered to be will age we use each they disabled when categories cannot return to their applicable person relevant work they unless during period illiterate and for which are we decid- have had previous unskilled or no ing person if the is disabled. experience. See 20 Pt. Subpt. Fed.Reg. 2000). (April

Case Details

Case Name: Bray v. Commissioner of Social Security Administration

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 6, 2009

Citation: 554 F.3d 1219

Docket Number: 06-36072

Court Abbreviation: 9th Cir.