Bray v. Commissioner of Social Security Admin.

• Decision Date: 06 February 2009
• Docket Number: No. 06-36072.,06-36072.
• Citation: 554 F.3d 1219
• Parties: Mary BRAY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

554 F.3d 1219

Mary BRAY, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 06-36072.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 23, 2008.

Filed February 6, 2009.

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

L. Jamala Edwards, Assistant Regional Counsel, Social Security Administration, Seattle, WA, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon; Garr M. King, District Judge, Presiding. D.C. No. CV 05-1282 KI.

Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and GEORGE H. WU,^* District Judge.

Opinion by Judge TASHIMA; Concurrence by Judge WU.

TASHIMA, Circuit Judge:

Mary Bray ("Bray") appeals the district court's judgment affirming the Commissioner of Social Security's ("Commissioner") final decision denying her application for social security disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 401-434, 1381-1383f. Bray contends that the administrative law judge ("ALJ") failed to make findings concerning whether she possesses "transferable skills" as Social Security Ruling ("SSR") 82-41 expressly requires. Bray also argues that the ALJ erred in discounting her testimony, disregarding a treating physician's medical opinion, and failing to account for her mental impairments in determining her residual functional capacity. Lastly, Bray contends that the ALJ applied the governing Medical Vocational Guidelines "mechanically" in a borderline situation in violation of 20 C.F.R. § 404.1563(b), by including her in the 50-54 age category even though she was less than a month from turning 55 at the time of the ALJ's decision.

We have jurisdiction under 28 U.S.C. § 1291, and we hold that the ALJ erred by failing to make findings on the issue of whether Bray possessed transferable skills. We thus reverse and remand.

BACKGROUND

On March 25, 2003, Bray filed an application for disability insurance benefits alleging that she had been disabled since November 9, 2001. After her claim was denied initially and on reconsideration, Bray requested a hearing before an ALJ. On November 7, 2003, Bray protectively filed for supplemental social security income payments, and that application was consolidated with her prior claim and expedited to the hearing level.

On March 22, 2005, the date of her hearing, Bray was 54 years old and approximately a month from turning 55. She has a high school education and one year's vocational training as a medical assistant. She suffers from chronic obstructive pulmonary disease ("COPD"), asthma, hypertension, anxiety, depression, and arthritis. Most recently, before filing her application, Bray worked for an ill friend as a part-time caregiver; before that she briefly worked at a call center handling customer service inquiries, but was terminated after three weeks on the job when she requested workplace accommodations related to her difficulty breathing. Subsequently, she enrolled in a custodial training program, but dropped out of the program after three weeks due to difficulty keeping pace and tolerating exposure to chemical fumes. Bray worked as a grocery clerk from August 2002 to January 2003, as a medical assistant from 1993 to 2001, and as an insurance underwriter from 1986 to 1991. She has been unable to hold a full-time job for more than six months since losing her medical assistant position in 2001; thus, the ALJ determined that she had not engaged in "substantial gainful activity" since the onset date of her alleged disability.¹

At her hearing, Bray testified that she cannot walk more than half a block without stopping to catch her breath or making use of an inhaler or nebulizer. She also offered a written prescription from a treating physician, issued on May 13, 2004, limiting her to four hours of work per day, five days a week. The physician wrote the prescription after Bray visited the emergency room reporting a flare up of her COPD. A physician with the Oregon Disability Determination Service ("DDS") evaluated Bray's physical condition and concluded that she was capable of standing or walking for six hours out of an eight-hour work day and sitting six hours out of an eight-hour work day.

The ALJ found Bray's testimony regarding her symptoms to be "not entirely credible" due to inconsistencies with record evidence of her daily activities, treatment history, and objective medical condition. The ALJ also discounted the prescription limiting Bray to four hours of work per day, concluding that the limitation was inconsistent with evidence in Bray's medical record. Relying in large part on the DDS physician's assessment the ALJ constructed Bray's residual functional capacity ("RFC"), i.e., her ability to work after accounting for her verifiable impairments. The ALJ also determined that Bray's employment history had provided her with "previous skilled work experience." A vocational expert ("VE") testified that a person with Bray's RFC, age, education, and work experience could find work as a general clerk, file clerk, or sales clerk (all "semiskilled" jobs), and that such jobs were available in significant numbers in both the national and regional economies.² Relying on the VE's opinion, the ALJ determined that Bray was capable of performing a modified range of light work and found her not disabled.

The Social Security Administration ("SSA") Appeals Council denied Bray's petition for review, making the ALJ's order the final agency order. Bray then commenced this action in the district court, which affirmed the ALJ's order. Bray timely appealed.

STANDARD OF REVIEW

We review a district court's judgment upholding the denial of social security benefits de novo. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). "We may set aside a denial of benefits only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence means 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 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Where the evidence as a whole can support either a grant or a denial, we may not substitute our judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.2007) (internal quotation marks omitted).

DISCUSSION

ALJs are to apply a five-step sequential review process in determining whether a claimant qualifies as disabled.³ Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); 20 C.F.R. §§ 404.1520, 416.920. The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five. See Tackett, 180 F.3d at 1099. If the ALJ determines that a claimant is either disabled or not disabled at any step in the process, the ALJ does not continue on to the next step. See 20 C.F.R. § 416.920(a)(4).

The first step is not at issue. Both Bray and the Commissioner agree that Bray is not currently performing substantial gainful work. See 20 C.F.R. § 416.920(a)(4)(i). At steps two and three, the ALJ found that Bray's COPD and her depression and anxiety were severe impairments, but that neither corresponded to the listed impairments in the regulations. See 20 C.F.R. § 404.1520(d). Bray does not challenge this finding.

Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC. See 20 C.F.R. § 416.920(e). Bray contests the ALJ's construction of her RFC. At step four the ALJ must determine whether, in light of the claimant's RFC, she can return to substantial gainful activity performed in the past. 20 C.F.R. § 404.1520(e). The ALJ determined that Bray was not capable of returning to her past relevant work as a medical assistant or insurance underwriter, and neither party disputes that finding. At step five, the Commissioner must establish that the claimant is capable of performing substantial gainful work.⁴

The ALJ stated Bray's RFC in this way:

The claimant has the [RFC] to lift 20 pounds occasionally and 10 pounds frequently. She can stand and walk 6 hours out of an 8-hour day and sit 6 hours out of an 8-hour day. She can occasionally climb. She should avoid concentrated exposure to respiratory irritants. She is able to carry out, attend and concentrate on all but the most detailed and complex tasks.

The ALJ presented the above statement to the VE, who then considered whether an individual burdened with the stated limitations could obtain gainful work in the national economy. The VE testified that Bray could not return to gainful work in her former capacity as a medical assistant or underwriter, but that she had transferable skills and could transition to work as a general clerk, file clerk, or sales clerk. Accordingly, the ALJ determined that Bray is not disabled.

I. The ALJ's Failure to Follow SSR 82-41

Relying on SSR 82-41, Bray contends that the ALJ committed reversible error when he assumed that Bray possessed transferable skills without making specific findings in support of that assumption. SSR 82-41 states, in relevant part:

When the issue of skills and their transferability must be decided, the ... ALJ is required to make certain findings of fact and include them in the written decision. Findings should be supported with appropriate documentation.

When a finding is made that a claimant has transferable skills, the acquired work skills must be identified, and specific occupations to which the acquired work skills are transferable must be cited in the ... ALJ's decision.... It is important that these findings be made at all levels of adjudication to clearly establish the basis for the determination or decision for the claimant and for a reviewing body including a Federal district court.

SSR 82-41, 1982...