Wagner v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lynda Wagner, No. CV-20-08042-PCT-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Lynda Wagner’s Application for Disability 16 Insurance Benefits by the Social Security Administration. Plaintiff filed a Complaint 17 seeking judicial review of that denial. (Doc. 1.) The Court has reviewed Plaintiff’s Opening 18 Brief (Doc. 14, “Pl. Br.”), Defendant’s Response Brief (Doc. 19, “Def. Br.”), Plaintiff’s 19 Reply (Doc. 20, “Reply”), and the Administrative Record (Doc. 13, “R.”). For the reasons 20 expressed herein, the Court will reverse the Administrative Law Judge’s (“ALJ”) decision 21 and remand to the agency for further proceedings. 22 I. BACKGROUND 23 Plaintiff applied for disability insurance benefits on March 21, 2016, for a period of 24 disability beginning on March 1, 2010. (R. at 202.) The Commissioner denied Plaintiff’s 25 application initially and on reconsideration. (Id. at 97, 110.) On December 7, 2018, Plaintiff 26 and an impartial vocational expert appeared and testified at a hearing before an ALJ. (Id. 27 at 43, 69.) At the hearing, Plaintiff amended her alleged onset date of disability to April 9, 28 2015. (Id. at 42.) On January 30, 2019, the ALJ denied Plaintiff’s application for benefits. 1 (Id. at 19–31.) The Appeals Council denied review, making the ALJ’s decision the final 2 decision of the Commissioner. (Id. at 1.) Plaintiff now seeks judicial review of the 3 Commissioner’s decision pursuant to 42 U.S.C. § 405(g). 4 The ALJ evaluated Plaintiff’s disability based on the following severe impairments: 5 human immunodeficiency virus, chronic hepatitis C, and multilevel degenerative disc 6 disease. (R. at 25–26.) The ALJ found that Plaintiff “does not have an impairment or 7 combination of impairments that meets or medically equals the severity of one of the listed 8 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id. at 26.) The ALJ concluded 9 Plaintiff has the residual functional capacity (“RFC”) “to perform the full range of light 10 work as defined in 20 C.F.R. 416.967(b),” noting her “functional limitations . . . have been 11 properly accounted for in the [RFC] assessment” and “are not significant enough to 12 preclude all employment.” (Id. at 27–30.) Based on Plaintiff’s RFC, the ALJ determined 13 Plaintiff was able to perform past relevant work as a driver and cashier. (Id.) The ALJ 14 found “this work was substantial gainful activity, performed long enough for the claimant 15 to achieve average performance, and performed within the relevant period.” (Id.) Thus, the 16 ALJ determined that Plaintiff was not disabled during the relevant period. (Id.) 17 II. LEGAL STANDARD 18 In determining whether to reverse an ALJ’s decision, the district court’s review is 19 limited to the issues raised by the party challenging the decision. See Lewis v. Apfel, 236 20 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside a decision only if “it contains 21 legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 22 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than a preponderance; 23 it is relevant evidence that a reasonable person might accept as adequate to support a 24 conclusion. Id. “Where evidence is susceptible to more than one rational interpretation, the 25 ALJ’s decision should be upheld.” Id. (internal quotations omitted). But, the Court may not 26 affirm a decision simply by isolating a “specific quantum of supporting evidence.” Id. 27 To determine whether a claimant is disabled, the ALJ follows a five-step process. 28 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps; the 1 burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 2 Cir. 1999). At step one, the ALJ determines whether the claimant is presently engaging in 3 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 4 disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 5 has a severe medically determinable impairment. Id. § 404.1520(a)(4)(ii). If not, the 6 claimant is not disabled, ending the inquiry. Id. At step three, the ALJ considers whether 7 the claimant’s impairment or combination thereof meets or medically equals an impairment 8 listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the 9 claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. Id. 10 At step four, the ALJ assesses the claimant’s RFC and then determines whether the 11 claimant can perform past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is not 12 disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the final step, where the ALJ 13 determines whether the claimant can perform any other work in the national economy 14 based on the claimant’s RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). 15 If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id. 16 III. DISCUSSION 17 A. Past Relevant Work 18 Plaintiff raises one issue: whether the ALJ committed reversible legal error in 19 finding that she could perform past relevant work as a cashier or driver. (Pl. Br. at 3.) At 20 step four of the disability determination, a claimant must show that she does not have the 21 RFC to engage in “past relevant work.” Lewis, 236 F.3d at 515. To qualify as past relevant 22 work, a job must involve substantial gainful activity. Id. “Earnings can be a presumptive, 23 but not conclusive, sign of whether a job is substantial gainful activity.” Id. If a claimant’s 24 average monthly earnings are below specified levels set by the Social Security 25 Administration, the claimant’s step-four burden is satisfied “unless the ALJ points to 26 substantial evidence, aside from earnings, that the claimant has engaged in substantial 27 gainful activity.” Id. (emphasis in original). When a claimant “work[s] over a period of 28 time during which the substantial gainful activity earnings levels change,” the earnings are 1 averaged for each separate period. 20 C.F.R. § 404.1574a(b). And, if a claimant’s work 2 pattern or earnings change significantly, the earnings are averaged over each separate 3 period of work. Id. § 404.1574a(c). In this case, the ALJ determined Plaintiff has past 4 relevant work as a cashier and driver. Plaintiff contends that neither job qualifies as past 5 relevant work because her earnings were “less than necessary to amount to [substantial 6 gainful activity].” (Pl. Br. at 6–8.) The Court will address each position in turn. 7 In 2006, Plaintiff earned an average of $754.70 per month as a cashier. (R. at 223.) 8 For that year, monthly earnings averaging less than $860 give rise to a presumption that a 9 claimant did not engage in substantial gainful activity. Substantial Gainful Activity, Soc. 10 Sec. Admin., https://ssa.gov/oact/cola/sga.html (last visited Mar. 17, 2021). Plaintiff’s low 11 earnings therefore created a presumption that she did not engage in substantial gainful 12 activity as a cashier. See Lewis, 236 F.3d at 515. Considering that presumption, the ALJ 13 was required to “point[] to substantial evidence, aside from earnings,” to establish that 14 Plaintiff engaged in substantial gainful activity. Id. The ALJ only cited Exhibit 5E—which 15 makes no reference to Plaintiff’s work as a cashier—and Exhibits 3D and 7D—Plaintiff’s 16 earnings records. (R. at 30, 213–14, 221–24, 249–53.) Defendant concedes that the ALJ 17 “failed to specifically address Plaintiff’s insufficient earnings” or “engage in the alternative 18 analysis to determine whether, aside from earnings, Plaintiff engaged in substantial gainful 19 activity.” (Def. Br. at 10.) But Defendant argues that error is harmless because the ALJ 20 properly found that Plaintiff’s work as a driver was past relevant work. (Id. at 11.) 21 Plaintiff earned $8,872.48 working as a driver in 2007. (Pl. Br. at 8; Def. Br. at 6.) 22 For that year, monthly earnings averaging less than $900 give rise to a presumption that a 23 claimant did not engage in substantial gainful activity. Substantial Gainful Activity, Soc. 24 Sec. Admin., https://ssa.gov/oact/cola/sga.html. The record contains two different end- 25 dates for Plaintiff’s driver position: June 2007 and August 2008. (R. at 59, 70, 230, 249.) 26 As Plaintiff points out, if the August 2008 end-date is used, her 2007 earnings would be 27 divided by twelve months, yielding average earnings of $739.39 per month and giving rise 28 to the presumption that she did not engage in substantial gainful activity. (Pl. Br. at 8.) If, 1 however, the June 2007 end-date is used, Plaintiff’s average monthly earnings amount to 2 $1,478.75, and no presumption would apply. (See Def. Br. at 5.) 3 Although the record is unclear whether Plaintiff’s earnings met the level set by the 4 Social Security Administration, the ALJ concluded Plaintiff’s work as a driver “was 5 substantial gainful activity.” (R. at 30.) As support, the ALJ made a parenthetical reference 6 to Exhibits 5E, 3D, and 7D. (Id.) Exhibit 5E states that Plaintiff worked as a driver until 7 August 2008. (Id. at 249.) Exhibits 3D and 7D, however, indicate that Plaintiff had no 8 earnings in 2008. (Id. at 214, 223.) Under “[l]ong-standing principles of administrative 9 law,” the Court’s review is limited to “the reasoning and factual findings offered by the 10 ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have 11 been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). 12 The ALJ’s decision does not indicate whether he relied on the June 2007 end-date to 13 conclude Plaintiff earned more than the threshold substantial gainful activity amount. Nor 14 is there reasoning that, despite low earnings, other factors rebutted the presumption that the 15 driver position was not substantial gainful activity. Because the ALJ did not “set forth the 16 reasoning behind [his] decision in a way that allows for meaningful review,” the Court 17 cannot affirm the decision. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015); see 18 also Montoya v. Colvin, 649 F. App’x 429, 431 (9th Cir. 2016) (finding an ALJ erred by 19 not “addressing the substantial gainful activity issue or developing the record on it” when 20 the record was unclear whether a plaintiff earned more than the level set by the agency). 21 B. Remand for Further Proceedings 22 The Court will next address the scope of the remand. Where, as here, a claimant 23 moves to remand for an award of benefits, the claimant must meet the “credit-as-true” rule. 24 The credit-as-true rule applies “only in rare circumstances” and when three elements are 25 satisfied. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014) 26 (internal quotations omitted). First, the ALJ must have failed to provide legally sufficient 27 reasons for rejecting medical opinion evidence or claimant testimony. Id. Second, the 28 record must be fully developed, there must be no outstanding issues that must be resolved || before a determination of disability can be made, and the Court must find that further || administrative proceedings would not be useful. /d. at 1101. Third, if the above elements || are met, the Court may “find[] the relevant testimony credible as a matter of law ... and 4|| then determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty 5 || as to the outcome of [the] proceeding.’” /d. (citations omitted). Here, the second element 6 || 1s dispositive. 7 To determine whether further proceedings would be useful, the Court considers 8 || “whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all 9|| factual issues have been resolved, and whether the claimant’s entitlement to benefits is 10 || clear under the applicable legal rules.” /d. at 1103-04. In this case, there is a significant 11 || conflict in the record as to when Plaintiff stopped working as a driver. (R. at 59, 70, 230, 12 || 249.) The end-date of the driver position is a pertinent factual issue because, as noted, the 13 || date on which the driver position terminated impacts whether the job qualifies as substantial gainful activity and past relevant work. See supra Part III.A. Thus, given the 15 || conflict and ambiguity that remains in the record, the Court will remand this case to the 16 || agency for further proceedings. IV. CONCLUSION 18 Accordingly, 19 IT IS ORDERED that the final decision of the Social Security Commissioner is || vacated, and this matter is remanded to the Social Security Administration for further proceedings consistent with the Order. 22 IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment 23 || accordingly and close this case. 24 Dated this 18th day of March, 2021. 25 Wichak T. Fiburdle Michael T. Liburdi 28 United States District Judge -6-