Solomon v. Comm'r of Soc. Sec. Admin.

376 F.Supp.3d 1012

Thomas Paul SOLOMON, Sr., Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

No. CV-18-00306-PHX-DWL

United States District Court, D. Arizona.

Signed March 26, 2019

David F. Chermol, Chermol & Fishman LLC, Philadelphia, PA, for Plaintiff.

Franco Becia, Social Security Administration, Seattle, WA, for Defendant.

ORDER

Dominic W. Lanza, United States District Judge

Plaintiff Thomas Paul Solomon, Sr. ("Solomon") seeks review under 42 U.S.C. § 405(g) of the final decision of the Acting Commissioner of Social Security ("Commissioner"), which denied his application for disability benefits and supplemental security income. For the following reasons, the Court finds that the administrative law judge's ("ALJ") decision was based on reversible legal error and remands for further proceedings.

Solomon is a 66-year-old male who previously worked as a civil engineer. This is Solomon's second application for disability benefits. His first application, which alleged a disability onset date in August 2009, was denied by written decision on October 19, 2011 (A.R. 105-120) and became the Commissioner's final decision. In February 2012, Solomon filed a second application for disability benefits (A.R. 327-338), which gives rise to this case. Solomon alleges he became disabled in October 2011. The claim was denied initially on October 9, 2012 (A.R. 121) and again upon reconsideration on June 25, 2013 (A.R. 134). Solomon then filed a written request for hearing on July 20, 2013. (A.R. 212-213.) On February 26, 2014, he appeared and testified at a hearing at which an impartial vocational expert also appeared and testified. (A.R. 47-82.) On May 28, 2014, the ALJ issued a decision concluding that Solomon was not disabled within the meaning of the Social Security Act. (A.R. 174-193.) Solomon requested the Appeals Council review the decision, and on February 5, 2015, the Appeals Council granted his request and remanded the case to the ALJ. (A.R. 194-197.) The ALJ conducted a new hearing on July 7, 2016 (A.R. 83-104) and issued a decision again determining that Solomon wasn't disabled (A.R. 18-46). Solomon requested review of the ALJ's decision, but the Appeals Council denied review on December 4, 2017. (A.R. 1-7.) At that point, the ALJ's decision became the Commissioner's final decision.

LEGAL STANDARD

The Court addresses only the issues raised by the claimant in the appeal from the ALJ's decision. Lewis v. Apfel , 236 F.3d 503, 517 n.13 (9th Cir. 2001). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001). The Court should uphold the ALJ's decision "unless it contains legal error or is not supported by substantial evidence." Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007). "Substantial evidence is more than a mere scintilla but less than a preponderance." Id. Put another way, "[i]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (citation omitted). The Court should uphold the ALJ's decision "[w]here evidence is susceptible to more than one rational interpretation," but the Court "must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Id. (citations and internal quotation marks omitted).

"[H]armless error principles apply in the Social Security Act context." Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012). "[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Id. (citations and internal quotation marks omitted). The Court must "look at the record as a whole to determine whether the error alters the outcome of the case." Id. Importantly, however, the Court may not uphold an ALJ's decision on a ground not actually relied on by the ALJ. Id. at 1121.

To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a "severe" medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity ("RFC") and determines whether the claimant is capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, which addresses whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

BACKGROUND

At step one, the ALJ determined that Solomon met the insured status requirements of the Social Security Act through December 31, 2015 and had not engaged in substantial gainful activity since October 20, 2011. (A.R. 25.) At step two, the ALJ found that Solomon had the following severe impairments: lumbar and cervical degenerative disc disease, status post right hip replacement, and bilateral shoulder degenerative joint disease with right shoulder surgery. (Id. ) The ALJ acknowledged the record also contained evidence of status post pulmonary embolism and deep venous thrombosis, status post hernia repair, status post left knee surgery, possible irritable bowel syndrome, anxiety, and depression, but found these were not severe impairments. (A.R 25-27.) At step three, the ALJ determined that Solomon didn't have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (A.R. 27-28.) At step four, the ALJ determined that Solomon had the RFC to perform sedentary work, except that he is limited to occasionally overhead reaching bilaterally, occasionally climbing ramps and stairs, and occasionally balancing, stooping, crouching, kneeling, and crawling. (A.R. 28-35.) Further, the ALJ determined Solomon can never climb ladders, ropes, or scaffolds. (Id. ) The ALJ found Solomon wasn't capable of performing his past relevant work, but that Solomon had obtained skills from his past work that were transferable to the occupation of project estimator. (A.R. 35-36.) The ALJ concluded Solomon would need to make "very little, if any, vocational adjustment," such that, at most, he would have a one- to three-month adjustment period. (Id. )

This Social Security appeal is unusual in that Solomon doesn't challenge the ALJ's rejection of his symptom testimony or the ALJ's decision to assign "little weight" to the opinion of his treating physician.¹ Instead, he argues the ALJ erred by (1) improperly concluding that "very little, if any, vocational adjustment" would be required for him to perform the job of project estimator and (2) failing to include his mental limitations in the RFC or the hypothetical question posed to the vocational expert. (Doc. 16.)

As explained below, the Court disagrees with Solomon as to the first issue but agrees as to the second.

DISCUSSION

I. Whether The ALJ Committed Reversible Error By Concluding That "Very Little, If Any, Vocational Adjustment" Would Be Required

A. The ALJ's Decision

The ALJ determined that Solomon is limited to sedentary work and cannot perform his past relevant work as a civil engineer. (A.R. 28, 35.) However, the ALJ found that Solomon had acquired the following skills from his work as a civil engineer:

project explanation skills, pricing skills, coordination of materials, and reviewing of bids and contracts. (A.R. 35.) The ALJ determined that these skills were transferable to other occupations existing in significant numbers in the national economy and that Solomon would need to make "very little, if any, vocational adjustment in terms of tools, work processes, work settings, or the industry" to perform the occupation of "project estimator." (A.R. 35-36.) The ALJ noted the vocational expert testified that Solomon's adjustment period would be "1-3 months, at best." (A.R. 36.)

B. Legal Standard

A claimant has transferable skills "when the skilled or semi-skilled work activities [the claimant] did in past work can be used to meet the requirements of skilled or semi-skilled work activities of other jobs." Renner v. Heckler , 786 F.2d 1421, 1423 (9th Cir. 1986) (quoting 20 C.F.R. § 404.1568(d)(1) ). "A finding of transferability is most probable among jobs that involve: (1) the same or lesser degree of skill; (2) a similarity of tools; and (3) a similarity of services or products." Id. (citing 20 C.F.R. § 404.1568(d)(2) ). However, "[c]omplete similarity of skills ... is not necessary." Id. (citing 20 C.F.R. § 404.1568(d)(3) ).

At the time of the ALJ's decision, Solomon was over 55 years old, rendering him "of advanced age" under the Social Security regulations. 20 C.F.R. § 404.1563(e). The Social Security regulations provide that, when a claimant is of advanced age and has "a severe impairment(s) that limits you to no more than sedentary work, we will find that you have skills that are transferable to skilled or semiskilled sedentary work only if the sedentary work is so similar to...