Jeffery Barnes v. Nancy Berryhill , 895 F.3d 702 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFERY J. BARNES, No. 16-35815
Plaintiff-Appellant,
D.C. No.
v. 3:15-cv-01424-
SI
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted May 11, 2018
Portland, Oregon
Filed July 13, 2018
Before: Johnnie B. Rawlinson and Morgan Christen,
Circuit Judges, and Frederic Block, District Judge. *
Opinion by Judge Block
*
The Honorable Frederic Block, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
2 BARNES V. BERRYHILL
SUMMARY **
Social Security
The panel reversed the district court’s judgment
affirming the Commissioner of Social Security’s denial of
an application for disability insurance benefits and
supplemental security income under the Social Security Act,
and remanded for further proceedings.
The panel held that the administrative law judge’s
(“ALJ”) failure to make written findings regarding
transferability of skills, required by Social Security Ruling
82-41, prevented the panel from determining whether
substantial evidence supported the ALJ’s determination at
Step Five of the sequential evaluation process that claimant
was able to perform other work and therefore was not
disabled under the Act. The panel held that neither the ALJ
nor the vocational expert stated what skills, if any, claimant
had acquired from his past work and whether those skills
were transferable to the semi-skilled jobs identified by the
vocational expert. The panel concluded that SSR 82-41
obligated the ALJ to make transferability of skills findings.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARNES V. BERRYHILL 3
COUNSEL
Lindsey Craven (argued) and Merrill Schneider, Schneider
Kerr & Robichaux, Portland, Oregon, for Plaintiff-
Appellant.
Thomas M. Elsberry (argued), Special Assistant United
States Attorney; Erin F. Highland, Assistant Regional
Counsel; Matthew W. Pile, Acting Regional Chief Counsel,
Seattle Region X; Office of the General Counsel, Social
Security Administration, Seattle, Washington; Janice E.
Hebert, Assistant United States Attorney; Billy J. Williams,
United States Attorney; United States Attorney’s Office,
Seattle, Washington; for Defendant-Appellee.
OPINION
BLOCK, District Judge:
Jeffrey Barnes appeals the district court’s judgment
affirming the Commissioner of Social Security’s
(“Commissioner”) decision denying his application for
disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). Barnes argues that the
Administrative Law Judge (“ALJ”) erred at Step Five of his
disability determination by failing to make specific written
findings regarding transferability of skills as required by
Social Security Ruling (“SSR”) 82-41. We last addressed
the scope of SSR 82-41 in Bray v. Commissioner of Social
Security Administration, 554 F.3d 1219, 1223–26 (9th Cir.
2009).
We now revisit the subject to consider a question that did
not arise in Bray: whether SSR 82-41 obligates the ALJ to
4 BARNES V. BERRYHILL
make transferability of skills findings where, unlike Bray, no
Grid rule states that a person with the claimant’s age,
education, and work experience is disabled absent
transferable skills. 1 We hold that it does and reverse and
remand for further proceedings.
Background
In March 2012, Barnes filed an application for DIB and
SSI, alleging disability from multiple impairments,
including chronic pain and swelling in his left leg and
respiratory disease that required the use of supplemental
oxygen. He has a high school education and worked
previously as a machinist, a skilled position, and an off-
bearer, an unskilled position. 2 The Social Security
Administration (“the Administration”) denied Barnes’s
application, and, on December 31, 2013, he had a hearing
before an ALJ. At the time of the hearing, Barnes was
47 years old.
The ALJ issued a written decision on January 15, 2014.
Applying the familiar five-step process, 3 the ALJ
1
The Medical-Vocational Guidelines, commonly known as the
“Grids,” are listed at 20 C.F.R. Part 404, Subpart P, Appendix 2.
2
The parties do not dispute the nature of Barnes’s work experience.
3
The five-step inquiry entails the following questions: “(1) whether
the claimant presently works in substantial gainful activity; (2) whether
the claimant’s impairment, or a combination of impairments, qualifies as
severe; (3) whether the impairment, or combination of impairments,
equals an impairment listed in the regulations; (4) whether the claimant’s
residual functional capacity allows her to perform her past relevant work;
and (5) whether significant numbers of jobs exist in the national
economy that the claimant can perform.” Popa v. Berryhill, 872 F.3d
901, 905–06 (9th Cir. 2017) (citing 20 C.F.R. § 416.920). The claimant
BARNES V. BERRYHILL 5
determined that (1) Barnes had not engaged in substantial
gainful activity since the alleged onset date; (2) his morbid
obesity, respiratory diseases, disorders affecting his leg,
alcohol abuse, hypertension, and mental disorders were
severe impairments; but (3) those impairments did not meet
or medically equal the criteria of a listing.
Before reaching Step Four, the ALJ found Barnes had
the residual functional capacity (“RFC”) to perform
sedentary work with several restrictions. For example, he
needed to “sit or stand for 2 to 3 minutes at a time at 30 to
45 minute intervals, during which period he may remain on
task,” could never climb ladders, ropes, or scaffolds, and had
to avoid even moderate exposure to potential respiratory
irritants. Applying that RFC, the ALJ concluded at Step
Four that Barnes was unable to perform his past relevant
work as a machinist and an off-bearer.
At Step Five, the ALJ stated that Grid rules 201.21 and
201.28 would direct a finding of “not disabled” based on
Barnes’s age, education, and work experience. However, he
acknowledged that the Grids could be used only as
framework because “additional limitations” made Barnes
unable to perform the full range of sedentary work. The ALJ
therefore called upon a vocational expert (“VE”), who
testified that someone with Barnes’s age, education, work
experience, and RFC could perform two representative jobs
that existed in significant numbers in the national economy:
“semi-conductor assembler” and “production clerk.” Both
are semi-skilled positions.
bears the burden of proof at Steps One through Four, but the burden shifts
to the Commissioner at Step Five. Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
6 BARNES V. BERRYHILL
Neither the ALJ nor the VE stated what skills, if any,
Barnes had acquired from his past work and whether those
skills were transferable to the semi-skilled jobs identified.
The ALJ simply stated, “Transferability of job skills is not
material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the claimant is ‘not disabled,’ whether or not the
claimant has transferable job skills.”
Based on the VE’s testimony, the ALJ concluded Barnes
was able to perform other work and therefore was not
disabled. The Appeals Council denied Barnes’s request for
review, making the ALJ’s decision final. The district court
affirmed, concluding: “Because the Grids direct a finding of
‘not disabled’ regardless of whether Plaintiff has
transferable skills, the ALJ was not required to decide
whether Plaintiff’s job skills were transferable.” Barnes v.
Colvin, 2016 WL 8674616, at *5 (D. Or. Aug. 12, 2016).
Barnes timely appealed.
STANDARD OF REVIEW
We review a district court’s affirmance of the
Commissioner’s disability determination de novo, asking
whether the decision was “supported by substantial evidence
and a correct application of the law.” Lamear v. Berryhill,
865 F.3d 1201, 1204 (9th Cir. 2017) (quoting Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
2009)).
DISCUSSION
SSR 82-41 states:
When the issue of skills and their
transferability must be decided, the . . . ALJ
BARNES V. BERRYHILL 7
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 WL 31389, at *7. “SSRs do not carry the
‘force of law,’ but they are binding on ALJs nonetheless.”
Bray, 554 F.3d at 1224 (quoting Quang Van Han v. Bowen,
882 F.2d 1453, 1457 & n.6 (9th Cir. 1989)).
Here, transferability of skills was a dispositive issue.
Semi-skilled work requires “some skills.” See 20 C.F.R.
§§ 404.1568(b), 416.968(b). The issue of skills and their
transferability therefore needed to be decided before the ALJ
could find Barnes not disabled based on his ability to
perform semi-skilled work. 4
4
The ALJ’s finding that Barnes could perform two semi-skilled jobs
does not support the inference that he could also perform unskilled jobs.
See SSR 83-12, 1983 WL 31253, at *4 (“Unskilled types of jobs are
particularly structured so that a person cannot ordinarily sit or stand at
will.”).
8 BARNES V. BERRYHILL
Although Barnes’s past relevant work included a skilled
job, the ALJ made no finding regarding what skills, if any,
Barnes had acquired from that work and whether his skills
were transferable to semi-skilled work as a “semi-conductor
assembler” or “production clerk.” The ALJ therefore erred
by failing to make the written findings required by SSR 82-
41.
The Commissioner argues transferability of skills was
not material because the Grids “directed a finding of ‘not
disabled’ whether or not Barnes had transferable skills.” 5 In
addition to the two Grid rules cited by the ALJ, she relies on
Grid rules 201.22 and 201.29. Together, these four rules
provide that a “younger individual age 45–49” or a “younger
individual age 18–44” with the ability to perform the full
range of sedentary work, a high school education, and skilled
or semi-skilled past relevant work is not disabled whether he
has transferable skills or no transferable skills. See 20 C.F.R.
Part 404, Subpart P, App’x 2, rules 201.21–.22 (“younger
individual age 45–49”) and 201.28–.29 (“younger individual
age 18–44”). The argument is without merit. To explain
why, we consider how the Grids apply in the case of an
5
An agency’s interpretation of a statute it administers may be
entitled deference even when it appears in a legal brief. See Auer v.
Robbins, 519 U.S. 452, 462–63 (1997). However, the Commissioner’s
present position departs from the agency’s statement in Bray that
“[t]ransferability of skills is an issue whenever a vocational expert
identifies any semiskilled or skilled jobs which a claimant can perform.”
Brief for Comm’r at 24, Bray v. Comm’r of Soc. Sec. Admin, 554 F.3d
1219 (9th Cir. 2009), 2007 WL 1577347. The unexplained shift provides
reason to believe that the Commissioner’s present interpretation is a
“post hoc rationalization” rather than a “fair and considered judgment.”
Auer, 519 U.S. at 462. Deference is therefore unwarranted.
BARNES V. BERRYHILL 9
individual who, like Barnes, is unable to perform the full
range of sedentary work.
The Grids were designed to relieve the Commissioner of
the need to rely on a vocational expert in every case to
establish the number of jobs available to a person with the
claimant’s physical ability, age, education, and work
experience. See Heckler v. Campbell, 461 U.S. 458, 461
(1983) (describing the history of the Grids). Reasoning that
individuals with similar characteristics could perform
similar work, the Administration took notice of specific jobs
that exist in significant numbers in the national economy and
could be performed by claimants who fit a standard pattern.
Id. at 465–68.
The Grids are organized into three tables corresponding
to sedentary, light, and medium work. Each table has five
columns. The first column contains a rule number, and the
second through the fourth delineate the claimant’s age,
education, and work experience (for example, unskilled,
none, skilled, semi-skilled, and “skills transferable” or
“skills not transferable”). The fifth column renders a
conclusion of either “disabled” or “not disabled.” In Table
No. 1, for sedentary work, a rule’s conclusion of “not
disabled” means that a claimant with those characteristics
can perform the approximately 200 sedentary, unskilled jobs
that the Administration has determined exist in significant
numbers in the national economy. See SSR 96-9P, 1996 WL
374185, at *3; 20 C.F.R. Pt. 404, Subpt. P, App’x 2
§ 201.00(a).
Of course, not all claimants fit neatly into the categories
established by the Grids. In particular, each of the three Grid
tables encompasses specific strength requirements, or
“exertional limitations.” Lounsburry v. Barnhart, 468 F.3d
1111, 1115 (9th Cir. 2006). However, significant “non-
10 BARNES V. BERRYHILL
exertional limitations” such as “pain, postural limitations, or
environmental limitations” that do not result in strength
limitations may “limit the claimant’s functional capacity in
ways not contemplated by the guidelines.” Tackett, 180 F.3d
at 1102. Reliance on the Grids alone will then be
inappropriate. Instead, the ALJ must determine, in
consultation with a VE, which jobs a claimant can still
perform “considering his or her age, education, and work
experience, including any transferable skills or education
providing for direct entry into skilled work.” 20 C.F.R. Pt.
404, Subpt. P, App’x 2 § 201.00(h)(3).
The unskilled jobs contemplated by the Grids provide a
“framework,” or starting point, for that inquiry. See SSR 96-
9P, 1996 WL 374185, at *2–5. In that sense, the Grids may
assist the ALJ by establishing a universe of unskilled
positions for consideration. If the claimant does have
transferable skills from past work or relevant education,
skilled and semi-skilled jobs also may be considered. But
the Grids can never direct a conclusion of not disabled for a
claimant with significant additional limitations not
contemplated by the Grids. Lounsburry, 468 F.3d at 1116
(citing Tackett, 180 F.3d at 1102).
Here, as the ALJ acknowledged, Barnes had additional
limitations not contemplated by the Grids. For example, his
need to alternate sitting and standing at frequent intervals is
a “significant non-exertional limitation not contemplated by
the grids.” Tackett, 180 F.3d at 1103–04. Given these
additional limitations, the ALJ could not rely on the Grids to
direct a finding of not disabled. And because the Grids did
not direct a conclusion regarding disability, they did not
permit the ALJ to conclude that transferability of skills was
immaterial under SSR 82-41.
BARNES V. BERRYHILL 11
Nothing we said in Bray supports a contrary view. Bray
shares two important features with this case. First, the Grids
were appropriately used as a framework in both cases. See
554 F.3d at 1223 n.4. Second, the ALJ found, both here and
in Bray, see id. at 1222, that the claimant was not disabled
because he or she could perform semi-skilled work that
existed in significant numbers in the national economy.
However, Bray had a third feature that this case lacks. A
Grid rule stated that a person with Bray’s age, education, and
work experience was disabled without transferable skills.
554 F.3d at 1229. Bray was a few weeks shy of 55 at the
time of her ALJ hearing, had a high school education, id. at
1221, and had past relevant work that was skilled or semi-
skilled, id. at 1230 (Wu, J., concurring). Her RFC limited
her to light work with additional restrictions. Id. at 1222(majority opinion). Grid rule 202.06 states that a person of
“advanced age” who has a high school education and skilled
or semi-skilled work experience but no transferable skills is
disabled. 6 On the other hand, rule 202.07 states that a person
of the same age, education, and work experience who has
transferable skills is not disabled. If the ALJ had found no
transferable skills, rule 202.06 would have directed a finding
of disability. For that reason, we stated that transferability
of skills was “dispositive” under SSR 82-41, and the ALJ
therefore erred by failing to make the requisite findings.
554 F.3d at 1229.
6
“Advanced age” means an individual who is 55 or older. See
20 C.F.R. §§ 404.1563(e), 416.963(e). We gave Bray the benefit of that
category because she turned 55 less than a month after her ALJ hearing,
see 554 F.3d at 1224 (applying rule applicable to claimants of advanced
age), and, in any event, she was 58 at the time of remand, id. at 1229.
12 BARNES V. BERRYHILL
Here, by contrast, no Grid rule directed that a person with
Barnes’s age, education, and work experience was disabled
absent transferable skills. Barnes was 47 at the time of his
ALJ hearing, had a high school education, and had past
relevant work that was skilled and unskilled. His RFC
limited him to less than the full range of sedentary work.
Grid rule 201.21 states that a “younger individual age 45–
49” with a high school education, skilled or semi-skilled
work experience, and no transferable skills is not disabled.
Rule 201.22 states that a person of the same age who has the
same education and work experience but also has
transferable skills is likewise not disabled. Under either rule,
the result is no different. Thus, for Barnes, unlike Bray, a
lack of transferable skills could not trigger a Grid rule that
directed a conclusion of disabled.
However, Bray did not purport to identify the only
situation in which transferability of skills will be dispositive.
In light of the applicable Grid rules there, we did not need to
decide whether a finding that the claimant could perform
semi-skilled work was itself sufficient to require written
findings under SSR 82-41.
Moreover, the Commissioner ignores an important
consequence of using the Grids as a framework. “[A]
finding of disability [under the Grids] . . . must be accepted
by the [Commissioner] . . . .” Lounsburry, 468 F.3d at 1116(quoting Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir.
1989)). That is, if a person who lacks the claimant’s
additional, non-exertional limitations is disabled, then the
claimant is certainly disabled and “there is no need to
examine the effect of the non-exertional limitations.” Id.But the opposite is not true: the Grids as a framework “may
not be used to direct a conclusion of nondisability.” Id.Thus, in the case of a claimant with additional limitations not
BARNES V. BERRYHILL 13
contemplated by the Grids, a rule stating that the claimant is
disabled will be dispositive, while one stating that the
claimant is not disabled will not. In Bray, the former type of
rule would have bound the ALJ if Bray lacked transferable
skills. Here, the latter type applied, and the ALJ went on to
find Barnes not disabled based on his ability to perform
semi-skilled work. Because semi-skilled work requires
skills, that made transferability of skills dispositive. 7
Finally, the Commissioner argues that the VE’s
testimony was sufficient to show Barnes had the skills to
perform the semi-skilled jobs identified. However, the VE
gave no testimony whatsoever regarding Barnes’s skills or
their transferability. Assuming the VE took transferable
skills into account is precisely what SSR 82-41 prohibits, for
the explicit reason that it makes the ALJ’s Step Five
determination unreviewable. SSR 82-41, 1982 WL 31389,
at *7 (emphasizing the importance of written findings “to
clearly establish the basis for the determination or decision
for the claimant and for a reviewing body including a Federal
district court”). In any event, the argument is foreclosed by
Bray’s holding that an ALJ does not satisfy his duty under
SSR 82-41 to make written findings regarding transferability
7
The Commissioner’s reliance on Bell-Shier v. Astrue, 312 F. App’x
45, 50 (9th Cir. 2009)—a nonbinding, unpublished decision, see 9th Cir.
Rule 36-3(a)—is equally misplaced. There, we held that written findings
on transferability of skills were unnecessary under SSR 82-41 because
the ALJ found the claimant “not disabled” under two Grid rules that did
not require transferable skills. Critically, our analysis did not state or
imply that additional limitations of the claimant made full reliance on the
Grids inappropriate. Where a Grid rule fully describes a claimant’s
physical ability, the ALJ is entitled to rely on the Grids alone. Heckler
v. Campbell, 461 U.S. 458, 465-68 (1983). Here, he was not.
14 BARNES V. BERRYHILL
of skills by relying on the testimony of the VE. See 554 F.3d
at 1225–26.
CONCLUSION
The ALJ’s failure to make the written findings required
by SSR 82-41 prevents the Court from determining whether
substantial evidence supports his Step Five determination.
We REVERSE the district court’s judgment and REMAND
with instructions to remand to the Commissioner for further
proceedings. 8
8
On remand, Barnes is entitled to application of the Grid rule
appropriate to his age at the time of the remand hearing. See Bray,
554 F.3d at 1229 n.9 (instructing the ALJ to consider the claimant’s age
at the time of the remand hearing). He is now over 50 years old and
classified under the Grids as a person “closely approaching advanced
age.” 20 C.F.R. §§ 404.1563(d), 416.963(d). Therefore, under the
relevant rules, he will be disabled based on exertional limitations alone
unless he has transferable skills. See 20 C.F.R. Part 404, Subpart P,
App’x 2, Rules 201.14-.15. The ALJ will also determine, in accordance
with this opinion, whether Barnes was disabled before he reached the age
of 50 because it will affect the amount of benefits, if any, that he is
entitled to receive. See Bray, 554 F.3d at 1229 n.9 (directing the ALJ to
consider whether Bray became disabled before turning 55).