McCullough v. Colvin

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HELEN McCULLOUGH,
Plaintiff,
v.
MARTIN J. O’MALLEY, Commissioner
of Social Security,1
Defendant.
CIV. NO. 23-00298 JMS-KJM
ORDER REVERSING THE
ADMINISTRATIVE LAW JUDGE’S
DECISION AND REMANDING
FOR FURTHER PROCEEDINGS
ORDER REVERSING THE ADMINISTRATIVE LAW JUDGE’S
DECISION AND REMANDING FOR FURTHER PROCEEDINGS
I. INTRODUCTION
Plaintiff Helen McCullough (“Claimant”) seeks judicial review under
42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security,
Martin J. O’Malley (the “Commissioner”). The Commissioner adopted
Administrative Law Judge David Romeo’s (“ALJ”) August 16, 2022 written
decision finding Claimant not disabled. Claimant argues: (1) the Appeals Council
erred in not remanding Claimant’s claim where her post-decision sworn affidavit
(“Post-Decision Affidavit”) shows she cannot actually do the work the ALJ found
1 Martin J. O’Malley is now the Commissioner of Social Security and is automatically
substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also § 205(g) of the Social Security
Act, 42 U.S.C. § 405(g) (providing that action survives regardless of any change in the person
occupying the office of Commission of Social Security).
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she can perform; and (2) the ALJ improperly rejected Claimant’s testimony. ECF
No. 8 at PageID.684. Claimant asserts that neither error is harmless, and that
remand is necessary for proper consideration of her testimony and whether she is
capable of doing past work. Id. at PageID.679.
The court concludes that (1) the determination of Claimant’s residual
functional capacity, (2) the determination that, based on this residual functional
capacity, she is able to perform her past relevant work, and (3) the consequential
finding of not disabled are not supported by substantial evidence. Accordingly, the
court REVERSES the Commissioner’s final decision and REMANDS for further
proceedings.
II. BACKGROUND
A. The Social Security Disability Determination Framework and the ALJ’s
Findings and Decision
In late 2019, at age 59, Claimant applied for Disability Insurance
Benefits under Title II of the Social Security Act. Administrative Record (“AR”)2
184–185. Claimant alleges a disability based on osteoarthritis and hypertension as
of November 1, 2017. AR 184, 207.
The Social Security Administration (“SSA”) requires an ALJ to assess
2 The AR is numbered sequentially from pages 1 to 648 and is available at ECF No. 6.
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disability3 through a five-step sequential analysis, which asks:
(1) Has the claimant been engaged in substantial
gainful activity? If so, the claimant is not disabled and
not entitled to disability insurance benefits. If not,
proceed to step two.
(2) Has the claimant’s alleged impairment been
sufficiently severe to limit her ability to work? If not, the
claimant is not disabled. If so, proceed to step three.
(3) Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, the
claimant is disabled and therefore entitled to disability
insurance benefits. If not, the claimant’s residual
functional capacity is determined in preparation for step
four.
(4) Does the claimant possess the residual functional
capacity to perform her past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
(5) Does the claimant’s residual functional capacity,
when considered with the claimant’s age, education, and
work experience, allow her to adjust to other work that
exists in significant numbers in the national economy? If
so, the claimant is not disabled. If not, the claimant is
disabled.
3 A claimant is “disabled” for purposes of the Social Security Act if (a) she is unable to
“engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a continuous period of not
less than 12 months,” and (b) the impairment renders her incapable of performing the work that
she previously performed and incapable of performing any other substantial gainful employment
that exists in the national economy. 42 U.S.C. § 423(d)(1)(A) and (d)(2)(A); Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999).
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See, e.g., Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
(citing 20 C.F.R. §§ 404.1520 (explaining the five-step sequential evaluation
process used to decide whether a claimant is disabled), 416.920 (same)); see also
Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir. 2022) (stating that the 2017
revised Social Security regulations do not alter the familiar “five-step sequential
evaluation process,” and that the purpose of 20 C.F.R. § 404.1520(a)(1) is to
explain that process). For steps one through four, the burden of proof is on the
claimant, and if “a claimant is found to be ‘disabled’ or ‘not disabled’ at any step
in the sequence, there is no need to consider subsequent steps.” Tackett v. Apfel,
180 F.3d 1094, 1098 (9th Cir. 1999). If the claimant reaches step five, the burden
shifts to the Commissioner. Id. at 1099.
At Step 1, the ALJ found that Claimant has not engaged in substantial
gainful activity since November 1, 2017, the alleged onset date of alleged
disability. AR 17. At Step 2, the ALJ found that Claimant has severe impairments
of status-post bilateral hip replacement surgery, chronic bronchitis, carpal tunnel
syndrome, and lumbar degenerative disc disease. Id. The ALJ also noted
allegations of chronic obstructive pulmonary disease, hypertension, left hand mild
osteoarthritis of the first carpometacarpal and distal interphalangeal joints of the
index and middle fingers, but found these non-severe. AR 17–18.
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At Step 3, the ALJ found that Claimant did not have an impairment or
combination of impairments that meets or medically equals the severity of the
Listing of Impairments for 1.00 (musculoskeletal disorders) and 14.00 (immune
system disorders) contained in 20 C.F.R. § Pt. 404, Subpt. P, App. 1. AR 18. In
preparation for Step 4, the ALJ considered “all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence” under 20 C.F.R. § 404.1529 (outlining how
the SSA evaluates symptoms, including pain) and Social Security Ruling (“SSR”)
16-3p, 81 Fed. Reg. 14166 (Mar. 16, 2016) (“Evaluation of Symptoms in
Disability Claims”).4 AR 18. The ALJ determined Claimant’s residual functional
capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a),5 except:
occasionally climb ramps or stairs; not climb ladders, ropes, scaffolds;
4 “Although Social Security Rulings do not have the same force and effect as the statute
or regulations, they are binding on all components of the Social Security Administration, . . . and
are to be relied upon as precedents in adjudicating cases.” Orn v. Astrue, 495 F.3d 625, 636 (9th
Cir. 2007) (citation omitted).
5 The SSA and Dictionary of Occupational Titles (“DOT”) both classify the physical
exertional requirements of work as sedentary, light, medium, heavy, and very heavy. 20 C.F.R.
§ 404.1567. Sedentary work is defined as work that involves
lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting,
a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.
Id. at § 404.1567(a).
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occasionally balance, stoop, kneel, crouch, or crawl; avoid concentrated exposure
to environmental irritants, heights, and hazards; frequently reach, push, pull,
handle, finger, and feel with both upper extremities; and require the use of a cane
for ambulation. Id.
The ALJ then determined Claimant’s past relevant work at Step 4:
The claimant has past relevant work as an Accounting
Clerk, which is classified as DOT[6] #216.482-010,
sedentary, and SVP 5. The vocational expert testified
that a person with the above residual functional capacity
would be capable of performing the claimant’s past
relevant work of Accounting Clerk as it Is [sic] generally
performed. Thus, in comparing the claimant’s residual
functional capacity with the physical and mental
demands of this work, the undersigned finds that the
claimant is able to perform it as generally performed.
AR 21. Accordingly, at Step 5 the ALJ found Claimant not disabled as of
November 1, 2017. Id.
B. Procedural Background
On March 17, 2021, the Commissioner denied Claimant’s claim and
on April 9, 2021, denied the claim on reconsideration. AR 50, 70. Claimant
timely requested a hearing that took place on July 14, 2022, at which Claimant and
vocational expert, Brenda Cartwright, testified. AR 27–49. On August 16, 2022,
6 The DOT “is typically the starting point for [vocational experts] to identify the
occupations relevant for each claimant’s residual functional capacities. The DOT groups jobs
into ‘occupations’ based on their similarities and assigns each occupation a code number.”
Wischmann v. Kijakazi, 68 F.4th 498, 502 (9th Cir. 2023) (internal citations omitted).
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the ALJ issued his written decision finding Claimant not disabled. AR 12–26. The
Appeals Council denied Claimant’s request for review on June 1, 2023, which
rendered the ALJ’s Decision the final decision of the Commissioner. AR 1–6.
Claimant commenced her action for judicial review on July 18, 2023. ECF No. 1.
Claimant filed her Opening Brief on October 12, 2023. ECF No. 8.
The Commissioner filed an Answering Brief on November 13, 2023. ECF No. 10.
Claimant filed a Reply Brief on December 26, 2023. ECF No. 13. The court held
oral argument on February 5, 2024. The court ordered the parties to file
supplemental briefing, which Claimant submitted on February 19, 2024, ECF No.
17, and the Commissioner on February 20, 2024, ECF No. 18.
III. STANDARD OF REVIEW
Congress has provided a limited scope for judicial review of the
Commissioner’s decision to deny benefits under the Social Security Act. See 42
U.S.C. § 405(g). “For highly fact-intensive individualized determinations like a
claimant’s entitlement to disability benefits, Congress places a premium upon
agency expertise, and, for the sake of uniformity, it is usually better to minimize
the opportunity for reviewing courts to substitute their discretion for that of the
agency.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014) (internal quotation and citation omitted).
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Guided by this principle, courts employ “three important rules” when
assessing an ALJ’s decision. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (2015).
First, courts “‘leave it to the ALJ to determine credibility,[7] resolve conflicts in the
testimony, and resolve ambiguities in the record.’” Id. (quoting Treichler, 775
F.3d at 1098). Second, courts will “disturb the Commissioner’s decision to deny
benefits ‘only if it is not supported by substantial evidence or is based on legal
error.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
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.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (internal quotation and citation omitted). If the evidence
is “susceptible to more than one rational interpretation, the ALJ’s decision must be
affirmed.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (quoting Vasquez
v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). And third, even where the ALJ
commits legal error, courts uphold the ALJ’s decision if that error is harmless.
Brown-Hunter, 806 F.3d at 492. An error is harmless if it is “‘inconsequential to
the ultimate nondisability determination’” or if “despite the legal error, ‘the
7 The term “credibility” was eliminated, effective March 27, 2017, from the SSA’s sub-
regulatory policy, with the clarification that “subjective symptom evaluation is not an
examination of an individual’s character,” but “rather is an evidence-based analysis of the
administrative record to determine whether the nature, intensity, frequency, or severity of an
individual’s symptoms impact his or her ability to work.” SSR 16-3p, 81 Fed. Reg. at 14167 &
n.1.
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agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.’” Id. (quoting Treichler, 775 F.3d at 1099).
Nevertheless, “[a] clear statement of the agency’s reasoning is
necessary because we can affirm the agency’s decision to deny benefits only on the
grounds invoked by the agency.” Id. (citation omitted). Consequently, “[a]
reviewing court may not make independent findings based on the evidence before
the ALJ to conclude that the ALJ’s error was harmless.” Id. (citing Stout, 454 F.3d
at 1054); see also Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (stating
that a district court may not find harmless error by “affirm[ing] the agency on a
ground not invoked by the ALJ”).
The court is “constrained to review the reasons the ALJ asserts,”
Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), because “[i]f the ALJ fails
to specify his or her reasons for finding claimant testimony not credible, a
reviewing court will be unable to review those reasons meaningfully without
improperly ‘substitut[ing] [its] conclusions for the ALJ’s, or speculat[ing] as to the
grounds for the ALJ’s conclusions.’” Brown-Hunter, 806 F.3d at 492 (quoting
Treichler, 775 F.3d at 1103) (some brackets in original). Thus, “[b]ecause we
cannot engage in such substitution or speculation, such error will usually not be
harmless.” Id.
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IV. DISCUSSION
Claimant raises several issues for review. Because it is dispositive,
the court addresses only the basis for remand: the determination of Claimant’s
residual functional capacity and finding that she can perform past relevant work as
an accounting clerk.
A. Claimant’s Post-Decision Affidavit Is Part of the Administrative Record
At the outset, the court reviews the Commissioner’s final decision
for substantial evidence based on the record as a whole. Brewes v. Comm’r of Soc.
Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (citing Tackett, 180 F.3d at
1097). The record includes Claimant’s Post-Decision Affidavit submitted to the
Appeals Council in her request for review. See AR 288–289 (Post-Decision
Affidavit); AR 290–292 (letter submitted in further support of Request for Review)
(citing 20 C.F.R. § 404.970(a);8 see also 20 C.F.R. § 416.1470(a) (same). As
stated by the Ninth Circuit:
8 20 C.F.R. § 404.970(a) provides:
(a) The Appeals Council will review a case at a party’s request or
on its own motion if—
(1) There appears to be an abuse of discretion by the
administrative law judge or administrative appeals judge
who heard the case;
(2) There is an error of law;
(continued . . .)
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SSA regulations permit a claimant to submit additional
evidence to the Appeals Council if the claimant shows
good cause for not having submitted it earlier. 20 C.F.R.
§ 404.970(b); see Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1162–63 (9th Cir. 2012) (holding that
evidence submitted for the first time to the Appeals
Council becomes part of the administrative record for the
purposes of judicial review). When good cause is shown,
regulations provide that the Appeals Council will review
a case based on additional evidence submitted to the
Council for the first time if the evidence is “material,” it
relates to a time period on or before the ALJ’s decision,
and “there is a reasonable probability that the additional
evidence would change the outcome of the decision.” 20
C.F.R. § 404.970(a)(5).
White v. Kijakazi, 44 F.4th 828, 835–36 (9th Cir. 2022). Here—without making a
specific finding of good cause—the Appeals Council “considered the reasons” set
forth in the Post-Decision Affidavit and “found that the reasons do not provide a
basis for changing the Administrative Law Judge’s decision.” AR 1. And where
the Appeals Council “considers” evidence in “denying review of the ALJ’s
decision, the new evidence is part of the administrative record, which the district
(3) The action, findings or conclusions in the hearing
decision or dismissal order are not supported by substantial
evidence;
(4) There is a broad policy or procedural issue that may
affect the general public interest; or
(5) Subject to paragraph (b) of this section, the Appeals
Council receives additional evidence that is new, material,
and relates to the period on or before the date of the hearing
decision, and there is a reasonable probability that the
additional evidence would change the outcome of the
decision.
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court must consider in determining whether the Commissioner’s decision is
supported by substantial evidence.” Brewes, 682 F.3d at 1159–60;9 see also
Schenone v. Saul, 2019 WL 2994492, at *6 (E.D. Cal. July 9, 2019) (stating that
the word “considered” is a term of art in Social Security cases such that evidence
“considered” by the Appeals Council is part of the administrative record and thus
subject to judicial review); Jose Francisco C. v. Saul, 2019 WL 3858195, at *4–5
(C.D. Cal. Aug. 16, 2019); Michael T. v. Comm’r Soc. Sec. Admin., 2023 WL
355838, at *3 (D. Or. Jan. 23, 2023); Treasure L. v. Saul, 2020 WL 3033669, at *6
(D. Or. June 5, 2020); Wischmann, 68 F.4th at 504. Thus, the court considers the
Post-Decision Affidavit as part of the administrative record for review.10
And, as set forth below, having reviewed Claimant’s Post-Decision
Affidavit, the court finds that the Commissioner’s determination of Claimant’s past
9 Title 20 C.F.R. § 404.970(b) was amended, effective January 17, 2017, to impose a
good cause requirement. See 85 Fed. Reg. 73157 (Dec. 16, 2016). Thus, the statement in
Brewes that “Claimants need not show ‘good cause’ before submitting new evidence to the
Appeals Council,” 682 F.3d at 1162, is no longer valid as it was based on the old regulation. But
the court otherwise follows the principles set forth in Brewes.
10 Further, the Commissioner does not dispute that the Appeals Council found good
cause for submission of the Post-Decision Affidavit; in fact, at oral argument he conceded that it
is part of the record to be considered by the court on appeal. In his supplemental brief, he
nonetheless argues that the Post-Decision Affidavit is “less persuasive” than the administrative
hearing evidence under Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996). See ECF No. 18 at
PageID.766. But Macri addressed medical reports issued by claimant’s treating physician post-
decision, which, the Ninth Circuit found, made them “less persuasive.” Id. at 544. Here,
Claimant provided information that relates to a time period before the ALJ’s decision, not after.
See 20 C.F.R. § 404.970(a)(5). Regardless, even if it was proper for the court to accord less
weight to the Post-Decision Affidavit, it would not alter the court’s ultimate conclusion of
reversal and remand.
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relevant work as an accounting clerk is not supported by substantial evidence,
warranting remand. See Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (“We
may overturn the ALJ’s decision only if it is not supported by substantial evidence
or if it is based on legal error.”) (citations and quotation marks omitted)). Further,
the error is not harmless.
B. Claimant’s Past Relevant Work
At Step Four, “a claimant has the burden to prove that she cannot
perform her past relevant work ‘either as actually performed or as generally
performed in the national economy.’” Id. (citation omitted). When evaluating a
claimant’s ability to perform past relevant work, an ALJ may use either the
“actually performed test” or the “generally performed test,” as explained in SSR
82-61, 1982 WL 31387 (1982):
A former job performed . . . by the claimant may have
involved functional demands and job duties significantly
in excess of those generally required for the job by other
employers throughout the national economy. Under [the
“generally performed”] test, if the claimant cannot
perform the excessive functional demands and/or job
duties actually required in the former job but can perform
the functional demands and job duties as generally
required by employers throughout the economy, the
claimant should be found to be “not disabled.”
1982 WL 31387, at *2.
The “‘generally performed test’ is designed for situations where a
claimant’s past job was especially demanding when compared with industry
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standards.” Stacy, 825 F.3d at 569 (citing Jack v. Colvin, 2015 WL 5567748 (C.D.
Cal. Sept. 22, 2015) (concluding that past work was properly categorized as
“athletic director” at a sedentary level of exertion even though the claimant
actually performed the job at a heavy level of exertion)).
Although the ALJ may choose to use either the “actually performed”
or the “generally performed” test, SSR 82-61, an ALJ may not classify a past
occupation “according to the least demanding function.” Valencia v. Heckler, 751
F.2d 1082, 1087 (9th Cir. 1985) (holding that the Appeals Council erred in
concluding that plaintiff’s past relevant work was “light” based on the lightest task
she had previously performed as a tomato sorter while also performing the
“medium” job of agricultural laborer). And reconciling the “generally performed”
test with Valencia, while difficult, “is not impossible”: Valencia does not apply in
cases where (1) the “least demanding function” is a task that the claimant actually
performed most of the time; and (2) the DOT defines the claimant’s past job as
requiring only that least demanding function. Stacy, 825 F.3d at 570. Stated
differently, “the least demanding aspect” of a claimant’s past job is “something she
did less than half the time, and an ALJ errs in equating that one task with a full
time job.” Id.
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At the administrative hearing, Claimant testified about why she can no
longer work: Both hips had been replaced and although the right hip is fine, the
left hip is worse than before replacement. AR 39. Claimant testified that she could
not walk prior to both hips being replaced, and after the left hip replacement, she
continues to have difficulty walking and needs a cane to ambulate. AR 40.
She further testified that she cannot stand in one place (“that would send
me into nightmares”) and she cannot sit for longer than 20 to 30 minutes without
having to stand up, id., and that all of her pain is concentrated in her entire left side
and back. AR 41.
The ALJ also elicited testimony about Claimant’s former
employment. She testified that she did “accounts receivable and accounts payable.
And [worked] one on one with the property managers in connection with the
payrolls that were coming through for the properties” from 2006 to 2010. AR 37.
Based on this testimony, the vocational expert (“VE”) described Claimant’s past
work, in part, as an accounting clerk, which the VE classified as sedentary. AR 45.
Whether classified as sedentary or light work, the VE testified that a hypothetical
individual with the same exceptions imposed by the ALJ on Claimant’s residual
functional capacity would be able to do the work of an accounting clerk. AR 47.
The ALJ thus determined at Step 4—largely based on the VE’s assessment—that
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Claimant is capable of performing past relevant work as an accounting clerk, a
sedentary position. AR 21.
The DOT defines Accounting Clerk (clerical) as someone who:
Performs any combination of following [sic] calculating,
posting, and verifying duties to obtain financial data for
use in maintaining accounting records: Compiles and
sorts documents, such as invoices and checks,
substantiating business transactions. Verifies and posts
details of business transactions, such as funds received
and disbursed, and totals accounts, using calculator or
computer. Computes and records charges, refunds, cost
of lost or damaged goods, freight charges, rentals, and
similar items. May type vouchers, invoices, checks,
account statements, reports, and other records, using
typewriter or computer. May reconcile bank statements.
May be designated according to type of accounting
performed, such as Accounts-Payable Clerk (clerical);
Accounts-Receivable Clerk (clerical); Bill-Recapitulation
Clerk (utilities); Rent and iscellaneous [sic] Remittance
Clerk (insurance); Tax-Record Clerk (utilities).
DOT Accounting Clerk (clerical) 216.482-010, https://www.dol.gov/agencies/oalj/
PUBLIC/DOT/REFERENCES/DOT02A [https://perma.cc/82SB-C5MN].
Although the DOT is “the best source for how a job is generally performed,” Pinto
v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quotation marks omitted), an ALJ
must be cognizant that “[e]very occupation consists of a myriad of tasks, each
involving different degrees of physical exertion.” Valencia, 751 F.2d at 1086.
In her Post-Decision Affidavit, Claimant clarified the physical nature
of her job, claiming that “although [her] job title was cashier, not accountant,” she
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“did not get to finish describing [her] duties [at the hearing.]”11 AR 288. Claimant
asserted that as a “cashier,” she was required to inspect work done to invoice it,
which involved “a lot of walking” on “huge properties” and having to climb
ladders, stepstools, and stairs, stooping down, potentially spending “all day on
[her] feet standing, walking, climbing, bending, squatting.” AR 288–289. In
addition, “each month [she] had to attend each property’s Association Board
meeting at the property,” which “meant walking the entire property and stopping to
inspect anything that would be of interest during the meeting.” AR 289. Claimant
alleged that she also transported various items ranging “from a small file folder to
big, heavy boxes of supplies”—from the main office to any particular property,
and moving ladders and stepstools entailed “lift[ing] at least 20 pounds.” Id.
Finally, Claimant stated that she was “doing all these things at least or more than
half of the time [she] was working.” Id. The work as described in the Post-
Decision Affidavit does not correlate with the DOT’s description of an accounting
11 There was no indication at the administrative hearing that Claimant was not given an
opportunity to finish her job description. See AR 37 (ALJ asking vocational expert if she had
any questions for Claimant, whereupon she answered in the negative and Claimant’s attorney
asked no further questions nor objected). Nor did there appear to be any technical issues that
disrupted or prematurely cut off the telephone hearing proceedings that would have prevented
Claimant from elaborating on her job description when asked. See AR 36–37.
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clerk, even with the ALJ’s exceptions of not climbing ladders or only occasional
stooping, kneeling, crouching, or crawling.12
When “some occupations have tasks that do not neatly align with the
DOT’s description for any single job,” such as here, under the Social Security
Administration Program Operations Manual System (“POMS”) an ALJ considers
whether a claimant’s work is a “composite job.” Goodwill v. Comm’r of Soc. Sec.,
2023 WL 3582521, at *2 (E.D. Cal. May 22, 2023) (citing POMS DI 25005.020,
https://secure.ssa.gov/poms.NSF/lnx/0425005020 [https://perma.cc/3SYC-
H8DV]). Claimant raised this argument in her request for review to the Appeals
Council. AR 290 (“[Claimant’s] ‘accounting’ job was a composite job that, based
on the ALJ’S [residual functional capacity] finding, she could not return to
performing.”). “[C]omposite jobs have significant elements of two or more
occupations and, as such, have no counterpart in the DOT.” Laurie A.M. v.
Kijakazi, 2022 WL 2610246, at *3 (C.D. Cal., July 8, 2022) (quoting SSR 82-61)
(quotation marks omitted). Accordingly, they are “evaluated according to the
particular facts of each individual case.” Id. (quoting SSR 82-61).
While “it is not always obvious whether a particular job is a DOT job
12 “Occasionally means occurring from very little up to one third of the time.” Long v.
Comm’r of Soc. Sec., 2023 WL 6534201, at *10 n.3 (S.D. Cal. Oct. 6, 2023) (citations omitted).
The Post-Decision Affidavit reflects that Claimant engaged in work more strenuous than
sedentary work “at least or more than half” the time at her previous job. AR 289.
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having a few additional tasks in the actual performance or a composite job having
no single counterpart in the DOT,” a “particular job does not become composite
merely because, as actually performed, the particular job included tasks not
generally performed in such a job.” Id. at *4 (citing Torres v. Saul, 2021 WL
2859683, at *6 (D.N.M. July 8, 2021) (reasoning “that Plaintiff ‘described her
work as she actually performed the jobs[,]’ as opposed to how they are generally
performed, does not transform them into composite jobs”) (alterations in original)).
“Even so, it is error to define a claimant’s past relevant work according to the
‘least demanding aspect’ of a past job when that aspect ‘was something the
claimant did less than half the time.’” Id. (quoting Stacy, 825 F.3d at 570). And
while there is no Ninth Circuit bright-line rule for what constitute “significant
elements” or “main duties” of a job to categorize it as composite, “district courts
generally consider the ‘fundamental nature’ of the work at issue, focusing on how
much time a plaintiff spends doing the tasks claimed to support a composite-job
finding.” Goodwill, 2023 WL 3582521, at *2 (collecting cases); see also Douglas
v. Colvin, 2016 WL 11788749, at *7 (E.D. Wash. Aug. 15, 2016) (instructing the
ALJ “to take additional testimony regarding the proportionality of each task
performed and determine whether or not one task was performed at a high enough
rate that the other task was not sufficient to change the fundamental nature of the
work”).
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Here, assuming the truth of the Post-Decision Affidavit, the least
demanding aspect of Claimant’s job (accounting clerk) was something she
performed less than half the time; and the physical nature of the work she
described in the Post-Decision Affidavit did not appear to be a minor, non-
fundamental component of a job she purportedly did for nearly five years.13 But
whether Claimant’s past work was a composite job or how much of the time she
performed the least demanding aspect of her job is not for this court to decide. See
Carroll v. Kijakazi, 2023 WL 8878552, at *6 (E.D. Cal Dec. 22, 2023) (“[T]he
Court cannot determine if the ALJ categorized Plaintiff’s past work . . . according
to its least demanding function or if she correctly applied the ‘generally performed’
test.”). And because the ALJ did not consider the evidence contained in the Post
Decision Affidavit, resulting in what appears to be a misclassification of
Claimant’s past relevant work, the court cannot conclude that substantial evidence
supports the ALJ’s written decision.
C. Harmless Error
During oral argument—for the first time—the Commissioner claimed
that even if there was a misclassification of Claimant’s past relevant work, any
error was harmless. That is, the Commissioner appears to argue that if Claimant
13 And with the evidence before the ALJ at the time he rendered his decision—that is,
without having considered the Post-Decision Affidavit—it is not likely that he would have
considered Claimant’s relevant past work a composite job.
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could not perform her past relevant work (as a result of taking into consideration
Claimant’s Post-Decision Affidavit), the VE’s testimony established that she could
perform other sedentary work. Put in terms of the five-step sequential analysis, the
Commissioner appears to claim (or, at least, did so during oral argument) that even
if the Claimant did not possess the residual functional capacity to perform her past
relevant work at Step 4, she had the residual functional capacity to allow her to
perform sedentary work that exists in significant numbers in the national economy
at Step 5. But, as explained in Bray v. Commissioner of Social Security
Administration, 554 F.3d 1219 (9th Cir. 2009), an ALJ cannot make such a
determination at Step 5 without making findings of fact as to the transferability of
Claimant’s skills.14 The court cannot simply assume such facts exist.
In Bray, the ALJ found—based on VE testimony that although
claimant could not do her past relevant work she had transferable skills and could
transition to other work—that the claimant was not disabled at Step 5. 554 F.3d at
1223. Bray held that even when the ALJ relies on VE testimony, he or she must
make specific findings of fact as to whether the claimant possesses transferable
14 The Commissioner may have abandoned this argument. Although the court ordered
supplemental briefing from the parties on this narrow issue of potential harmless error, the
Commissioner’s brief failed to address—in any manner whatsoever—the very harmless error
issue raised during oral argument. See ECF No. 18 (failing to even include the phrase “harmless
error” anywhere in the briefing). Instead, the Commissioner’s supplemental brief reiterated what
was in his initial briefing—that substantial evidence supported the ALJ’s determination at Step 4
that Claimant had the residual functional capacity to perform her past relevant work.
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skills, as required by SSR 82-41, 1982 WL 31389 (S.S.R. Jan. 1, 1982). Id. at
1224–26. This regulation provides:
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.
Id. at 1223 (quoting SSR 82-41, 1982 WL 31389, at *7). See also Barnes v.
Berryhill, 895 F.3d 702, 707–08 (9th Cir. 2018) (holding that even where no
Medical-Vocational Guideline provides that a person of the claimant’s age,
education level, and work history is disabled absent transferable skills, the ALJ is
still required to make transferability of skills findings of fact under SSR 82-41).
Bray additionally points out that under the Medical-Vocational Guidelines
(“Guidelines”),15 “[i]n order to find transferability of skills to skilled sedentary
15 There are two ways for the Commissioner to meet the burden at Step 5 of showing that
there is other work in “significant numbers” in the national economy that claimant can do: (1) by
VE testimony; or (2) by reference to the Guidelines. The Guidelines “present, in table form, a
short-hand method for determining the availability and numbers of suitable jobs for a claimant.”
Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett, 180 F.3d at 1101).
The ALJ consults the Guidelines at the administrative level, subject to certain requirements. See
id. at 1115.
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work for individuals who are of advanced age (55 and over), there must be very
little, if any, vocational adjustment required in terms of tools, work processes,
work settings, or the industry.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(f).
Here, the ALJ made no findings of fact at Step 5. And absent making
the findings required by Bray, the court cannot find harmless error.
V. CONCLUSION
For the foregoing reasons, the court REVERSES the Commissioner’s
final decision and REMANDS this action for further proceedings consistent with
this Order. The Clerk of Court is instructed to close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 21, 2024.
McCullough v. O’Malley, Civ. No. 23-00298 JMS-KJM, Order Reversing the Administrative
Law Judge’s Decision and Remanding for Further Proceedings
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
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