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Noora D. v. Berryhill

United States District Court, D. Maine

May 19, 2019

NOORA D., Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION[1]

          John H. Rich III United States Magistrate Judge.

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”), whose findings were adopted by the Appeals Council on review, supportably deemed the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on several bases, including that the ALJ erred in relying on the testimony of a vocational expert (“VE”) without clarifying the impact of the plaintiff's inability to speak or understand English on her ability to perform the representative jobs at issue. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 13) at 10, 18-19. I agree and, accordingly, recommend that the court vacate the commissioner's decision and remand this case for further proceedings consistent herewith. I need not, and do not, reach the plaintiff's remaining points of error.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff had the severe impairments of diminished vision in her right eye, an affective disorder/major depressive disorder, and an anxiety-related disorder/post-traumatic stress disorder, Finding 1, Record at 91; that she had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following nonexertional limitations: she could occasionally climb ladders, scaffolds, or ropes, could not drive commercial vehicles, could perform tasks requiring no more than occasional far and near acuity with the right eye and no more than occasional depth perception and field of vision with the right eye, could not work at unprotected heights or around dangerous moving equipment, needed to avoid tasks involving a variety of instructions or tasks, but could understand and carry out simple one- or two-step instructions and detailed but uninvolved oral instructions involving a few concrete variables in or from standardized situations, and could not work in direct contact with the public but could work with supervisors and coworkers, Finding 4, id. at 93; that, considering her age (26 years old, defined as a younger individual, on the date her application was filed, December 15, 2014), education (limited, “is not able to communicate in English, and considered in the same way as an individual who is illiterate in English (20 C.F.R. [§] 416.964)”), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 6-9, id. at 97; and that she, therefore, had not been disabled from the date of her application, December 15, 2014, through the date of the decision, January 17, 2017, Finding 10, id. at 98-99. By notice dated November 30, 2017, the Appeals Council granted review of the ALJ's decision, id. at 170-74, following which, by decision dated February 7, 2018, it “adopt[ed] all of the [ALJ]'s findings with respect to the [plaintiff]'s severe impairments, her [RFC] and her ability to perform other work existing in significant numbers in the national economy.” Id. at 7-8. The decision of the Appeals Council is the final determination of the commissioner. 20 C.F.R. § 416.1481.

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. § 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).[2]

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. § 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         The ALJ determined that the plaintiff, an Iraqi immigrant, was unable to communicate in English. Record at 96; Finding 7, id. at 97. While illiteracy or an inability to communicate in English is not per se disabling, see, e.g., Omar v. Astrue, Civil No. 08-270-P-S, 2009 WL 961230, at *4 (D. Me. Apr. 7, 2009) (rec. dec., aff'd May 1, 2009), it is relevant to the determination of disability as a subset of education, one of three vocational factors (age, education, and work experience) that, along with a claimant's RFC, drive the Step 5 determination of whether a claimant can work, see 20 C.F.R. §§ 416.960(c)(1) (“We will look at your ability to adjust to other work by considering your [RFC] and the vocational factors of age, education, and work experience, as appropriate in your case.”), 416.964(b)(5) (“Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English is the dominant language of the country, it may be difficult for someone who doesn't speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, we consider a person's ability to communicate in English when we evaluate what work, if any, he or she can do.”).

         “Ordinarily, the Commissioner will meet the step 5 burden, or not, by relying on the testimony of a [VE] in response to a hypothetical question whether a person with the claimant's RFC, age, education, and work experience would be able to perform other work existing in the national economy.” Richardson v. Soc. Sec. Admin. Comm'r, No. 1:10-cv-00313-JAW, 2011 WL 3273140, at *11 (D. Me. July 29, 2011) (rec. dec., aff'd Aug. 18, 2011) (citation and internal quotation marks omitted). The ALJ did so here. See Record at 97-98.

         “Because literacy, or education level, is relevant only to [the Step 5] inquiry[, ] . . . it follows that the Commissioner bears the burden of establishing this factor.” Silveira v. Apfel, 204 F.3d 1257, 1261 n.14 (9th Cir. 2000). An ALJ, therefore, must explain the impact of a claimant's illiteracy or inability to communicate in English on her ability to work. See, e.g., Yacoub v. Colvin, No. 1:14-cv-00884-SKO, 2016 WL 541407, at *14 (E.D. Cal. Feb. 11, 2016).

         As detailed below, although the ALJ found the plaintiff unable to communicate in English, see Finding 7, Record at 97, she did not convey that finding to the VE, see id. at 32-34. Later, when the plaintiff's attorney attempted to question the VE on that point, the ALJ interrupted their colloquy, indicating that the need for such testimony was obviated by regulatory guidance in the so-called “Grid, ” the Medical-Vocational Guidelines, Appendix 2 to Subpart P, 20 C.F.R. § 404. See id. at 34-36. In affirming the ALJ's findings on review, the Appeals Council agreed, citing the Grid rules to which the ALJ had alluded at hearing. See id. at 7.

         At hearing, the ALJ asked the VE if an individual fitting the following description could perform any work:

Let's assume that we have an individual with no work history and assume that there are no exertional limitations, but that the individual should occasionally climb ladders, scaffolds, or ropes, should not drive commercial vehicles, could perform task[s] that require no more than occasional far acuity with the right eye, occasional depth perception, and occasional field of vision with the right eye.
But no restrictions of the use of the left eye. No. work at unprotected heights or around dangerous moving equipment. The individual must avoid tasks involving a variety of instructions or tasks but is able to understand to carry out detailed, but uninvolved oral instructions involving a few concrete variables in or from standardized situations, cannot work in direct contact with the public, but can work with supervisors and co-workers.

Id. at 32.

         The VE testified that such a hypothetical individual could perform the jobs of dishwasher, Dictionary of Occupational Titles (U.S. Dep't of Labor 4th ed., rev. 1991) (“DOT”) § 318.687-010), cleaner, DOT § 323.687-014, and packaging line attendant, DOT § 920.587-018. See id. at 32-33. Each of those jobs is described in the DOT as having a General Educational Development (“GED”) language level of 1, entailing the following abilities:

READING: Recognize meaning of 2, 500 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities and differences between words and between series of numbers.
WRITING: Print simple sentences containing subject, verb, and object, and series of numbers, names, and addresses.
SPEAKING: Speak simple sentences, using normal word order, and present and past tenses.

DOT §§ 318.687-010, 323.687-014, 920.587-018; Appendix C, § III, to DOT.

         When the ALJ invited the plaintiff's counsel, Sherri A. Stone, Esq., to question the VE, see Record at 34, ...


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