(SS) Sanguras v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

2

EASTERN DISTRICT OF CALIFORNIA

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4

SHELLEY ANN SANGURAS, No. 1:22-cv-00834-GSA

5

Plaintiff,

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v. OPINION & ORDER DIRECTING ENTRY

7 OF JUDGMENT IN FAVOR OF

KILOLO KIJAKAZI, acting DEFENDANT COMMISSIONER OF

8 Commissioner of Social Security, SOCIAL SECURITY AND AGAINST

PLAINTIFF

9

Defendant. (Doc. 12, 14)

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11

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I. Introduction

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Plaintiff Shelley Ann Sanguras (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

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disability insurance benefits pursuant to Title II of the Social Security Act. The matter is before

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the Court on the parties’ briefs which were submitted without oral argument to the United States

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Magistrate Judge.1 Docs. 12,14. After reviewing the record the Court finds that substantial

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evidence and applicable law support the ALJ’s decision.

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II. Factual and Procedural Background2

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On August 31, 2015 Plaintiff applied for disability insurance benefits which was denied at

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each level of the review by the Commissioner, appealed to this Court, remanded for further

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proceedings pursuant to this Court’s decision3 and then denied a second time by the Commissioner

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24 1 The parties consented to the jurisdiction of a United States Magistrate Judge. See Docs. 5 and 7.

2 The Court has reviewed the relevant portions of the administrative record including the medical, opinion and

25 testimonial evidence about which the parties are well informed, which will not be exhaustively summarized. Relevant

portions will be referenced in the course of the analysis below when relevant to the parties’ arguments.

26 3 The prior case (19-cv-01036-JLT) was decided by then Magistrate Judge Jennifer Thurston, who has since been

elevated to District Judge receiving her commission on December 27, 2021, prior to the date the current case was filed

27 on July 7, 2022. Though this case would have potentially qualified for a related case transfer under Local Rule 123

(involving similar questions of law and fact), the parties did not pursue that avenue as there was no option to pursue a

28 related case transfer to Judge Thurston while also opting into the jurisdiction of a Magistrate Judge and the expedited

decision-making timeline.

resulting in the current complaint.

2 III. The Disability Standard

3 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the

4 Commissioner denying a claimant disability benefits. “This court may set aside the

5 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal

6 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180

7 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the

8 record that could lead a reasonable mind to accept a conclusion regarding disability status. See

9

Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a

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preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted).

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When performing this analysis, the court must “consider the entire record as a whole and

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may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social

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Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and quotations omitted). If the

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evidence could reasonably support two conclusions, the court “may not substitute its judgment for

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that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066

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(9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision for harmless

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error, which exists when it is clear from the record that the ALJ’s error was inconsequential to the

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ultimate non-disability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

19

To qualify for benefits under the Social Security Act, a plaintiff must establish that

20 he or she is unable to engage in substantial gainful activity due to a medically

determinable physical or mental impairment that has lasted or can be expected to

21

last for a continuous period of not less than twelve months. 42 U.S.C. §

22 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . .

his physical or mental impairment or impairments are of such severity that he is not

23 only unable to do his previous work, but cannot, considering his age, education, and

work experience, engage in any other kind of substantial gainful work which exists

24 in the national economy, regardless of whether such work exists in the immediate

area in which he lives, or whether a specific job vacancy exists for him, or whether

25

he would be hired if he applied for work.

26 42 U.S.C. §1382c(a)(3)(B).

27 To achieve uniformity in the decision-making process, the Commissioner has established a

28 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)-

(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the

2 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.

3 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial

4 gainful activity during the period of alleged disability, (2) whether the claimant had medically

5 determinable “severe impairments,” (3) whether these impairments meet or are medically

6 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4)

7 whether the claimant retained the residual functional capacity (“RFC”) to perform past relevant

8 work, and (5) whether the claimant had the ability to perform other jobs existing in significant

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numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears

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the burden of proof at steps one through four, the burden shifts to the commissioner at step five to

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prove that Plaintiff can perform other work in the national economy given her RFC, age, education

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and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014).

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IV. The ALJ’s Decision

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At step one the ALJ found that Plaintiff had not engaged in substantial gainful activity

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during the period from her alleged onset date of March 7, 2014 through her date last insured of

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December 31, 2019. AR 1002. At step two the ALJ found that Plaintiff had the following severe

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impairments: degenerative disc disease of the lumbar spine status post-surgery, and osteoarthritis

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of the left knee. AR 1003. The ALJ also found at step two that Plaintiff had the following non-

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severe impairments: depression, anxiety, glaucoma, and migraines. AR 1003–05. At step three the

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ALJ found that Plaintiff did not have an impairment or combination thereof that met or medically

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equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

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AR 1005–06.

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Prior to step four the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and

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concluded that Plaintiff had the RFC to perform less than the full range of sedentary work as defined

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in 20 C.F.R. 404.1567(a), with various postural restrictions and no exposure to temperature

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extremes. AR 1006–1011.

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At step four the ALJ found that Plaintiff could not perform her past relevant work as

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registered nurse (“RN”) (medium exertional level, heavy as performed (DOT 075.364-010)). AR

1011. At step five, in reliance on the Vocational Expert’s (VE’s) testimony, the ALJ found that

2 Plaintiff could perform other jobs existing in significant numbers in the national economy to which

3 her skills acquired as a RN would transfer, namely: medical clerk (DOT 205.362-018) and medical

4 billing clerk (DOT 214.482-018). AR 1012. Accordingly, the ALJ found that Plaintiff was not

5 disabled at any time from March 7, 2014, the alleged onset date, through December 31, 2019, the

6 date last insured. Id.

7 V. Issues Presented

8 Plaintiff asserts one claims of error: that the ALJ erroneously relied on the VE’s testimony

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at step five that the skills Plaintiff acquired as an RN would transfer to the jobs of medical clerk

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(“Hospital Admitting Clerk” - DOT 205.362-018) or medical billing clerk (“Medical Voucher

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Clerk (insurance)) DOT 214.482-018).

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A. Skill Transferability at Step Five

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1. Applicable Law

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15 Occupations are classified as “unskilled,” “semiskilled,” or “skilled.” 20 C.F.R. § 404.1568.

16 Unskilled work involves non-complex tasks that can be learned on the job in 30 days or less. See §

17 404.1568(a); SSR 82-411, 1982 WL 31389 at *2 (Jan. 1, 1982). “Semiskilled occupations” are

18

“distinctly simpler than the more highly skilled type of jobs” but still “contain more variables and

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require more judgment than do unskilled occupations.” SSR 82-41, 1982 WL 31389 at *2; see also

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20 C.F.R. § 404.1568(b) ). Skilled work is the most complex, requiring “judgment to determine the

21

machine and manual operations to be performed in order to obtain the proper form, quality, or

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23 quantity of material to be produce.” Id. § 404.1568(c).

24 If a claimant cannot perform past relevant work “and that work has been determined to be

25 skilled or semiskilled,” the ALJ must consider whether the skills acquired are transferable to a new

26

job. SSR 82-41, 1982 WL 31389 at *1. “A skill is knowledge of a work activity which requires

27

the exercise of significant judgment that goes beyond the carrying out of simple job duties and is

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acquired through performance of an occupation which is above the unskilled level.” SSR 82-41,

2

1982 WL 31389 at *2.

3

The likelihood that a skill is transferable to a new job depends on three factors: “(1) the new

4

5 job requires the same or a lesser degree of skill than the old job; (2) the same or similar tools and

6 machines are used in both jobs; and (3) the same or similar raw materials, products, processes, or

7 services are involved in both jobs.” Aldrich v. Barnhart, 151 F. App'x 561, 562 (9th Cir. 2005)

8 (citing 20 C.F.R. § 404.1568(d)(2)(i)-(iii).

9

“A complete similarity of all three factors is not necessary for transferability.”

10

404.1568(d)(3).

11

A distinct transferability rule applies to individuals of advanced age, as set forth in section

12

13 404.1568(d)(4):

14 (4) Transferability of skills for persons of advanced age. If you are of advanced age

(age 55 or older) . . . and you have a severe impairment(s) that limits you to no more

15 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 your

16

previous work that you would need to make very little, if any, vocational adjustment

17 in terms of tools, work processes, work settings, or the industry.

18 20 C.F.R. 404.1568(d)(4).

19 Pursuant to SSR 00-4p:

20

Occupational evidence provided by a VE or VS generally should be consistent with

21 the occupational information supplied by the DOT. When there is an apparent

unresolved conflict between VE or VS evidence and the DOT, the adjudicator must

22 elicit a reasonable explanation for the conflict before relying on the VE or VS

evidence to support a determination or decision about whether the claimant is

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disabled. At the hearings level, as part of the adjudicator's duty to fully develop the

record, the adjudicator will inquire, on the record, as to whether or not there is such

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consistency.

25

Neither the DOT nor the VE or VS evidence automatically “trumps” when there is

26 a conflict. The adjudicator must resolve the conflict by determining if the

explanation given by the VE or VS is reasonable and provides a basis for relying on

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the VE or VS testimony rather than on the DOT information.

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2. Analysis

2

In the prior case, the Court found the ALJ failed to support the step five finding that as an RN

3

Plaintiff acquired the skills of “lifting patients” and “moving equipment,” skills which would transfer

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5 to the jobs of medical clerk and medical billing clerk. AR 1118 (19-cv-01036-JLT). The Court

6 explained that the ALJ gleaned those “skills” from the testimony about the exertional activities of

7 an RN, which did not constitute transferrable skills particularly given that the exertional

8 requirements of the RN position were medium to heavy, while the jobs to which Plaintiff’s skills

9

were allegedly transferred were sedentary. Id.

10

Neither party addressed the reasoning for the remand in the prior case, or the ALJ’s compliance

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with the instructions on remand. Here, as instructed by the order of remand (and as was already required

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13 by the applicable law cited above), the ALJ did elicit and incorporate the VE’s testimony as to the skills

14 that would transfer to the jobs of medical clerk (DOT 205.362-018) and medical billing clerk (DOT

15 214.482-018). AR 1046. The VE identified the following skills: medical and healthcare knowledge,

16

background in medical terminology, knowledge of nursing care, patient/hospital skills, knowledge of

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equipment and aids for treatment. AR 1011 (citing AR 1046). Plaintiff nevertheless contends she

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acquired no transferable skills under the factors set forth in 20 C.F.R. § 404.1568(d), though for reasons

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not relevant to the prior order of remand or the ALJ’s compliance therewith.

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21 The first factor under 20 C.F.R. § 404.1568(d)(2) (“the new job requires the same or a lesser

22 degree of skill than the old job”) favors a transferability finding. Plaintiff’s past work as a RN has a

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Specific Vocational Preparation (SVP) of 7, whereas the other two jobs have SVPs of 4 and 3. Skilled

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jobs range from SVP 5 to 9, whereas semi-skilled jobs range from SVP 3 to SVP 4, and unskilled jobs

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range from SVP 1 to 2 POMS DI 25015.017. Thus, the latter two jobs require a lesser degree of skill.

26

See Aldrich v. Barnhart, 151 F. App'x 561, 562–63 (9th Cir. 2005) (“The credit clerk and mortgage clerk

27

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positions would not require Aldrich to use a greater degree of skill than jobs that she has previously held.

2

A credit clerk is an SVP4 position, and a mortgage clerk is an SVP5 position.”).

3

As to the second and third factors, after quoting the applicable law set forth above, Plaintiff

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5 begins a long discussion which cannot be readily paraphrased:

6 In studying ways in which to revise the outdated Dictionary of Occupational Titles,

4th ed. rev. (Dept. of Labor 1991), the Commissioner set out a blue-ribbon panel to

7 explore the baseline established by the DOT. Soc. Sec. Admin., Occupational

Information Development Advisory Panel. 73 Fed. Reg. 78,8644 (Dec 23, 2008). In

8 September 2009, the advisory panel issued a report outlining the inadequacies of the

9 DOT. See Occupational Information Development Advisory Panel, Soc. Sec.

Admin., Content Model and Classification Recommendations for the Soc. Sec.

10 Admin. Occupational Information Sys. (Sept. 2009) (Content Model). The

Committee issued significant reports by subcommittee. One of the appendixes

11 concerned the subject of work experience. Report of the Work Experience Analysis

Subcommittee, pages D-12; D-21 to D-22; D-42; and D-43.

12

13 The subcommittee stated that the “experts unanimously agree that the current SSA

definition for TSA (transferability of skills analysis) found in the CFR is

14 comprehensive and remains useful.” Id. at page D-43. In restating the three criteria

for assessing transferability, the subcommittee parenthetically noted the DOT

15 counterpart for the data point. The same or less degree of skill refers to SVP (specific

vocational preparation). The same or similar tools and machines refers to work

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fields. The same or similar raw materials, products, processes, or services refers to

17 MPSMS (materials, products, subject matter, and services). Id. Use of SVP, work

fields, and MPSMS codes is the acceptable methodology. This methodology

18 conforms to the methodology recognized by the OIDAP. Generally transferable,

directly related occupations, and generally related occupations involve new skills

19 that would not fit within the regulatory requirement to “meet” the requirements of

other work. 20 C.F.R. § 404.1568(d)(1). The Commissioner also describes the

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discrete steps in performing a transferability of skills analysis in the Program

21 Operations Manual System (POMS). POMS DI 25015.017.

22 With an understanding of how the Commissioner instructs the Social Security

Administration to determine the issue of transferable skills, a review of the DOT in

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this matter demonstrates the legal error of the ALJ.

24

Br. at 7-8, Doc. 12.

25

Plaintiff then compares the Work Fields and MPSMS classifications of the three jobs in

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question and displays the comparison in a table as follows:

27

28

4 The correct citation is actually 73 FR 78864-01.

Work Field MPSMS Industry DOT S

2 V

P

3

Registered 294 – Health 924 – Medical 075.364- 7

4 Nurse caring-medical Nursing, Services 010

Dietetic, and

5 Therapeutic

Services

6

7 Medical 231 – verbal 890 – Medical 205.362- 4

8 Clerk r ke ec eo pr id ni gn g a- nr dec 2o 8r 2d G Bue sn ie nr ea sl s, , Services 018

9 – information Finance,

giving Insurance,

10 and Real

Estate

11 Services and

929 - Medical

12 and Other

Services

13 Medical 232 – numerical 892 – Insurance 214.482- 3

Billing recording- Accounting, 018

14

Clerk recordkeeping Auditing, and

15 Bookkeeping

Services

16

17

Plaintiff observes that, “It is clear that no match is made in the DOT between the occupations and

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work fields and materials, products, subject matter, and services (MPSMS) codes.” Id. at 11. Plaintiff

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20 concludes that “The vocational testimony and the ALJ’s acceptance of it is legal error.” Id.

21 The argument is not compelling. As noted above, there are three factors under the transferability

22 analysis which affect the likelihood of skill transferability, but “a complete similarity of all three factors

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is not necessary for transferability.” 20 C.F.R. § 404.1568(d)(2).

24

Second, Plaintiff’s focus on the second and third factors is a bit indirect. Plaintiff’s discussion of

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the history behind the transferability analysis, along with the Commissioner’s “blue-ribbon panel” set out

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27 in 2008, and the subcommittee’s relevant findings are all interesting pieces of background information,

28 but are neither essential nor sufficient to establish legal error despite Plaintiff’s suggestion to the contrary.

Plaintiff cites no caselaw from any jurisdiction at any level of review analyzing Work Fields or

2

MPSMS as relevant or dispositive components of the transferability analysis, nor any caselaw requiring

3

continuity between the Work Fields and MPSMS codes for the past relevant work and the work to which

4

5 the claimant’s skills allegedly transfer. Further, the regulation addressing the transferability analysis, 20

6 C.F.R. § 404.1568(d), makes no mention of Work Fields or MPSMS codes.

7 Westlaw reflects 4,136 citing references (cases) to the regulation governing the transferability

8 analysis (20 C.F.R. § 404.1568), only 29 of which mention “work field” or “MPSMS.” Those 29 cases

9

include only 3 cases within this district, 2 of which involved Plaintiff’s current counsel of record

10

unsuccessfully advancing the same argument advanced here. See Hartley v. Colvin, No. 2:13-CV-1863

11

AC, 2014 WL 6058652, at *4 (E.D. Cal. Nov. 12, 2014); Garcia v. Astrue, No. 1:11-CV-00774-SKO,

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13 2012 WL 4091847, at *7 (E.D. Cal. Sept. 17, 2012) (“Plaintiff provides no legal authority to support his

14 contention that the VE must rely on the MPSMS and that the census code identified by the DOT is not

15 sufficient. The only legal authority that this Court could find that referred to the MPSMS was an

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unpublished Ninth Circuit memorandum decision that rejected the plaintiff's argument as ‘non-

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persuasive’ that ‘her skills are not transferable because the alternate work positions suggested by the ALJ

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are not found under the same work file number or Material, Products, Subject Matter, and Services

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number as her prior position of Shipping and Receiving Clerk in the Dictionary of Occupational Titles.’

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21 No other Ninth Circuit or district court case relies upon, or even cites, Plaintiff’s purported ‘only

22 responsible methodology theory.”) (quoting Thompson v. Barnhart, 148 F. App'x 634, 635 (9th Cir.

23

2005)).

24

As to the second and third regulatory factors (the same or similar tools, machines, products,

25

processes, materials, and services), Plaintiff also contends that the lack of overlap between the jobs is

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borne out in the DOT job descriptions. Br. at 11. The descriptions are as follows:

27

28 Registered Nurse:

Provides general nursing care to patients in hospital, nursing home, infirmary, or similar

2 health care facility: Administers prescribed medications and treatments in accordance

with approved nursing techniques. Prepares equipment and aids physician during

3 treatments and examinations of patients. Observes patient, records significant conditions

and reactions, and notifies supervisor or physician of patient's condition and reaction to

4 drugs, treatments, and significant incidents. Takes temperature, pulse, blood pressure, and

5 other vital signs to detect deviations from normal and assess condition of patient.

6 DOT 075.364-010

7 Hospital-Admitting Clerk:

8 Interviews incoming patient or representative and enters information required for

9

admission into computer: Interviews patient or representat ive to obtain and record name,

address, age, religion, persons to notify in case of emergency, attending physician, and

10 individual or insurance company responsible for payment of bill. Explains hospital

regulations, such as visiting bours, payment of accounts, and schedule of charges. Escorts

11 patient or arranges for escort to assigned room or ward. Enters patient admitting

information into computer and routes printed copy to designated department. Obtains

12

signed statement from patient to protect hospital's interests

13

DOT 205.362-018

14

Medical Voucher Clerk

15

Examines vouchers forwarded to insurance carrier by doctors who have made medical

16

examinations of insurance applicants, and approves vouchers for payment, based on

17 standard rates. Computes fees for multiple examinations, using adding machine. Notes

fee on form and forwards forms and vouchers to appropriate personnel for further

18 approval and payment

19 DOT 214.482-018

20

Plaintiff contends these jobs describe “radically different skill sets.” The differences are

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reasonably apparent in that an RN is primarily engaged in patient care whereas the other two jobs are

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more clerical in nature. As to the comparison between RN and Medical Voucher Clerk, Plaintiff’s

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contention is well taken that the DOT describes radically different skill sets. The latter is not even in the

24

25 same industry and does not involve work at a hospital, doctor’s office, or other treating provider, but rather

26 involves work for the insurance carrier.

27

The overlap between RN and medical clerk (Hospital Admitting Clerk) is not entirely

28

insignificant, however. They both are in the medical services industry, involve interacting with patients,

obtaining information and recording it. Additionally, the ALJ asked the VE to identify the skills that

2

would transfer, and the VE testified:

3

Okay. So let me pull the registered nurse. All right. So as far as transferability of skills --

4 just a second. All right. So skills and competencies that are transferable are going to be

5 the medical and healthcare knowledge -- and I'm sorry. I've lost my page Let's see here.

So background in medical terminology, knowledge of nursing care and patient, hospital

6 skills, knowledge of equipment and the aids that have to do with the treatment of the

patients. And those are just some of them.

7

AR 1046.

8

9

This explanation is clearly only relevant to the jobs of RN and Hospital Admitting Clerk (which

10 the VE referenced as “medical clerk.”). Again, the DOT description of Medical Voucher Clerk (which

11 the VE referred to as “medical billing clerk”) quoted above involves none of the skills the VE referenced;

12

it involves processing insurance claims. Overall, this was not an overwhelmingly specific or persuasive

13

explanation by the VE.

14

Considering the purpose for the remand was for the ALJ to question the VE about skill

15

transferability, the ALJ could have pressed the VE further about the nature of the skills he was

16

17 referring to by “patient, hospital skills.” Further, the VE closed the testimony about transferable

18 skills by stating “and those are just some of them,” possibly assuming the VE had more to share.

19 Nevertheless, Plaintiff does not address the content of the VE’s testimony, but rather argues

20

categorically that “the mere ipse dixit of the vocational expert cannot constitute substantial evidence to

21

support the ALJ's non-disability finding.” Br. at 11. Plaintiff misconstrues the Commissioner’s burden

22

at step five. A “vocational expert's testimony itself constitutes substantial evidence to support the ALJ's

23

vocational finding regarding transferability of skills.” Didinger v. Comm'r of Soc. Sec., No. 2:17-CV-

24

25 1320-DMC, 2019 WL 112986, at *16 (E.D. Cal. Jan. 4, 2019) (citing Bayliss v. Barnhart, 427 F.3d 1211,

26 1218 (9th Cir. 2005) (“A [vocational expert's] recognized expertise provides the necessary foundation for

27

his or her testimony”)). Here the VE did identify the transferable skill in question, and the ALJ

28

incorporated the testimony in her decision. Absent an apparent conflict between such testimony and the

DOT, the VE’s ipse dixit does indeed constitute substantial evidence to support a non-disability finding.

2

Id.

3

Plaintiff quoted the VE’s explanation in the section of her brief labelled “Summary of the

4

5 Relevant Testimony” (Br. at 5), but never came back to it in her argument section, or attempted to explain

6 why she believes it was deficient or non-compliant with the Court’s directive on remand. The impetus

7 was on Plaintiff, not the Court, to explain why the VE’s testimony was deficient. See Greenwood

8 v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994) (“We will not manufacture arguments

9

for an appellant, and a bare assertion does not preserve a claim . . .”) (citation omitted). Rather,

10

Plaintiff argued that the lack of overlap in the Work Field and MPSMS classifications for RN and

11

the two jobs in question establishes the ALJ’s error. As explained above, Plaintiff identifies no

12

13 authority to support that theory. And, despite the differences in the DOT job descriptions quoted

14 above for Registered Nurse and Hospital Admitting Clerk, the descriptions were not so divergent

15 as to create an apparent conflict with the VE’s testimony that skills acquired in the former were

16

transferrable to the latter.

17

Finally, Plaintiff contends in passing at the close of her brief that the transferability finding here

18

was erroneous because “more than very little, if any, vocational adjustment (would be) required in terms

19

of tools, work processes, work settings, or the industry.” Br. at 13. Plaintiff cites and invokes the

20

21 language of a subsection that sets forth a distinct transferability rule for persons of advanced age, the full

22 text of which reads as follows:

23

Transferability of skills for persons of advanced age. If you are of advanced age (age

55 or older) . . . and you have a severe impairment(s) that limits you to no more than

24

sedentary work, we will find that you have skills that are transferable to skilled or

25 semiskilled sedentary work only if the sedentary work is so similar to your previous

work that you would need to make very little, if any, vocational adjustment in terms

26 of tools, work processes, work settings, or the industry.

20 C.F.R. 404.1568(d)(4)

27

28

The ALJ did appear to flag a potential issue regarding the above subsection, and inquired of the

2

VE who testified that, “I think that they (the other two jobs) would fall into the minimal vocational

3

adjustment category.” AR 1047. The ALJ recited this without elaboration as the last sentence of the step

4

5 five finding: “the vocational expert testified that no more than minimal adjustment was required.” AR

6 1012. It does not appear that the above-quoted subsection was brought to bear on the ALJ’s decision,

7 however, given the ALJ’s discussion about the claimant’s age category, discussion which was admittedly

8 a bit confusing:

9

The claimant was born on June 24, 1966 and was 53 years old, which is defined as a

10 younger individual age 45-49, on the date last insured. The claimant subsequently

changed age category to closely approaching advanced age (20 CFR 404.1563).

11

AR 1011.

12

13 Plaintiff was not simultaneously 53 years old and also between 45-49 years old. As of the alleged

14 disability onset date of March 7, 2014, Plaintiff was a “younger individual” at age 47. As of her date

15 last insured of December 31, 2019, Plaintiff was 53 years old, meaning her age category changed

16

to “closely approaching advanced age.” The distinct transferability rule quoted above does not

17

apply to a “younger individual” (age 45-49), nor does it apply to an individual “closely approaching

18

advanced age” (age 50-54). It applies to an individual “of advanced age” (55 or older).

19

Notably, Plaintiff was indeed 55 as of the ALJ’s decision on November 1, 2021, a relevant

20

21 fact under the Commissioner’s Borderline Age Policy:

22 When you evaluate a claimant’s ability to adjust to other work, a borderline age

situation exists if:

23

1. The claimant reached or will reach the next higher age category within a few days

24

to a few months after the:

25 • date of adjudication;

• date the Title II insured status expired (date last insured);

26 • end of disabled widow(er)’s benefit (DWB) prescribed period;

• end of childhood disability benefit (CDB) reentitlement period; or

27

• cessation of disability; and

28

2. Both of the following are true:

• Using the claimant’s chronological age results in a not disabled

2 determination; and

• Using the next higher age category to adjudicate the borderline period

3 results in a disabled determination.

4 POMS DI 25015.006.

5

In other words, if the individual would otherwise be found disabled but for her age, and she is

6

within a “few months” (meaning “a period not to exceed 6 months”) of the next age category, the

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Commissioner’s Borderline Age policy directs that the adjudicator should “consider” using the higher age

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category. Id. Here, the ALJ used Plaintiff’s “date last insured” as the operative date from which to

10 calculate Plaintiff’s age. However, in listing five potential operative dates that arise in social security

11 cases (including “date of adjudication”), the Commissioner’s use of the disjunctive “or” suggests that a

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borderline age situation arises if the claimant’s age category changes within 6 months of any of the five

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potential operative dates.

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Of course, not all five potential operative dates exist in each case (e.g., “disabled widower’s

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benefit prescribed period”). But, at a minimum, each case does necessarily have a “date of adjudication”

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17 as well as an additional potential operative date specific to the nature of the claim, as in the case of

18 disability insurance benefits pursuant to Title II of Act, the eligibility for which depends on insured

19 status and the determination of a “date last insured.” Had the Commissioner only listed the claim-specific

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potential operative dates, the use of the disjunctive “or” would have no significance, the adjudicator would

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simply use the operative date that pertains to the type of claim, be it widowers benefits, childhood

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disability, etc. The fact that the Commissioner also listed “date of adjudication” as the first potential

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operative date for the purposes of age calculation suggests a claimant-friendly policy of over-inclusion,

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25 not under inclusion, with respect to individuals approaching a new age category. In short, the ALJ’s use

26 of the date last insured here as the operative date for the purpose of calculating Plaintiff’s age (as opposed

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to the date of adjudication) was not in keeping with the Commissioner’s Borderline Age Policy.

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Nevertheless, agency policy set forth in the Program Operations Manual System (“POMS”) “does

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not impose judicially enforceable duties on either [the] court or the ALJ.” Carillo-Yeras, 671 F.3d 731,

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735 (9th Cir. 2011); see also Lockwood v. Comm’r, 616 F.3d 1068, 1073 (9th Cir. 2010) (“POMS does

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5 not impose judicially enforceable duties on the SSA”); Durden v. Colvin, 549 Fed. App’x 690, 690-91

6 (9th Cir. 2013) (“the POMS does not have the force and effect of law and, thus, does not impose judicially

7 enforceable duties on the ALJ”).

8 Further, the Court has no obligation to advance Plaintiff’s argument regarding the applicability of

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the subsection governing transferability for individuals of advanced age (20 C.F.R. 404.1568(d)(4), and

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its attendant requirement that the job to which the claimant’s skills transfer be “so similar to your previous

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work that you would need to make very little, if any, vocational adjustment in terms of tools, work

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13 processes, work settings, or the industry.”

14 The ALJ did not apply that subsection given Plaintiff was only 53 as of the date last insured.

15 Again, in doing so the ALJ seemingly disregarded the Commissioner’s Borderline Age Policy. Further,

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applying the “very little, if any, vocational adjustment” standard could easily have justified a different

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outcome when determining whether the transferable skills identified by the VE would facilitate such a

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seamless vocational adjustment as required by 20 C.F.R. 404.1568(d)(4). But for the reasons mentioned,

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the Court cannot remand on that basis and instruct the ALJ to apply that subsection in keeping with the

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21 Commissioner’s Borderline Age Policy. Plaintiff’s use of the “very little, if any, vocational adjustment”

22 language at the close of her brief, and citation to the relevant subsection, is not tantamount to an argument

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that the subsection in question should apply along with the more rigorous transferability standard.

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Applying the three factor transferable skills analysis set forth at 20 C.F.R. 404.1568(d)(2), given

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that Plaintiff’s work as an RN was substantially more skilled (SVP of 7) than the job of medical clerk

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(“Hospital Admitting Clerk”) with an SVP of 4, that both jobs fall within the Medical Services industry

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28 per the DOT, that the DOT job descriptions identify some overlapping duties as discussed above

(communication with patients and recording information), and that the VE testified as to skills that would

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transfer between the jobs (though not a model of specificity), on balance the Court concludes that the

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ALJ’s step five finding was supported by substantial evidence.

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5 VI. Order

6 For the reasons stated above, the Court finds that substantial evidence and applicable law

7 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from

8 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court

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is directed to enter judgment in favor of Defendant Kilolo Kijakazi, acting Commissioner of Social

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Security, and against Plaintiff Shelley Ann Sanguras.

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13 IT IS SO ORDERED.

14 Dated: June 22, 2023 /s/ Gary S. Austin

UNITED STATES MAGISTRATE JUDGE

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