Jeffery Barnes v. Nancy Berryhill

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).