FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUSAN LESLIE MAXWELL, No. 18-35992
Plaintiff-Appellant,
D.C. No.
v. 6:17-cv-01083-
JR
ANDREW M. SAUL, Commissioner of
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 November 7, 2019
Portland, Oregon
Filed August 24, 2020
Before: Ronald Lee Gilman, * Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Paez
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 MAXWELL V. SAUL
SUMMARY **
Social Security
The panel affirmed in part, and reversed in part, the
district court’s decision affirming the denial of claimant’s
application for disability insurance benefits and
supplemental security income under Titles II and XVI of the
Social Security Act.
An administrative law judge (“ALJ”) found claimant not
disabled because she could perform two occupations that
existed in significant numbers in the economy.
Claimant argued that the identification of two
occupations was insufficient to satisfy the “significant range
of work” requirement of the Medical-Vocational Guidelines
of 20 C.F.R. pt. 404, subpt. P, app 2, Rules 202.00(c),
202.07.
The panel rejected the Commissioner of Social
Security’s contention that claimant forfeited any challenge
to the ALJ’s finding that she was not disabled by failing to
raise before the ALJ or Appeals Council the issue of
significant range of work.
The panel held that two occupations did not constitute a
“significant range of work,” and were insufficient to satisfy
Rule 202.00(c)’s requirement. The panel held further that
because claimant’s skills were readily transferrable to only
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MAXWELL V. SAUL 3
two occupations, the ALJ erred in concluding that she was
not disabled. The panel reversed in part and remanded with
instructions for calculation and payment of benefits for the
period after claimant reached 55 years of age.
The panel affirmed the district court’s disability
determination as to the period before claimant reached the
age of 55.
COUNSEL
Alyson R. Young (argued) and Merrill Schneider, Schneider
Kerr & Robichaux, Portland, Oregon, for Plaintiff-
Appellant.
Lars J. Nelson (argued), Assistant Regional Counsel;
Mathew W. Pile, Acting Regional Chief Counsel, Seattle
Region X; Renata Gowie, Assistant United States Attorney;
Office of the General Counsel, Social Security
Administration, Seattle, Washington; for Defendant-
Appellee.
OPINION
PAEZ, Circuit Judge:
Susan Maxwell appeals the denial of her application for
disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act.
An Administrative Law Judge (“ALJ”) found Maxwell not
disabled because she could perform two occupations that
existed in significant numbers in the economy. On appeal,
Maxwell argues that the identification of two occupations is
4 MAXWELL V. SAUL
insufficient to satisfy the “significant range of work”
requirement of the Medical–Vocational Guidelines. See
20 C.F.R. pt. 404, subpt. P, app. 2, Rules 202.00(c), 202.07. 1
We agree and hold that two occupations do not constitute a
“significant range of work.” Because Maxwell’s skills were
readily transferrable to only two occupations, the ALJ erred
in concluding that she was not disabled. Accordingly, we
reverse in part and remand with instructions for calculation
and payment of benefits for the period after Maxwell
reached 55 years of age.
I.
Maxwell was born on December 27, 1957. Throughout
her life, she worked as a car salesperson, business owner,
liquor-store cashier, and tradeshow salesperson. After
suffering a head injury, she filed for disability benefits,
alleging disability beginning on December 6, 2011, when
she was just shy of 54 years old. The Social Security
Administration denied her claim.
Maxwell sought review by an ALJ, during which time
she turned 55 years old. The ALJ found that Maxwell
suffered severe impairments, possessed the residual
functional capacity to perform only “a reduced range of light
work,” and was unable to perform any past relevant work.
At the ALJ hearing, a vocational expert (“VE”) testified that
Maxwell had acquired from her prior work the transferable
skill of “merchandising sales.” The VE determined that
Maxwell could perform only two occupations with this
1
Maxwell also challenges the ALJ’s transferable-skill
determination. Because we reverse and remand for payment of benefits
on the ground that two occupations do not constitute a “significant range
of work,” we do not reach this alternate argument.
MAXWELL V. SAUL 5
transferable skill, “sales representative, commercial
equipment and supplies” and “sales person, burial needs.”
The ALJ accepted the VE’s testimony and issued a decision
concluding that Maxwell was not disabled.
Maxwell sought review by the Appeals Council, which
was denied, and then sought judicial review in the district
court. A magistrate judge issued findings and a
recommendation to affirm the ALJ decision, which the
district court adopted.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review de novo the decision of the district court affirming
the decision of the ALJ.” Tackett v. Apfel, 180 F.3d 1094,
1097 (9th Cir. 1999). “We may set aside a denial of benefits
only if it is not supported by substantial evidence or is based
on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006); see also 42 U.S.C. § 405(g).
III.
An ALJ must employ a five-step sequential process to
determine whether a claimant is disabled within the meaning
of the Social Security Act. 2 20 C.F.R. § 404.1520(a)(4).
2
The five-step process requires the ALJ to determine: (1) whether
the claimant is “presently working in a substantially gainful activity”;
(2) whether the claimant’s impairment is “severe”; (3) whether “the
impairment ‘meet[s] or equal[s]’ one of a list of specific impairments
described in the [Social Security] [R]egulations”; (4) whether the
claimant is “able to do any work that he or she has done in the past”; and
(5) whether the claimant is able to do any other work. Tackett, 180 F.3d
at 1098–99; see also C.F.R. § 404.1520. “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, 180 F.3d at 1098. At steps one
6 MAXWELL V. SAUL
Only the ALJ’s step-five determination is at issue on appeal.
Maxwell contends that the ALJ failed to identify a
“significant range of work” within her functional capacity.
The Commissioner counters that Maxwell forfeited her
argument by failing to raise it below. We first address
forfeiture and then the merits of Maxwell’s appeal.
A.
The Commissioner contends that “Maxwell forfeited any
challenge to the ALJ’s finding that she was not disabled” by
failing to raise before the ALJ and the Appeals Council “the
issue of whether commercial equipment and burial needs
salespersons constitute a significant range of work[.]” We
disagree.
Maxwell could not have challenged the ALJ’s disability
determination before the ALJ; to require such a feat would
be, as Maxwell argues, “to task claimants with objecting to
the ALJ’s decision before it is written.” As to the Appeals
Council, Maxwell contested the ALJ’s disability
determination generally and the step-five conclusion
specifically. Moreover, Maxwell’s challenge to the meaning
of “significant range of work” does not require us “to weigh
conflicting evidence,” the kind of task best suited to the
agency and ALJ. Shaibi v. Berryhill, 883 F.3d 1102, 1109
(9th Cir. 2017), as amended (Feb. 28, 2018). Rather,
Maxwell raises a “pure question of law, and the
Commissioner had the opportunity to respond to the
argument on appeal.” Silveira v. Apfel, 204 F.3d 1257, 1260
through four, the claimant retains the burden of proof; at step five, the
burden shifts to the Commissioner. Id.
MAXWELL V. SAUL 7
n.8 (9th Cir. 2000) (per curiam). Accordingly, we turn to the
merits of Maxwell’s claim.
B.
At step five of the sequential process, the agency may
meet its burden either “(1) by the testimony of a vocational
expert, or (2) by reference to the Medical–Vocational
Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Tackett,
180 F.3d at 1099. The Medical–Vocational Guidelines, or
“the grids,” are a “short-hand method for determining the
availability and numbers of suitable jobs for a claimant.” Id.
at 1101. Based on a claimant’s functional capacity, age,
education, and work experience, the grids direct a
determination that the claimant is either “disabled” or “not
disabled.” Id. “Where a claimant suffers from both
exertional and non-exertional limitations, the ALJ must
consult the grids first.” Lounsburry v. Barnhart, 468 F.3d
1111, 1115 (9th Cir. 2006), as amended (Nov. 7, 2006).
“[W]here application of the grids directs a finding of
disability, that finding must be accepted by the Secretary.”
Cooper v. Sullivan, 880 F.2d 1152, 1157 (9th Cir. 1989).
Because Maxwell is limited to light work, has reached
“advanced age” (55 years and older), can no longer perform
her past relevant work, and has a transferable skill, grid Rule
202.07 governs her case, as the ALJ correctly determined.
See 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.07.
Footnote 2 to Rule 202.07 directs, however, that Rule
202.00(c) also governs whether a claimant like Maxwell is
disabled. See Lounsburry, 468 F.3d at 1116.
Rule 202.00(c) provides:
[F]or individuals of advanced age who can no
longer perform vocationally relevant past
8 MAXWELL V. SAUL
work and . . . who have only skills that are not
readily transferable to a significant range of
semi-skilled or skilled work that is within the
individual’s functional capacity, . . . the
limitations in vocational adaptability
represented by functional restriction to light
work warrant a finding of disabled.
20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(c)
(emphasis added). In other words, if such a claimant’s skills
are not readily transferable to a “significant range of . . .
work,” the ALJ must find her disabled. Rule 202.00(c)
recognizes “that the most difficult problem that a claimant
such as [Maxwell] faces is that of adapting to a new job.”
Cooper, 880 F.2d at 1157.
Here, the VE testified that Maxwell’s skills were
transferable to only two occupations. The critical issue,
then, is whether two occupations can constitute a
“significant range of work” under Rule 202.00(c).
In Lounsburry, we analyzed “the meaning of the phrase
‘significant range of work.’” 468 F.3d at 1117. In that case,
the VE identified only one occupation that the claimant
could pursue. Id. Thus, we were tasked with deciding
whether one occupation could constitute a “significant range
of work.” We concluded that it could not. We reasoned, in
part, that because Social Security Ruling 83-10 “defines the
phrase, ‘Range of Work,’ as: ‘All or substantially all
occupations existing at an exertional level,’” a sole
occupation could not possibly constitute a “range.” Id.
Accordingly, we held that “the phrase ‘significant range of
. . . work’ in Rule 202.00(c) . . . require[s] a significant
number of occupations.” Id. (emphasis added). We did not
MAXWELL V. SAUL 9
decide the exact number of occupations required to
constitute a “significant range.”
Following Lounsburry’s approach, we now hold that two
occupations do not constitute a “significant range of work.”
A “range” necessarily requires more than one occupation.
Id.; see also Merriam Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/range (defining
“range” as a “series . . . between limits”). Since a “range”
requires more than one occupation, a “significant range”
must require more than two; to interpret “significant range”
to mean only “range” would nullify the concept of
“significant.” Lounsburry, 468 F.3d at 1117; see also
Merriam Webster Dictionary, available at
https://www.merriam-webster.com/dictionary/significant
(defining “significant” as “a noticeably or measurably large
amount”). We decline to adopt a bright-line rule for the
number of occupations required to constitute a “significant
range.” We hold only that two occupations are insufficient
and that “a significant number of occupations” are required.
Lounsburry, 468 F.3d at 1117.
The Commissioner counters that because “the
occupations at issue here represent numerous jobs,” the
ALJ’s identification of two occupations satisfies the
significant range of work requirement. We considered and
rejected that argument in Lounsburry:
The Commissioner takes the position that the
term “work” refers to individual jobs, and the
phrase “significant range” only requires
Lounsburry to adjust to other work existing
in significant numbers in the national
economy in one or more occupations.
However, the term “work” under Rule
202.00(c) means distinct occupations, and
10 MAXWELL V. SAUL
“significant numbers” is no substitute for and
cannot satisfy the plain language of Rule
202.00(c) requiring a “significant range of
. . . work.”
Id. (emphasis in original). We see no reason to diverge from
that reasoning here. 3
In sum, our reasoning in Lounsburry dictates the result
here: The identification of two occupations cannot satisfy the
“significant range of work” requirement of Rule 202.00(c).
Accordingly, the ALJ’s conclusion that Maxwell was not
disabled under Rule 202.07 is erroneous as a matter of law.
We reverse.
C.
We remand with instructions for the payment of benefits
for the period after Maxwell reached 55 years of age. 4
“[T]he record has been fully developed and further
administrative proceedings would serve no useful purpose.”
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The
3
Nor do we find persuasive the Commissioner’s argument that,
because the vocational testimony in Lounsburry differed in certain
respects from the testimony here, its reasoning should not apply to this
case. See Cooper, 880 F.2d at 1157 (“[W]here application of the grids
directs a finding of disability, that finding must be accepted by the
Secretary. That is so whether the impairment is exertional or results from
a combination of exertional and nonexertional limitations.”).
4
Maxwell was not disabled in the period before she reached age 55,
as her counsel conceded at argument. See Oral Arg. at 8:20–8:53; see
also 20 C.F.R. pt. 404, subpt. P, app. 2, Rule 202.15 (directing that a
claimant “closely approaching advanced age” is not disabled).
Accordingly, Maxwell is not entitled to benefits for the period prior to
age 55.
MAXWELL V. SAUL 11
VE concluded that there were precisely two occupations
Maxwell could pursue. Thus, there is no need for further
factfinding as to whether Maxwell could pursue more than
two occupations and, accordingly, there is no “serious doubt
that [Maxwell] is, in fact, disabled.” Id. at 1021. As in
Lounsburry, “the ALJ committed legal error because Rule
202.00(c) of the Medical–Vocational Guidelines, as applied
to the ALJ’s uncontested findings of fact, directs as a matter
of law a determination that [Maxwell] is disabled.” 468 F.3d
at 1112.
IV.
We hold that the identification of two occupations is
insufficient to satisfy the “significant range of work”
requirement of Rule 202.00(c). We affirm the district
court’s disability determination as to the time period before
Maxwell reached the age of 55 and reverse as to the period
after Maxwell turned 55 years old, with instructions that the
case be remanded for the award of benefits for this period.
Plaintiff-Appellant shall recover her costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.