1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE LUIS ROSAS CARO, CASE NO. EDCV 18-1012 AS 12 Plaintiff,

MEMORANDUM OPINION

13 v.

AND ORDER OF REMAND

14 ANDREW M. SAUL, Commissioner

of Social Security,1 15 Defendant. 16 17 For the reasons discussed below, IT IS HEREBY ORDERED that, 18 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 19 remanded for further administrative action consistent with this 20 Opinion. 21 22 PROCEEDINGS 23 24 On May 10, 2018, Plaintiff filed a Complaint seeking review 25 of the denial of his applications for Disability Insurance Benefits 26 1 Andrew M. Saul, Commissioner of Social Security, is 27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 28 1 and Supplemental Security Income. (Dkt. No. 1). The parties have 2 consented to proceed before the undersigned United States 3 Magistrate Judge. (Dkt. Nos. 11-13, 24-25). On August 28, 2018, 4 Defendant filed an Answer along with the Administrative Record 5 (“AR”). (Dkt. Nos. 16-17). The parties filed a Joint Stipulation 6 (“Joint Stip.”) on October 23, 2018, setting forth their respective 7 positions regarding Plaintiff’s claim. (Dkt. No. 18). 8 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE RECORD 10 11 On September 26, 2013, Plaintiff filed an application for 12 Disability Insurance Benefits (“DIB”), pursuant to Title II of the 13 Social Security Act (the “Act”), alleging a disability onset date 14 of November 12, 2011. (AR 216-22). The Commissioner denied 15 Plaintiff’s application initially and on reconsideration. (AR 75- 16 104). On March 24, 2016, Plaintiff filed an application for 17 Supplemental Security Income (“SSI”), pursuant to Title XVI of the 18 Act, also alleging a disability onset date of November 12, 2011. 19 (AR 232-39). On March 22, 2017, Plaintiff, represented by counsel, 20 testified at a hearing before Administrative Law Judge John Kays 21 (the “ALJ”).2 (AR 43-56). The ALJ also heard testimony from Eric 22 D. Schmitter, M.D., an impartial medical expert (“ME”), and David 23 24 25 26

27 2 Plaintiff testified with the assistance of an interpreter. (AR 45). 28 1 A. Rinehart, an impartial vocational expert (“VE”). (AR 47-51, 2 54-56).3 3 4 On April 18, 2017, the ALJ denied Plaintiff’s request for 5 benefits. (AR 26-36). Applying the five-step sequential process, 6 the ALJ found at step one that Plaintiff has not engaged in 7 substantial gainful activity since November 12, 2011, the alleged 8 onset date. (AR 28). At step two, the ALJ found that Plaintiff’s 9 obesity and degenerative joint disease of the left knee and status 10 post left knee arthroscopic surgery with chondroplasty of the 11 patella are severe impairments. (AR 28). At step three, the ALJ 12 determined that Plaintiff does not have an impairment or 13 combination of impairments that meet or medically equal the 14 severity of any of the listings enumerated in the regulations. (AR 15 30-31). 16 17 The ALJ then assessed Plaintiff’s residual functional capacity 18 (“RFC”)4 and concluded that he can perform a range of light work, 19 as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),5 except: 20 21 3 A hearing was initially held on February 9, 2016, but 22 was postponed to allow Plaintiff to obtain representation. (AR 26, 69-74). A second hearing was held on July 6, 2016, but was 23 continued to allow further development of the record. (AR 26, 57- 68). 24 25 4 The RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. 26 § 404.1545(a)(1). 27 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 28 10 pounds. Even though the weight lifted may be very little, a 1 [Plaintiff] can stand and/or walk for three to four hours 2 in an eight-hour workday with normal breaks; he can sit 3 without limitations with normal breaks; he is precluded 4 from kneeling with the left knee but stooping or crawling 5 can be done occasional [sic]; he can occasionally climb 6 ladders, ropes and scaffolds; he can frequently climb 7 ramps or stairs; and he can occasionally operate foot 8 pedals with the left lower extremity and is unrestricted 9 with the right lower extremity. 10 11 (AR 31). At step four, the ALJ found that Plaintiff is unable to 12 perform any past relevant work. (AR 34). Based on Plaintiff’s 13 RFC, age, education, work experience, and the VE’s testimony, the 14 ALJ determined at step five that there are jobs that exist in 15 significant numbers in the national economy that Plaintiff can 16 perform, including electronics worker and assembler of small 17 products. (AR 35-36). Accordingly, the ALJ found that Plaintiff 18 was not under a disability as defined in the Act from November 12, 19 2011, through the date of the decision. (AR 36). 20 21 The Appeals Council denied Plaintiff’s request for review on 22 March 8, 2018. (AR 6-13). Plaintiff now seeks judicial review of

23 job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some 24 pushing and pulling of arm or leg controls. To be considered 25 capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If 26 someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such 27 as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 28 1 the ALJ’s decision, which stands as the final decision of the 2 Commissioner. 42 U.S.C. §§ 405(g), 1383(c). 3 4 STANDARD OF REVIEW 5 6 This Court reviews the Commissioner’s decision to determine 7 if: (1) the Commissioner’s findings are supported by substantial 8 evidence; and (2) the Commissioner used proper legal standards. 42 9 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 10 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 11 “Substantial evidence is more than a scintilla, but less than a 12 preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 14 1997)). It is relevant evidence “which a reasonable person might 15 accept as adequate to support a conclusion.” Hoopai, 499 F. 3d at 16 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). To 17 determine whether substantial evidence supports a finding, “a court 18 must ‘consider the record as a whole, weighing both evidence that 19 supports and evidence that detracts from the [Commissioner’s] 20 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 21 2001) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 22 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” 23 can constitute substantial evidence). 24 25 This Court “may not affirm [the Commissioner’s] decision 26 simply by isolating a specific quantum of support evidence, but 27 must also consider evidence that detracts from [the Commissioner’s] 28 conclusion.” Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 1 (citation and internal quotation marks omitted). However, the 2 Court cannot disturb findings supported by substantial evidence, 3 even though there may exist other evidence supporting Plaintiff’s 4 claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). 5 “If the evidence can reasonably support either affirming or 6 reversing the [Commissioner’s] conclusion, [a] court may not 7 substitute its judgment for that of the [Commissioner].” Reddick, 8 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). 9 10 DISCUSSION 11 12 Plaintiff’s sole claim is that the ALJ failed to resolve the 13 apparent conflict between the VE’s testimony and the language 14 requirements described by the DOT. (Joint Stip. at 5-8, 13). After 15 consideration of the parties’ arguments and the record as a whole, 16 the Court finds that Plaintiff’s claim of error warrants remand 17 for further consideration. 18 19 A. The ALJ’s Step Five Determination Was Not Supported By 20 Substantial Evidence 21 22 Based on the VE’s testimony, the ALJ found that Plaintiff 23 could not perform his past relevant work as a heavy machine operator 24 but nevertheless found there are other jobs that exist in 25 significant numbers in the national economy that he can perform, 26 including electronics worker and assembler of small products. (AR 27 34-35; see id. 54-56). Plaintiff contends that the ALJ failed to 28 1 resolve an apparent conflict between the DOT and the VE’s testimony 2 regarding Plaintiff’s language skills. (Joint Stip. at 5-8, 13). 3 4 At step five of the sequential evaluation process, “the 5 Commissioner has the burden to identify specific jobs existing in 6 substantial numbers in the national economy that a claimant can 7 perform despite his identified limitations.” Zavalin v. Colvin, 8 778 F.3d 842, 845 (9th Cir. 2015) (citation omitted). In making 9 this finding, the ALJ determines “whether, given the claimant’s 10 RFC, age, education, and work experience, he actually can find some 11 work in the national economy.” Id. at 846 (citation omitted); see 12 also 20 C.F.R. § 404.1520(g) (“we will consider [your RFC] together 13 with your vocational factors (your age, education, and work 14 experience) to determine if you can make an adjustment to other 15 work”). The Commissioner may meet this burden by adopting the 16 testimony of a VE or by reference to the Grids. Osenbrock v. 17 Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). “In making this 18 determination, the ALJ relies on the [Dictionary of Occupational 19 Titles (DOT)], which is the [Agency’s] primary source of reliable 20 job information regarding jobs that exist in the national economy.” 21 Zavalin, 778 F.3d at 845–46 (citation omitted); see 20 C.F.R. 22 § 404.1566(d)(1) (noting that the Agency “will take administrative 23 notice of reliable job information available from various 24 governmental and other publications,” including the DOT); SSR 00- 25 4p, at *2 (“In making disability determinations, [the Agency 26 relies] primarily on the DOT . . . for information about the 27 requirements of work in the national economy.”). 28 1 The VE’s occupational testimony should be consistent with the 2 DOT. SSR 00-4p, at *2. “When a VE . . . provides evidence about 3 the requirements of a job or occupation, the [ALJ] has an 4 affirmative responsibility to ask about any possible conflict 5 between that VE . . . evidence and information provided in the 6 DOT.” Id. at *4. “For a difference between [the VE’s] testimony 7 and the [DOT’s] listings to be fairly characterized as a conflict, 8 it must be obvious or apparent.” Gutierrez v. Colvin, 844 F.3d 9 804, 808 (9th Cir. 2016). When there is an apparent conflict 10 between the VE’s testimony and the DOT, “[n]either the DOT nor the 11 VE . . . evidence automatically ‘trumps.’” SSR 00-4p, at *2. In 12 such a situation, the Commissioner has an affirmative duty to 13 resolve the conflict -- for example, by eliciting a reasonable 14 explanation from the VE -- before relying on the affected portion 15 of the VE’s testimony in support of a disability determination. 16 Id.; see Zavalin, 778 F.3d at 846; Massachi v. Astrue, 486 F.3d 17 1149, 1153-54 (9th Cir. 2007). “The ALJ’s failure to resolve an 18 apparent inconsistency may leave [the court] with a gap in the 19 record that precludes [the court] from determining whether the 20 ALJ’s decision is supported by substantial evidence.” Zavalin, 21 778 F.3d at 846. 22 23 The ALJ found that Plaintiff “is not able to communicate in 24 English, and is considered in the same way as an individual who is 25 illiterate in English.” (AR 35) (citing 20 C.F.R. §§ 404.1564, 26 416.964). “Because English is the dominant language of the 27 country, it may be difficult for someone who doesn’t speak and 28 understand English to do a job, regardless of the amount of 1 education the person may have in another language.” 20 C.F.R. 2 §§ 404.1564(b)(5), 416.964(b)(5). The Agency’s regulations 3 “consider someone illiterate if the person cannot read or write a 4 simple message such as instructions or inventory lists even though 5 the person can sign his or her name.” 20 C.F.R. §§ 404.1564(b)(1), 6 416.964(b)(1). Defendant argues that “‘[w]hile illiteracy or the 7 inability to communicate in English may significantly limit an 8 individual’s vocational scope, the primary work functions in the 9 bulk of unskilled work relate to working with things (rather than 10 data or people) and in those work functions at the unskilled level, 11 literacy or ability to communicate in English has the least 12 significance.’” (Joint Stip. at 10) (quoting 20 C.F.R. pt. 404, 13 subpt. P, app. 2, § 202.00(g)). This regulation, however, applies 14 only to the Grids, which the ALJ found are not applicable here. 15 (AR 35). 16 17 Plaintiff’s RFC did not include the ALJ’s language finding. 18 (AR 31). Moreover, the two occupations identified by the VE -- 19 electronics worker (DOT 726.687-010) and assembler of small 20 products (DOT 706.684-022) -- are both classified as language level 21 2 positions. DICOT 726.687-010, 1991 WL 679633; DICOT 706.684- 22 022, 1991 WL 679050. Unlike a language level 1 position, which 23 requires only that the employee be able to speak and write simple 24 sentences, a language level 2 position requires the employee to 25 read at a rate of 190 words per minute, write compound and complex 26 sentences properly, and speak clearly and distinctly with correct 27 28 1 pronunciation.6 DICOT, App. C., 1991 WL 688702. The ALJ had an 2 affirmative duty to inquire about any possible conflicts between 3 the VE’s testimony and the information provided in the DOT, see 4 SSR 00-4p, which he failed to do here. (AR 54-56). Further, an 5 obvious and apparent conflict exists between the language-level 6 requirements of the electronics worker and the small products 7 assembler positions and the ALJ’s finding that Plaintiff is 8 illiterate and unable to communicate in English. See generally 9 Diaz v. Berryhill, No. 17 CV 4216, 2018 WL 1187530, at *6 (C.D. 10 Cal. Mar. 7, 2018) (“A plain reading of the DOT’s language level 1 11 definition requires language ability more advanced than someone 12 who cannot speak English.”). 13 14 Defendant contends that Plaintiff “conceded . . . that he 15 could speak and understand English” and “had nearly 15 years of 16 work experience in a skilled, language level 2 occupation thus 17 demonstrating that his language skills are not work-prohibitive.” 18 (Joint Stip. at 10, 11). However, the Court is “constrained to 19 review the reasons the ALJ asserts.” Connett v. Barnhart, 340 F.3d 20 871, 874 (9th Cir. 2003) (citing Sec. & Exch. Comm’n v. Chenery 21 Corp., 332 U.S. 194, 196 (1947)). The court “review[s] only the 22 reasons provided by the ALJ in the disability determination and 23 6 Defendant asserts that the VE also identified hand 24 packager as an occupation that Plaintiff can perform, which 25 requires only language level 1 skills. (Joint Stip. at 10-11). But the hand packager is a medium job, and the ALJ found Plaintiff 26 able to perform only light-level work. (AR 31). Thus, the ALJ found Plaintiff capable of performing only the electronics worker 27 and assembler of small products positions, not the hand packager occupation. (AR 35). 28 1 may not affirm the ALJ on a ground upon which he did not rely.” 2 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). Here, the 3 ALJ explicitly found that Plaintiff “is not able to communicate in 4 English, and is considered the same way as an individual who is 5 illiterate in English” (AR 35), which appears to conflict with the 6 jobs identified by the VE. Thus, an apparent conflict existed 7 between Plaintiff’s ability to communicate in English and the DOT, 8 which the ALJ failed to resolve. See Diaz, 2018 WL 1187530, at *6 9 (“Numerous cases . . . have found error in similar circumstances.”) 10 (collecting cases). Accordingly, the ALJ’s step-five decision was 11 not supported by substantial evidence and remand is required. 12 13 B. Remand Is Warranted 14 15 The decision whether to remand for further proceedings or 16 order an immediate award of benefits is within the district court’s 17 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 18 2000). Where no useful purpose would be served by further 19 administrative proceedings, or where the record has been fully 20 developed, it is appropriate to exercise this discretion to direct 21 an immediate award of benefits. Id. at 1179 (“[T]he decision of 22 whether to remand for further proceedings turns upon the likely 23 utility of such proceedings.”). However, where, as here, the 24 circumstances of the case suggest that further administrative 25 review could remedy the Commissioner’s errors, remand is 26 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 27 Harman, 211 F.3d at 1179-81; see also Garrison, 759 F.3d at 1020 28 (cautioning that “the credit-as-true rule may not be dispositive 1 of the remand question in all cases”); cf. Treichler v. Comm’r of 2 Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“[T]he 3 record raises crucial questions as to the extent of Treichler’s 4 impairment given inconsistencies between his testimony and the 5 medical evidence in the record. These are exactly the sort of 6 issues that should be remanded to the agency for further 7 proceedings.”). 8 9 Since the ALJ failed to properly evaluate an apparent conflict 10 between the VE’s testimony and the DOT, the ALJ’s decision is not 11 supported by substantial evidence. However, if the ALJ addresses 12 this conflict, the record does not affirmatively establish that 13 Plaintiff is disabled. Remand is therefore appropriate. 14 15 ORDER 16 17 For the foregoing reasons, the decision of the Commissioner 18 is reversed, and the matter is remanded for further proceedings 19 pursuant to Sentence 4 of 42 U.S.C. § 405(g). 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 DATED: August 6, 2019 23 /S/ _________

ALKA SAGAR

24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28