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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

10 11 12 JACOB RENE PADILLA, Case No. 1:19-cv-01469-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER

REGARDING PLAINTIFF’S SOCIAL

14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL

SECURITY,

16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding his 21 application for Supplemental Security Income. The parties have consented to entry of final 22 judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with 23 any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 8). 24 At a hearing on August 27, 2020, the Court heard from the parties and, having reviewed 25 the record, administrative transcript, the briefs of the parties, and the applicable law, finds as 26 follows: 27 \\\ 28 \\\ 2 Opinion 3 Plaintiff first challenges the decision by the ALJ on the ground that the ALJ erred in 4 failing to provide a germane reason for disregarding lay witness testimony. 5 According to the Ninth Circuit, “[i]n determining whether a claimant is disabled, an ALJ 6 must consider lay witness testimony concerning a claimant's ability to work.” Stout v. 7 Comm'r, 454 F.3d 1050, 1053 (9th Cir.2006); see also 20 C.F.R. §§ 404.1513(d)(4), (e). Such 8 testimony is competent evidence and “cannot be disregarded without comment.” Nguyen v. 9 Chater, 100 F.3d 1462, 1467 (9th Cir.1996). If an ALJ disregards the testimony of a lay witness, 10 the ALJ must provide reasons “that are germane to each witness.” Id. Further, the reasons 11 “germane to each witness” must be specific. Stout, 454 F.3d at 1054 (explaining that “the ALJ, 12 not the district court, is required to provide specific reasons for rejecting lay testimony”) 13 (emphasis added). 14 Plaintiff points to testimony from Plaintiff’s mother that Mr. Padilla has difficulty 15 following instructions, difficulty staying on task, and does not follow orders. A.R. 66-68. 16 Plaintiff also notes that the vocational expert testified that no work would be available for an 17 individual of Plaintiff’s age, lack of work history, and residual functional capacity if such a 18 person also needed reminders to stay “on task” every 30 minutes. (A.R. 70-71). 19 The ALJ summarized Ms. Padilla’s testimony, including that “she would not hire him as a 20 janitor to clean her office at night because he did not follow orders.” (A.R. 26). However, the 21 ALJ did not specifically address Ms. Padilla’s testimony in the remainder of the order. The ALJ 22 did not give any reason for discounting Ms. Padilla’s opinion that Plaintiff did not follow orders. 23 The Commissioner concedes that the ALJ erred in not providing any reasons for 24 disregarding Ms. Padilla’s testimony.1 However, the Commissioner argues that such error was 25 1 The Commissioner argues in a footnote that the ALJ’s statement that he found “the claimant’s statements 26 concerning the intensity, persistence and limited effects of those symptoms not entirely consistent with the medical evidence and other evidence in the record,” should suffice because it was stated after the ALJ summarized the 27 testimony of both Claimant and Ms. Padilla. The Court disagrees. A boilerplate and vague statement about another person’s testimony, which does not address the specific opinion at issue, does not satisfy the Ninth Circuit’s 28 requirement to provide specific reasons for rejecting lay testimony. 2 alleged, and the ALJ adequately addressed reasons for giving Mr. Padilla’s testimony limited 3 weight. The Commissioner points to the Ninth Circuit’s holding in Molina v. Astrue, 674 F.3d 4 1104 (9th Cir. 2012) that: 5 We have not, however, required the ALJ to discuss every witness's testimony on a 6 individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons 7 for rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting similar testimony by a different witness. The applicable 8 regulations are in accord; they require the ALJ to consider testimony from family and friends submitted on behalf of the claimant, see 20 C.F.R. §§ 404.1529(c)(3), 9 404.1545(a)(3), but do not require the ALJ to provide express reasons for rejecting 10 testimony from each lay witness . . . .

11 Id. at 1114. (internal citations omitted). See also Valentine v. Commissioner Social Sec. Admin., 12 574 F.3d 685, 694 (9th Cir. 2009) (“Mrs. Valentine's testimony of her husband's fatigue was 13 similar to Valentine's own subjective complaints. Unsurprisingly, the ALJ rejected this evidence 14 based, at least in part, on ‘the same reasons [she] discounted[Valentine's] allegations.’ In light of 15 our conclusion that the ALJ provided clear and convincing reasons for rejecting Valentine's own 16 subjective complaints, and because Ms. Valentine's testimony was similar to such complaints, it 17 follows that the ALJ also gave germane reasons for rejecting her testimony.”). 18 Here, however, the Plaintiff did not provide “similar” testimony because he did not testify 19 as to whether he had trouble following directions. Similarly, none of the reasons given by the 20 ALJ for discounting Plaintiff’s testimony addressed this point. 21 The Court thus remands to the ALJ to consider Ms. Padilla’s testimony, especially 22 regarding her opinion that Plaintiff has difficulty following instructions, difficulty staying on task, 23 and does not follow orders. A.R. 66-68. 24

II. Whether the ALJ Failed to Resolve an Apparent Conflict Between Vocational

25 Expert Testimony and the Dictionary of Occupational Titles 26 Plaintiff next argues that the ALJ failed to recognize and resolve the apparent conflict 27 between the vision capability required by the jobs the vocational expert opined Plaintiff could 28 2 Circuit decision of Zavalin v. Colvin, 778 F.3d 842(9th Cir. 2015), which held: 3 When there is an apparent conflict between the vocational expert's testimony and 4 the DOT—for example, expert testimony that a claimant can perform an 5 occupation involving DOT requirements that appear more than the claimant can handle—the ALJ is required to reconcile the inconsistency. Massachi v. 6 Astrue, 486 F.3d 1149, 1153–54 (9th Cir.2007). The ALJ must ask the expert to explain the conflict and “then determine whether the vocational expert's 7 explanation for the conflict is reasonable” before relying on the expert's testimony 8 to reach a disability determination. Id.; see also Social Security Ruling 00–4P, 2000 WL 1898704, at *2 (Dec. 4, 2000). The ALJ's failure to resolve an apparent 9 inconsistency may leave us with a gap in the record that precludes us from determining whether the ALJ's decision is supported by substantial 10 evidence. See Massachi, 486 F.3d at 1154 (stating that “we cannot determine 11 whether the ALJ properly relied on [the vocational expert's] testimony” due to unresolved occupational evidence). 12 13 Id. at 846. 14 Here, the ALJ’s residual functional capacity determination limits Plaintiff to work 15 involving no depth perception and “large print or larger written materials.” (A.R. 25). However, 16 the jobs proffered by the vocational expert all require “near acuity vision at 20 inches or less for 17 up to two-thirds of the workday). Plaintiff claims that this is an apparent conflict which requires 18 reconciliation by the ALJ. 19 The Commissioner responds that there is no conflict. It points to the definition of near 20 acuity as “clarity of vision at 20 inches or less.” U.S. Dep’t of Labor, Selected Characteristics of 21 Occupations Defined in the Revised Dictionary of Occupational Titles (1993), Appendix C. The 22 Commissioner argues that “[a]n inability to read small print is not the same things as an inability 23 to see objects within 20 inches of one’s face.” (ECF No. 14, at p. 9). 24 The Commissioner also points to cases in other courts finding no inconsistency between 25 limitations regarding the size of print and jobs that require near visual acuity. See, e.g., Bellamy 26 v. Commissioner of Social Security 734 Fed.Appx. 735, 737 (11th Cir. 2018) (unpublished) 27 (“Given that the ALJ did not find that Bellamy has a limited capacity to see close objects and that 28 the DOT does not indicate that a marker must be able to read smaller than 12-point print, we 2 marker occupation.”); Johns v. U.S. Com'r Social Sec. Admin., No. CIV.A. 07-CV-1566, 2008 3 WL 3876250, at *3 (W.D. La., Aug. 19, 2008) (“It is also notable that the RFC did not define the 4 limitations at issue as permitting frequent, occasional, or other amounts of near visual acuity, 5 which Plaintiff refers to as employed in Selected Characteristics. Rather, the RFC defined the 6 limitations with more task-oriented descriptions such as the ability to read large print but not fine 7 print. The ALJ, under these circumstances, obtained reliable evidence that is not squarely in 8 conflict with the DOT and that was explained to be based on other experiences.”). 9 Furthermore, while the Commissioner concedes that “a garment sorter might need to read 10 smaller print, since the Dictionary defines its duties to include sorting garments ‘according to a 11 lot and size numbers recorded on tags and labels attached to garments,’” that “the other two 12 occupations, counter attendant and dry cleaner, represented 180,000 jobs nationwide.” (ACF No. 13 14, at p. 9). 14 In reply, Plaintiff argues that even the remaining positions require reading small print. 15 According to the DOT, a dry cleaner must “examine garment for soil and determine type of soil” 16 and “a counter attendant must be able to “itemize and total checks for service.” DOT code 17 311.477-014. 18 While the Court appreciates that limitations regarding print size do not necessarily 19 contradict requirements for near visual acuity, they are related issues. The Court notes that the 20 ALJ imposed this limitation in the RFC after receiving opinions regarding Plaintiff’s visual 21 acuity, noting that one examination revealed “His visual acuity with both eyes (and his left eye) 22 was 20/70.” (A.R. 29). Moreover, the ALJ gave substantial weight to the opinion of Dr. Damania 23 who gave the opinion that “[d]ue to right-eye blindness and central visual acuity of 20/70 in the 24 left eye, the claimant was limited to tasks requiring gross vision only. He was limited in depth 25 perception, near acuity, and far acuity.” (A.R. 34, emphasis added). This record suggests that 26 the limitation of print size in this RFC was related to limitations in visual acuity, including near 27 visual acuity, for Mr. Padilla. Thus, while the two concepts may not always be related, they 28 appear to be related in discussing Mr. Padilla’s own impairments. WOAOe 4-40 VV ETF NS MMC IR IIe OY VY 1 Under these circumstances, remand for additional consideration and explanation regarding 2 | this potential inconsistency from the vocational expert is warranted. 3 Ti. Conclusion 4 For the foregoing reasons, the Court finds that the ALJ erred in failing to provide germane 5 || reasons to disregarding the testimony of Ms. Padilla, especially regarding Mr. Padilla’s inability 6 | to follow instructions. Additionally, the ALJ erred in failing to reconcile the apparent conflict 7 | between the vocational expert’s testimony and the DOT as discussed above. 8 The Court thus reverses the decision of the Commissioner and remands this matter for 9 | further consideration consistent with this opinion. 10 Wl IT IS SO ORDERED. 12 | Dated: _ September 2, 2020 □□□ hey — 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28