Rolando Hernandez v. Martin O'Malley, No. 2:2023cv00651 - Document 17 (C.D. Cal. 2024)
Court Description: MEMORANDUM OPINION AND ORDER VACATING AGENCY DECISION by Magistrate Judge Patricia Donahue, Accordingly, for all the reasons stated above, the Court finds that the ALJ's decision is not free of legal error or supported by substantial evidence and is therefore VACATED. The case is remanded on an open record. A separate judgment will issue. (es)
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Rolando Hernandez v. Martin O&#039;Malley Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROLANDO H., on behalf of IZA S., 12 Plaintiff, 13 14 15 v. Case No. 2:23-cv-00651-PD MEMORANDUM OPINION AND ORDER VACATING AGENCY DECISION MARTIN O’MALLEY, COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 20 Plaintiff challenges the denial of her application for Social Security Disability Insurance Benefits and Supplemental Security Income Benefits. For the reasons stated below, the decision of the Administrative Law Judge is 21 vacated, and the Court remands this matter on an open record for further 22 proceedings. 1 23 24 25 26 27 28 1 Plaintiff Iza S. passed away in July 2021, and her husband Rolando H. filed a Substitution of Party Upon the Death of the Claimant. [AR 21, 616-19.] Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Fed. R. Civ. P. 25(d), Martin O’Malley is substituted for Kilolo Kijakazi as the defendant in this action. Dockets.Justia.com 1 I. Pertinent Procedural History and Disputed Issues On June 13, 2013, Plaintiff applied for a period of disability, disability 2 3 insurance benefits, and supplemental security income, alleging that she 4 became disabled on February 14, 2012. [Administrative Record (“AR”) AR 5 629-36.] 2 The applications were denied initially on September 30, 2013. [AR 6 112-20.] On December 18, 2014, a hearing was held before an Administrative 7 Law Judge (“ALJ”). [AR 91-110.] On January 20, 2015, the ALJ issued a 8 decision denying Plaintiff’s claims. [AR 112-20, 131-48.] On February 25, 9 2015, Plaintiff filed a request for review with the Appeals Council. [AR 285- 10 86.] On June 17, 2016, the Appeals Council granted Plaintiff’s request for 11 review and remanded the case to the ALJ to reconsider the record and issue a 12 new decision. [AR 153-58.] On August 2, 2017, a second hearing was held before a different ALJ. 13 14 [AR 67-90.] On September 26, 2017, the second ALJ issued a decision denying 15 Plaintiff’s claims. [AR 159-81.] On November 28, 2017, Plaintiff filed a 16 second request for review with the Appeals Council. [AR 365-69.] On June 17 30, 2020, the Appeals Council granted the request for review and remanded 18 the case to an ALJ for a third hearing on the matter. [AR 213-19.] In July 19 2021, Plaintiff passed away. [AR 21.] On February 28, 2022, a third hearing was conducted by a different 20 21 ALJ. Plaintiff’s husband and her counsel were present and the third ALJ 22 heard testimony from a medical expert, Dr. Arnold Ostrow, and a vocational 23 expert. [AR 49-66.] On March 15, 2022, the ALJ issued a decision finding 24 that Plaintiff was not disabled. [AR 19-40.] The Appeals Council denied 25 Plaintiff’s request for review on November 29, 2022, rendering the ALJ’s 26 decision the final decision of the Commissioner. [AR 1-8.] 27 28 2 The Administrative Record is CM/ECF Docket Numbers 9-3 through 9-17. 2 The ALJ followed the five-step sequential evaluation process to assess 1 2 whether Plaintiff was disabled under the Social Security Act. Lester v. 3 Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by 4 regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022); 5 20 C.F.R. § 416.920(a). At step one, the ALJ found that Plaintiff had not 6 engaged in substantial gainful activity since February 14, 2012, the alleged 7 onset date. [AR 23 ¶ 2.] At step two, the ALJ found that Plaintiff had the 8 following severe impairments: type II diabetes mellitus with hyperglycemia 9 and neuropathy, right carpal tunnel syndrome, degenerative disc disease of 10 the lumbar spine, hypertension, coronary artery disease status post ST- 11 elevated myocardial infarction and primary PCI mid distal RCA with DES 12 and inferior posterior STEMI, and obesity. [AR 24 ¶ 3.] The ALJ found that 13 these impairments significantly limit the ability to perform basic work 14 activities. [AR 24.] At step three, the ALJ found that Plaintiff does “not have 15 an impairment or combination of impairments that meets or medically equals 16 the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 17 Appendix 1.” [AR 26 ¶ 4.] Before proceeding to step four, the ALJ determined that Plaintiff had 18 19 the Residual Functional Capacity (“RFC”) to perform light work as defined in 20 20 C.F.R. § 404.1567(b) 3 and 416.967(b) with the following limitations: 21 22 23 24 25 26 27 28 3 “Light work” is defined as follows: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a 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 pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. 20 C.F.R. § 404.1567(b). 3 1 except with fluency, but not literacy, in English and the ability to lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk/sit 6 hours in an 8 hour workday; never reach the bilateral upper extremities above shoulder height; no more than occasionally push and pull in all other directions bilaterally; frequent handling, feeling, fingering bilaterally; no more than occasionally operate foot controls bilaterally; no more than occasionally perform postural activities, but never climb ladder/rope/scaffolds; and never work around unprotected heights or heavy equipment. 2 3 4 5 6 7 8 [AR 29 ¶ 5.] At step four, the ALJ found that Plaintiff was capable of performing 9 10 past relevant work as a “Cashier I” (Dictionary of Occupational Titles (“DOT”) 11 211.362-010), as actually and generally performed. [AR 40 ¶ 6.] Accordingly, 12 the ALJ concluded that Plaintiff had not been under a disability between 13 February 14, 2012, through the date of decision. [AR 40.] Plaintiff challenges the ALJ’s decision in two respects: (1) Whether the 14 15 ALJ erred in ending the sequential process at step four when the ALJ gave 16 great weight to physical limitations assessed by medical expert Dr. Ostrow 17 that preclude Plaintiff from performing her past relevant work (“PRW”) as a 18 “Cashier I;” and (2) Whether the ALJ erred in failing to provide clear and 19 20 21 convincing reasons to reject the mental limitations assessed by the examining mental health doctors. [See Dkt. Nos. 11 at 5-15; 15 at 5-17; 16 at 2-6.] II. Standard of Review 22 Under 42 U.S.C. § 405(g), a district court may review the agency’s 23 decision to deny benefits. A court will vacate the agency’s decision “only if the 24 ALJ’s decision was not supported by substantial evidence in the record as a 25 whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 26 F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means 27 28 more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a 4 1 conclusion.” Id.; Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 2 (2019) (same). 3 It is the ALJ’s responsibility to resolve conflicts in the medical evidence 4 and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 5 2020). Where this evidence is “susceptible to more than one rational 6 interpretation” the ALJ’s reasonable evaluation of the proof should be upheld. 7 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v. 8 Saul, 804 F. App’x 676, 678 (9th Cir. 2020). 4 9 Error in Social Security determinations is subject to harmless error 10 analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is 11 harmless if “it is inconsequential to the ultimate nondisability determination” 12 or, despite the legal error, “the agency’s path is reasonably discerned.” 13 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 14 III. Discussion A. 15 16 17 The ALJ’s Determination That Plaintiff Could Perform Her Past Relevant Work as a Cashier I is Not Supported by Substantial Evidence Plaintiff asserts that the ALJ’s determination that she could perform 18 her past relevant work (“PRW”) as a “Cashier I” as actually and generally 19 performed is not supported by substantial evidence. [Dkt. No. 11 at 5-6.] The 20 ALJ gave “great weight” to the opinion of Dr. Ostrow that Plaintiff was 21 limited to “only occasional push, pull or reach in all other directions 22 bilaterally.” [AR 39, 60.] Plaintiff asserts that she does not possess the 23 ability to frequently reach and therefore could not perform her past work as a 24 Cashier I as actually performed or per the DOT. [Dkt. No. 11 at 5-6.] In 25 4 26 27 28 Although statements in unpublished Ninth Circuit opinions “may prove useful [] as examples of the applications of settled legal principles,” the Ninth Circuit has cautioned lower courts not to rely heavily on such memorandum dispositions particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal basis for a legal ruling by a district court”). 5 1 addition, Plaintiff asserts that because the ALJ found her not literate [AR 29], 2 she was precluded from performing the job of Cashier I as generally 3 performed per the DOT. [Dkt. Nos. 11 at 5-6; 16 at 2-3.] 4 5 1. Legal Standards a) Residual Functional Capacity (“RFC”) 6 An RFC is “an assessment of an individual’s ability to do sustained 7 work-related physical and mental activities in a work setting on a regular and 8 continuing basis.” Social Security Ruling 96-8P, 1996 WL 374184, at *1 9 (1996). It reflects the most a claimant can do despite their limitations. 10 Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An RFC determination 11 must be based on all of the relevant evidence, including the diagnoses, 12 treatment, observations, and opinions of medical sources, such as treating and 13 examining physicians. 20 C.F.R. § 404.1545. The ALJ is responsible for 14 translating and incorporating supported medical evidence into a succinct 15 RFC. Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). 16 It is the ALJ’s responsibility to resolve conflicts in the medical evidence and 17 ambiguities in the record. Ford, 950 F.3d at 1149. Where this evidence is 18 “susceptible to more than one rational interpretation” the ALJ’s reasonable 19 evaluation of the proof should be upheld. Ryan, 528 F.3d at 1198. 20 21 b) Step Four At step four, a claimant has the burden of proving that she cannot 22 return to her past relevant work as actually or generally performed in the 23 national economy. 20 C.F.R. § 404.1520(f); Stacy v. Colvin, 825 F.3d 563, 569 24 (9th Cir. 2016); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002); Pinto 25 v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). Although the burden of proof 26 lies with the claimant, the ALJ still has a duty to make factual findings to 27 support his conclusion. Pinto, 249 F.3d at 844. In particular, the ALJ must 28 make “specific findings” as to the claimant’s RFC, “the physical and mental 6 1 demands” of the past relevant work, and whether the RFC would permit a 2 return to his past work. See id. at 845 (citing SSR 82–62, 1982 WL 31386, at 3 *4 (Jan. 1, 1982)). 4 In defining a claimant’s past relevant work as actually performed, the 5 ALJ may use “a properly completed vocational report” and “the claimant’s 6 own testimony.” Pinto, 249 F.3d at 845 (citations omitted). To ascertain the 7 requirements of occupations as generally performed in the national economy, 8 the ALJ may rely on VE testimony or information from the DOT. SSR 00–4P, 9 2000 WL 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies 10 “primarily on the DOT (including its companion publication, the SCO) for 11 information about the requirements of work in the national economy” and 12 “may also use VEs ... at these steps to resolve complex vocational issues”); 13 SSR 82–61, 1982 WL 31387, at *2 (Jan. 1, 1982) (“The [DOT] descriptions can 14 be relied upon—for jobs that are listed in the DOT—to define the job as it is 15 usually performed in the national economy.” (emphasis in original)). 16 When a VE provides evidence at step four or five about the 17 requirements of a job, the ALJ has a responsibility to ask about “any possible 18 conflict” between that evidence and the DOT. See SSR 00–4p, 2000 WL 19 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152–54 (9th Cir. 2007) 20 (holding that application of SSR 00–4p is mandatory). The DOT is usually 21 “the best source for how a job is generally performed.” Pinto, 249 F.3d at 845. 22 Social Security Ruling (“SSR”) 00-4p, available at 2000 WL 1898704, at *4 23 24 25 26 (Dec. 4, 2000), explicitly requires that the ALJ determine whether the VE’s testimony deviates from the DOT, and whether there is a reasonable explanation for any deviation. The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a VE’s testimony, particularly in cases where the expert’s testimony conflicts with the DOT. 27 Massachi, 486 F.3d at 1153. Where the ALJ fails to obtain an explanation for 28 7 1 and resolve an apparent conflict—even where the VE did not identify the 2 conflict—the ALJ errs. Edmonds v. Berryhill, 2017 WL 1217081, at *3 (C.D. 3 Cal. Mar. 31, 2017). 4 2. 5 The Medical Expert and Vocational Expert’s Testimony at the Hearing and the ALJ’s Decision 6 a) 7 At the administrative hearing, medical expert Dr. Arnold Ostrow 8 9 Dr. Ostrow’s Testimony and the ALJ’s Decision testified that he reviewed Plaintiff’s medical records. [AR 58.] Dr. Ostrow 10 found that the objective medical records supported the severe medical 11 impairments, since the alleged onset date, of type II diabetes mellitus with 12 neuropathy; degenerative disc disease of the lumbar spine; bilateral AC 13 degenerative joint disease; and coronary artery disease status post myocardial 14 infarction, angioplasty, and stent placement. [AR 58.] Dr. Ostrow found that 15 none of Plaintiff’s impairments met or equaled a medical listing. [AR 59.] Dr. 16 Ostrow opined that Plaintiff could lift/carry 20 pounds occasionally and 10 17 pounds frequently; stand/walk/sit 6 hours in an 8 hour workday; never raise 18 the bilateral upper extremities above shoulder height; no more than 19 occasionally push and pull and reach in all other directions bilaterally; 20 frequent handling, gripping, fingering bilaterally; no more than occasionally 21 operate foot controls bilaterally; no more than occasionally perform postural 22 activities, but never climb ladder/rope/scaffolds; and never work around 23 unprotected heights or rapidly moving equipment. [AR 60.] (emphasis added.) 24 Dr. Ostrow opined that these limitations were applicable since the alleged 25 26 27 28 onset date, through the date last insured, and until Plaintiff’s passing. [AR 60.] The ALJ gave “great weight” to Dr. Ostrow’s opinion. [AR 39 (citing AR 58-60).] The ALJ found Dr. Ostrow’s opinion is supported by Plaintiff’s 8 1 history of uncontrolled type II diabetes mellitus with neuropathy in the upper 2 and lower extremities, further complicated by chronic low back pain, 3 degenerative joint disease of the AC joints, right carpal tunnel syndrome, and, 4 later, weight gain. [AR 39.] It is also supported by Plaintiff’s hypertension 5 and 2018 myocardial infarction status post angiography and stent placement. 6 [AR 39.] The ALJ found Dr. Ostrow’s opinion is consistent with more recent 7 progress notes reflecting normal musculoskeletal, neurological, respiratory, 8 cardiovascular exam findings that do not support greater limitations, and 9 with tests noting stability of her cardiovascular condition. [AR 39.] 10 11 3. The VE’s Testimony and the ALJ’s Decision At the hearing, the ALJ asked the VE to classify Plaintiff’s past work, 12 and the VE responded that he did not have enough information to classify 13 Plaintiff’s work. [AR 63.] The ALJ stated that the prior judge found 14 Plaintiff’s past work was a Cashier I, 211.362-010, sedentary, SVP 5, to which 15 the VE responded that he did not have enough information to analyze her 16 past work other than as a Cashier I. [AR 64.] The ALJ then asked Plaintiff’s 17 counsel whether Plaintiff was a citizen, to which she responded, yes and that 18 she was from Nicaragua. [AR 64-65.] 19 The ALJ stated that she was assuming that Plaintiff “was literate if she 20 was working as a cashier, but maybe not fluent,” and then posed a 21 hypothetical question to the VE asking whether an individual who “was 22 capable of light work, but she was limited to no reaching above shoulder 23 bilaterally. And only occasional push-pull. She could frequently though 24 handle, finger, and feel bilaterally. … Occasionally use foot pedals. She could 25 occasionally do all the postural components. She needs to avoid hazards, and 26 those would include heights, ladders, heavy equipment, scaffolds. Do you 27 believe that would preclude the past work either as she performed it or as it’s 28 9 1 typically performed?” The VE responded: “no.” [AR 65.] The VE was not 2 asked any further questions. 3 In her decision, the ALJ stated: 4 The claimant was capable of performing past relevant work as a cashier I. This work did not require the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565 and 416.965). 5 6 7 The claimant had past work as a cashier I (DOT No. 211.362-010) – sedentary, skilled work with SVP 5. The vocational expert testified an individual with the residual functional capacity such as the claimant could perform her past work as actually and generally performed. 8 9 10 11 In comparing the claimant’s residual functional capacity with the physical and mental demands of this work, the undersigned finds that the claimant was able to perform it as actually and generally performed. 12 13 14 [AR 40.] 15 4. 16 Analysis Plaintiff contends that the ALJ’s determination that she could perform 17 her past relevant work as a “Cashier I” both as actually performed and as 18 described in the DOT is not supported by substantial evidence. [Dkt. No. 11 19 at 5.] Plaintiff argues that she cannot perform the past work as performed 20 because she lifted at least 40 pounds [AR 74-75, 97]. 5 Both the first and 21 second ALJs found that Plaintiff could not perform her past work as a Cashier 22 I as actually performed. [AR 147, 176.] 23 Further, Plaintiff asserts that she did not possess the reaching ability to 24 perform the job of Cashier I. [Dkt. No. 11 at 5.] The DOT describes this job as 25 requiring frequent reaching (exists from 1/3 to 2/3 of the time). See DICOT 26 211.362-010, 1991 WL 671835. Here, the ALJ gave “great weight” to the 27 28 5 At the first and second administrative hearings, Plaintiff testified that she lifted more than 40 pounds at her job as a cashier. 10 1 opinion of Dr. Ostrow who assessed Plaintiff with the ability to only 2 occasionally reach in all directions. [AR 60.] Dr. Ostrow opined that this 3 limitation applied for the entire relevant period starting in February 2012. 4 [AR 60.] 5 The Commissioner argues that the ALJ considered the entire record and 6 reasonably determined Plaintiff’s RFC based on the objective evidence of 7 record, Plaintiff’s subjective allegations, and various medical opinions. [Dkt. 8 No. 15 at 5 referring to AR 29-40.] The Commissioner argues that while 9 Plaintiff focuses on Dr. Ostrow’s medical opinion, all of the other physicians 10 opined that Plaintiff could perform frequent reaching. [Dkt. No. 15 at 6 11 referring to AR 33-34, 38-39.] The Commissioner is mistaken. While the ALJ 12 discussed Plaintiff’s medical records and reports from several doctors, the ALJ 13 gave little weight to the opinion of Dr. Juan Montes that Plaintiff could reach 14 frequently, and the ALJ did not specifically discuss or adopt the opinions of 15 Dr. Sedgh, Dr. Kantor, or Dr. Amado’s concerning Plaintiff’s ability to reach 16 during the relevant time period. [See AR 31, 32-34, 38-39.] 17 The ALJ gave “great weight” to the opinions of Dr. Ostrow, Dr. Kantor, 18 and Dr. Amado (although the ALJ gave some parts of Dr. Amado’s opinion 19 less weight). [AR 33-34, 38-39.] Notably, the ALJ included all of Dr. Ostrow’s 20 limitations in the RFC but did not include or address Dr. Ostrow’s opinion 21 that Plaintiff could only reach occasionally. [AR 29, 39.] The Commissioner 22 23 24 25 26 concedes that the ALJ did not specifically discuss the difference between the RFC finding and Dr. Ostrow’s opined reaching limitations. [Dkt. No. 15 at 8 referring to AR 39.] The Commissioner argues that any error by the ALJ in this regard is harmless. However, because the ALJ specifically gave “great weight” to Dr. Ostrow’s opinion, the ALJ was “required either (1) to include [Dr. Ostrow’s] limitation in [Plaintiff’s] Residual Functional Capacity (RFC), 27 or (2) to explain why [she] did not.” Flores v. Berryhill, 725 F. App’x 575, 576 28 11 1 (9th Cir. 2018) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2 2006) (requiring the ALJ to account for all relevant evidence in assessing the 3 RFC). Neither step was taken here. The ALJ erred by giving “great weight” 4 to Dr. Ostrow’s opinion, but then failing to explain why she did not accept or 5 incorporate important aspects of that opinion regarding reaching limitations 6 into the RFC. See Mellow v. Saul, 830 F. App’x 882, 883 (9th Cir. 2020) 7 (holding that an ALJ erred where he afforded medical opinions “substantial 8 weight” but failed to incorporate the limitations into the RFC without 9 explanation); Martin v. Commissioner of Social Sec. Admin., 472 F. App’x 580, 10 580 (9th Cir. 2012) (same where the ALJ neither incorporated a physician’s 11 opinion of work limitations nor gave reasons for rejecting it); George S. v. 12 Kijikazi, 2022 WL 479906, at *4 (C.D. Cal. Feb. 16, 2022) (“While the ALJ was 13 not required to include in the RFC each limitation identified in the record, the 14 ALJ could not simply ignore the portions of Dr. Bartell’s opinion that were 15 inconsistent with the assessed RFC.”); Cox v. Colvin, 639 F. App’x 476, 477 16 (9th Cir. 2016) (holding that an ALJ erred when he gave “significant weight” 17 to medical opinions but incorporated them in the RFC only in part, without 18 providing any reasons). 19 Further, while the ALJ purported to give great weight to the functional 20 assessments of Dr. Ostrow, she failed to include all of Dr. Ostrow’s functional 21 limitations in the RFC, including the limitation to only occasional reaching. 22 Thus, the hypothetical upon which the VE testified was incomplete and the 23 24 25 26 VE’s testimony cannot provide substantial evidence for the ALJ’s decision that Plaintiff could perform her past work as a Cashier I. Valentine v. Comm’r, 574 F.3d 685, 690 (9th Cir. 2009) (hypothetical presented to the VE is derived from the RFC; to be valid, the hypothetical presented to the VE must incorporate all of a plaintiff’s limitations). 27 28 12 1 In addition, because the ALJ found Plaintiff not literate in English [AR 2 29], Plaintiff argues that the VE’s testimony that she could perform the work 3 of a Cashier I as generally performed deviated from the DOT. [Dkt. Nos. 11 at 4 5-6; 16 at 2-3.] The DOT description for Cashier I requires a Language Level 5 of 3. 6 In Pinto, the Ninth Circuit declined to decide whether an ALJ is always 6 required to consider a claimant’s language skills at Step Four of the 7 sequential evaluation. Pinto, 249 F.3d at 847 n.5 (“It is unclear whether the 8 ALJ should have considered [claimant’s] language skills at all at step four, 9 given that [claimant’s] difficulties with language are independent of the 10 disability upon which she bases her claim. We decline to reach the question of 11 whether illiteracy may properly be considered at step four of a disability 12 determination.”). However, the court in Pinto stated that when an ALJ relies 13 upon a DOT description regarding how a job is generally performed at Step 14 Four, where illiteracy or a language limitation creates a conflict with the 15 DOT's description, the ALJ must explain any such deviation. Id. at 847 (“We 16 merely hold that in order for an ALJ to rely on a job description in the [DOT] 17 that fails to comport with a claimant’s noted limitations, the ALJ must 18 definitively explain this deviation.”). The court in Pinto acknowledged that it 19 did not “suggest that applicants who are illiterate are entitled to a finding in 20 step four of the disability proceeding that they are disabled.” Id. Thus, the 21 ALJ’s failure to obtain a reasonable explanation to resolve the apparent 22 conflict between the DOT requirements and Plaintiff’s literacy limitations was 23 erroneous. In sum, reversal is warranted. 24 25 26 27 28 6Language: Level 3 - READING: Read a variety of novels, magazines, atlases, and encyclopedias. Read safety rules, instructions, in the use and maintenance of shop tools and equipment, and methods and procedures in mechanical drawing and layout work. WRITING: Write reports and essays with proper format, punctuation, spelling, and grammar, using all parts of speech. SPEAKING: Speak before an audience with poise, voice control, and confidence, using correct English and a wellmodulated voice. See DICOT 211.362-010 (G.P.O.), 1991 WL 671835. 13 1 IV. 2 Other Issues and Remedy Plaintiff also argues that the ALJ’s decision is erroneous because the 3 ALJ failed to provide clear and convincing reasons to reject the 4 uncontroverted opinions of the examining mental health doctors and requests 5 the Court to credit those opinions as true and award the benefits sought. 6 [Dkt. No. 11 at 7-13.] Because the Court concludes that this case be 7 remanded on an open record, the Court declines to address Plaintiff’s other 8 claims of error. Google LLC v. Oracle America, Inc., ___ U.S. ___, 141 S. Ct. 9 1183, 1197 (2021) (appellate courts “should not answer more than is necessary 10 to resolve the parties’ dispute” on appeal); see also Smith v. Kijakazi, 14 F.4th 11 1108, 1111 (9th Cir. 2021) (“While Smith raises a number of issues on appeal, 12 the court addresses only those relevant to its decision to remand the case to 13 the agency.”). Further, an award of benefits is not warranted here, “[i]n light of the 14 15 inconsistencies, conflicts, and gaps in the record that require further 16 administrative proceedings[.]” Dominguez v. Colvin, 808 F.3d 403, 410 (9th 17 Cir. 2015). Thus, the Court remands this matter on an open record for further 18 proceedings. 19 V. Order 20 Accordingly, for all the reasons stated above, the Court finds that the 21 ALJ’s decision is not free of legal error or supported by substantial evidence 22 and is therefore VACATED. The case is remanded on an open record. 23 A separate judgment will issue. 24 IT IS SO ORDERED. 25 Dated: March 11, 2024 26 ____________________________________ 27 28 HON. PATRICIA DONAHUE UNITED STATES MAGISTRATE JUDGE 14
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