Glenn Leroy Brewer v. Carolyn W Colvin Acting Commissioner of Social Security, No. 5:2015cv02219 - Document 35 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION and Order of Remand by Magistrate Judge Charles F. Eick. Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. (sp)
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Glenn Leroy Brewer v. Carolyn W Colvin Acting Commissioner of Social Security Doc. 35 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 GLENN LEROY BREWER, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. ED CV 15-2219-E MEMORANDUM OPINION AND ORDER OF REMAND 17 18 Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 Plaintiff filed a complaint on October 28, 2015, seeking review 26 of the Commissioner’s denial of disability insurance benefits. The 27 parties filed a consent to proceed before a United States Magistrate 28 Judge on December 8, 2015. Plaintiff filed a motion for summary Dockets.Justia.com 1 judgment on June 17, 2016. Defendant filed a motion for summary 2 judgment on August 17, 2016. 3 submission without oral argument. 4 November 2, 2015. The Court has taken the motions under See L.R. 7-15; “Order,” filed 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserts disability since October 10, 2003, based on alleged physical impairments (Administrative Record (“A.R.”) 162, 10 444). In 2012, an Administrative Law Judge (“ALJ”) denied benefits. 11 See A.R. 140-49. 12 performing certain of Plaintiff’s past relevant work (A.R. 148-49). At that time, the ALJ found Plaintiff capable of 13 14 The Appeals Council remanded the matter, instructing the ALJ to, 15 inter alia: (1) evaluate further Plaintiff’s ability to perform his 16 past relevant work at step four of the sequential evaluation process; 17 and (2) if the ALJ were to find Plaintiff could not perform his past 18 relevant work, obtain supplemental evidence from a vocational expert 19 to clarify the effect of Plaintiff’s assessed limitations on the 20 occupational base (A.R. 156). 21 instructed the ALJ to “identify and resolve any conflicts between the 22 vocational expert’s occupational evidence and information in the 23 Dictionary of Occupational Titles (“DOT”) and its companion 24 publication, the Selected Characteristics of Occupations” (A.R. 156 25 (citing Social Security Ruling (“SSR”) 00-4p)). The Appeals Council specifically 26 27 28 Following remand, the ALJ heard testimony from Plaintiff and a vocational expert (A.R. 4-56). The ALJ found that Plaintiff has 2 1 severe physical impairments that restrict Plaintiff to a limited range 2 of light work as follows: 3 4 [T]he claimant can lift, carry, push or pull 20 pounds 5 occasionally and 10 pounds frequently; would need a 6 sit/stand option of sitting for 30 to 45 minutes with brief 7 position changes; no standing or walking for no [sic] more 8 than 15 to 20 minutes at a time; can occasionally bend, 9 stoop, climb stairs, and balance; can rarely squat, kneel, 10 crouch, or crawl; cannot climb ladders, ropes, or scaffolds; 11 cannot work around hazards; cannot repetitively or 12 constantly reach or work overhead with either arm; no 13 concentrated exposure to extreme cold; no repetitive or 14 constant movement of the head or neck; and no static 15 position of the head or neck for more than two hours at a 16 time. 17 18 (A.R. 165). 19 20 The vocational expert testified that a person so limited could 21 perform two of Plaintiff’s past relevant jobs as generally performed 22 (A.R. 29-31). 23 addressed the standing and walking limitation to only 15 minutes at a 24 time (A.R. 45). 25 integrating my knowledge and experience” (A.R. 46). 26 expert further testified that a person with Plaintiff’s limitations 27 could perform light work as: (1) an information clerk (DOT 237.367- 28 018), of which 45,000 jobs reportedly exist in the national economy; Plaintiff’s counsel asked the expert whether the DOT The vocational expert answered “no” and said, “I was 3 The vocational 1 (2) a cafeteria cashier (DOT 211.462-010), of which 80,000 jobs 2 reportedly exist in the national economy; and (3) a counter clerk (DOT 3 249.366-010), of which 21,000 jobs reportedly exist in the national 4 economy (A.R. 48-49). 5 his testimony was consistent with the DOT, or whether Plaintiff’s 6 limitations would erode any of the occupational bases for these jobs 7 (A.R. 49).1 The vocational expert did not indicate whether 8 9 The ALJ found Plaintiff unable to perform any of his past 10 relevant work (A.R. 171). However, the ALJ adopted part of the 11 vocational expert’s testimony, finding Plaintiff capable of making “a 12 successful adjustment to other work that existed in significant 13 numbers in the national economy” (A.R. 172-73). 14 not asked the vocational expert whether the expert’s testimony 15 regarding the identified jobs was consistent with the information in 16 the DOT, the ALJ “determined” that the expert’s testimony was 17 consistent with the information in the DOT (A.R. 173). 18 concluded that Plaintiff had not been disabled from October 10, 2003 19 (the alleged onset date) through December 31, 2008 (Plaintiff’s last 20 insured date) (A.R. 163, 173). Although the ALJ had The ALJ 21 22 The Appeals Council denied review (A.R. 182-85). 23 /// 24 /// 25 26 1 27 28 The vocational expert also identified ticket seller as a potential job (DOT 211.467-030), but then struck that job because of Plaintiff’s restriction on repetitive reaching or handling (A.R. 48-49). 4 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see also Widmark v. 13 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 5 1 DISCUSSION 2 3 I. 4 Substantial Evidence Does Not Support the ALJ’s Finding that Plaintiff Can Perform Other Work. 5 6 “[T]he best source for how a job is generally performed is 7 usually the Dictionary of Occupational Titles.” Pinto v. Massanari, 8 249 F.3d 840, 845 (9th Cir. 2001) (citations omitted). 9 DOT “is not the sole source of admissible information concerning However, the 10 jobs”; an ALJ also may rely on the testimony of a vocational expert 11 concerning the requirements of a particular occupation. 12 v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (citations and 13 quotation omitted). 14 concerning the requirements of a particular occupation, “the ALJ must 15 ask the [vocational expert] if his or her testimony is consistent with 16 the DOT.” 17 189, 191 (9th Cir. 2010) (citing Massachi v. Astrue, 486 F.3d 1149, 18 1152-53 (9th Cir. 2007)); see also Zavalin v. Colvin, 778 F.3d 842, 19 846 (9th Cir. 2015) (discussing the ALJ’s duty to resolve an apparent 20 conflict between vocational expert testimony and the DOT; the “failure 21 to resolve an apparent inconsistency may leave. . . a gap in the 22 record that precludes us from determining whether the ALJ’s decision 23 is supported by substantial evidence”) (citing, inter alia, SSR 00- 24 4p). 25 /// 26 /// 27 /// 28 /// See Johnson Before relying on vocational expert testimony Wentz v. Commissioner Social Sec. Admin., 401 Fed. App’x 6 Social Security Ruling 00-4p2 provides: 1 2 3 When a [vocational expert] provides evidence about the 4 requirements of a job or occupation, the [ALJ] has an 5 affirmative responsibility to ask about any possible 6 conflict between that [vocational expert] evidence and 7 information provided in the DOT. . . .3 8 9 If the [vocational expert’s] evidence appears to 10 conflict with the DOT, the [ALJ] will obtain a reasonable 11 explanation for the apparent conflict. 12 13 When vocational evidence provided by a [vocational 14 expert] is not consistent with information in the DOT, the 15 [ALJ] must resolve this conflict before relying on the 16 [vocational expert] evidence to support a determination or 17 decision that the individual is or is not disabled. 18 [ALJ] will explain in the determination or decision how he 19 or she resolved the conflict. 20 the resolution of the conflict irrespective of how the 21 conflict was identified (emphasis added). 22 The The adjudicator must explain /// 23 24 25 26 27 28 2 Social Security rulings are “binding on ALJs.” v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 3 Terry For this purpose, the “information provided in the DOT” includes the information provided in the DOT’s “companion publication,” the “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO).” See SSR 00-4p. 7 1 Elsewhere, SSR 00-4p similarly provides that “[w]hen there is an 2 apparent unresolved conflict between [vocational expert] evidence and 3 the DOT, the [ALJ] must elicit a reasonable explanation for the 4 conflict before relying on the [vocational expert] evidence to support 5 a determination or decision about whether the claimant is disabled.” 6 (emphasis added). 7 that the record is clear as to why an ALJ relied on a vocational 8 expert’s testimony, particularly in cases where the expert’s testimony 9 conflicts with the [DOT].” “The procedural requirements of SSR 00-4p ensure Massachi v. Astrue, 486 F.3d at 1153. 10 11 Here, the ALJ purported to rely on vocational expert testimony to 12 find Plaintiff not disabled at step five of the evaluation process 13 without inquiring whether the testimony was consistent with the DOT. 14 See A.R. 29-52, 172-73. 15 DOT appears to provide that a person precluded from repetitive or 16 constant reaching or overhead work with either arm could not perform 17 the jobs the vocational expert identified. 18 information clerk job requires performing “repetitive or short-cycle 19 work,” and “frequent” reaching (i.e., from 1/3 to 2/3 of the time). 20 See DOT 237.367-018 Information Clerk, 1991 WL 672187, at *3 (4th Ed. 21 R 1991). 22 as a “cafeteria cashier”) requires “frequent” reaching. 23 211.462-010 Cashier II, 1991 WL 671840, at *3 (4th Ed. R 1991). 24 job of counter clerk requires “occasional” reaching (i.e., up to 1/3 25 of the time). 26 *3 (4th Ed. R 1991). 27 /// 28 /// Although the matter is somewhat unclear, the According to the DOT, the The job of “cashier II” (identified by the vocational expert See DOT The See DOT 249.366-010 Counter Clerk, 1991 WL 672323, at 8 1 “Reaching” means “extending the hands and arms in any direction.” 2 SSR 85-15 (emphasis added); see Mkhitaryan v. Astrue, 2010 WL 1752162, 3 at *3 (C.D. Cal. April 27, 2010) (citing the “Selected Characteristics 4 of Occupations Defined in the Revised Dictionary of Occupational 5 Titles,” Appendix C). 6 reaching overhead. 7 a conflict between the requirement of reaching and a preclusion or 8 restriction on reaching (or working) overhead or above the shoulder. 9 See, e.g., Nelson v. Colvin, 2016 WL 1532226, at *3-4 (C.D. Cal. “Any direction” would appear to include See id. Consequently, many courts have discerned 10 Apr. 14, 2016); Cameron v. Colvin, 2016 WL 1367709, at *6 (C.D. Cal. 11 Apr. 6, 2016); 12 March 22, 2016); Hernandez v. Colvin, 2016 WL 1071565, at *5 (C.D. 13 Cal. March 14, 2016); Imran v. Colvin, 2015 WL 5708500, at *5 (C.D. 14 Cal. Sept. 28, 2015); Carpenter v. Colvin, 2014 WL 4795037, at *7-8 15 (E.D. Cal. Sept. 25, 2014); Skelton v. Commissioner, 2014 WL 4162536, 16 at *13 (D. Or. Aug. 18, 2014); Lamb v. Colvin, 2014 WL 3894919, at *5- 17 6 (E.D. Cal. Aug. 4, 2014); Riffner v. Colvin, 2014 WL 3737963, at *4- 18 5 (C.D. Cal. July 29, 2014); Nguyen v. Colvin, 2014 WL 2207058, at *2- 19 3 (C.D. Cal. May 28, 2014); Barnes v. Colvin, 2014 WL 931123, at *7-8 20 (W.D. Wash. March 10, 2014); Giles v. Colvin, 2013 WL 4832723, at *4 21 (C.D. Cal. Sept. 10, 2013); Winder v. Astrue, 2013 WL 489611, at *2-3 22 (C.D. Cal. Feb. 6, 2013); Duff v. Astrue, 2012 WL 3711079, at *3-4 23 (C.D. Cal. Aug. 28, 2012); McQuone v. Astrue, 2012 WL 3704795, at *3-4 24 (E.D. Cal. Aug. 24, 2012); Newman v. Astrue, 2012 WL 1884892, at *5 25 (C.D. Cal. May 23, 2012); Richardson v. Astrue, 2012 WL 1425130, at 26 *4-5 (C.D. Cal. April 25, 2012); Bentley v. Astrue, 2011 WL 2785023, 27 at *3-4 (C.D. Cal. July 14, 2011); Hernandez v. Astrue, 2011 WL 28 223595, at *5 (C.D. Cal. Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL Bochat v. Colvin, 2016 WL 1125549, at *2 (C.D. Cal. 9 1 1752162, at *3; Caruso v. Astrue, 2008 WL 1995119, at *7 (N.D. N.Y. 2 May 6, 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 736 (7th 3 Cir. 2006) (“It is not clear to us whether the DOT’s requirements 4 include reaching above shoulder level and this is exactly the sort of 5 inconsistency the ALJ should have resolved with the expert’s help”).4 6 7 Here, the ALJ did not ask whether the vocational expert’s 8 testimony was consistent with the DOT. The only comment by the 9 vocational expert that concerned any possible conflict with the DOT 10 was the expert’s indication that he was relying on his knowledge and 11 experience regarding Plaintiff’s standing and walking limitations 12 (A.R. 45-46). 13 the possible conflict between the vocational expert’s testimony and 14 the DOT’s reaching requirements for the jobs of information clerk, 15 cafeteria cashier or counter clerk. 16 vocational expert nor the ALJ provided any explanation that might 17 support preferring the vocational expert’s testimony over the arguably Neither the vocational expert nor the ALJ recognized Consequently, neither the 18 19 20 21 22 23 24 25 26 27 28 4 Case law on this issue is not uniform. Several courts have discerned no conflict between the requirement of frequent or occasional reaching and a preclusion or restriction from reaching overhead or above the shoulder. See, e.g., Goodman v. Colvin, 2016 WL 4190738, at *15 (D. Ariz. Aug. 9, 2016); Spooner v. Colvin, 2016 WL 3947103, at *6 (D. Ariz. July 22, 2016); Parker v. Colvin, 2014 WL 4662095, at *9 (W.D. Pa. Sept. 18, 2014); King v. Commissioner, 2013 WL 3456957, at *3 (E.D. Mich. July 9, 2013); Brister v. Colvin, 2013 WL 2318842, at *11-13 (D. Or. May 27, 2013); Alarcon v. Astrue, 2013 WL 1315968, at *4 (S.D. Cal. March 28, 2013); Lidster v. Astrue, 2012 WL 13731, at *3 (S.D. Cal. Jan. 3, 2012); Provenzano v. Astrue, 2009 WL 4906679, at *5 (C.D. Cal. Dec. 17, 2009); Fuller v. Astrue, 2009 WL 4980273, at *2 (C.D. Cal. Dec. 15, 2009); Rodriguez v. Astrue, 2008 WL 2561961, at *2 (C.D. Cal. June 25, 2008); see also Gutierrez v. Colvin, 2016 WL 4056067, at *1 (9th Cir. July 29, 2016) (unpublished). 10 1 conflicting information in the DOT. This was error. See SSR 00-4p; 2 Light v. Social Sec. Admin., 119 F.3d 789, 794 (9th Cir. 1997) (error 3 that “[n]either the ALJ nor the vocational expert explained the reason 4 for departing from the DOT”); Johnson v. Shalala, 60 F.3d at 1435 (“an 5 ALJ may rely on expert testimony which contradicts the DOT, but only 6 insofar as the record contains persuasive evidence to support the 7 deviation”). 8 9 At step five of the sequential evaluation process, the burden 10 shifts from the claimant to the Administration to show that the 11 claimant is able to perform other work that exists in significant 12 numbers in the national economy. 13 1100 (9th Cir. 1999); 20 C.F.R. § 416.960(b)(3). 14 expert testimony elicited in compliance with SSR 00-4p, the record in 15 this case lacks substantial evidence that a person with Plaintiff’s 16 limitations could perform other work. 17 at 846; see generally Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 18 1988) (administration may not speculate concerning the requirements of 19 particular jobs). Tackett v. Apfel, 180 F.3d 1094, Absent vocational See Zavalin v. Colvin, 778 F.3d 20 21 Defendant argues that the failure by Plaintiff’s counsel to point 22 out the possible inconsistency at the time of the administrative 23 hearing or before the Appeals Council should bar Plaintiff from 24 arguing the possible inconsistency before this Court (Defendant’s 25 Motion at 3-5 (citing, inter alia, Meanel v. Apfel, 172 F.3d 1111, 26 1115 (9th Cir. 1999) (“Meanel”))). 27 Apfel, 530 U.S. 103, 112 (2000) (“Sims”), the Supreme Court held that 28 a claimant may raise for the first time before the court arguments not The Court disagrees. 11 In Sims v. 1 raised before the Appeals Council. “Claimants who exhaust 2 administrative remedies need not also exhaust issues in a request for 3 review by the Appeals Council in order to preserve judicial review of 4 those issues.” 5 (10th Cir. 2005) (court discerned error in the ALJ’s failure to 6 address an apparent conflict between the DOT and the testimony of the 7 vocational expert, even though plaintiff’s counsel had failed to argue 8 the error at the administrative level; “a plaintiff challenging a 9 denial of disability benefits under 42 U.S.C. § 405(g) need not Id.; see also Hackett v. Barnhart, 395 F.3d 1168, 1176 10 preserve issues in the proceedings before the Commissioner or her 11 delegates” [citing Sims]); Harris v. Apfel, 2001 WL 204836, at *1 (D. 12 Or. Feb. 19, 2001), aff’d, 40 Fed. App’x 581 (2002) (Commissioner 13 conceded that Sims “requires” the conclusion that a claimant does not 14 waive his or her argument by failing to raise the argument before the 15 ALJ). 16 adversarial. 17 develop the arguments both for and against granting benefits. . . .” 18 Sims, 530 U.S. at 110-11. “Social security proceedings are inquisitorial rather than It is the ALJ’s duty to investigate the facts and 19 20 Defendant’s citation to Meanel does not persuade the Court 21 otherwise. First, the Supreme Court’s decision in Sims casts 22 considerable doubt on the continuing validity of the Ninth Circuit’s 23 decision in Meanel. 24 25 Second, as indicated above, it was the Administration and not 26 Plaintiff who had the burden of proof at step five of the evaluation 27 process. 28 make her step five finding until after the administrative hearing when See Tackett v. Apfel, 180 F.3d at 1100. 12 The ALJ did not 1 she issued her adverse decision. Plaintiff’s counsel should not be 2 faulted for failing to anticipate at the hearing how the ALJ would 3 rule in her final decision.5 4 5 Third, upon receipt of the ALJ’s final decision, Plaintiff’s 6 counsel did challenge before the Appeals Council the propriety of the 7 ALJ’s reliance on the vocational expert’s testimony. 8 Plaintiff’s counsel quoted SSR 00-4p and argued that the ALJ should 9 have clarified whether a person having Plaintiff’s limitations could Id. See A.R. 503-04. 10 perform the identified jobs. Although Plaintiff’s counsel did 11 not then question specifically whether the DOT’s description of the 12 identified jobs was consistent with Plaintiff’s reaching and overhead 13 work limitations, the validity of the ALJ’s step five reliance on the 14 vocational expert’s testimony was placed in issue before the Appeals 15 Council. 16 17 Fourth, in an attempt to prove administrative error, the claimant 18 in Meanel sought to rely on new evidence which had not been presented 19 to the ALJ or to the Appeals Council. 20 In the present case, the Court need not receive any new evidence to 21 determine that the ALJ erred. 22 1260 n.8 (9th Cir. 2000) (considering issue raised for the first time 23 on appeal “because it is a pure question of law and the Commissioner 24 will not be unfairly prejudiced by [plaintiff’s] failure to raise the See Meanel, 172 F.3d at 1115. Cf. Silveira v. Apfel, 204 F.3d 1257, 25 26 27 28 5 An ALJ cannot always be expected to accept and adopt the testimony of the vocational expert. Indeed, the ALJ in the present case did not adopt the vocational expert’s testimony that Plaintiff could perform two of his past relevant jobs as generally performed. 13 1 issue below”; distinguishing Meanel as “a case in which the claimant 2 rest[ed] her arguments on additional evidence presented for the first 3 time on appeal, thus depriving the Commissioner of an opportunity to 4 weigh and evaluate that evidence. . .”) (citations omitted).6 5 6 Fifth, the Appeals Council explicitly instructed on remand that 7 at step five the ALJ should identify and resolve any conflicts between 8 the occupational evidence provided by the vocational expert and 9 information in the DOT. Given the Appeals Council’s instructions, 10 Plaintiff did not need to raise the matter before the ALJ in order to 11 place the matter in issue. 12 13 14 II. The Court is Unable to Conclude that the ALJ’s Error Was Harmless. 15 16 “[A]n ALJ’s error is harmless where it is inconsequential to the 17 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 18 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see 19 Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) 20 (“Where, as in this case, an ALJ makes a legal error, but the record 21 is uncertain and ambiguous, the proper approach is to remand the case 22 23 24 25 26 27 28 6 Defendant’s citations to the unpublished decisions in Phillips v. Colvin, 593 Fed. App’x 683, 684 (9th Cir. 2015) and Solorzano v. Astrue, 2012 WL 84527 (C.D. Cal. Jan. 10, 2014) are unconvincing. These decisions are not controlling authority. In light of Sims, this Court agrees with the Eastern District that “[t]o the extent [cases such as Solorzano] stand for the proposition that a plaintiff is barred from seeking reversal of an erroneous ALJ decision when they neglect to object to said errors at the hearing, they are unconvincing.” Clark v. Colvin, 2015 WL 5601406, at *6 (E.D. Cal. Sept. 22, 2015). 14 1 to the agency”); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2 2011) (error not harmless where “the reviewing court can determine 3 from the ‘circumstances of the case’ that further administrative 4 review is needed to determine whether there was prejudice from the 5 error”). 6 the ALJ’s error was harmless. Under these standards, the Court is unable to conclude that 7 8 9 First, as previously indicated, substantial evidence fails to support the ALJ’s step five determination that Plaintiff can perform 10 the jobs identified. Second, the ALJ did not inquire of the 11 vocational expert whether the assessed limitations would erode the 12 occupational bases for the jobs identified to determine whether a 13 significant number of jobs would exist for a person with Plaintiff’s 14 limitations. 15 to do the same). 16 a question of fact to be determined in the first instance by the ALJ. 17 See Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986). See A.R. 156 (Appeals Council order instructing the ALJ Whether there exists a significant number of jobs is 18 19 III. Remand for Further Administrative Proceedings is Appropriate. 20 21 The circumstances of this case warrant remand for further 22 administrative proceedings, which could remedy the ALJ’s errors. 23 McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 24 12, 16 (2002) (upon reversal of an administrative determination, the 25 proper course is remand for additional agency investigation or 26 explanation, except in rare circumstances); Dominguez v. Colvin, 808 27 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes 28 that further administrative proceedings would serve no useful purpose, 15 See 1 it may not remand with a direction to provide benefits”); Treichler v. 2 Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative 3 proceedings is the proper remedy “in all but the rarest cases”). 4 5 CONCLUSION 6 7 For all of the foregoing reasons, Plaintiff’s and Defendant’s 8 motions for summary judgment are denied and this matter is remanded 9 for further administrative action consistent with this Opinion. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: August 24, 2016. 14 15 16 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 16
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