Altamirano v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] Case No.: 23-cv-601-BLM 11 MICHAEL DAVID ALTAMIRANO, 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MERITS BRIEF AND REVERSING AND 13 v. REMANDING FOR FURTHER PROCEEDINGS 14 MARTIN O’MALLEY, Commissioner of Social Security 1, 15 [ECF No. 17] Defendant. [16] 17 Plaintiff Michael David Altamirano brought this action for judicial review of the Social 18 Security Commissioner’s (“Commissioner” or “Defendant”) denial of his claim for “Social Security 19 Disability [and Supplemental Security Income disability] benefits for lack of disability.” ECF No. 20 1. Presently before the Court are Plaintiff’s October 25, 2023 Merit Brief (“Brief”) [ECF No. 17], 21 Defendant’s December 1, 2023 Opposition to Plaintiff’s Brief (“Oppo.”) [ECF No. 22], and 22 Plaintiff’s December 15, 2023 reply in support of his Brief (“Reply”). ECF No. 23. For the reasons 23 set forth below, Plaintiff’s Merit Brief is GRANTED. [24] 25 1 Martin O’Malley became the Commissioner of the Social Security Administration on December 20, 2023. Pursuant to Fed. R. Civ. Proc. 25(d), Martin O’Malley is substituted for Kilolo Kijakazi [26] as the defendant in this action. This action survives notwithstanding the party substitution. See [27] 42 U.S.C. § 205 (g) (“Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Commissioner of Social 1 PROCEDURAL BACKGROUND 2 On December 4, 2020, Plaintiff filed an application for Title II disability insurance benefits 3 alleging his disability began on October 19, 2019. Administrative Record (“AR”) 201-202. On 4 February 5, 2021, the application was initially denied, and denied upon reconsideration on May 5 13, 2021. AR 101-107. On December 1, 2021, an Administrative Law Judge (“ALJ”) conducted 6 a telephonic hearing where Plaintiff, an impartial medical expert, and an impartial vocational 7 expert (“VE”) testified. AR 40-55. In a written decision dated December 4, 2020, the ALJ 8 determined that Plaintiff was not disabled as defined by the Social Security Act. AR 23-39. On 9 February 3, 2023, the Appeals Council denied Plaintiff’s request for review. AR 14-19. 10 On April 4, 2023, the instant action ensued. ECF No. 1. The same day, Plaintiff filed a 11 motion to proceed (“IFP”) which the Court denied without prejudice on April 12 6, 2023, and the Court dismissed Plaintiff’s complaint with leave to amend for failing to state 13 sufficient facts to state a claim for relief. ECF Nos. 1, 2, 4. On April 7, 2023, Plaintiff filed an 14 amended complaint which the Court found sufficiently stated a claim for relief, and Plaintiff filed 15 a renewed motion to proceed IFP which the Court granted. ECF Nos. 5, 6. On June 6, 2023, the 16 Defendant timely filed the AR. ECF Nos. 9, 10. On June 8, 2023, the Court issued an order 17 setting mandatory settlement procedures and a briefing schedule. ECF No. 11. After receiving 18 extensions of the deadlines, both parties timely filed their pleadings. ECF Nos. 14, 16, 21. 19 ALJ’s DECISION 20 On December 4, 2020, the ALJ issued a written decision wherein he determined that 21 Plaintiff was not disabled as defined by the Social Security Act. AR 23-39. The ALJ evaluated 22 Plaintiff's entitlement to Disability Insurance Benefits (“DIB”) and Supplemental Security Income 23 (“SSI”) pursuant to the standard five-step analytical framework as outlined in 20 C.F.R. § 24 404.1520(a). Id. As an initial matter, the ALJ found that plaintiff met the insured status 25 requirements of the Social Security Act for purposes of DIB through December 31, 2024. AR 28. 26 At step one, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity 27 since October 19, 2019, Plaintiff's alleged onset date. Id. At step two, the ALJ found that Plaintiff 1 shoulder surgery; residuals of cervical fusion; degenerative changes of the lumbar spine; a 2 history of quadriparesis of the right arm and leg; and obesity.” Id. At step three, the ALJ 3 determined that Plaintiff did not have an impairment or combination of impairments that met or 4 medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 5 1. AR 30. Next, the ALJ assessed Plaintiff's residual functional capacity (“RFC”) as follows: [6] After careful consideration of the entire record, the undersigned found that the 7 claimant had the residual functional capacity to perform a range of light work as 8 defined in 20 CFR 404.1567(b), specifically as follows: he can lift and/or carry 20 pounds occasionally and ten pounds frequently; he can stand or walk for six hours [9] of an eight-hour workday; he can sit for six hours of an eight-hour workday; he 10 should never climb ladders, ropes, or scaffolds; he can occasionally balance, stoop, 11 kneel, crouch, crawl, and climb ramps and stairs; he can occasionally reach overhead bilaterally; he can occasionally handle and finger with the right, non12 dominant hand; and he should avoid concentrated exposure to extreme cold, 13 vibration, unprotected heights, and moving and dangerous machinery. [14] Id. At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. 15 AR 33. However, at step five, the ALJ found that, considering Plaintiff's age, education, work 16 experience, and RFC, there were jobs that existed in significant numbers in the national economy 17 that Plaintiff could perform. AR 34. Consequently, the ALJ concluded that Plaintiff had not been 18 under a disability, as defined in the Social Security Act, from October 19, 2019, through 19 December 15, 2021, the date of the ALJ's decision. AR 36. 20 STANDARD OF REVIEW 21 The Court reviews the ALJ's decision to determine whether the ALJ applied the proper 22 legal standards and whether the decision is supported by substantial evidence. 42 U.S.C. § 23 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). Substantial evidence is “such 24 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 25 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. v. NLRB, 305 26 U.S. 197 , 229 (1938)). It is “more than a mere scintilla but, less than a preponderance....” 27 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1 1028, 1035 (9th Cir. 2007)). 2 The Court “must consider the entire record as a whole and may not affirm simply by 3 isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 1159 (9th 4 Cir. 2012) (internal quotation marks and citation omitted). The Court may not impose its own 5 reasoning to affirm the ALJ's decision. See Garrison, 759 F.3d at 1010 . “[I]f evidence exists to 6 support more than one rational interpretation, [the Court] must defer to the [ALJ's] decision.” 7 Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The Court will not 8 reverse if any error is harmless. Marsh v. Colvin, 792 F.3d 1170, 1173 (2015) (“ALJ errors in 9 social security cases are harmless if they are inconsequential to the ultimate nondisability 10 determination and that a reviewing court cannot consider [an] error harmless unless it can 11 confidently conclude that no reasonable ALJ ... could have reached a different disability 12 determination.”) (internal citations and quotations omitted). 13 DISCUSSION 14 Plaintiff presents two arguments that he asserts should result in a reversal of the ALJ’s 15 decision. Brief. The Court has reviewed and analyzed both arguments and for the reasons set 16 forth below finds that the second argument correctly identifies an error that is not harmless and 17 requires remand. Because the second argument is dispositive of this challenge, the Court will 18 not address the first argument regarding the ALJ’s decision to discount the opinion of DPT 19 Guerrero.2 [21] 2 See Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147 , 1153 n.7 (C.D. Cal. 2008) 22 (“[The] Court need not address the other claims plaintiff raises, none of which would provide plaintiff with any further relief than granted, and all of which can be addressed on remand.”); [23] see also Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to 24 the ALJ for the reasons stated, we decline to reach [plaintiff's] alternative ground for remand.”); Newton v. Colvin, 2015 WL 1136477 , at *6 n.4 (E.D. Cal. Mar. 12, 2015) (“As the matter must 25 be remanded for further consideration of the medical evidence, the court declines to address plaintiff's remaining arguments.”); and Berenisia Madrigal v. Saul, 2020 WL 58289 , at *7 (E.D. [26] Cal., Jan. 6, 2020) (“Having found that remand is warranted, the Court declines to address 27 Plaintiff's remaining arguments that the ALJ erred in rejecting medical opinion evidence and failing to develop the record). 1 In his second argument, Plaintiff contends that the ALJ erred in his step five 2 determination. Brief at 19-20. Plaintiff asserts that there was an obvious and apparent conflict 3 between the VE’s testimony and the requirements set forth in the United States Department of 4 Labor, Employment & Training Administration's Dictionary of Occupational Titles (“DOT”) with 5 regard to reaching, handling, and fingering and the ALJ failed to resolve the conflict. Id. 6 Specifically, the ALJ’s RFC limited Plaintiff to “occasionally reach overhead bilaterally” and 7 “occasionally handle and finger with the right, non-dominant hand” and his hypothetical question 8 to the VE included those limitations. Id.; see also AR 52-53 and 30. The VE opined that the 9 hypothetical person could perform work as a router, order caller, and cashier II. AR 53. The 10 DOT regulations indicate that all three jobs require frequent reaching and handling, order caller 11 and cashier II also require frequent fingering, and router requires occasional fingering. See 12 DICOT 222.587-038 (router), 1991 WL 672123 ; DICOT 209.667-014 (order caller), 1991 WL 13 671807; DICOT 211.462-010 (cashier II), 1991 WL 671840 . Plaintiff argues that ALJ failed to 14 resolve this obvious and apparent conflict and that the error is not harmless. Brief at 19-20. 15 Defendant contends that “Plaintiff fails to identify apparent conflicts at step five to support 16 his request for remand.” Oppo. at 5. Specifically, Defendant states that “the Ninth Circuit has 17 already held that overhead reaching is not ‘such a common and obvious part of cashiering that 18 the ALJ should have recognized a conflict [with the DOT] and questioned the expert more closely 19 before concluding that’ a [plaintiff] who was precluded from overhead reaching with one arm 20 could ‘work as a cashier.’” Id. at 6 (citing Gutierrez v. Colvin, 844 F.3d 804, 807-08 (9th Cir. 21 2016)). Defendant further argues that “the DOT’s job descriptions regarding the two other 22 positions the vocational expert identified [order caller and router] also lack any apparent conflict 23 with a restriction to reaching overhead.” Id. Defendant does not address Plaintiff’s argument 24 that the ALJ failed to address the conflict between the VE testimony and the DOT requirements 25 with regard to handling and fingering. See Oppo. 26 A. VE Testimony 27 During the December 1, 2021 hearing, the ALJ questioned VE Robin Scher about Plaintiff’s 1 impairments, and Plaintiff’s counsel also questioned the VE on the same topics. AR 52-55. The 2 relevant portions the VE’s testimony are as follows: [3] ALJ: In this case we have one hypothetical and a hypothetical claimant age 46 at 4 the alleged onset date with 12 years of education, one past job with SGA previously 5 described. […] He can occasionally reach overhead bilaterally, he can occasionally finger and handle with the right non-dominant hand, […] Given those restrictions [6] and those alone, could this hypothetical claimant return to any past relevant work? [7] 8 VE: No. [9] ALJ: Would there be any other work that would fit with this hypothetical at the 10 light level? [11] VE: So, Judge, I want to point out the DOT does not speak to at what height a [12] person must reach in order to seek the handiness, so for this I am relying on my 13 30 plus years of experience. Yes, so there are jobs. There would be router, this is 14 R-O-U-T-E-R, sometimes called router, DOT number 222.587-038, it is of light strength level with an SVP of 2. There are approximately 31,000 nationally, 3-1 [15] thousand. There would be order caller, DOT number 209.667-014, it is a light 16 strength level with an SVP of 2. There are approximately 12,000 nationally, that’s 17 1-2 thousand. And then there would be cashier II, DOT number 211.462-010, it is a light strength level with an SVP of 2. There are approximately 534,000 nationally, [18] that’s 5-3-4 thousand. [19] 20 ALJ: When you mentioned reaching, were you referring to the fact that the DOT does not discriminate between reaching above the shoulder as opposed to [21] reaching at other levels, such as waist levels? [22] 23 VE: Yes, that’s correct. [24] ALJ: And so you were using your education and experience to determine whether 25 or not occasional overhead reaching was consistent with those three jobs, is that 26 correct? [27] VE: Yes. 1 ALJ: And other than your use of your education and experience in that instance, has your testimony been consistent with the DOT and Selected Characteristics of [2] Occupations? [3] 4 VE: Well, I also mentioned that handiness and that same thing, so, yes, I am consistent with the DOT. [5] 6 ALJ: Questions, counsel? [7] Plaintiff’s counsel: Ms. Scher, I’d like you to assume this hypothetical for me, [8] please. I’d like to assume a claimant who is restricted to sedentary work only, 9 ambulates with the use of a cane and with the non-dominant arm is restricted to 10 no handling, no fingering and no forward reaching. Does that allow for past work? [11] VE: No. [12] Plaintiff’s counsel: All right. I have no more questions for Ms. Scher. [13] 14 AR 52-54. 15 B. DOT Descriptions of Router, Order Caller, and Cashier II 16 The United States Department of Labor, Employment & Training Administration's 17 Dictionary of Occupational Titles (“DOT”) is routinely relied on by the SSA “in determining the 18 skill level of a claimant's past work, and in evaluating whether the claimant is able to perform 19 other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 20 The DOT is “a resource compiled by the Department of Labor that details the specific 21 requirements for different occupations.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016). 22 The “DOT’s occupational definitions are the result of comprehensive studies of how similar jobs 23 are performed in different workplaces.” Social Security Ruling (“SSR”) 1 00-4p, 2000 WL 24 1898704, at *2 (2000). The term “occupation,” as used in the DOT, refers to the collective 25 description of those jobs, and each occupation represents numerous jobs. Id.; see also Gutierrez, [26] 844 F.3d at 807 . As such, the DOT “lists maximum requirements of occupations as generally 27 performed, not the range of requirements of a particular job as it is performed in specific 1 The DOT describes the daily duties and responsibilities of a router as, “stamps, stencils, 2 letters, or tags packages, boxes, or lots of merchandise to indicate delivery routes. Reads 3 addresses on articles and determines route, using standard charts.” DICOT 222.587-038 4 (router), available at 1991 WL 672123 . The maximum requirements for a router include the 5 ability to frequently (1/3 to 2/3 of the time) reach, frequently handle, and occasionally (up to 6 1/3 of the time) finger. Id. As indicated by the DOT, an order caller “read[s] items listed on 7 order sheets to LABORER, STORES (any industry) who gathers and assembles items or to 8 BILLING TYPIST (clerical) who prepares bills for items. Indicates on order sheets items located 9 and items that are not available.” DICOT 209.667-014 (order caller), available at 1991 WL 10 671807 . The maximum requirements for an order caller include frequent reaching, handling, 11 and fingering. Id. The DOT explains that cashier II 12 [r]eceive[s] cash from customers or employees in payment for goods or services 13 and records amounts received: Recomputes or computes bill, itemized lists, and tickets showing amount due, using adding machine or cash register. Makes [14] change, cashes checks, and issues receipts or tickets to customers. Records 15 amounts received and prepares reports of transactions. Reads and records totals 16 shown on cash register tape and verifies against cash on hand. May be required to know value and features of items for which money is received. May give cash [17] refunds or issue credit memorandums to customers for returned merchandise. May 18 operate ticket-dispensing machine. May operate cash register with peripheral 19 electronic data processing equipment by passing individual price coded items across electronic scanner to record price, compile printed list, and display cost of [20] customer purchase, tax, and rebates on monitor screen. May sell candy, cigarettes, 21 gum, and gift certificates, and issue trading stamps. 22 DICOT 211.462-010 (cashier II), available at 1991 WL 671840 . Cashier II includes maximum 23 requirements of frequent handling, fingering, and reaching. Id. 24 C. Relevant Law 25 At step five of the sequential evaluation process, the Commissioner has the burden “to 26 identify specific jobs existing in substantial numbers in the national economy that [a] claimant 27 can perform despite [his] identified limitations.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 1 416.920(g)). In making a disability determination at this step, the ALJ relies primarily on the 2 DOT for “information about the requirements of work in the national economy.” Massachi v. 3 Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). The ALJ also may use “testimony from [VEs] to 4 obtain occupational evidence.” Massachi, 486 F.3d at 1153 ; see also Zavalin, 778 F.3d at 846 . 5 Generally, the VE’s testimony should be consistent with the DOT. See SSR 00-4p, 2000 WL 6 1898704, at *2; Massachi, 486 F.3d at 1153 . But when conflicts occur, neither the DOT nor the 7 VE’s evidence automatically trumps. Massachi, 486 F.3d at 1153 (citing SSR 00-4p, 2000 WL 8 1898704, at *2). 9 “When there is an apparent conflict between the [VE]’s testimony and the DOT—for 10 example, expert testimony that a claimant can perform an occupation involving DOT 11 requirements that appear more than the claimant can handle—the ALJ is required to reconcile 12 the inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi, 486 F.3d at 1153-54 ). The ALJ 13 must ask the VE whether his or her testimony conflicts with the DOT and if it does, must ask 14 the expert to reconcile the conflict before relying on the expert to decide if the claimant is 15 disabled.” Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016); see also Massachi, 486 F.3d 16 at 1153-54; SSR 00-4p, 2000 WL 1898704 , at *4. “The ALJ must then determine whether the 17 [VE]’s explanation for the conflict is reasonable and whether a basis exists for relying on the 18 expert rather than the [DOT].” Massachi, 486 F.3d at 1153 . A failure to ask the VE whether his 19 or her testimony conflicts with the DOT may be harmless error if there is no conflict, or if the 20 VE provides “sufficient support for [his or] her conclusion so as to justify any potential conflicts.” [21] Id. at 1154 ; see also Hann v. Colvin, 2014 WL 1382063 , at 15 (N.D. Cal. Mar. 28, 2014). 22 The Ninth Circuit has explained that the conflict must be “obvious or apparent” to trigger 23 the ALJ’s obligation to inquire further. Gutierrez, 844 F.3d at 808 . “This means that the 24 testimony must be at odds with the [DOT’s] listing of job requirements that are essential, 25 integral, or expected.” Id. For example, in Gutierrez, the claimant could not reach above 26 shoulder level with her right arm. Id. at 807 . The VE opined that she could work as a cashier, 27 and the ALJ did not specifically question the VE about how the claimant could do this considering 1 ALJ should have recognized a conflict between the DOT and the VE’s testimony and questioned 2 the VE more thoroughly about the discrepancy. Id. The court held there was no error because, 3 based on common experience, it is “unlikely and unforeseeable” that a cashier would need to 4 reach overhead, and even more rare for one to need to reach overhead with both arms. Id. Of 5 course, “[t]he requirement for an ALJ to ask follow up questions is fact-dependent,” and the 6 more obscure the job, the less likely common experience will dictate the result. Id. at 808 ; see 7 also Lamear v. Berryhill, 865 F.3d 1201 (9th Cir. 2017) (opining that common experience did 8 not dictate that it was “likely and foreseeable that an office helper, mail clerk, or parking lot 9 cashier with limitations on his ability to “handle, finger and feel with the left hand” could perform 10 these jobs” and concluding that the ALJ should have asked the “VE to explain in some detail” 11 why there is no conflict). 12 C. Analysis 13 Initially, the Court must determine whether the conflict between the VE’s testimony and 14 the DOT requirements was apparent and obvious. With regard to reaching, the Ninth Circuit 15 determined in Gutierrez, 844 F.3d at 807 , that the conflict was not apparent and obvious. In 16 that case, the VE testified that the Plaintiff could work as a cashier, which the DOT indicated 17 required frequent reaching, despite her inability to reach above shoulder level with her right 18 arm. Id. The Ninth Circuit held that the conflict was not apparent and obvious because “common 19 experience” indicates it is “unlikely and unforeseeable” that a cashier would need to reach 20 overhead, and even more rare for a person to need to reach overhead with both arms. Gutierrez, 21 844 F.3d at 808–09. The Court finds that the Gutierrez rationale is equally applicable to this 22 case—that is, common experience tells us that it is unlikely and unforeseeable that a router, 23 order caller, or casher would need to reach overhead frequently, especially with both arms. 24 Moreover, the ALJ in this case explicitly asked the VE about the reaching conflict and the VE 25 explained that she was using her education and experience to make the determination. AR 5426 55. In his decision, the ALJ noted that the DOT does “not specify height in conjunction with 27 reach requirements” and that he relied on the VE’s education and experience in determining 1 Ninth Circuit’s decision and rationale and the facts of this case, the Court finds that the ALJ did 2 not err in determining that the Plaintiff could perform the jobs identified by the VE despite the 3 difference between the DOT requirements and the limitations set forth in the RFC with regard 4 to reaching. 5 The analysis and conclusion are different as to the handling and fingering limitations. 6 Initially, the Court finds there is a clear conflict because the DOT says that all three jobs require 7 frequent handling and two of them (order caller and cashier II) require frequent fingering, all of 8 which conflict with the occasional limitations set forth in the RFC. Second, the Court finds the 9 conflict is apparent and obvious as the DOT job descriptions include essential, integrated, or 10 expected work activity that indicates a need to be able to handle and finger frequently and to 11 do so with both hands. See e.g. Router (“[s]tamps, stencils, letters, or tags packages, boxes, 12 or lots of merchandise to indicate delivery routes); Order Caller (includes “gather[ing] and 13 assembl[ing] items” and “prepar[ing] bills for items” and “[i]ndicat[ing] on order sheets items 14 located and items that are not available”); Cashier II (includes receiving cash, computing bills 15 and lists, using a cash register, and preparing reports). Finally, the Court finds that it cannot 16 rely on “common experience” to determine that it is likely and foreseeable that a person with 17 Plaintiff’s handling and fingering limitations could perform the jobs identified by the VE and ALJ. 18 As discussed above, the identified jobs include essential work that appears to involve frequent 19 handling and fingering and involve both hands. For example, all of the aforementioned positions 20 require individuals to write, type, receive items (including boxes and papers), and manipulate 21 items with their hands at a constant rate. 22 The ALJ did not explicitly ask the VE about the handling and fingering conflicts but he did 23 ask about the reaching conflict. AR 53-54. After the VE provided her response to the reaching 24 conflict, the ALJ asked “other than your use of your education and experience in that instance, 25 has your testimony been consistent with the DOT and Selected Characteristics of Occupations?” 26 Id. at 54. The VE responded, “[w]ell, I also mentioned that handiness and that same thing, so, 27 yes, I am consistent with the DOT.” Id. The VE’s handiness comment was in response to the 1 a person must reach in order to seek the handiness, so for this I’m relying on my 30 plus years 2 of experience.” AR 53. The ALJ did not clarify what the VE meant by “height the person must 3 reach in order to seek the handiness” and whether the VE was opining about reaching limitations 4 or handling limitations. Id. at 53-54. The VE also did not explain how an individual that is limited 5 to occasional handling and fingering with one hand would be capable of performing the identified 6 jobs that require frequent handling and fingering, whether unilaterally or bilaterally and 7 dominant or non-dominant. Id. The ALJ did not ask any additional questions regarding fingering, 8 handling or the fingering and handling conflicts. Id. at 55. Nonetheless, in his decision, the ALJ 9 stated that the VE “stated that the DOT did not specify height in conjunction with reaching 10 requirements or address hand dominance relative to manipulative limitations and that her 11 testimony regarding these subjects reflected her education and professional experience.” AR 12 36. The ALJ then relied on the VE’s qualifications in accepting her opinions and “confirm[ed] 13 that the vocational expert’s remaining testimony pertaining to the residual functional capacity 14 specified in Finding 5 was consistent with the information contained in the DOT.” Id. 15 Based upon the evidence in the record, the Court finds there was an obvious and apparent 16 conflict between the DOT and the VE’s testimony and opinions regarding handling and fingering. 17 The Court further finds that the ALJ did not adequately address and resolve the conflict because 18 he did not explicitly ask the VE about the conflict, the VE’s testimony was contradictory and 19 confusing, the ALJ did not ask questions to clarify the VE’s testimony or to obtain additional 20 information regarding the conflicts, the ALJ’s conclusion about the VE’s testimony regarding 21 hand dominance is not supported by the VE’s actual testimony, and the ALJ relied on the VE’s 22 testimony and opinion to support his non-disability decision. Notably, Defendant did not address 23 the conflict regarding handling and fingering and did not provide any law or facts to support the 24 ALJ’s decision. See Oppo. 25 While neither party cited nor addressed the Ninth Circuit’s opinion in Lamear v. Berryhill, [26] 865 F.3d 1201 , the Court finds it instructive. In Lamear, the ALJ determined that the claimant 27 could occasionally handle and finger with his non-dominant hand and arm. Id. at 1203 . The 1 clerk, and parking lot cashier) “even though the DOT states that these jobs require “frequent” 2 handling, fingering and reaching.” Id. The ALJ relied on the VE’s testimony and opinion and 3 found the claimant was not disabled. Id. at 1204 . In reversing the ALJ, the court noted that 4 “[t]he VE did not explain how [claimant] could do this work with his left hand and arm limitations 5 and the ALJ never asked the VE to reconcile any potential inconsistency between [claimant’s] 6 manipulative limitations and the DOT’s job descriptions.” Id. The court determined that they 7 “cannot say that, based on common experience, it is likely and foreseeable that an office helper, 8 mail clerk, or parking lot cashier with limitations on his ability to ‘handle, finger and feel with the 9 left hand’ could perform his duties” and noted that the DOT’s job descriptions “strongly suggest 10 that it is likely and foreseeable that using both hands would be necessary to perform ‘essential, 11 integral, or expected’ tasks in an acceptable and efficient manner.” Id. at 1205 . In reaching 12 this decision, the court emphasized that “an ALJ should ordinarily ask the VE to explain in some 13 detail why there is no conflict between the DOT and the applicant’s RFC.” Id. The court also 14 rejected the Commissioner’s request to find the error harmless “by presuming that the handling, 15 fingering, and reaching requirements are unilateral since the DOT does not expressly state that 16 they demand both hands.” Id. at 1206 . In doing so, the court again stated that they cannot do 17 so because they “cannot determine from this record, the DOT, or our common experience 18 whether the jobs in question require both hands.” Id. 19 The Court finds that the Lamear analysis and holding support the Court’s determination 20 that the ALJ in this case erred by failing to ask the VE to explain “in some detail” how or why a 21 person with Plaintiff’s handling and fingering limitations could perform the identified jobs. Id. at 22 1205; Massachi, 486 F.3d at 1153 (an ALJ must obtain testimony from the VE and then 23 determine whether “the [VE]’s explanation for the conflict is reasonable and whether a basis 24 exists for relying on the expert rather than the [DOT]”). The Court also finds that the jobs 25 identified in this case are similar to those identified in Lamear such that common experience 26 cannot be used to determine that it is “likely and foreseeable” that the “essential, integral, or 27 expected” job requirements can be performed by a person with Plaintiff’s handling and fingering 1 fingering conflicts at issue in this case were apparent and obvious, that the ALJ needed to 2 question the VE about the conflicts, and that the ALJ failed to do so and failed to properly resolve 3 the conflicts. Thus, the ALJ erred at his Step Five determination. 4 D. Harmless Error Analysis 5 Having concluded the ALJ erred at step five, the Court must now determine whether such 6 error was harmless. “[A]n ALJ's error is harmless where it is ‘inconsequential to the ultimate 7 nondisability determination.’ ” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (quoting 8 Carmickle, 533 F.3d at 1162). In assessing whether an error is harmless, the court “look[s] at 9 the record as a whole to determine whether the error alters the outcome of the case.” Id. 10 Here, the ALJ’s errors were not harmless. The ALJ’s step five analysis was fundamentally 11 flawed. There was an obvious and apparent conflict between the VE’s testimony and the DOT 12 requirements with regards to handling and fingering and the ALJ failed to question the VE 13 regarding those conflicts. In addition, the VE’s testimony was confusing and contradictory with 14 regard to those conflicts and the ALJ failed to clarify the VE’s testimony. Finally, the ALJ relied 15 on testimony the VE did not provide and the testimony that the VE did provide did not support 16 the ALJ’s determination. See Lamear, 865 F.3d at 1206 (step five error of failing to question 17 the VE and resolve the apparent and obvious conflict was not harmless and the court could not 18 presume the handling and fingering requirements were unilateral); Stout v. Comm'r of Soc. Sec. 19 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (only mistakes that are “nonprejudicial to the 20 claimant or irrelevant to the ALJ's ultimate disability conclusion” are harmless). 21 E. Appropriate Remedy 22 Having concluded the ALJ committed harmful error, the final issue for the Court to 23 consider is whether to remand for further proceedings or to simply award benefits to Plaintiff. 24 The decision whether to remand for further proceedings or simply to award benefits is within 25 the discretion of the court. See Aida I. v. Saul, 2020 WL 434319 , at *5 (S.D. Cal., Jan. 28, 2020) 26 (noting that “[t]he law is well established that the decision whether to remand for further 27 proceedings or simply to award benefits is within the discretion of the Court.”) (citing Salvador 1 || 1989); and Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Remand for further 2 || administrative proceedings is appropriate if enhancement of the record would be useful. See 3 || Gerde v. Berryhill, 717 Fed. Appx. 674 , 677 (9th Cir. 2017) (“[r]Jemand for further administrative 4 || proceedings to consider Dr. Alvord's opinion and the lay witness testimony is the proper remedy 5 ||because enhancement of the record would be useful.”) (citing Benecke v. Barnhart, 379 F.3d 6 ||587, 593 (9th Cir. 2004)). On the other hand, if the record has been fully developed such that 7 further administrative proceedings would serve no purpose “the district court should remand for 8 immediate award of benefits.” Benecke, 379 F.3d at 593. A remand for an immediate award 9 || of benefits is appropriate only in rare circumstances. Id. 10 The Court notes that neither party disagrees in their pleadings that reversal and remand 11 || are the proper remedies should the Court overturn the ALJ's decision. See Brief at 20; Reply at 12 ||5; Oppo. at 7. The Court finds that an immediate award of benefits is unwarranted in this case 13 || as further proceedings would serve a meaningful purpose for the reasons set forth above. See 14 v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017) (L[a]n automatic award of benefits in a 15 || disability benefits case is a rare and prophylactic exception to the well-established ordinary 16 ||remand rule”); see also Howland v. Saul, 804 Fed. Appx. 467 , 471 (9th Cir. 2020) (same). 17 ||Accordingly, the Court finds the proper remedy is to remand for further proceedings in 18 || accordance with this order. 19 CONCLUSION 20 For the reasons set forth above, the Court GRANTS Plaintiff’s Brief and REVERSES AND 21 || REMANDS for further proceedings consistent with this Order. 22 IT IS SO ORDERED. 23 Dated: 5/3/2024 lobe Mager 24 Hon. Barbara L. Major United States Maqistrate Judde