Baker v. Commissioner

Filing 19

ORDER REMANDING CASE to Commissioner of Social Security; ORDERED Judgment in Favor of Plaintiff Brenda Dee Baker and Against Defendant Commissioner of Social Security, signed by Magistrate Judge Stanley A. Boone on 07/18/14. Copy of remand order sent to Commissioner of Social Security. CASE CLOSED (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRENDA DEE BAKER, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL AND REMANDING ACTION FOR FURTHER ADMINISTRATIVE PROCEEDINGS Plaintiff, 12 v. 13 14 Case No. 1:13-cv-01350-SAB COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Plaintiff Brenda Dee Baker (“Plaintiff”) filed this action seeking judicial review of the 18 final decision of Defendant Commissioner of Social Security (“Defendant” or “Commissioner”) 19 denying Plaintiff’s application for benefits under the Social Security Act. (ECF No. 1.) All 20 parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. 21 (ECF Nos. 7, 8.) 22 Plaintiff applied for Social Security benefits due to impairments related to degenerative 23 disc disease, obesity, depressive disorder and anxiety disorder. For the reasons set forth below, 24 Plaintiff’s appeal from the final decision of the Commissioner is granted and this action is 25 remanded to the Commissioner for further administrative proceedings. 26 / / / 27 / / / 28 / / / 1 1 I. 2 FACTUAL AND PROCEDURAL BACKGROUND1 Plaintiff applied for Disability Insurance benefits and Supplemental Security Income 3 4 benefits on October 20, 2009. (AR 140-154.) Plaintiff’s application was denied on April 13, 5 2010. (AR 73.) Plaintiff requested reconsideration of the denial on April 21, 2010. (AR 79.) 6 Plaintiff’s application was denied after reconsideration on September 20, 2010. (AR 81.) On 7 September 30, 2010, Plaintiff requested a hearing. (AR 88.) On September 12, 2011, a hearing took place before Administrative Law Judge Mary P. 8 9 Parnow (“the ALJ”). (AR 39.) On November 11, 2011, the ALJ issued a written decision and 10 found that Plaintiff was not disabled. (AR 16-32.) The Appeals Council denied Plaintiff’s 11 request for review on June 25, 2013. (AR. 1.) Plaintiff’s Hearing Testimony 12 A. 13 Plaintiff was born on January 20, 1975. (AR 43.) Plaintiff is 5’6” and weighs 240 14 pounds. (AR 43.) Plaintiff is right handed. (AR 43.) In terms of education, Plaintiff completed 15 the “LVN Program” and has “a licensed psychiatric technician license” obtained in 1999 (AR 16 43-44.) Plaintiff has a high school diploma. (AR 44.) Plaintiff contends that her disability 17 began in March 2008. (AR 44-45.) Plaintiff last worked in March 2008. (AR 44.) Plaintiff most recently worked as a house 18 19 manager for a group home of disabled clients. (AR 45.) Plaintiff passed out medication and 20 charted. (AR 45.) Plaintiff supervised other employees, hired and fired employees and did 21 performance evaluations. (AR 46.) Plaintiff also worked for the State of California at the Porterville Developmental Center 22 23 as a psychiatric technician. (AR 46.) Plaintiff worked for “forensic clients” that were high 24 functioning and very aggressive. (AR 46.) Plaintiff passed out medication, charted, watched the 25 clients, made beds, and fed clients. (AR 46-47.) Plaintiff did a lot of walking, bending, and 26 stopping altercations between clients. (AR 46-47.) 27 1 Citations to the Social Security Administrative Transcript will be designated as “AR” (administrative record). 28 Page numbers will refer to the page numbers as stamped and indexed in the lodged transcript. (See ECF No. 9.) 2 1 Plaintiff also worked at Kaweah Delta Mental Health Hospital. (AR 47.) Plaintiff passed 2 medication, watched clients, and changed beds. (AR 48.) Changing the beds sometimes 3 involved lifting or moving non-ambulatory patients. (AR 48.) Plaintiff also worked as a CNA at 4 Porterville Convalescent Hospital. (AR 48.) Plaintiff dressed, fed, and showered clients. (AR 5 48.) Plaintiff made beds, charted, and answered call lights. (AR 48.) 6 Plaintiff currently lives with her fiancé. Plaintiff has a driver’s license but does not drive 7 because she cannot turn her neck or twist her back to look over her shoulder. (AR 49.) 8 Plaintiff has been seeing Dr. Mendelson for pain treatment for a few years. (AR 49-50.) 9 Plaintiff has received occipital nerve injections for migraines, and has done physical therapy, 10 acupuncture and massage therapy. (AR 50.) None of the therapies have helped. (AR 50.) 11 Plaintiff was reluctant to receive epidural injections because she received occipital injections, 12 which did not work. (AR 50.) Plaintiff also had anxiety because she was told that there was a 13 chance of becoming paralyzed. (AR 51.) 14 Plaintiff started taking Cymbalta for depression and anxiety the same month as the 15 hearing. (AR 51.) Plaintiff takes Trinaptin for her sleep disorder, but it does not help. (AR 52.) 16 Plaintiff’s pain medication helps a little, but she still has a lot of pain. (AR 51.) Plaintiff also 17 has side effects from her medications, such as drowsiness, upset stomach, and fatigue. (AR 51.) 18 Plaintiff’s doctors told her that these side effects could also be related to her depression and 19 anxiety. (AR 52.) Plaintiff sees a therapist for her depression. (AR 53.) 20 On a typical day, Plaintiff’s day starts at around 8:00 in the morning. (AR 53.) 21 Plaintiff’s fiancé helps her with showering and getting dressed. (AR 53.) Plaintiff usually stays 22 at home and has anxiety while her fiancé is out of the house. (AR 53-54.) Plaintiff typically sits 23 on the couch or paces around. (AR 54.) Plaintiff watches TV. (AR 54.) Plaintiff usually eats a 24 microwaved burrito or “something like that” for meals. (AR 54.) 25 Plaintiff does not do any housework or go shopping because she cannot bend, stoop, pull 26 or push. (AR 54.) Plaintiff can lift five pounds at the most. (AR 55.) Plaintiff can walk fifteen 27 minutes before needing a break. (AR 55.) Plaintiff can stand for ten to fifteen minutes. (AR 5428 55.) Plaintiff can sit for about fifteen minutes. (AR 56.) Plaintiff can concentrate for a few 3 1 minutes at a time. (AR 56-57.) Plaintiff’s carpal tunnel prevents her from grasping anything. 2 (AR 57.) Plaintiff has constant panic attacks. (AR 57.) Plaintiff also has panic attacks outside 3 the house and feels like she is going to pass out because “everybody’s staring at [her].” (AR 58.) 4 B. 5 Thomas Linvill testified as a vocational expert (hereinafter referred to as “the VE”) at the VE Testimony 6 September 12, 2011 hearing before the ALJ. (AR 60.) The VE characterized Plaintiff’s past 7 work as psychiatric technician (medium work, SVP 6) and resident supervisor (sedentary work, 8 SVP 6). The ALJ provided the VE with the following first set of hypothetical limitations: 9 10  Same age, work history and education as Plaintiff; 11  No lifting over 15 pounds; and 12  No stooping, bending, kneeling, crawling, repetitive arm movements or overhead work; 13 (AR 61.) The VE testified that a person with such hypothetical limitations could not perform 14 Plaintiff’s past work as a psychiatric technician, but could perform work as a resident supervisor. 15 (AR 61-62.) The ALJ provided the VE with the following second set of hypothetical limitations: 16 17  Same limitations from the first hypothetical; 18  Able to maintain attention and concentration to carry out simple job instructions; 19  Unable to carry out an extensive variety of technical and/or complex instructions; and 20  Able to related and interact with co-workers, supervisors and the general public. 21 (AR 62.) The VE testified that a person with such hypothetical limitations could not perform 22 any of Plaintiff’s past work. (AR 62.) However, such a person could perform other work as a 23 film touch-up inspector (sedentary, SVP 2), document preparer (sedentary, SVP 2), surveillance 24 system monitor (sedentary, SVP 2), or addresser (sedentary, SVP 2). (AR 62-63.) The VE 25 testified that these jobs existed in low numbers in the local economy, with the number of jobs 26 ranging from 4 or 5 to 30-35. (AR 62-63.) The jobs identified involved frequent handling and 27 frequent feeling, but not repetitive movements. (AR 63.) 28 / / / 4 Plaintiff’s attorney provided the VE with the following third set of hypothetical 1 2 limitations: 3  Same age, education and work history as Plaintiff; 4  “[S]ame non-exertionally psychiatric posed in the second hypothetical”; 5  No lifting over ten pounds; 6  No repetitive twisting of the head and neck; and 7  No repetitive overhead use of the left upper extremity. 8 (AR 64.) The VE testified that a person with such hypothetical limitations could not perform 9 Plaintiff’s past work, but could perform the jobs identified in response to the second 10 hypothetical. (AR 64.) Plaintiff’s attorney provided the VE with the following fourth set of hypothetical 11 12 limitations: 13  Able to lift and carry 5 pounds; 14  Able to walk 15 minutes; 15  Able to stand 15 minutes; 16  Able to sit 15 minutes; and 17  Unable to maintain concentration for longer than 10 minutes. 18 (AR 65.) The VE testified that a person with such hypothetical limitations could not perform 19 any work. 20 C. 21 The administrative record includes the following medical records: records from Dr. Medical Records 22 Diego Allende, D.O. (AR 303-348, 382-397, 437-464), records from the State of California 23 Division of Workers’ Compensation (AR 349-353), records from Central Valley Family Health 24 (AR 354-365, 533-541), records from Dr. Craig R. MacClean, M.D. (AR 366-381, 606-626), 25 records from Dr. Ira Fishman, M.D. (AR 398-436), records from Mayumi Wint, LCSW (AR 26 465-469), records from Family Health Center (470-483), a February 19, 2010 Physical Residual 27 Functional Capacity Assessment from Dr. C. De la Rosa, M.D. (AR 484-488), a February 19, 28 2010 Case Analysis from Dr. C. De la Rosa, M.D. (AR 489-494), records from Adventist 5 1 Behavioral Health (AR 498-509, 598-603), a March 27, 2010 Psychiatric Evaluation from Dr. 2 Ekram Michiel, M.D. (AR 510-514), an April 12, 2010 Mental Residual Functional Capacity 3 Assessment from Dr. Randall J. Garland, Ph.D (AR 515-518), an April 12, 2010 Psychiatric 4 Review Technique from Dr. Randall J. Garland, Ph.D (AR 519-532), records from Selma 5 Community Hospital (AR 569-597), an August 10, 2010 Case Analysis from Dr. L. Bobba, M.D. 6 (AR 604-605), a September 13, 2010 Case Analysis from Dr. P. Walls, M.D. (AR 627), records 7 from Dr. Clifford Feldman, J.D., M.D. (AR 652-684), records from Cal Care Medical Institute 8 Inc. (AR 685-700), and other records from various medical sources (AR 701-802). 9 D. The ALJ made the following findings of fact and conclusions of law: 10 11 The ALJ’s Findings  Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2012; 12 13  Plaintiff has not engaged in substantial gainful activity since March 15, 2008; 14  Plaintiff has the following severe impairments: degenerative disc disease of the lumbar 15 spine with radiculopathy to the right lower extremity, degenerative disc disease of the 16 cervical spine with radiculopathy, obesity, depressive disorder, and anxiety disorder; 17  Plaintiff does not have an impairment or combination of impairments that meets or 18 medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, 19 Subpart P, Appendix 1; 20  Plaintiff has the residual functional capacity to perform less than the full range of light 21 work. Plaintiff should avoid lifting over 15 pounds and is precluded from lifting 25 22 pounds. 23 movements, and overhead work. Plaintiff is able to maintain attention and concentration 24 and to carry out simple job instructions. Plaintiff is able to relate and interact with 25 coworkers, supervisors, and the general public. 26 extensive variety of technical and/or complex instructions; 27  Plaintiff is precluded from stooping, kneeling, crawling, repetitive arm Plaintiff is unable to carry out an Plaintiff is unable to perform any past relevant work; 28 / / / 6 1  Considering Plaintiff’s age, education, work experience, and residual functional capacity, 2 there are jobs that exist in significant numbers in the national economy that Plaintiff can 3 perform; and 4 5  Plaintiff has not been under a disability, as defined in the Social Security Act, from March 15, 2008. 6 (AR 21-31.) 7 II. 8 LEGAL STANDARDS FOR JUDICIAL REVIEW OF SOCIAL SECURITY DETERMINATIONS 9 10 An individual may obtain judicial review of any final decision of the Commissioner of 11 Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). The Court “reviews the 12 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 13 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 14 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 15 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 16 (internal quotations and citations omitted). “Substantial evidence is ‘such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Richardson v. 18 Perales, 402 U.S. 389, 401 (1971)). “[A] reviewing court must consider the entire record as a 19 whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Hill, 20 698 F.3d at 1159 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 21 However, it is not this Court’s function to second guess the ALJ’s conclusions and substitute the 22 Court’s judgment for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) 23 (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s 24 conclusion that must be upheld.”) 25 III. 26 DISCUSSION AND ANALYSIS 27 Plaintiff’s arguments fall into two general categories. First, Plaintiff contends that the 28 ALJ erred because the VE’s testimony that Plaintiff could perform the jobs of “film touch-up 7 1 inspector,” “document preparer,” and “surveillance systems monitor” conflicted with the DOT 2 and the VE did not provide a reasonable explanation for the conflict. Second, Plaintiff contends 3 that the other jobs identified by the VE do not constitute a significant number of jobs existing in 4 the national economy. 5 6 7 A. The ALJ Erred by Failing to Obtain an Explanation of the Apparent Conflict Between the VE’s Testimony and the DOT Plaintiff argues that the ALJ erred in concluding that Plaintiff could perform work as a 8 “film touch-up inspector,” “document preparer” and “surveillance systems monitor” because the 9 description of those jobs conflicted with the ALJ’s findings regarding Plaintiff’s RFC. 10 Specifically, Plaintiff contends that work as a “film touch-up inspector” requires occasional 11 stooping and constant reaching, handling and fingering, which Plaintiff cannot do. Plaintiff also 12 contends that work as a “document preparer” and “surveillance systems monitor” require 13 “Reasoning Level 3,” which is beyond Plaintiff’s capabilities. 14 “In making disability determinations, the Social Security Administration relies primarily 15 on the Dictionary of Occupational Titles for ‘information about the requirements of work in the 16 national economy.’” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting SSR 0017 4p at *2). “The Social Security Administration also uses testimony from vocational experts to 18 obtain occupational evidence.” Id. (citing SSR 00-4p at *2). “Although evidence provided by a 19 vocational expert ‘generally should be consistent’ with the Dictionary of Occupational Titles, 20 ‘[n]either the [Dictionary of Occupational Titles ] nor the [vocational expert] ... evidence 21 automatically “trumps” when there is a conflict.’” Id. (quoting SSR 00-4p at *2). “Thus, the 22 ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine 23 whether the vocational expert’s explanation for the conflict is reasonable and whether a basis 24 exists for relying on the expert rather than the Dictionary of Occupational Titles.” Id. “‘[A]n 25 ALJ may rely on expert testimony which contradicts the [Dictionary of Occupational Titles ], but 26 only insofar as the record contains persuasive evidence to support the deviation.’” Id. at 1153 27 (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). 28 / / / 8 1 2 3 4 5 6 1. The ALJ Did Not Err in Determining that Plaintiff Could Work as a Film TouchUp Inspector Plaintiff argues that the ALJ erred because the “film touch-up inspector” job requires occasional stooping and constant reaching, handling and fingering while the ALJ determined that Plaintiff’s residual functional capacity precluded Plaintiff from stooping or engaging in repetitive arm movements. The DOT describes the “film touch-up inspector” job as follows: 7 726.684-050 FILM TOUCH-UP INSPECTOR (electron. comp.) Inspects and repairs circuitry image on photoresist film (separate film or film laminated to fiberglass boards) used in manufacture of printed circuit boards (PCB’s): Inspects film under magnifying glass for holes, breaks, and bridges (connections) in photoresist circuit image. Removes excess photoresist, using knife. Touches up holes and breaks in photoresist circuitry image, using photoresist ink pen. Removes and stacks finished boards for transfer to next work station. Maintains production reports. May place lint free paper between dry film sheets to avoid scratching circuit images on film. GOE: 06.03.02 STRENGTH: S GED: R2 M1 L1 SVP: 2 DLU 86 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2 Dictionary of Occupational Titles 733 (4th Ed. 1991) The DOT’s description of the “film touch-up” inspector job does not describe any duties that require stooping. Accordingly, contrary to Plaintiff’s arguments otherwise, there is no inconsistency between the VE’s testimony and the DOT in that respect. With respect to any inconsistency with Plaintiff’s inability to engage in repetitive arm movements, the ALJ elicited testimony from the VE providing a reasonable explanation regarding any inconsistency. At the hearing, the VE testified that the job may involve frequent handling and frequent feeling, but it would not be repetitive. (AR 63.) Based upon the foregoing, the Court finds that the ALJ did not err in finding that Plaintiff could perform work as a film touch-up inspector. 24 25 2. The ALJ Erred in Determining That Plaintiff Could Work as a Document Preparer and Surveillance Systems Monitor 26 Plaintiff argues that the ALJ erred because the “document preparer” job and “surveillance 27 systems monitor jobs require “Reasoning Level 3.” Plaintiff contends that jobs which require 28 “Reasoning Level 3” are inconsistent with Plaintiff’s limitations, including being able to only 9 1 “maintain attention and concentration and to carry out simple job instructions” and being “unable 2 to carry out an extensive variety of technical and/or complex instructions.” 3 The Dictionary of Occupational Titles classifies jobs on a General Educational 4 Development (“GED”) Scale which is composed of three divisions: Reasoning Development, 5 Mathematical Development, and Language Development. 2 Dictionary of Occupational Titles 6 1012 (4th Ed. 1991). 7 General Educational Development embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance. This is education of a general nature which does not have a recognized, fairly specific occupational objective. Ordinarily, such education is obtained in elementary school, high school, or college. However, it may be obtained from experience and self-study. 8 9 10 11 Id. at 1009, 1012. 12 The GED Scale is numerical, ranging from 1 to 6. The description for Reasoning Level 3 13 states: 14 03 Level Reasoning Development Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations. 15 16 17 Id. at 1011. 18 However, the Social Security regulations do not utilize the GED Scale or any other 19 readily quantifiable scale or metric to measure a claimant’s ability to reason. Instead, the 20 regulations vaguely state that “nonexertional limitations” will be considered, such as “difficulty 21 maintaining attention or concentrating,” and “difficulty understanding or remembering detailed 22 instructions.” See 20 C.F.R. § 416.969a(c). 23 Numerous courts have recognized the difficulty in comparing the DOT’s GED Scale with 24 limitations expressed in an ALJ’s residual functional capacity determination because the two are 25 not equivalent. See Bement v. Astrue, No. C11-814-TSZ-JPD, 2011 WL 7039958, at *10-14 26 (W.D. Wash. Dec. 28, 2011) (limitation to “simple workplace decisions with few workplace 27 changes” consistent with Reasoning Levels 1 and 2, but not Level 3); Meissl v. Barnhart, 403 F. 28 Supp. 2d 981, 982-84 (C.D. Cal. 2005) (finding that limitation to simple, repetitive mental tasks 10 1 is consistent with Reasoning Level 2). 2 Defendant cites some cases where courts have held that simple, repetitive work 3 limitations are not inconsistent with jobs that are classified as Reasoning Level 3. However, the 4 greater weight of authority within this circuit holds that a simple tasks limitation is inconsistent 5 with the DOT’s Reasoning Level 3. See, e.g., Wright v. Astrue, No. EDCV 10-400 SS, 2010 6 WL 4553441, at *4 (C.D. Cal. Nov. 3, 2010) (and cases cited therein); Torrez, 2010 WL 7 2555847, at *9 (and cases cited therein). Following the greater weight of authority within this 8 circuit, the Court finds that a conflict existed between the VE’s testimony and the DOT because 9 the DOT’s description for the “document preparer” and “surveillance systems monitor” jobs 10 were not compatible with Plaintiff’s limitation to only carry out simple job instructions. While 11 this conflict does not necessarily preclude the ALJ from adopting the VE’s opinion, the Court 12 finds that the ALJ erred in failing to elicit a reasonable explanation from the VE for the conflict 13 and determine whether the record supports a deviation from the DOT. 14 Based upon the foregoing, the Court finds that the ALJ erred in determining that Plaintiff 15 could perform work as a “document preparer” or as a “surveillance systems monitor.” 16 B. 17 18 The ALJ Erred In Finding that a Significant Number of Jobs Exist in the National Economy Which Plaintiff Could Perform Plaintiff argues that the ALJ erred because the VE’s testimony does not support the 19 conclusion that the jobs identified by the VE existed in “significant numbers” in the national 20 economy. 21 “If the claimant is able to do other work, then the Commissioner must establish that there 22 are a significant number of jobs in the national economy that claimant can do.” Tackett, 180 23 F.3d at 1099. “There are two ways for the Commissioner to meet the burden of showing that 24 there is other work in ‘significant numbers’ in the national economy that claimant can do: (1) by 25 the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 26 20 C.F.R. pt. 404, subpt. P, app. 2.” Id. 27 The ALJ determined that Plaintiff could perform work as an addresser and Plaintiff does 28 not challenge this finding. Moreover, as discussed above, the Court finds that the ALJ did not 11 1 err in concluding that Plaintiff could perform work as a “film touch-up inspector.” See, 2 discussion, supra Part III.A.1. The VE testified that 35 addresser jobs exist in the Fresno area 3 and 13,200 addresser jobs exist on a national scale. (AR 62-63.) The VE testified that 4 or 5 4 film touch-up inspector jobs existed in the Fresno area and 1,300 film touch-up inspector jobs 5 existed on a national scale. (AR 62.) Accordingly, adding the two sets of job numbers up, there 6 were 39-40 jobs that Plaintiff could perform in the Fresno area and approximately 14,500 jobs 7 Plaintiff could perform on the national level. 8 Work exists in “significant numbers” if it exists in “significant numbers” either in the 9 region where the individual lives or in several regions throughout the country. 42 U.S.C. § 10 423(d)(2)(A); Gutierrez v. Commissioner of Social Sec., 740 F.3d 519, 528 (9th Cir. 2014). 11 Accordingly, the fact that there are only 35 addresser jobs in the Fresno area does not preclude a 12 finding that a “significant number” of jobs exist on the national scale. In fact, the ALJ is 13 prohibited from considering “whether such work exists in the immediate area in which [Plaintiff] 14 lives” in making her findings. 42 U.S.C. § 423(d)(2)(A) (“An individual shall be determined to 15 be under a disability [if he] cannot ... engage in any other kind of substantial gainful work which 16 exists in the national economy, regardless of whether such work exists in the immediate area in 17 which he lives....”). 18 However, there is no bright-line rule for what constitutes a “significant number” of jobs. 19 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). In Beltran, 135 regional jobs and 1,680 20 national jobs was not a “significant number.” Id. In Gutierrez, the Ninth Circuit stated that 21 whether “25,000 national jobs is sufficient presents a close call.” Gutierrez, 740 F.3d at 529. 22 However, the court ultimately concluded that 25,000 jobs nationally “represents a significant 23 number of jobs in several regions of the country.” Id. 24 In light of the Ninth Circuit’s characterization of 25,000 jobs as a “close call,” the Court 25 finds that 14,500 jobs on the national level is not a “significant number.” Accordingly, the Court 26 finds that the ALJ erred in determining that there existed a “significant number” of jobs which 27 Plaintiff could perform. 28 C. Remand is Necessary for Further Administrative Proceedings 12 1 Remand for further administrative proceedings is appropriate if enhancement of the 2 record would be useful. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, 3 where the record has been developed fully and further administrative proceedings would serve 4 no useful purpose, the district court should remand for an immediate award of benefits.” Id. 5 “More specifically, the district court should credit evidence that was rejected during the 6 administrative process and remand for an immediate award of benefits if (1) the ALJ failed to 7 provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues 8 that must be resolved before a determination of disability can be made; and (3) it is clear from 9 the record that the ALJ would be required to find the claimant disabled were such evidence 10 credited.” Id. (citing Harman, 211 F.3d at 1178). “The decision to remand to the SSA for 11 further proceedings instead of for an immediate award of benefits is reviewed for abuse of 12 discretion.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (citing Harman v. Apfel, 13 211 F.3d 1172, 1174, 1178 (9th Cir. 2000)). 14 In this case, there are outstanding issues that must be resolved before a determination of 15 disability can be made. For example, the record must be further developed to resolve the conflict 16 between the VE’s testimony and the DOT regarding whether Plaintiff could perform work as a 17 “document preparer” or “surveillance systems monitor.” Moreover, the record may be further 18 developed to determine whether Plaintiff could perform other jobs. Accordingly, it is not clear 19 from the record that the ALJ would be required to find Plaintiff to be disabled. The Court will 20 remand for further administrative proceedings. 21 IV. 22 CONCLUSION AND ORDER 23 Based upon the foregoing, the Court finds that the ALJ erred by failing to resolve an 24 apparent conflict between the VE’s testimony and the DOT regarding Plaintiff’s ability to 25 perform work as a “document preparer” and as a “surveillance systems monitor.” The Court 26 further finds that the ALJ erred in determining that a “significant number” of jobs existed in the 27 national economy which Plaintiff could perform. The Court finds that further administrative 28 proceedings are necessary to resolve outstanding issues before a determination of disability can 13 1 be made. 2 Accordingly, it is HEREBY ORDERED that: 3 1. Plaintiff’s appeal from the administrative decision of the Commissioner is GRANTED; 4 2. 5 This action is REMANDED to the Commissioner for further administrative proceedings; 6 3. 7 JUDGMENT is entered in favor of Plaintiff Brenda Dee Baker and against Defendant Commissioner of Social Security; and 8 4. 9 The Clerk of the Court is directed to CLOSE this action. 10 11 IT IS SO ORDERED. 12 Dated: July 18, 2014 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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