Anderson v. Commissioner of Social Security

Filing 20

ORDER Reversing Agency's Denial of Benefits and Ordering Remand signed by Magistrate Judge Barbara A. McAuliffe on 02/01/2017. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZENA MAE ANDERSON, 12 Plaintiff 13 14 15 v. CASE NO. 1:15-cv-00906-BAM ORDER REVERSING AGENCY’S DENIAL OF BENEFITS AND ORDERING REMAND NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant 16 17 18 INTRODUCTION 19 20 21 22 23 Plaintiff Zena Anderson (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act. 2 The matter is before the Court on the parties’ briefs, which were submitted without oral argument to Magistrate Judge Barbara A. McAuliffe. Having carefully considered the parties’ briefs as well as the entire record 24 25 26 27 28 1 Nancy A. Berryhill is the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. 2 The parties consented to the jurisdiction of the United States Magistrate Judge. (Docs. 3, 8.). On July 17, 2016, the action was reassigned to the Honorable Barbara A. McAuliffe for all purposes. See 28 U.S.C. ' 636(c); Fed. R. Civ. P. 73; see also L.R. 301, 305. 1 in this case, the Commissioner’s decision is REVERSED in part and the case REMANDED for 2 further proceedings consistent with this Order. 3 FACTS AND PRIOR PROCEEDINGS 4 On March 15, 2012, Plaintiff filed her current application for SSI, alleging disability 5 beginning January 1, 1989. AR 158-167.3 Plaintiff’s application was denied initially and on 6 reconsideration. AR 97-113. Subsequently, Plaintiff requested a hearing before an Administrative 7 Law Judge (“ALJ”). AR 117- 119. ALJ Trevor Skarda held a hearing on November 4, 2013, and 8 issued an order denying benefits on January 9, 2014. AR 34-41. Plaintiff sought review of the 9 ALJ’s decision, which the Appeals Council denied, making the ALJ’s decision the 10 Commissioner’s final decision. AR 1-3. This appeal followed. 11 Hearing Testimony 12 The ALJ held a video hearing on November 4, 2013, in Stockton, California. AR 55. 13 Plaintiff appeared in person with attorney Mark Girdner. AR 55. Impartial Vocational Expert 14 (“VE”) Stephen B. Schmidt also testified. Id. 15 In response to questions from the ALJ, Plaintiff testified about her physical problems. AR 16 56. She has painful bulging discs in her neck that cause headaches and pain in her shoulders and 17 arms. AR 57. Her neck impairment also causes her to drop things such as dishes and cups. AR 18 57. 19 experiences pain of a 7 or 8. AR 57. In February 2011, Plaintiff went to the emergency room for 20 treatment of severe pain in her right arm and headaches. AR 57. Her physician, Dr. Cohen, 21 recommended that she continue to use a heat sock and a TENS unit for the pain. AR 58. Plaintiff 22 testified that the pain in her neck also interferes with sleep and her ability to do household chores 23 such as sweeping and mopping. AR 60-61. She is unable to lift a gallon of milk without using 24 two hands. AR 62. According to Plaintiff, she can sit for about one hour before she has to get up 25 and walk around. AR 62-63. She can walk a “couple of blocks” before her pain “sometimes” 26 increases. AR 63. On a ten-point scale where ten indicates the most severe pain, Plaintiff testified that she 27 28 3 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 2 1 The ALJ asked additional questions about Plaintiff’s limited work history. Plaintiff 2 testified that she worked at a cheese company doing general labor for two months—June 2006 to 3 August 2006. AR 63, 214. She also previously worked for Costco doing food demonstrations 4 from December 2005 to May 2006. AR 214. Plaintiff also did some previous work as a janitor in 5 2001. AR 66, 214-215. 6 When asked about her medication, Plaintiff testified she takes Morphine, Hydrocodone, 7 Baclofen, Metoprolol, Neurontin and Amitriptyline for headaches. AR 64-65. Plaintiff also 8 previously smoked medical marijuana for her pain but quit smoking because government funding 9 precludes prescriptions for pain medications when a patient is consuming medical marijuana. AR 10 64-65, 68. In February 2012, Plaintiff also had an epidural injection. AR 59. 11 Following Plaintiff’s testimony, the ALJ asked the VE the type of work that could be 12 completed by a hypothetical individual that can perform less than the full range light work, but she 13 was limited to “ . . . occasional overhead reaching.” AR 70. The VE responded that the individual 14 is unable to perform Plaintiff’s past relevant work as a hand packer. AR 70. However, that 15 individual could perform work as an office helper. AR 70. 16 Medical Record 17 The entire medical record was reviewed by the Court. AR 256-561. The medical evidence 18 will be referenced below as necessary to this Court’s decision. 19 THE ALJ’S DECISION 20 Using the Social Security Administration’s five-step sequential evaluation process, the 21 ALJ determined that Plaintiff did not meet the disability standard. AR 34-41. The ALJ found that 22 Plaintiff’s degenerative disc disease of the cervical spine was severe. Nonetheless, the ALJ 23 determined that the severity of the Plaintiff’s impairment did not meet or exceed any of the listed 24 impairments individually or in combination. 25 Based on a review of the entire record, the ALJ determined that Plaintiff has the residual 26 functional capacity (“RFC”) to perform less than the full range of light work. 27 frequently perform postural activities, but was limited to occasional overhead reaching bilaterally. 28 AR 37. The ALJ found that Plaintiff could not perform any past relevant work, but that there were 3 She could 1 jobs that existed in significant numbers in the national economy that Plaintiff could still perform. 2 AR 40-41. The ALJ therefore concluded that Plaintiff was not disabled under the Social Security 3 Act. AR 41. 4 SCOPE OF REVIEW 5 Congress has provided a limited scope of judicial review of the Commissioner’s decision 6 to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, 7 this Court must determine whether the decision of the Commissioner is supported by substantial 8 evidence. 42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,” 9 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. 10 Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. 12 The record as a whole must be considered, weighing both the evidence that supports and the 13 evidence that detracts from the Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 14 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the 15 proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court 16 must uphold the Commissioner’s determination that the claimant is not disabled if the Secretary 17 applied the proper legal standards, and if the Commissioner’s findings are supported by substantial 18 evidence. See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 19 REVIEW 20 In order to qualify for benefits, a claimant must establish that he or she is unable to engage 21 in substantial gainful activity due to a medically determinable physical or mental impairment 22 which has lasted or can be expected to last for a continuous period of not less than twelve months. 23 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he or she has a physical or mental 24 impairment of such severity that they are not only unable to do their previous work, but cannot, 25 considering age, education, and work experience, engage in any other kind of substantial gainful 26 work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 27 Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 28 1275 (9th Cir. 1990). 4 1 In her pending motion, Plaintiff asserts that the ALJ improperly: (1) evaluated her 2 credibility; (2) determined her RFC; (3) relied on the VE’s testimony which was inconsistent with 3 the Dictionary of Occupational Titles (“DOT”); and (4) weighed the medical evidence;. (Doc. 4 14). 5 6 7 8 DISCUSSION 1. The ALJ Gave Sufficient Reasons to Discount Plaintiff’s Credibility Plaintiff first argues that the ALJ failed to give clear and convincing reasons for rejecting her subjective complaints. (Doc. 14 at 17-19). The Court disagrees. 9 In evaluating whether subjective complaints are credible, the ALJ should first consider 10 objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 11 (9th Cir. 1991) (en banc). 12 reputation for truthfulness, prior inconsistent statements or other inconsistent testimony; (2) 13 unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of 14 treatment; and (3) the applicant’s daily activities. Smolen, 80 F.3d at 1284. Work records, 15 physician and third party testimony about nature, severity, and effect of symptoms, and 16 inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec. Admin., 17 119 F.3d 789, 792 (9th Cir. 1997). The ALJ may rely, in part, on his or her own observations 18 which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 19 1990). “Without affirmative evidence showing that the claimant is malingering, the 20 Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” 21 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Other factors an ALJ may consider include: (1) the applicant’s 22 The ALJ rejected Plaintiff’s subjective symptom testimony for several clear and 23 convincing reasons. First, in discounting Plaintiff’s overall credibility, the ALJ noted that, despite 24 the positive diagnostic findings, Plaintiff’s treatment was relatively conservative and routine 25 including heat, massage, physical therapy, one epidural injection and analgesic medications. AR 26 38, 39, 258-259, 273-281, 383-414. The ALJ further observed that Plaintiff was never a candidate 27 for surgery. AR 38, 273-275, 279-280. Additionally, Plaintiff’s symptoms improved with 28 treatment. 5 1 Evidence of conservative treatment may diminish a Plaintiff’s credibility and is a sufficient 2 reason to discount a claimant’s testimony regarding the severity of impairment. Parra v. Astrue, 3 481 F.3d 742, 751 (9th Cir. 2007) (conservative treatment was sufficient to discredit testimony). 4 Moreover, medication and its effectiveness is among the many factors the ALJ may consider when 5 evaluating credibility. See Bunnell, 947 F.2d at 346; SSR 88-13, 1988 SSR LEXIS 14. The ALJ 6 was therefore free to credit evidence that Plaintiff’s impairments largely alleviated or improved 7 with conservative treatment and medication when rejecting Plaintiff’s credibility. 8 Second, the ALJ found that Plaintiff’s activities of daily living were consistent with light 9 work. AR 39. The ALJ may properly discount Plaintiff’s credibility based on daily activities. Orn 10 v. Astrue, 495 F.3d at 638. Here, Plaintiff’s daily activities were consistent with light exertion 11 including cooking, mopping, vacuuming, dusting, and driving a car. AR 39; see Fair v. Bowen, 12 885 F.2d 597, 604 (9th Cir. 1989) (Evidence of a claimant’s daily activities may be relevant to 13 evaluating the credibility of a claimant’s pain testimony.). Based on this evidence in the record, 14 the ALJ could properly discredit Plaintiff’s testimony because her level of activity is inconsistent 15 with the degree of impairment that she alleges. See Berry v. Astrue, 622 F.3d 1228, 1235 16 (inconsistencies between self-reported symptoms and activities supported adverse credibility 17 finding). 18 Additionally, the ALJ provided his own observations regarding Plaintiff’s conduct during 19 the hearing. In particular, the ALJ cited that, during the hearing, Plaintiff was “moving her hands 20 and nodding her head up and down without apparent difficulty.” AR 39. The Ninth Circuit has 21 determined that, in assessing a claimant’s credibility, an ALJ may rely upon “ordinary techniques 22 of credibility evaluation,” including the ALJ’s personal observations of the claimant at the 23 administrative hearing. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) 24 (determining that ALJ properly relied in part on claimant’s demeanor at hearing in assessing 25 credibility); Drouin v. Sullivan, 966 F.2d 1255, 1258-59 (9th Cir. 1992) (observations of ALJ 26 during the hearing, along with other evidence, is substantial evidence for rejecting testimony). The 27 ALJ was entitled to consider observations, particularly Plaintiff’s ability to move her head and 28 neck given her “allegations of disabling neck pain,” in determining that her movements “further 6 1 weaken[ed]” her credibility. 2 The fourth and final reason the ALJ gave for discounting Plaintiff’s testimony was 3 Plaintiff’s sporadic work history. AR 39. At the hearing, the ALJ noted that, throughout her 4 lifetime, Plaintiff’s total earnings amount to $2,500. AR 66. Plaintiff further admitted at the 5 hearing that she has never held a full time job. AR 66. A poor work history is a clear and 6 convincing reason that the ALJ may rely on to reject a Plaintiff’s subjective testimony. See 7 Thomas, 278 F.3d at 959 (finding an extremely poor work history was a clear and convincing 8 reason that negatively affected claimant’s credibility regarding her inability to work). 9 Given the above, the ALJ properly discounted Plaintiff’s subjective symptom testimony 10 and provided clear and convincing reasons that are supported by substantial evidence in the 11 record. AR 38-39. Remand is not warranted on this issue. 12 2. The ALJ Properly Determined Plaintiff’s RFC 13 Plaintiff next argues that the ALJ’s RFC assessment erroneously failed to include a 14 grasping and handling limitation. According to Plaintiff, her testimony that she drops things 15 coupled with the electrodiagnostic testing established that she has “mild carpal tunnel syndrome 16 on the right side,” requiring the ALJ to include limitations for grasping and handling in her RFC 17 assessment. The Court disagrees. 18 A claimant’s RFC is what she is capable of doing despite her physical and mental 19 limitations. 20 C.F.R. § 404.1545(a)(1); Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 20 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). “RFC is an assessment 21 of an individual’s ability to do sustained work-related physical and mental activities in a work 22 setting on a regular and continuing basis.” SSR 96-8p, 1996 SSR LEXIS 5, 1996 WL 374184 23 (S.S.A. July 2, 1996). An RFC assessment is ultimately an administrative finding reserved to the 24 Commissioner, based on all of the relevant evidence, including the diagnoses, treatment, 25 observations, and opinions of medical sources, as well as observations by family members and the 26 claimant’s own subjective symptoms. 20 C.F.R. § 404.1545(a)(3). An RFC that does not account 27 for all of a claimant’s limitations is defective. Valentine, 574 F.3d at 690. 28 In formulating a claimant’s RFC, an ALJ is not required to include limitations that are not 7 1 supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001) 2 “Conversely, an ALJ is not free to disregard properly supported limitations.” Robbins v. Soc. Sec. 3 Admin., 466 F.3d 880, 886 (9th Cir. 2006). An ALJ may omit limitations arising out of a 4 claimant’s subjective complaints only if the subjective complaints have been specifically 5 discredited. Compare, Copeland v. Bowen, 861 F.2d 536, 541 (9th Cir. 1988) (RFC excluding 6 subjective pain limitations was supported by substantial evidence where ALJ specifically 7 discredited claimant’s pain testimony) with Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 (9th 8 Cir. 2007) (RFC excluding subjective pain limitations was not supported by substantial evidence 9 where ALJ did not provide clear and convincing reasons for discrediting claimant’s testimony). 10 “A claimant bears the burden of proving that an impairment is disabling.” Miller v. 11 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). A plaintiff’s claim may be rejected when the plaintiff 12 “produced no clinical evidence showing that [medication] use impaired [her] ability to work.” Id. 13 Diagnosis alone will not establish disability. See Barker v. Sec’y of HHS, 882 F.2d 1474, 1477 14 (9th Cir. 1989). 15 Contrary to Plaintiff’s argument, a limitation for grasping and handling is not supported by 16 substantial evidence in the record. As discussed above, the ALJ properly determined Plaintiff’s 17 subjective complaints lacked credibility. In finding that Plaintiff could do light work, the ALJ 18 noted that Plaintiff performed her daily activities including household chores and physical 19 activities which showed good functional ability in her hands. AR 36, 245-247. The record further 20 demonstrates that in assessing Plaintiff’s grasping and handling capabilities, the ALJ noted 21 Plaintiff’s diagnosis of mild right side carpal tunnel syndrome, but found there was no clinical 22 correlation that it affected her ability to use her hands and arms in a functional manner. The ALJ 23 also found that while Plaintiff received wrist splints to wear she reported that her symptoms had 24 improved within months. AR 36, 238-239, 246-247, 266. 25 Accordingly, the record lacks substantial evidence to support the need for a handling and 26 grasping limitation. Therefore, the ALJ did not err in declining to include additional functional 27 limitations in his analysis of Plaintiff’s RFC. Osenbrock, 240 F.3d at 1165 (ALJ may limit 28 hypothetical to impairments that are supported by substantial evidence in the record). 8 1 3. The ALJ’s Step Five Determination 2 Plaintiff also argues that the ALJ’s step five determination is in error. According to 3 Plaintiff, the ALJ restricted her to occasional overhead reaching bilaterally, however the 4 representative job of “office helper,” suggested by the VE and as explained by the DOT requires a 5 capacity for “frequent reaching, handling and fingering.” (Doc. 14 at 22). Plaintiff thus argues 6 that the VE’s testimony and the DOT are in conflict. See DOT No. 239.567-010; 1991 WL 7 672232. 4 (Doc. 14 at 22-24). The Court agrees. 8 The ALJ asked the vocational expert to consider a hypothetical individual who, among 9 other limitations, was limited to “occasional overhead reaching bilaterally.” AR 70. With the 10 limitations identified by the ALJ in mind, the vocational expert responded the person could 11 perform work as an office helper. AR 37. 12 Pursuant to SSR 00-4p, 2000 SSR LEXIS 86, occupational evidence provided by a 13 vocational expert “generally should be consistent with the occupational information supplied by 14 the DOT.” 2000 SSR LEXIS 8 at *4, 2000 WL 1898704 at *2. When there is a conflict between 15 the testimony of the vocational expert and the Dictionary of Occupational Titles, “the adjudicator 16 must elicit a reasonable explanation for the conflict before relying on the [vocational expert 17 testimony] to support a determination or decision about whether the claimant is disabled.” Id. 18 Further, SSR 00-4p, 2000 SSR LEXIS 8 provides: 19 At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency. 20 21 22 23 24 25 26 27 28 4 DOT code 239.567-010, which corresponds to office helper, states in relevant part: Performs any combination of following duties in business office of commercial or industrial establishment: Furnishes workers with clerical supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or timecards, from one department to another. Marks, tabulates, and files articles and records. May use office equipment, such as envelope-sealing machine, letter opener, record shaver, stamping machine, and transcribing machine. May deliver items to other business establishments [DELIVERER, OUTSIDE (clerical) 230.663-010]. May specialize in delivering mail, messages, documents, and packages between departments of establishment and be designated Messenger, Office (clerical). May deliver stock certificates and bonds within and between stock brokerage offices and be designated Runner (financial). DICOT 239.567-010. 9 Neither the DOT nor the [vocational expert] evidence automatically “trumps” when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the [vocational expert] is reasonable and provides a basis for relying on the [vocational expert] testimony rather than on the DOT information. 1 2 3 Id. Accordingly, the Ninth Circuit has determined an ALJ must inquire “whether the testimony 4 conflicts with the Dictionary of Occupational Titles,” and may only rely upon conflicting expert 5 testimony when “the record contains persuasive evidence to support the deviation.” Massachi v. 6 7 Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 8 In his decision denying benefits, the ALJ asserted, “[p]ursuant to SSR 00-4p, the 9 undersigned has determined that the vocational expert’s testimony is consistent with the 10 information contained in the Dictionary of Occupational Titles.” AR 41. However, as Plaintiff 11 12 13 14 15 16 17 observes, the sole job identified by the ALJ requires more than occasional reaching. The job of office helper requires frequent reaching, which means “from 1/3 to 2/3 of the time.” DICOT 239.567-010. Courts throughout the Ninth Circuit and this district have determined there is an apparent conflict where the ALJ limits a claimant to “occasional reaching” but a vocational expert testified a worker with the limitation was able to perform work the Dictionary of Occupational Titles indicated required constant or frequent reaching. See, e.g., Murry v. Colvin, 2016 U.S. Dist. 18 LEXIS 12345 (E.D. Cal. Feb. 1, 2016) (VE’s testimony “inconsistent” with DOT where claimant 19 “limited to occasional reaching,” but VE opined that claimant could perform jobs requiring 20 frequent reaching); Lang v. Commissioner of Social Security, 2014 U.S. Dist. LEXIS 48558, 2014 21 WL 1383247, **7-8 (E.D. Cal. Apr. 8, 2014) (finding potential conflict between VE’s opinions 22 and DOT where VE testified that plaintiff could perform three jobs that require “frequent 23 reaching”— a requirement that “could potentially encompass frequent overhead reaching” which 24 plaintiff could not do); Giles v. Colvin, 2013 U.S. Dist. LEXIS 132188, 2013 WL 4832723, *4 & 25 n.4 (C.D. Cal. Sep. 10, 2013) (plaintiff’s limitation to “occasional overhead reaching” bilaterally 26 conflicted with VE’s testimony that plaintiff could perform representative jobs which required 27 “frequent or constant” reaching); Kirby v. Astrue, 2012 U.S. Dist. LEXIS 157281, 2012 WL 28 10 1 5381681, *3 (C.D. Cal. Nov. 1, 2012) (finding “potential conflict” between VE testimony and 2 DOT where plaintiff was limited to “no more than occasional reaching ‘at or above shoulder 3 level”” and representative jobs VE identified required “reaching ‘frequently’”—noting “DOT may 4 well contemplate a requirement of omnidirectional reaching”) (citations omitted); Duff v. Astrue, 5 2012 U.S. Dist. LEXIS 122442, 2012 WL 3711079, *4-5 (C.D. Cal. Aug. 28, 2012) (remanding 6 for further proceedings where VE gave no explanation for apparent inconsistency in VE’s 7 testimony that hypothetical claimant who was “[unable to] use [] upper extremities for above the 8 shoulder work” was still able to perform occupations which required constant or frequent 9 reaching); Bentley v. Astrue, 2011 U.S. Dist. LEXIS 77042, 2011 WL 2785023, at *3-*4 (C.D. 10 Cal. July 14, 2011) (jobs which, according to the DOT, require “frequent reaching” inconsistent 11 with plaintiff’s inability to reach “above the shoulder level bilaterally”); Hernandez v. Astrue, 12 2011 U.S. Dist. LEXIS 6377, 2011 WL 223595, *5 (C.D. Cal. Jan. 21, 2011) (finding “apparent 13 conflict” between DOT and VE’s testimony that hypothetical person (who was precluded from 14 “work at or above shoulder level”) could perform job that requires occasional reaching, since 15 “DOT’s definition of reaching contemplates reaching in all directions”). 16 Here, the ALJ determined Plaintiff was “limited to occasional overhead reaching 17 bilaterally.” AR 37. However, as Plaintiff observes, the sole job identified by the vocational 18 expert requires more than occasional reaching. Consequently, the Court finds the VE’s testimony 19 that Plaintiff could perform the requirements of an “office helper” conflicts with the job 20 descriptions of the Dictionary of Occupational Titles, which indicates that position requires 21 reaching on a frequent basis. While Defendant argues that there is no apparent inconsistency 22 between the DOT and the VE because the office helper job description “does not describe any 23 activities that might require overhead reaching,” Defendant’s contention lacks merit. (Doc. 18 at 24 10). Since the Commissioner and numerous courts have concluded that “reaching” encompasses 25 the ability to reach overhead, an apparent conflict exists when, without explanation, an ALJ finds 26 that someone who is limited to occasional overhead reaching nonetheless can perform DOT jobs 27 that require frequent reaching. 28 The Court further rejects Defendant’s suggestion that it resolve the apparent conflict in this 11 1 case by parsing the DOT’s narrative job description to conclude that the office helper job includes 2 no more than occasional reaching. This type of guesswork by the Court is prohibited and is 3 “exactly the sort of inconsistency the ALJ should have resolved with the expert’s help.” 4 Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006). Under SSR 00-4p, 2000 SSR LEXIS 8 5 and Ninth Circuit law, the ALJ has an affirmative duty to resolve an apparent conflict in the first 6 instance. See Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (“When there is an apparent 7 conflict between the vocational expert’s testimony and the DOT—for example, expert testimony 8 that a claimant can perform an occupation involving DOT requirements that appear more than the 9 claimant can handle—the ALJ is required to reconcile the inconsistency. The ALJ must ask the 10 expert to explain the conflict and then determine whether the vocational expert’s explanation for 11 the conflict is reasonable before relying on the expert’s testimony to reach a disability 12 determination”). 13 While the ALJ initially asked the VE to indicate if his “ . . . testimony was inconsistent 14 with the Dictionary of Occupational Titles,” there is no indication in the record that the ALJ nor 15 the VE was even aware that reaching, more than occasionally, was required by the office helper 16 job. Since the vocational expert did not acknowledge that there was a potential conflict between 17 his testimony and the DOT, neither the vocational expert nor the ALJ attempted to explain or 18 justify the apparent potential inconsistency in any manner. Because the ALJ did not address the 19 apparent conflict, and the vocational expert did not explain his reasoning, the record cannot 20 support the deviation. As a result, the court cannot determine whether substantial evidence 21 supports the ALJ’s step-five finding that Plaintiff could perform other work. See Meyer v. Astrue, 22 2010 U.S. Dist. LEXIS 110442, 2010 WL 3943519, at **8-9 (E.D. Cal. Oct. 1, 2010) (holding 23 that the ALJ committed reversible error in relying on a VE’s testimony that a claimant who was 24 limited to occasional reaching above the shoulder level with the left upper extremity could 25 perform jobs that the DOT classified as requiring frequent reaching where the ALJ did not obtain a 26 reasonable explanation of this apparent conflict from the VE). 27 4. 28 Remand is Required The decision whether to remand for further proceedings or order an immediate award of 12 1 benefits is within the Court’s discretion. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2 2000). Where there are outstanding issues that must be resolved before a determination can be 3 made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if 4 all the evidence were properly evaluated, remand is appropriate. See Benecke v. Barnhart, 379 5 F.3d 587, 593-96 (9th Cir. 2004). 6 In this case, there are outstanding issues that must be resolved before a final determination 7 can be made. The ALJ failed to address the apparent conflicts between the vocational expert’s 8 testimony and the Dictionary of Occupational Titles. Based upon the record, the Court is unable to 9 determine whether Plaintiff is able to perform work existing in significant numbers in the national 10 economy. Accordingly, a remand for further proceedings is appropriate in this matter. See Zavalin, 11 778 F.3d at 848 (an ALJ’s failure to reconcile apparent conflict was not harmless where the Court 12 “cannot determine [from the record] whether substantial evidence supports the ALJ’s step-five 13 finding”); see also Dieugenio v. Astrue, 2010 U.S. Dist. LEXIS 3894, 2010 WL 317269 at *3 14 (C.D. Cal. Jan. 19, 2010) (holding that where the expert claimed that his testimony was consistent 15 with information in the Dictionary of Occupational Titles but a review of the descriptions 16 “reveal[ed] a conflict with respect to the jobs identified,” failure to address the conflict warranted 17 remand for further proceedings).5 CONCLUSION 18 Based on the foregoing, this matter is HEREBY REVERSED and the case REMANDED 19 20 21 to the ALJ for further proceedings consistent with this decision. The Clerk of the Court is DIRECTED to enter judgment in favor of Plaintiff. 22 23 IT IS SO ORDERED. Dated: 24 /s/ Barbara February 1, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 5 In light of the Court’s ruling and remand for further proceedings, the Court need not further determine at this time whether the ALJ properly discounted Dr. Cohen’s opinion. (Doc. 14 at 14-17). 13

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