Blanca Sagrario Mejia De Castellon v. Martin O'Malley

• Court: District Court, C.D. California
• Decided: February 26, 2024
• Docket: 2:22-cv-07336
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BLANCA SAGRARIO MEJIA D., Case No. 2:22-cv-07336-PD

12 Plaintiff, MEMORANDUM OPINION 13 v. AND ORDER VACATING AGENCY DECISION 14 MARTIN O’MALLEY, COMMISSIONER 15 OF SOCIAL SECURITY, 16 Defendant. 17

18 Plaintiff challenges the denial of her application for Social Security 19 disability insurance benefits. For the reasons stated below, the decision of the 20 Administrative Law Judge is vacated, and the Court remands this matter on 21 an open record for further proceedings.1 22 23 24

25 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil 26 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the United States Judicial Conference. 27 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Fed. R. Civ. P. 25(d), Martin O’Malley is substituted for Kilolo Kijakazi 28 as the defendant in this action. 1 I. Pertinent Procedural History and Disputed Issues 2 Plaintiff previously applied for a period of disability and disability 3 insurance benefits, and supplemental security income, alleging that she 4 became disabled on February 25, 2015. [Administrative Record (“AR”) AR 84; 5 Joint Stipulation (“JS”) 2.]2 A hearing was held before an Administrative Law 6 Judge (“ALJ”) and in April 2018, the ALJ found Plaintiff capable of 7 performing her past relevant work as a sales attendant (Dictionary of 8 Occupational Titles (“DOT”) 299.677-010), as generally performed, and not 9 disabled. [AR 17, 29, 51-77, 84-94.] 10 On April 16, 2020, Plaintiff filed an application for a period of disability 11 and disability insurance benefits, alleging disability beginning April 19, 2018. 12 [AR 17; JS 2.] Plaintiff’s application was denied administratively in May 13 2020, and upon reconsideration in December 2020. [AR 17, 136-40, 144-50.] 14 Plaintiff requested a hearing, which was held telephonically on August 24, 15 2021, before a second ALJ. Plaintiff appeared with counsel, and the ALJ 16 heard testimony from Plaintiff and a vocational expert (“VE”). [AR 37-50.] 17 On September 1, 2021, the ALJ issued a decision finding that Plaintiff was 18 not disabled. [AR 17-30.] The Appeals Council denied Plaintiff’s request for 19 review on August 8, 2022, rendering the ALJ’s decision the final decision of 20 the Commissioner. [AR 1-8.] 21 The ALJ followed the requisite five-step sequential evaluation process 22 to assess whether Plaintiff was disabled under the Social Security Act. Lester 23 v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), superseded on other grounds by 24 regulation as stated by Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 2022); 25 20 C.F.R. § 416.920(a). At step one, the ALJ found that Plaintiff had not 26 engaged in substantial gainful activity since April 19, 2018, the alleged onset

27 2 The Administrative Record is CM/ECF Docket Numbers 20-3 through 20-9 and the 28 Joint Stipulation is Docket Number 24. 1 date. [AR 20 ¶ 2.] At step two, the ALJ found that Plaintiff had the following 2 severe impairments: fibromyalgia and impairments of obesity, sleep apnea, 3 and diabetes mellitus in combination. [AR 20 ¶ 3.] The ALJ found that these 4 impairments significantly limit the ability to perform basic work activities. 5 [AR 20.] At step three, the ALJ found that Plaintiff does “not have an 6 impairment or combination of impairments that met or medically equaled the 7 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 8 Appendix 1.” [AR 24 ¶ 4.] 9 Before proceeding to step four, the ALJ determined that Plaintiff had 10 the Residual Functional Capacity (“RFC”) to perform light work as defined in 11 20 C.F.R. § 404.1567(b)3 with the following limitations: 12 [Plaintiff] is limited to frequent climbing of ramps and stairs, 13 occasionally climbing of ladder, ropes, and scaffolds, and occasional balancing, stooping, crouching, and crawling. 14 [AR 25 ¶ 5.] 15 At step four, the ALJ found that Plaintiff is capable of performing past 16 relevant work as a “sales attendant” DOT 299.677-010. [AR 29 ¶ 6.] This 17 work does not require the performance of work-related activities precluded by 18 Plaintiff’s RFC (20 CFR 404.1565). [Id.] Accordingly, the ALJ concluded that 19 Plaintiff has not been under a disability between April 19, 2018, through June 20 30, 2019, the date last insured. [AR 29.] 21 22 3 “Light work” is defined as follows:

23 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be 24 very little, a job is in this category when it requires a good deal of walking or 25 standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of 26 light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, 27 unless there are additional limiting factors such as loss of fine dexterity or inability 28 to sit for long periods of time. 1 Plaintiff challenges the decision by the ALJ in three respects: (1) 2 Whether the ALJ properly addressed the severity of Plaintiff’s diagnosed 3 anxiety and depression; (2) Whether the ALJ properly determined that 4 Plaintiff is capable of performing her past relevant work (“PRW”) as a “sales 5 attendant”; and (3) Whether the ALJ properly considered Plaintiff’s subjective 6 complaints. [JS 3.] 7 II. Standard of Review 8 Under 42 U.S.C. § 405(g), a district court may review the agency’s 9 decision to deny benefits. A court will vacate the agency’s decision “only if the 10 ALJ’s decision was not supported by substantial evidence in the record as a 11 whole or if the ALJ applied the wrong legal standard.” Coleman v. Saul, 979 12 F.3d 751, 755 (9th Cir. 2020) (citations omitted). “Substantial evidence means 13 more than a mere scintilla but less than a preponderance; it is such relevant 14 evidence as a reasonable person might accept as adequate to support a 15 conclusion.” Id.; Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 16 (2019) (same). 17 It is the ALJ’s responsibility to resolve conflicts in the medical evidence 18 and ambiguities in the record. Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 19 2020). Where this evidence is “susceptible to more than one rational 20 interpretation” the ALJ’s reasonable evaluation of the proof should be upheld. 21 Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Tran v. 22 Saul, 804 F. App’x 676, 678 (9th Cir. 2020).4 Error in Social Security determinations is subject to harmless error 23 analysis. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Error is 24 25 4 Although statements in unpublished Ninth Circuit opinions “may prove useful [] as 26 examples of the applications of settled legal principles,” the Ninth Circuit has cautioned lower courts not to rely heavily on such memorandum dispositions 27 particularly as to issues of law. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th 28 Cir. 2020) (“a nonprecedential disposition is not appropriately used ... as the pivotal 1 harmless if “it is inconsequential to the ultimate nondisability determination” 2 or, despite the legal error, “the agency’s path is reasonably discerned.” 3 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). 4 III. Discussion 5 A. The ALJ’s Determination That Plaintiff Could Perform Her Past Relevant Work as a Sales Attendant Was Not Based on 6 Substantial Evidence 7 Plaintiff asserts that the ALJ’s determination that she could perform 8 her past relevant work (“PRW”) as a “sales attendant” is not supported by 9 substantial evidence. [JS 19-20, 22.] The ALJ applied the criteria from 10 Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) and found that Plaintiff's 11 PRW did not change from the prior decision. [AR 17-18, 26, 29.] Plaintiff 12 asserts that there is new and material evidence regarding her PRW – 13 specifically, the Vocational Expert’s (“VE”) testimony that Plaintiff's past 14 work at Walmart was a “composite job.” [JS 19-20; AR 47-49.] 15 1. Legal Standards 16 a) Application of Chavez and Acquiescence Ruling 97-4(9) 17 18 Plaintiff previously applied for a period of disability and disability 19 insurance benefits, and supplemental security income, alleging that she 20 became disabled on February 25, 2015, which were denied in a decision dated April 18, 2018. [AR 17, 84-99.] Plaintiff’s current claim alleges disability 21 beginning April 19, 2018. 22 The principles of res judicata apply to administrative decisions. 23 Chavez v. Bowen, 844 F.2d at 693. Thus, an ALJ’s determination that a 24 claimant is not disabled creates a presumption that the claimant continued to 25 be able to work after that date. Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 26 2009). An ALJ’s findings cannot be reconsidered by a subsequent ALJ unless 27 the claimant shows “changed circumstances” – that is, new and material 28 1 information not presented to the first judge. See Stubbs-Danielson v. Astrue, 2 539 F.3d 1169, 1173 (9th Cir. 2008); Lester, 81 F.3d at 827. 3 Following Chavez, the Social Security Administration adopted 4 Acquiescence Ruling 97-4(9) to explain how it would apply Chavez within the 5 Ninth Circuit. Pursuant to that ruling, an ALJ must apply a presumption of 6 continuing non-disability, which a claimant may rebut “by showing a ‘changed 7 circumstance’ affecting the issue of disability with respect to the 8 unadjudicated period.” AR 97-4(9), 1997 WL 742758, at *3 (Dec. 3, 1997). 9 “Changed circumstances” include the existence of a new impairment not 10 considered in the previous application, a change in the claimant’s age 11 category, or an increase in the severity of the claimant’s impairment. See 12 Lester, 81 F.3d at 827; Chavez, 844 F.2d at 693; see also AR 97-4(9). Even if a 13 claimant rebuts the presumption, some of the previous ALJ’s findings may be 14 entitled to preclusive effect. Chavez, 844 F.2d at 694. The previous ALJ’s findings regarding a claimant’s RFC, education, and work experience should 15 not be disturbed unless the claimant presents new and material evidence that 16 implicates those findings. Id. Because Plaintiff was previously found not 17 disabled, the standards articulated in Chavez and Acquiescence Ruling 97- 18 4(9) apply to her current claim. [See AR 17-18, 26.] The ALJ concluded that, 19 under Chavez and Acquiescence Ruling 97-4(9), Plaintiff did not rebut the 20 presumption of continuing non-disability. [AR 26.] 21 b) Step Four 22 At step four, a claimant has the burden of proving that she cannot 23 return to her past relevant work as actually or generally performed in the 24 national economy. 20 C.F.R. § 404.1520(f); Stacy v. Colvin, 825 F.3d 563, 569 25 (9th Cir. 2016); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002); Pinto 26 v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). Although the burden of proof 27 lies with the claimant, the ALJ still has a duty to make factual findings to 28 1 support his conclusion. Pinto, 249 F.3d at 844. In particular, the ALJ must 2 make “specific findings” as to the claimant’s RFC, “the physical and mental 3 demands” of the past relevant work, and whether the RFC would permit a 4 return to his past work. See id. at 845 (citing SSR 82–62, 1982 WL 31386, at 5 *4 (Jan. 1, 1982)). 6 In defining a claimant’s past relevant work as actually performed, the 7 ALJ may use “a properly completed vocational report” and “the claimant’s 8 own testimony.” Pinto, 249 F.3d at 845 (citations omitted). To ascertain the 9 requirements of occupations as generally performed in the national economy, 10 the ALJ may rely on VE testimony or information from the DOT. SSR 00–4P, 11 2000 WL 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies 12 “primarily on the DOT (including its companion publication, the SCO) for 13 information about the requirements of work in the national economy” and 14 “may also use VEs ... at these steps to resolve complex vocational issues”); SSR 82–61, 1982 WL 31387, at *2 (Jan. 1, 1982) (“The [DOT] descriptions can 15 be relied upon—for jobs that are listed in the DOT—to define the job as it is 16 usually performed in the national economy.” (emphasis in original)). 17 Where a claimant’s past work as actually performed has “significant 18 elements of two or more occupations,” it is considered a “composite job” with 19 no counterpart in the DOT. SSR 82–61, 1982 WL 31387, at *2. When a job is 20 composite, “the ALJ considers only whether the claimant can perform his past 21 relevant work as actually performed.” Cook v. Colvin, 2015 WL 162953, at *7 22 (C.D. Cal. Jan. 13, 2015) (citing Program Operations Manual System (POMS) 23 DI 25005.020(B), available at http://policy.ssa.gov/poms.nsf/lnx/0425005020). 24 When a VE provides evidence at step four or five about the 25 requirements of a job, the ALJ has a responsibility to ask about “any possible 26 conflict” between that evidence and the DOT. See SSR 00–4p, 2000 WL 27 28 1 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152–54 (9th Cir. 2007) 2 (holding that application of SSR 00–4p is mandatory). 3 2. Plaintiff’s Work Function Report and Testimony at the Hearing 4 5 In Plaintiff’s disability report she described her job as follows: “sales 6 associate … worked as a cashier helping clients with their purchases. Then 7 she ended up doing work all around. She would help stock, carry and move palettes, and she even helped coordinate and delegate work onto other 8 workers.” [AR 292.] Plaintiff also had to carry and lift “heavy merchandise 9 boxes throughout the store” when she stocked. [AR 292.] Plaintiff frequently 10 lifted weight between 30 and 50 pounds. [AR 292.] 11 At the administrative hearing, Plaintiff testified that she worked as a 12 sales associate at Walmart. [AR 40.] Her duties included carrying things, 13 unloading stuff, helping customers with questions, bending down to pick up 14 stuff, using ladders to put things away, and “do[ing] everything.” [AR 40.] 15 She described her job as very heavy work. [AR 41.] Plaintiff testified that she 16 cannot carry anything heavy. [AR 44.] 17 3. The Vocational Expert’s Testimony at the 18 Hearing and the ALJ’s Decision 19 At the administrative hearing, the VE testified that he reviewed 20 Plaintiff’s work history in the file. [AR 46.] In response to the ALJ’s question 21 to classify Plaintiff’s past work at Walmart, the VE testified that based on his 22 review of the record and Plaintiff’s testimony, the best way to categorize 23 Plaintiff’s job would be as a “composite job.” [AR 47.] He stated there are two 24 components: the first would be as a sales clerk, DOT code 290.477-014, that is 25 classified as light work and semi-skilled at SVP 3. [AR 47.] The other 26 component of that job would be work as a laborer, stores, DOT code 922.687- 27 058, that is medium work, unskilled at SVP 2. [AR 47.] 28 1 The ALJ then explained that in a prior hearing the ALJ had classified 2 Plaintiff’s past work as a sales attendant, DOT code 299.677-010, SVP 3, light 3 and he asked the VE to look up the DOT for this position. [AR 47.] The VE 4 responded that “there is a difference. A sales attendant is somebody who puts 5 things away but doesn’t really deal with customers too much. They’ll point 6 out directions. A sales clerk actually sells things to people.” [AR 47-48.] The 7 VE testified that Plaintiff in the record said she was a sales associate and 8 worked as a cashier. [AR 48.] In response, the ALJ said that his question 9 was very simple, and he asked the VE whether the DOT code that he gave 10 him, 299.677-010, whether the VE’s records indicate that it is also SVP 3 and 11 light. [AR 48.] The VE responded that it is actually SVP 2, and the sales 12 attendant job is unskilled whereas the sales clerk job is semi-skilled. [AR 48.] 13 The ALJ asked whether there would be work for a hypothetical 14 individual of the Plaintiff’s age, education and work experience who could perform work at the light exertional level as that term is defined and the 15 individual is limited to frequent climbing of ramps and stairs, occasional 16 climbing of ladder, ropes, and scaffolds, and occasional balancing, stooping, 17 crouching, and crawling, to which the VE responded, “Could perform as 18 specified by the DOT for the sales clerk position or the sales attendant 19 position, but not as performed. She said she had to lift over 20 pounds.” [AR 20 48.] The ALJ then asked whether based on the length of time that Plaintiff 21 performed her past work, as generally performed in the national economy for 22 the light, SVP 3 job, 290.477-014 (sales clerk), would she have to acquire any 23 additional skills to perform that job, to which the VE responded, “No.” [AR 24 48-49.] 25 In his decision, the ALJ stated: 26 27 Through the date last insured, the claimant was capable of performing past relevant work as a “sales attendant” (Dictionary of 28 1 the performance of work-related activities precluded by the claimant’s residual functional capacity (20 CFR 404.1565). 2 3 The prior ALJ decision found the claimant had past relevant work as a “sales attendant” (DOT 299.677-010) light exertion with a specific 4 vocational preparation of 2. (Exhibit B1A/16). Although the vocational expert in the hearing I conducted characterized the job 5 somewhat differently, the claimant's work history has not changed. 6 Therefore, I adopt that finding. 7 I have also considered the three factors for determining past relevant work set forth in SSR 82-62. This includes contemplation of 8 the change in the 15-year relevant period given that the alleged 9 onset date in this claim differs from the prior ALJ decision. The evidence shows the claimant’s past work as a sales attendant still 10 satisfies the recency, duration, and SGA factors set forth in the 11 ruling. (Exhibits B8D, B9D, B2E). I further note that the criteria for determining past relevant work has not otherwise changed since the 12 date of the prior decision. 13 The vocational expert testified that the claimant could perform her 14 past relevant work as a sales attendant as generally performed within the limitations of the residual functional capacity. This 15 conclusion is consistent with prior ALJ decision finding. Accordingly, I find the claimant can perform her past relevant work as generally 16 performed. 17 [AR 29.] 18 4. Analysis 19 Plaintiff contends that the ALJ’s determination that she could 20 perform her past relevant work as a “sales attendant” is not supported by 21 substantial evidence. [JS 19-20, 22.] Since Plaintiff was previously found not 22 disabled, the ALJ applied the Chavez criteria and found that Plaintiff's PRW 23 as a “sales attendant” did not change from the prior decision. [See AR 17-18, 24 26.] Under Chavez, the previous ALJ’s findings regarding Plaintiff’s RFC, 25 education, and work experience should not be disturbed unless Plaintiff 26 presents new and material evidence that implicates those findings. Chavez, 27 844 F.2d at 694. 28 1 Plaintiff argues that there is new and material evidence regarding her 2 PRW – specifically, the VE’s testimony that Plaintiff's past work at Walmart 3 was a “composite job”, including both positions as a sales clerk (DOT 290.477- 4 014) which is light, semi-skilled and SVP 3 and a stores, laborer (DOT 5 922.687-058) which is medium, unskilled and SVP 2. [JS 19; AR 47-49.] 6 Courts have found that VE testimony on its own can constitute new and 7 material evidence under some circumstances. See Carter v. Astrue, 2009 WL 8 2084446, at *4 (N.D. Cal. July 14, 2009) (finding VE testimony was new and 9 material evidence where the first VE examined and opined on the plaintiff's 10 past relevant work as actually performed and the second VE opined as to the 11 plaintiff's work as generally performed); Marlon C. v. Saul, 2019 WL 3818202, 12 at *3 (C.D. Cal. Aug. 14, 2019), (the district court found that a certified 13 earnings record and detailed earnings query which were not available to the 14 first ALJ constituted new evidence to rebut the Chavez presumption); Duffy v. Comm’r of Soc. Sec. Admin., 2020 WL 1933923, at *3 (D. Ariz. Apr. 22, 2020) 15 (finding that Chavez did not apply to a prior ALJ decision regarding the 16 plaintiff's past relevant work where the second ALJ “not only had the benefit 17 of new evidence from the state agency but also different testimony from the 18 VE, which focused more on locating a DOT title that comported with [the 19 plaintiff's] own description of his work rather than the name of the job that 20 [the plaintiff] supplied”). 21 Evidence is “new” if the prior ALJ did not consider it. Ellis v. 22 Astrue, 2011 WL 5877490, at *6 (D. Nev. Sept. 28, 2011). New evidence must 23 also be material to warrant a new review of the administrative record. 24 Huerta v. Berryhill, 2019 WL 2009112, at *5 (C.D. Cal. May 7, 2019). 25 Evidence is material “if it bears directly and substantially on the matter in 26 dispute and if there is a 'reasonable possibility' that the new evidence would 27 have changed the outcome of the determination.” Id. (finding new evidence 28 1 regarding Plaintiff's surgery was also material because the increase in 2 severity of the disability gave a 'reasonable possibility' of a changed opinion) 3 (citing Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001). 4 Here, the VE testified that Plaintiff’s job at Walmart was a “composite 5 job,” consisting of positions both as a sales clerk and laborer, stores. [AR 47.] 6 Despite the VE’s testimony, the ALJ failed to ask the VE to explain his 7 “composite job” findings or clarify the record. Instead, the ALJ told the VE 8 that in a prior hearing the prior ALJ had classified Plaintiff’s job as a sales 9 attendant, DOT code 299.677-010, SVP 3, light and asked the VE to look it up 10 in the DOT. [AR 47.] The VE looked up sales attendant in the DOT and said 11 there was a difference in the duties between a sales associate and a sales 12 attendant. [AR 48.] Thereafter, the ALJ posed a hypothetical with exertional 13 limitations and asked the VE whether a person with the described limitations 14 be able to perform Plaintiff’s past work, to which the VE responded, “Could perform as specified by the DOT for the sales clerk position or the sales 15 attendant position, but not as performed. She said she had to lift over 20 16 pounds.” [AR 48.] (emphasis added.) 17 When a job is “composite”—that is, it has significant elements of two or 18 more occupations and therefore has no counterpart in the DOT—the ALJ 19 considers only whether the claimant can perform his past relevant work as 20 actually performed. See Soc. Sec. Admin., POMS DI 25005.020(B), 21 http://policy.ssa.gov/poms.nsf/lnx/0425005020. Plaintiff asserts that the ALJ 22 erred at Step Four because when a person has a “composite job,” they do not 23 have PRW as generally performed. [JS 19-20.] 24 The Commissioner responds that the prior ALJ found that 25 Plaintiff worked as a “sales attendant” to an extent that satisfied the recency, 26 duration, and substantial gainful activity for PRW as set forth in Social 27 Security Ruling (“SSR”) 82-62, 1982 WL 31386, at *2 (Jan. 1, 1982). [JS 21.] 28 1 The Commissioner further argues that even though the VE characterized 2 Plaintiff’s job differently, Plaintiff’s work history had not changed and 3 therefore, the ALJ properly adopted the prior ALJ’s PRW findings. [JS 22.] 4 Plaintiff replies that the ALJ erred in applying the Chavez criteria 5 because there is new and material evidence regarding her PRW—the VE’s 6 testimony. The Court agrees with Plaintiff. The VE testified that Plaintiff 7 had a “composite job.” [AR 47.] The VE’s testimony is new and material 8 evidence and was not considered by the first ALJ who found Plaintiff capable 9 of performing her PRW as a “sales attendant” as generally performed. The 10 ALJ therefore erred in applying the Chavez criteria when finding Plaintiff’s 11 PRW did not change from the prior decision. 12 The record is unclear, because the ALJ failed to ask the VE any 13 questions regarding his findings that Plaintiff’s job at Walmart was a 14 “composite job.” [AR 47-49.] The ALJ’s composite-job-rule errors were harmful as the demands of Plaintiff’s PRW as actually performed exceeded 15 the ALJ’s RFC assessment, given that Plaintiff is limited to light work, but 16 the “composite job” as described by the VE requires both light and medium 17 exertional requirements which exceed Plaintiff’s abilities. [JS 20; AR 47-49.] 18 Accordingly, the Court finds that substantial evidence does not support the 19 ALJ's step four finding. See Kevin M. v. Comm'r of Soc. Sec., 2020 WL 747850, 20 at *4-5 (W.D. Wash. Feb. 14, 2020) (holding that the ALJ erred in finding that 21 the claimant's past work was not a composite job when the claimant testified 22 that he spent “half his time doing data entry and half his time driving to 23 banks to collect on loans” and it was unclear from the record whether the VE 24 concluded that the claimant performed a composite job); Migala v. Berryhill, 25 2018 WL 1989550, at *6-7 (N.D. Cal. Mar. 14, 2018) (concluding that the ALJ 26 erred by failing to recognize that the claimant's past relevant work was a 27 composite job and make the required findings about the physical and mental 28 1 demands of the claimant's past relevant work); Morgan v. Berryhill, 2017 WL 2 2628094, at *1 (W.D. Wash. June 19, 2017) (remanding where the ALJ erred 3 in failing to acknowledge plaintiff performed a composite job, rather than two 4 separate DOT occupations); LePage v. Colvin, 2015 WL 5734836, at *5 (E.D. 5 Cal. Sept. 29, 2015) (remanding because ALJ failed to treat PRW as a 6 composite job when the VE characterized it as a combination job and 7 segregated it into two separate occupations, one of which would be precluded 8 by the claimant's RFC). 9 Lastly, the Commissioner asserts that Plaintiff reported and testified 10 that her job at Walmart was as a sales associate which is synonymous with 11 sales attendant rather than a “composite job” of sales clerk and laborer. [JS 12 21-22.] The ALJ did not make this argument and it is nothing more than an 13 improper post-hoc rationalization that the Court cannot rely on to affirm the 14 ALJ. See Pinto, 249 F.3d at 847-48 (“[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.”) 15 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 16 IV. Other Issues and Remedy 17 18 Plaintiff argues that the ALJ’s decision is also erroneous because the 19 ALJ failed to properly evaluate the severity of her diagnosed depression and 20 anxiety and subjective symptom testimony. [JS 2-18, 22-35.] Because the 21 Court concludes that this case be remanded on an open record, the Court 22 declines to address Plaintiff’s other claims of error. Google LLC v. Oracle America, Inc., ___ U.S. ___, 141 S. Ct. 1183, 1197 (2021) (appellate courts 23 “should not answer more than is necessary to resolve the parties’ dispute” on 24 appeal); see also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) 25 (“While Smith raises a number of issues on appeal, the court addresses only 26 those relevant to its decision to remand the case to the agency.”); Lambert v. 27 Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (“We have no occasion to reach 28 ! || Lambert’s other assignments of error, as the record may change on remand’). V. Order 3 Accordingly, for all the reasons stated above, the Court finds that the 4 | ALJ’s decision is not free of legal error or supported by substantial evidence 5 | and is therefore VACATED. The case is remanded on an open record. 6 A separate judgment will issue. 7 IT IS SO ORDERED. Dated: February 26, 2024

10 AP aluca Lona koe HON. PATRICIADONAHUE 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28