Charder v. Saul

• Court: District Court, S.D. California
• Decided: March 17, 2023
• Docket: 3:20-cv-01681
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EMMA C.,1 Case No.: 20cv1681-LR

12 Plaintiff, ORDER REVERSING FINAL 13 v. DECISION OF THE COMMISSIONER OF SOCIAL 14 KILOLO KIJAKAZI, Acting SECURITY AND REMANDING Commissioner of Social Security, 15 CASE FOR FURTHER Defendant. PROCEEDINGS 16

17 [ECF NO. 17] 18 19 20 On August 27, 2020, Plaintiff Emma C. commenced this action against Defendant 21 Andrew Saul, Commissioner of Social Security, for judicial review under 42 U.S.C. 22 § 405(g) of a final adverse decision for disability insurance benefits and supplemental 23 security income. (ECF No. 1.)2 On September 3, 2020, Plaintiff consented to Magistrate 24 25 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court’s Civil 26 Local Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b).

27 2 Kilolo Kijakazi is now the Acting Commissioner of Social Security and is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). 28 1 Judge jurisdiction. (ECF No. 5). Defendant Commissioner filed the Administrative 2 Record on March 8, 2022. (ECF No. 13.) On June 23, 2022, the parties filed a Joint 3 Motion for Judicial Review of the final decision of the Commissioner of Social Security. 4 (ECF No. 17 (“J. Mot.”).) The Joint Motion raises two issues: whether the ALJ properly 5 considered the vocational testimony regarding (1) fine manipulation and (2) sitting. (Id. 6 at 4.) 7 For the following reasons, the final decision of the Commissioner is REVERSED, 8 and the case is REMANDED for further proceedings. 9 I. BACKGROUND 10 A. Procedural History 11 On March 30, 2018, Plaintiff filed applications for disability insurance benefits and 12 supplemental security income under Titles II and XVI, respectively, of the Social 13 Security Act. (ECF No. 13 (“AR”)4 at 214–27.) She alleged that she had been disabled 14 since August 26, 2016, due to neuromyelitis optica. (Id. at 264, 269.) Plaintiff’s 15 applications were denied on initial review and again on reconsideration. (Id. at 139–43, 16 148–53.) An administrative hearing was conducted on November 7, 2019, by 17 Administrative Law Judge (“ALJ”) Michael B. Richardson. (Id. at 50.) On November 18 20, 2019, the ALJ issued a decision and concluded that Plaintiff was not disabled. (Id. at 19 32–42.) Plaintiff requested a review of the ALJ’s decision; the Appeals Council denied 20 the request on July 30, 2020. (Id. at 1–7.) She then commenced this action pursuant to 21 42 U.S.C. § 405(g). 22 / / / 23

24 25 3 The United States has informed the Court of its general consent to Magistrate Judge jurisdiction in cases of this nature. See S.D. Cal. Gen. Order No. 707 (Apr. 12, 2019). 26 4 “AR” refers to the Administrative Record filed on March 8, 2022. (ECF No. 13.) The Court’s 27 citations to the AR use the page references on the original document rather than the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). For all other 28 1 B. Hearing Testimony 2 1. Plaintiff’s testimony 3 Plaintiff testified that she previously worked as a shoe salesperson and waitress. 4 (Id. at 55–56.) She stopped working in August 2016 after the closure of the Nordstrom 5 store at which she worked. (Id. at 60–61.) She started seeing doctors around that time 6 because she sometimes stumbled and felt something was wrong. (Id. at 61.) Plaintiff 7 was initially told that she had neuromyelitis optica but a year later was diagnosed with 8 multiple sclerosis (“MS”). (Id. at 67–68.) She served as a caregiver for her boyfriend’s 9 mother from August 2016 to mid-2018 but was not paid for this work. (Id. at 60.) At the 10 time of the hearing, she had used a cane for over two years. (Id. at 67.) Her MS 11 symptoms included eye floaters, fatigue, balance issues, and incontinence. (Id. at 68.) 12 She had fallen as a result of her condition. (Id. at 66–67.) She was able to drive but 13 generally did not, other than to the nearby grocery store once a week. (Id. at 54–55.) Her 14 eye floaters appeared as black dots in her vision but did not prevent her from performing 15 any activities. (Id. at 71.) 16 With respect to limitations with her hands, Plaintiff testified that she was not able 17 to type because her hands “move on their own.” (Id. at 72.) She could move her hands 18 across a keyboard but “sometimes they skip.” (Id. at 73.) She was able to handle her 19 phone and use a knife and fork. (Id. at 72.) Threading a needle would be difficult for her 20 but she was able to button her pants and shirt. (Id. at 73.) 21 2. Vocational expert’s testimony 22 Gloria Lasoff testified as a vocational expert (“VE”). (Id. at 70.) The ALJ asked 23 the VE to hypothetically assume Plaintiff’s limitations as follows: 24 [A]ssume that at some point she was capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently; she could sit six hours and 25 stand and/or walk two hours and she would need to be able to use an 26 assistive device for all ambulation; she’s unlimited in pushing or pulling other than as already restricted in the lifting and carrying; she can never 27 climb ladders, ropes, or scaffolds or balance, but she can occasionally 28 perform the remaining postural activities; she must avoid concentrated 1 exposure to wetness, vibrations, and hazards such as unprotected heights and dangerous moving machinery; and she can do no fine manipulation with her 2 hands such as threading needles or assembling small parts, however, she can 3 frequently handle, finger, and feel.

5 (Id. at 74.) The VE responded that Plaintiff would not be able to perform her past 6 relevant work but could perform the sedentary jobs of document preparer (Dictionary of 7 Occupational Titles (“DOT”) 249.587-018), production worker (DOT 734.687-074), and 8 table worker (DOT 739.687-182), with national job numbers of 44,000, 50,000, and 9 10,000, respectively. (Id.) She stated that her response would not change if Plaintiff was 10 limited to lifting and carrying ten pounds occasionally and less than ten pounds 11 frequently. (Id. at 75.) The VE further testified that none of the three jobs required 12 keyboarding, and thus her response would not change if the hypothetical included a 13 restriction on keyboarding. (Id.) Finally, the VE asserted that the DOT does not 14 specifically address conditions and limitations such as missing two days of work a month, 15 being off task, keyboarding, fine manipulation such as threading needles and assembling 16 small parts, or using assistive devices for ambulation. (Id. at 76.) For these issues, she 17 was relying on her professional knowledge and experience. (Id.) 18 II. LEGAL STANDARDS 19 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 20 applicants to seek judicial review of a final agency decision of the Commissioner. 42 21 U.S.C.A. § 405(g), 421(d). The scope of judicial review is limited, however, and the 22 denial of benefits “will be disturbed only if it is not supported by substantial evidence or 23 is based on legal error.” Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 24 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)); see also 25 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Substantial evidence means 26 “more than a mere scintilla but less than a preponderance; it is such relevant evidence as 27 a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 28 Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews v. Shalala, 53 F.3d 1035, 1 1039 (9th Cir. 1995)); see also Biestek v. Berryhill, ___U.S. ____, ____, 139 S. Ct. 1148, 2 1154, 203 L. Ed. 2d 504 (2019). The court must consider the entire record, including the 3 evidence that supports and detracts from the Commissioner’s conclusions. Desrosiers v. 4 Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). If the evidence 5 supports more than one rational interpretation, the court must uphold the ALJ’s decision. 6 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Ford v. Saul, 950 F.3d 1141, 1154 7 (9th Cir. 2020). The district court may affirm, modify, or reverse the Commissioner’s 8 decision. 42 U.S.C.A. § 405(g). The matter may also be remanded to the Social Security 9 Administration for further proceedings. Id. 10 To qualify for disability insurance benefits and supplemental security income 11 under the Social Security Act, a claimant must be determined to be disabled, defined as 12 the inability to perform substantial gainful activity due to a medically determinable 13 impairment that can be expected to result in death or that has lasted or can be expected to 14 last for a continuous period of not less than twelve months or more. See 20 C.F.R. 15 §§ 404.1505, 416.905.5 The Commissioner makes this assessment by employing a five- 16 step analysis outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 17 1098-99 (9th Cir. 1999) (describing five steps). The burden of proof is on the claimant at 18 steps one through four. Id. at 1098. First, the Commissioner determines whether a 19 claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. 20 20 C.F.R. § 404.1520(b). Second, the Commissioner determines whether the claimant 21 has a “severe impairment or combination of impairments” that significantly limits the 22 claimant’s physical or mental ability to do basic work activities. If not, the claimant is 23 not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant’s 24 impairment is compared to a list of impairments that are presumed severe enough to 25

26 5 The disability insurance benefits (DIB) and supplemental security income (SSI) regulations relevant to 27 this case are virtually identical; therefore, only the DIB regulations will be cited in the remainder of this order. Parallel SSI regulations are found in 20 C.F.R. §§ 416.900–416.999 and correspond with the last 28 1 preclude work; if the claimant’s impairment meets or equals one of the listed 2 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 3 functional capacity is assessed and the evaluation proceeds to step four. Id. 4 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 5 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 6 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 7 shifts to the Commissioner. At step five, the Commissioner must establish that the 8 claimant can perform other work. Id. § 404.1520(g)(1). If the Commissioner meets this 9 burden and proves that the claimant is able to perform other work that exists in the 10 national economy, benefits are denied. Id. § 404.1520(g)(1). 11 III. DISCUSSION 12 Plaintiff raises two arguments. First, she contends that the ALJ improperly relied 13 on the VE’s testimony about fine manipulation. Second, she argues that the ALJ failed to 14 properly address a conflict in the VE’s testimony regarding sitting. 15 A. ALJ’s Decision 16 The ALJ determined at step one that Plaintiff had not engaged in substantial 17 gainful activity since August 26, 2016, her alleged onset date (step one). (AR at 34.) At 18 step two, he found that Plaintiff’s severe impairments included multiple sclerosis and 19 hypertension. (Id.) The ALJ determined at step three that Plaintiff did not have an 20 impairment or combination of impairments that met or medically equaled a listed 21 impairment. (Id. at 35.) He then made his finding regarding Plaintiff’s residual 22 functional capacity (“RFC”): 23 [T]he undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in [20 C.F.R. § 404.1567(a) 24 and 416.967(a)] except: she needs an assistive device for all ambulation; she 25 is never able to balance or climb ladders, ropes, or scaffolds, but she can occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; she 26 must avoid concentrated exposure to wetness, vibration, and hazards such as 27 unprotected heights and dangerous, moving machinery; she is unable to do fine manipulations such as threading needles or assembling small parts and 28 1 do keyboarding, but she is otherwise able to frequently handle, finger, and feel. 2

3 (Id. at 36.) At step four, the ALJ determined that Plaintiff was unable to perform her past 4 relevant work as a shoe salesperson and waiter. (Id. at 40.) Nevertheless, he found that 5 she was capable of performing the requirements of the representative unskilled sedentary 6 occupations of document preparer, production worker, and table worker (step five). (Id. 7 at 41.) Accordingly, the ALJ found that Plaintiff had not been under a disability from 8 August 26, 2016, through the date of his decision. (Id.) 9 B. Vocational Expert Testimony Regarding Fine Manipulation 10 1. “Fine manipulation” and “fingering” 11 Plaintiff’s argument that the ALJ improperly considered the vocational testimony 12 regarding “fine manipulation” is multifaceted. (J. Mot. at 4–9, 13–15.) She first 13 contends that because her RFC included a restriction on performing fine manipulations, 14 she is precluded from doing any jobs requiring fingering and therefore unable to perform 15 any of the jobs identified by the VE. (Id. at 8–9.) The Commissioner responds that the 16 ALJ did not intend to eliminate all fingering when assessing Plaintiff’s RFC; rather, he 17 intended to exclude only activities requiring the highest level of finger dexterity. (Id. at 18 11.) The Court agrees with the Commissioner on this issue. 19 RFC is a function-by-function assessment of an individual’s ability to do physical 20 and mental work-related activities on a sustained basis despite limitations from 21 impairments. See Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *1 (July 2, 22 1996).6 “RFC does not represent the least an individual can do despite his or her 23 limitations or restrictions, but the most.” Id. at *2. One of the abilities included in an 24

25 26 6 “SSRs reflect the official interpretation of the [Social Security Administration] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Bray v. 27 Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citation and internal quotation omitted). “SSRs do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Id. (citation 28 1 RFC assessment is the ability to perform manipulative functions, which relates to the use 2 of hands and fingers. SSR 96-9p, 1996 WL 374185, at *8 (July 2, 1996). Here, the ALJ 3 stated the following regarding Plaintiff’s ability to perform manipulative functions: 4 “[S]he is unable to do fine manipulations such as threading needles or assembling small 5 parts and do keyboarding, but she is otherwise able to frequently handle, finger, and 6 feel.” (AR at 36.) The ALJ made this finding after Plaintiff testified at her hearing that 7 typing and threading a needle would be difficult, but she was able to handle her phone, 8 use a knife and fork, and button her pants and shirt. (Id. at 72–73.) Plaintiff contends 9 that the RFC formulated by the ALJ contained an inherent inconsistency because it 10 precluded “fine manipulations” but otherwise permitted frequent “fingering.” (J. Mot. at 11 8.) She argues that there “are no examples of fingering” that she can still do, and the 12 ALJ’s exclusion of “fine manipulations such as threading needles, assembling small 13 parts, and keyboarding” eradicates any jobs requiring fingering. (Id. at 9.) 14 The Court must therefore determine whether the ALJ properly found a distinction 15 between “fine manipulations” and “fingering.” To ascertain the requirements of 16 occupations as generally performed in the national economy at step five, the ALJ may 17 rely on information from the DOT. Pinto v. Massanari, 249 F.3d 840, 845–46 (9th Cir. 18 2001); see also SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (providing that at 19 steps four and five, the Social Security Administration relies “primarily on the DOT 20 (including its companion publication, the [Selected Characteristics of Occupations 21 Defined in the Revised Dictionary of Occupational Titles (SCO)]) for information about 22 the requirements of work in the national economy.”). The DOT defines “fingering” as 23 “[p]icking, pinching, or otherwise working primarily with fingers rather than with the 24 whole hand or arm as in handling.” See Selected Characteristics of Occupations Defined 25 in the Revised Dictionary of Occupational Titles, App. C (1993), SCODICOT App. C 26 (Westlaw). “Fine manipulation” is not defined by the DOT. 27 Other district courts in this circuit have found “fine manipulations” to be more 28 specific than, and a subcategory of, “fingering.” See, e.g., Jones v. Berryhill, Case No. 1 2:17-cv-003099-GMN-NJK, 2018 WL 11223431, at *4 (D. Nev. Oct. 29, 2018) 2 (accepting VE testimony that fine manipulation, as compared to general fingering, 3 involves “fine eye-hand coordination, such as crocheting, needlepoint, or soldering on 4 electronic circuits boards”); see also Thomure v. Colvin, No. EDCV 12-1992-DTB, 2014 5 WL 1225016, at *2–3 (C.D. Cal. Mar. 21, 2014) (“[A] claimant restricted from fine 6 fingering does not necessarily mean that the claimant cannot perform fingering in general 7 where fine, delicate work is not required.”); Schepps v. Comm’r Soc. Sec., No. 2:12-CV- 8 0979-CMK, 2013 WL 5348129, at *4 (E.D. Cal. Sept. 23, 2013) (finding that although 9 the claimant was limited to performing “fine or delicate tasks” only occasionally, the ALJ 10 properly determined that the claimant could perform jobs requiring constant handling and 11 fingering based on the VE’s testimony that “very fine, delicate work is not required”). 12 Furthermore, Social Security Ruling 96-9p provides that only “significant manipulative 13 limitation of an individual’s ability to handle and work with small objects with both 14 hands will result in a significant erosion of the unskilled sedentary occupational base.” 15 SSR 96-9p, 1996 WL 374185, at *8. Therefore, Plaintiff’s contention that “fine 16 manipulations” encompass all “fingering” is not supported by authority. 17 In sum, Plaintiff has not shown that the restriction on her ability to perform “fine 18 manipulations” precluded her from doing jobs requiring “fingering.” 19 2. Plaintiff’s job-specific arguments 20 The second component of Plaintiff’s argument regarding “fine manipulations” is 21 that the ALJ failed to address conflicts between the DOT and the VE’s testimony 22 regarding the document preparer and production worker jobs, and the table worker 23 occupation alone does not constitute a significant number of jobs in the national 24 economy. (J. Mot. at 5–8.) The Commissioner responds that there was no obvious 25 conflict between the VE testimony and the DOT requiring resolution. (Id. at 12.) The 26 Court agrees with Plaintiff. 27 / / / 28 / / / 1 a. Document preparer job 2 Plaintiff contends that the ALJ failed to address a conflict between the DOT’s 3 description of the document preparer job and the VE’s testimony, as the VE did not 4 explain how a person who cannot type could perform the duties listed for this occupation. 5 (Id. at 5–7.) The job description for a document preparer (DOT 249.587-018) is as 6 follows: 7 249.587-018 DOCUMENT PREPARER, MICROFILMING

8 Prepares documents, such as brochures, pamphlets, and catalogs, for 9 microfilming, using paper cutter, photocopying machine, rubber stamps, and other work devices: Cuts documents into individual pages of standard 10 microfilming size and format when allowed by margin space, using paper 11 cutter or razor knife. Reproduces document pages as necessary to improve clarity or to reduce one or more pages into single page of standard 12 microfilming size, using photocopying machine. Stamps standard symbols 13 on pages or inserts instruction cards between pages of material to notify MICROFILM-CAMERA OPERATOR (business ser.) 976.682-022 of 14 special handling, such as manual repositioning, during microfilming. 15 Prepares cover sheet and document folder for material and index card for company files indicating information, such as firm name and 16 address, product category, and index code, to identify material. Inserts 17 material to be filmed in document folder and files folder for processing according to index code and filming priority schedule. 18

19 See DICOT 249.587-018, 1991 WL 672349 (emphasis added). 20 At step five in the sequential evaluation, the Commissioner has the burden “to 21 show that the claimant can perform some other work that exists in ‘significant numbers’ 22 in the national economy, taking into consideration the claimant’s residual functional 23 capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100; see also 20 24 C.F.R. § 404.1520(g)(1). “In making this determination, the ALJ relies on the DOT, 25 which is the SSA’s ‘primary source of reliable job information’ regarding jobs that exist 26 in the national economy.” Zavalin v. Colvin, 778 F.3d 842, 845–46 (9th Cir. 2015) 27 (citations omitted); see also SSR 00-4p, 2000 WL 1898704, at *2. In addition to the 28 1 DOT, the ALJ may obtain VE testimony about specific occupations that a claimant can 2 perform considering the limitations set forth in her RFC. Zavalin, 778 F.3d at 846. 3 Occupational evidence provided by a VE should generally be consistent with the 4 occupational information contained in the DOT. See SSR 00-4p, 2000 WL 1898704, at 5 *2. If the VE’s opinion that the claimant “is able to work conflicts with, or seems to 6 conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert to 7 reconcile the conflict before relying on the expert to decide if the claimant is disabled.” 8 Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citing SSR 00-4p, 2000 WL 9 1898704, at *2). “[T]he conflict must be ‘obvious or apparent’ to trigger the ALJ’s 10 obligation to inquire further.” Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) 11 (citing Gutierrez, 844 F.3d at 808). The focus of the conflict inquiry is the “essential, 12 integral, or expected” job requirements set forth in the DOT. Gutierrez, 844 F.3d at 808. 13 Here, the ALJ determined that Plaintiff cannot do keyboarding, (see AR at 36), and 14 the parties do not dispute this finding. In his decision, the ALJ adopted the VE’s 15 testimony that Plaintiff could perform work as a document preparer. (Id. at 41.) A 16 cursory review of the description of the document preparer job in the DOT, however, 17 indicates that keyboarding would be necessary to perform “essential, integral, or 18 expected” requirements of the job. According to the DOT description, the general tasks 19 for this job include “prepar[ing] cover sheet and document folder for material and index 20 card for company files indicating information, such as firm name and address, product 21 category, and index code, to identify material.” See DICOT 249.587-018, 1991 WL 22 672349. Based on common sense and real-world experience, a document preparer would 23 be required to keyboard or type to complete this task. See Gutierrez, 844 F.3d at 808 24 (applying common experience to evaluation of DOT job description); Lamear, 865 F.3d 25 at 1206 (same). Therefore, an obvious conflict existed between the VE’s testimony that 26 Plaintiff could perform work as a document preparer, despite her keyboarding limitations, 27 and the job description in the DOT that indicates that keyboarding or typing would be 28 required. 1 Because there was an obvious or apparent conflict between the VE’s testimony and 2 the DOT description of the document preparer position, the ALJ was required to question 3 the VE about how Plaintiff could perform this job in light of her restriction on 4 keyboarding. See SSR 00-4p, 2000 WL 1898704, at *4 (providing that when a conflict 5 exists between VE testimony and information set forth in the DOT, the ALJ is required to 6 “obtain a reasonable explanation for the apparent conflict”). The ALJ must then explain 7 in his decision how he resolved the conflict. Id. “The procedural requirements of SSR 8 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert’s 9 testimony, particularly in cases where the expert’s testimony conflicts with the [DOT].” 10 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); see also Zavalin, 778 F.3d at 11 846 (“The ALJ’s failure to resolve an apparent inconsistency may leave us with a gap in 12 the record that precludes us from determining whether the ALJ’s decision is supported by 13 substantial evidence.”). Here, the ALJ erred by failing to ask the VE about the conflict 14 between her testimony that Plaintiff could perform the document preparer job and the 15 DOT’s description of the job duties for this position. Without this inquiry, the Court 16 cannot determine from the record whether the ALJ’s decision is supported by substantial 17 evidence. Thus, the error is not harmless. See Tommasetti v. Astrue, 533 F.3d 1035, 18 1038 (9th Cir. 2008) (“harmless error . . . exists when it is clear from the record that the 19 ALJ’s error was inconsequential to the ultimate nondisability determination”) (internal 20 quotation marks and citation omitted). 21 b. Production worker job 22 Plaintiff also argues that the ALJ failed to address a conflict between the DOT’s 23 description of the production worker job and the VE’s testimony that she could perform 24 this work despite her limitations. (J. Mot. at 7.) Plaintiff maintains that employment as a 25 production worker requires assembling small parts, which, like keyboarding, was 26 excluded from her RFC. (Id.) The DOT describes the duties of a production 27 worker/slide-fastener-chain assembler (DOT 734.687-074) as follows: 28 / / / 1 734.687-074 SLIDE-FASTENER-CHAIN ASSEMBLER

2 Joins together stringers (sides) of slide fasteners, using slider jig: Aligns 3 links of stringer with links of other stringer and inserts ends of stringers in slider jig. Pulls ends of stringers through jig to interlock links. Examines 4 fastener for defects, such as crooked, broken, flattened, or misaligned links. 5 Cuts out defective section, using scissors, and splices sections, using adhesive tape or hand stapler. May sew sections together to prevent 6 raveling, using serging sewing machine. May tend machine rollers that pull 7 stringers through jig.

9 See DICOT 734.687-074, 1991 WL 679964. The alternate titles of this job include 10 assembler, slide fastener stringer, puller, and zipper joiner. Id. 11 The ALJ determined that Plaintiff is “unable to do fine manipulation such as 12 threading needles or assembling small parts.” (AR at 36.) Yet, he adopted the VE’s 13 testimony that Plaintiff could perform work as a production worker. (Id. at 41.) It is 14 apparent from the DOT’s description of this occupation, however, that the inability to 15 assemble small parts would be an obstacle to completing the job duties of a production 16 worker. Because the conflict was apparent, the ALJ was required to question the VE 17 about how Plaintiff could perform this job notwithstanding her inability to assemble 18 small parts. See SSR 00-4p, 2000 WL 1898704, at *4. He erred by failing to do so. As 19 with the document worker job, absent further inquiry of the VE and resolution of the 20 conflict by the ALJ, the Court cannot determine from the present record whether the 21 ALJ’s decision is supported by substantial evidence. Thus, the error is not harmless. 22 c. Table worker job 23 Plaintiff contends that the remaining 10,000 table worker jobs in the national 24 economy do not amount to a significant number of jobs. (J. Mot. at 7–8.) The Ninth 25 Circuit has not created a “bright-line rule” for what constitutes a “significant number” of 26 jobs. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). However, “a comparison to 27 other cases is instructive.” Id. Plaintiff cites to Gutierrez v. Comm’r Soc. Sec., 740 F.3d 28 519 (9th Cir. 2014), to support her argument. In Gutierrez, the Ninth Circuit upheld the 1 ALJ’s finding that 25,000 jobs constituted a sufficient number but stated that it was a 2 “close call.” Id. at 529. The Ninth Circuit provided further guidance in Randazzo v. 3 Berryhill, 725 F. App’x 446 (9th Cir. 2017). There, the circuit court determined that “the 4 remaining 10,000 electrical accessories assembler jobs found by the expert may not 5 amount to a significant number of jobs in the national economy.” Id. at 448; see also De 6 Rivera v. Berryhill, 710 F. App’x 768, 769 (9th Cir. 2018) (“it is not clear that [5,000 7 national jobs] are sufficient.”). 8 In this case, after discounting the document preparer and production worker 9 occupations, the remaining 10,000 table worker jobs available in the national economy is 10 not a sufficient number to support the ALJ’s Step 5 determination. 11 C. Vocational Expert Testimony Regarding Sitting 12 Plaintiff’s second overarching argument is that the ALJ failed to address a conflict 13 in the VE’s testimony regarding sitting and thus improperly relied on the expert’s 14 opinion. (J. Mot. at 16–18, 23–24.) In phrasing his hypothetical question to the VE, the 15 ALJ asked the expert to assume that Plaintiff could sit for six hours and stand and/or walk 16 for two hours. (AR at 74.) In response, the VE provided testimony about three sedentary 17 jobs that Plaintiff could perform. (Id.) Plaintiff contends that because the ALJ limited 18 her to sitting for six hours a day, a conflict exists because sedentary work does not 19 contain a six-hour limit on sitting. (J. Mot. at 16.) She believes that in view of the 20 conflict, the ALJ needed to establish that the jobs identified by the VE did not require 21 more than six hours of sitting per day. (Id. at 23–24.) The Commissioner responds that 22 there was no obvious inconsistency between the VE’s testimony and the DOT regarding 23 sitting requirements and refers to Plaintiff’s argument as a “painstaking attempt at 24 manufacturing a conflict.” (Id. at 19.) 25 As set forth above, only conflicts that are “obvious or apparent” trigger the duty of 26 the ALJ to inquire further. Lamear, 865 F.3d at 1205 (citing Gutierrez, 844 F.3d at 808). 27 Here, no obvious or apparent conflict exists because contrary to Plaintiff’s assertion, the 28 ALJ did not find that Plaintiff had a six-hour sitting limitation. Plaintiff attempts to 1 characterize the ALJ’s reference to six hours of sitting in the hypothetical question to the 2 VE as a limitation to sitting six hours a day, but this misconstrues the record. The RFC, 3 as formulated by the ALJ, does not include a six-hour sitting maximum but rather states 4 that Plaintiff retained the ability to perform “sedentary” work. (AR at 36.) “Although a 5 sedentary job is defined as one which involves sitting, a certain amount of walking and 6 standing is often necessary in carrying out job duties. Jobs are sedentary if walking and 7 standing are required occasionally and other sedentary criteria are met.” See 20 C.F.R. 8 § 404.1567(a). Social Security Ruling 83-10 explains that “occasionally” means 9 “occurring from very little up to one-third of the time.” SSR 83-10, 1983 WL 31251, at 10 *5 (Jan. 1, 1983). As sedentary jobs require walking and standing occasionally, “periods 11 of standing or walking should generally total no more than about 2 hours of an 8-hour 12 workday, and sitting should generally total approximately 6 hours of an 8-hour workday.” 13 Id. 14 After reviewing the hearing transcript and considering the full context of the 15 record, it is evident that by asking the VE to assume that Plaintiff could “sit six hours and 16 stand and/or walk two hours,” (see AR at 74), the ALJ was not placing a limitation on 17 Plaintiff’s ability to sit but rather was referring to sedentary work. This is substantiated 18 by the ALJ’s follow-up question to the VE: “Would there be other sedentary jobs that 19 could fit there?” Id. (emphasis added). Aside from the reference to sitting for six hours 20 in his initial hypothetical question to VE, there is no indication in the ALJ’s decision or 21 in the record that Plaintiff had any sitting limitations. In fact, Plaintiff’s argument that 22 she has a restriction on sitting for more than six hours is inconsistent with the evidence in 23 the record. Her medical records reflected no problems with sitting but rather with gait 24 unsteadiness and balance issues while standing. (See, e.g., id. at 498 (“sways even with 25 just standing with feet together” and “[k]eeps losing balance”), id. at 549 (indicating that 26 Plaintiff had problems with balance and walking), id. at 635 (“[c]ontinues to experience 27 gait unsteadiness, both standing and walking”), id. at 661 (“feeling unsteady, with loss of 28 balance”); id. at 700 (reporting that balance was getting worse), id. at 797 (“Continues to 1 complain of problems with gait imbalance.”).) Additionally, in her disability reports, 2 Plaintiff’s description of her condition and activities contains no mention of needing a 3 limitation on sitting. (See id. at 277, 282, 292, 296.) 4 Because the ALJ did not include a sitting limitation in Plaintiff’s RFC, there was 5 no apparent or obvious conflict in the VE’s testimony with respect to sitting. 6 D. Remedy 7 Plaintiff requests that the Court reverse the Commissioner’s decision and remand 8 for an award of benefits. (J. Mot. at 25.) She requests in the alternative that the Court 9 remand for additional proceedings. (Id.) The decision whether to remand for further 10 proceedings or for immediate payment of benefits is within the discretion of the court. 42 11 U.S.C. § 405(g); Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 12 2014). A remand for an immediate award of benefits is appropriate only in rare 13 circumstances. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015). “If 14 additional proceedings can remedy defects in the original administrative proceedings, a 15 social security case should be remanded.” Lewin v. Schweiker, 654 F.2d 631, 635 (9th 16 Cir. 1981). 17 In this case, the record is ambiguous because the ALJ did not resolve the conflict 18 between the VE’s testimony and the DOT. Additional proceedings, including obtaining 19 updated VE testimony to address the obvious conflicts that exist between the prior VE 20 testimony and the DOT, can remedy the defects. Accordingly, remand for additional 21 proceedings is appropriate. 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 1 IV. CONCLUSION 2 For the foregoing reasons, the final decision of the Commissioner is REVERSED, 3 || and the case is REMANDED for further proceedings consistent with this opinion. The 4 ||Clerk is directed to issue a judgment and close this case. 5 IT IS SO ORDERED. 6 || Dated: March 16, 2023 7 LY 8 Honorable Lupe Rodriguez, Jr. 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28