Karen Louise K. v. Frank Bisignano

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 Karen Louise K.,1 Case No. 2:25-cv-01126-BNW

5 Plaintiff, ORDER

6 v.

7 Frank Bisignano,

8 Defendant.

9 10 This case involves review of an administrative action by the Commissioner of Social 11 Security denying Plaintiff’s application for disability benefits under Titles II and XVI of the 12 Social Security Act. Plaintiff filed an opening brief asking the Court to reverse and award 13 benefits, or in the alternative, remand the case for further proceedings. ECF No. 11. The 14 Commissioner opposed and Plaintiff replied. ECF Nos. 13 and 14. For the reasons discussed 15 below, the Court reverses and remands the case for further proceedings. 16 I. BACKGROUND 17 On September 10, 2021, Plaintiff filed for disability insurance benefits under Title II of 18 the Social Security Act as well as supplemental security income under Title XVI, alleging an 19 onset date of September 3,2021. Administrative Record (“AR”) 4612. Plaintiff’s claim was 20 denied initially and upon reconsideration. Id. 21 A telephonic hearing was held before Administrative Law Judge (“ALJ”) Jeffrey Mastin 22 on May 21, 2024. Id. On May 31, 2024, ALJ Mastin found that Plaintiff was not disabled. Id. at 23 191. AR 4613. It should be noted that Plaintiff received a prior unfavorable decision on 24 September 1, 2021, which ALJ Mastin considered in the context of Chavez and Acquiescence 25 Ruling 97-4(9). AR 4612. Plaintiff appealed that decision to the Appeals Council, which denied 26 her request for review. AR 211, 1–6. Plaintiff then commenced this action for judicial review 27 1 In the interest of privacy, this opinion only uses the first name and last initial of the 1 under 42 U.S.C. § 405(g) on September 22, 2025. See ECF No. 1. 2 II. STANDARD OF REVIEW 3 Administrative decisions in Social Security disability-benefits cases are reviewed under 4 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 5 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 6 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 7 obtain a review of such decision by a civil action. . . brought in the district court of the United 8 States for the judicial district in which the plaintiff resides.” The Court may enter “upon the 9 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 10 decision of the Commissioner of Social Security, with or without remanding the cause for a 11 rehearing.” 42 U.S.C. § 405(g). 12 The Commisioner’s findings of fact are conclusive if supported by substantial evidence. 13 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 14 findings may be set aside if they are based on legal error or not supported by substantial 15 evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas 16 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as 17 “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 19 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 20 2005). In determining whether the Commissioner’s findings are supported by substantial 21 evidence, the Court “must review the administrative record as a whole, weighing both the 22 evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” 23 Reddick v. Chater, 157 F. 3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 24 1279 (9th Cir. 1996). 25 Under the substantial evidence test, findings must be upheld if supported by inferences 26 reasonably drawn from the record. Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). 27 When the evidence supports more than one rational interpretation, the court must defer to the 1 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 2 v. Sec’y of Health & Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Thus, the issue before the 3 Court is not whether the Commissioner could have reasonably reached a different conclusion, 4 but whether the final decision is supported by substantial evidence. Burch, 400 F.3d at 679. It is 5 incumbent on the ALJ to make specific findings so that the Court does not speculate as to the 6 basis of the findings when determining if the Commissioner’s decision is supported by 7 substantial evidence. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). Mere cursory 8 findings of fact without explicit statements as to what portions of the evidence were accepted or 9 rejected are not sufficient. Id. The ALJ’s findings “should be as comprehensive and analytical as 10 feasible, and where appropriate, should include a statement of subordinate factual foundations on 11 which the ultimate factual conclusions are based.” Id. 12 A. Disability evaluation process and the ALJ decision 13 The individual seeking disability benefits has the initial burden of proving disability. 14 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 15 demonstrate the “inability to engage in any substantial gainful activity by reason of any 16 medically determinable physical or mental impairment which can be expected. . . to last for a 17 continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The individual also 18 must provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 19 § 404.1514. If the individual establishes an inability to perform other substantial gainful work 20 that exists in the national economy. Reddick, 157 F.3d at 721. 21 The ALJ follows a five-step sequential evaluation process in determining whether an 22 individual is disabled. See 20 C.F.R. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 23 If at any step the ALJ determines that she can make a finding of disability or non-disability, a 24 determination will be made, and no further evaluation is required. See 20 C.F.R. 25 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). 26 Step one requires the ALJ to determine whether the individual is engaged in substantial 27 gainful activity (“SGA”). 20 C.F.R. § 404.1520(a)(4)(i). If the individual is engaged in SGA, the 1 ALJ will make a finding of non-disability. If the individual is not engaged in SGA, then the 2 analysis proceeds to step two. 3 Step two addresses whether the individual has a medically determinable impairment that 4 is severe or a combination of impairments that significantly limits her from performing basic 5 work activities. Id. § 404.1520(a)(4)(ii). If the individual does not have a severe medically 6 determinable impairment or combination of impairments, then the ALJ makes a finding of non- 7 disability. If the individual has a severe medically determinable impairment or combination of 8 impairments, then the analysis proceeds to step three. 9 Step three requires the ALJ to determine whether the individual’s impairments or 10 combination of impairments meets or medically equals the criteria of an impairment listed in 20 11 C.F.R. Part 404, Subpart P, Appendix 1. Id. § 404.1520(a)(4)(iii). If the individual’s impairment 12 or combination of impairments meets or equals the criteria of a listing and the duration 13 requirement, then the ALJ makes a finding of disability. Id. § 404.1520(d). Otherwise, the 14 analysis proceeds to step four. 15 However, before moving to step four, the ALJ must first determine the individual’s 16 residual functional capacity (“RFC”), which is a function-by-function assessment of the 17 individual’s ability to do physical and mental work-related activities on a sustained basis despite 18 limitations from impairments. See 20 C.F.R. § 404.1560; see also SSR 96-8p. In making this 19 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 20 which the symptoms can reasonably be accepted as consistent with the objective medical 21 evidence and other evidence. 20 C.F.R. § 404.1545. To the extent that statements about the 22 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 23 substantiated by objective medical evidence the ALJ must make a finding on the credibility of 24 the individual’s statements based on a consideration of the entire case record. 25 Step four requires the ALJ to determine whether the individual has the RFC to perform 26 her past work (“PRW”). 20 C.F.R. § 404.1520(a)(4)(iv). PRW means work performed either as 27 the individual actually performed it or as it is generally performed in the national economy 1 within the last 15 years. The work also must have lasted long enough for the individual to learn 2 the job and to have performed an SGA. If the individual has the RFC to perform her past work, 3 then the ALJ makes a finding of non-disability. If the individual is unable to perform any PRW 4 or does not have any PRW, then the analysis proceeds to step five. 5 The fifth and final step requires the ALJ to determine whether the individual can do any 6 other work considering her RFC, age, education, and work experience. 20 C.F.R. 7 § 404.1520(a)(4)(v). If she can do other work, then the ALJ makes a finding of non-disability. 8 Although the individual generally continues to have the burden of proving disability at this step, 9 a limited burden of going forward with the evidence shifts to the Commissioner. The 10 Commissioner is responsible for providing evidence demonstrating that other work exists in 11 significant numbers in the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 12 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 13 § 404.1520(a). 14 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 15 since September 3, 2021, the alleged onset date. AR 4615. 16 At step two, the ALJ concluded that Plaintiff had the following severe impairments: post- 17 traumatic stress disorder, bipolar disorder, anxiety disorder, adjustment disorder, left shoulder 18 impingement, and lumbago. Id. 19 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 20 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 21 Appendix 1. Id. 22 Before moving to step four, the ALJ concluded that Plaintiff had the RFC to perform 23 light work but with the following limitations: 24 The claimant can occasionally reach overhead with the left upper extremity and can perform unlimited reaching in other planes; she has no reaching restriction with the right 25 upper extremity. The claimant can work in an environment with noise of a moderate level. She can understand, remember, and carry out simple instructions and make simple 26 work-related decisions to perform routine work. The claimant can perform routine tasks at a consistent pace, but not a production rate pace where each task must be completed 27 within a strict time deadline. She can tolerate occasional interaction with coworkers and 1 supervisors and no interaction with the public. The claimant can tolerate occasional changes in a routine work setting. She can tolerate a low level of work pressure, defined 2 as work not requiring multitasking, detailed job tasks, significant independent judgment, a production rate pace, sharing of job tasks, or interaction with the public. 3 4 AR 4617. 5 At step four, the ALJ found that Plaintiff was unable to perform any PRW. AR 4622. 6 At step five, the ALJ found that considering Plaintiff’s age, education, work experience, 7 and RFC, there were jobs that existed in the national economy that Plaintiff could perform, 8 namely as an inspector/packer, a sorter, and a mail clerk. AR 4623–24. The ALJ then concluded 9 that Plaintiff has not been under a disability from September 3, 2021, to the date of the decision. 10 AR 4624. 11 III. ANALYSIS 12 A. The ALJ’s finding at step five is not supported by substantial evidence. 13 As noted above, the ALJ found that Plaintiff has the RFC to perform light work with 14 additional limitations, including that she “can perform routine tasks at a consistent pace, but not 15 a production rate pace where each task must be completed within a strict deadline” and that she 16 can tolerate a “low level of work pressure, defined as work not requiring . . . a production rate 17 pace.” AR 4617. The vocational expert testified that that Plaintiff would be able to perform the 18 requirements of occupations such as inspector/packer (DOT 559.687-074, SVP of 2, light, 6,000 19 jobs), sorter (DOT 222.687-022, SVP of 2, light, 115,000 jobs), and mail clerk (DOT 209.687- 20 026, SVP of 2, light, 13,000 jobs). AR 4624. At the hearing, the ALJ and vocational expert went 21 back and forth regarding the production-rate limitation and available jobs. After the vocational 22 expert testified that Plaintiff could not perform her past job, the ALJ asked whether other jobs 23 were available: 24 VE: “I think when I put it all together I think I should say, no.” ALJ: “Okay. I mean, are there reasons that lead to that conclusion?” 25 VE: “It’s the production. Yeah. You know what, it’s the productivity, the maintaining an ongoing production rate.” 26 27 AR 34–35. 1 The ALJ clarified that what he intended by the production-rate limitation was no “Lucille 2 Ball standing at the conveyor” with chocolates. AR 35. The vocational expert responded that she 3 “could say [] those jobs as long as it’s not incredibly fast-paced work.” Id. The ALJ then 4 questioned the sorter job, saying “[i]t just sounds like Lucille Ball.” AR 36. The vocational 5 expert responded that “[i]t’s not a conveyor – I think of production rate, I think of the conveyorr 6 – the machine controlling the person as opposed to the person controlling whatever.” Id. Again, 7 the ALJ questioned the sorter job, stating “I see a sorter, you know, I see a bunch of stuff coming 8 down a conveyor at someone, and you’re throwing something in one bin and something in 9 another.” Id. The vocational expert responded “No. Yeah. No.” Id. 10 Finally, the ALJ asked: “Is there anything in your testimony that would be inconsistent or 11 conflict with the DOT?” Id. The vocational expert stated: “No . . . They don’t deal with things 12 like production rate, that sort of stuff.” Id. The ALJ confirmed: 13 ALJ: “But just to clarify, the DOT’s silent on that, so there’s no conflict.” VE: “Yes.” 14 ALJ: “It just doesn’t address it, correct?” VE: “Right. Exactly. Exactly.” 15 16 AR 37. 17 In the ALJ’s decision, he found that the vocational expert’s testimony was consistent with 18 the information contained in the DOT. Id. “At the hearing, the vocational expert acknowledged 19 that the DOT does not address things such as specific directions of reaching or a production rate 20 pace. She stated that she relied on her education, training, and experience when addressing those 21 matters.” Id. 22 Plaintiff argues that the DOT’s definition of sorter describes that job as potentially 23 involving sorting on a conveyor belt. ECF No. 11 at 7. Plaintiff argues that the vocational 24 expert’s statement that there was no conflict with the DOT because it is silent on production rate 25 was improper and unsupported under SSR 00-4p. Id. at 8. The Commissioner responded that the 26 DOT is not explicit that working from a conveyor belt is a required function of the sorter job, 27 and the vocational expert acknowledged this and stated that she was relying on her education, 1 training, and experience. ECF No. 13 at 5. The Commissioner argues that the vocational expert’s 2 testimony amounted to substantial evidence to support the ALJ’s finding. Id. Plaintiff replied that 3 the vocational expert did not put forth persuasive evidence to support her deviation from the 4 DOT description because the expert did not even acknowledge the discrepancy between her 5 testimony and the DOT. ECF No. 14 at 2. 6 An ALJ may rely on a vocational expert to provide testimony about jobs a claimant can 7 perform despite his or her limitations. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). If 8 vocational expert testimony conflicts with the requirements listed in the DOT, then the ALJ must 9 ask the vocational expert to reconcile the conflict. SSR 00-4p. An ALJ is only required to 10 reconcile an “apparent” or “obvious” conflict. Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 11 2016). Moreover, “an ALJ may rely on expert testimony which contradicts the DOT, but only 12 insofar as the record contains persuasive evidence to support the deviation.” Johnson v. Shalala, 13 60 F.3d 1428, 1435 (9th Cir. 1995) 14 Several district courts have found that the sorter job presents an apparent conflict with 15 RFCs that preclude production-based work. Shanta R.B. v. O’Malley, No. 2:22-cv-07969-JC, 16 2024 WL 661187, at *8 (C.D. Cal. Jan. 3, 2024); see also Kelly P. v. Saul, No. 5:18-cv-00777- 17 MAA, 2019 WL 3573591, at *4 (C.D. Cal. Aug. 6, 2019) (finding that the package sorter job’s 18 “alternative designation as a ‘conveyor belt package sorter’ conflicts with [plaintiff’s] limitation 19 to work with ‘no fast paced production or assembly line type work’”); see also Abigail L. v. 20 Kijakazi, No. 21-2275 (FLW), 2022 WL 16362468, at *13 (D.N.J. Oct. 27, 2022) (finding that 21 package sorter job conflicts with restriction from tandem work on an assembly line, due to 22 DOT’s reference to conveyor belt work); see also Laura K. v. Kijakazi, No. TMD 20-2215, 2021 23 WL 4391123, at *6 (D. Md. Sept. 24, 2021) (“Th[e] task of looking at items on a conveyor belt 24 and removing specific items conflicts with an RFC precluding fast paced, assembly line work.”) 25 (internal quotations and citation omitted). 26 This Court agrees with the above district courts that the sorter job conflicts with 27 Plaintiff’s limitation regarding a production-rate pace given the description that the sorter job 1 “[m]ay be designated according to work station as Conveyor Belt Package Sorter.” DOT 2 222.687-022 (Routing Clerk). This Court further finds that no persuasive evidence in the record 3 supports this deviation, such that the ALJ could not rely on the vocational expert’s testimony. As 4 discussed above, the vocational expert did not acknowledge the deviation between her testimony 5 and the DOT—even when pressed by the ALJ. The vocational expert opined that there was no 6 conflict between her testimony and the DOT. AR 37. Thus, the vocational expert offered no 7 explanation as to this deviation. Accordingly, the finding at step five was not supported by 8 substantial evidence. 9 B. Harmless Error and Remand 10 Plaintiff argues that the ALJ’s error was not harmless because the remaining jobs the 11 vocational expert identified—inspector/packer (DOT 559.687-074) and mail clerk (DOT 12 209.687-026)—do not exist in “significant” numbers as they only amount to 19,000 positions 13 nationally. ECF No. 11 at 8. The Commissioner did not address this argument. See ECF No. 13. 14 Plaintiff asks for reversal and an immediate award of benefits, or in the alternative, remand. ECF 15 No. 11 at 9; ECF No. 14 at 3. She does not provide specific arguments as to these requests. 16 Even if an ALJ errs, courts should uphold the decision where the error is harmless. 17 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). An error is 18 harmless if it is “inconsequential to the ultimate nondisability determination.” Id. (quoting 19 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)). Relevant here, the Commissioner is 20 “responsible for providing evidence that demonstrates that other work exists in significant 21 numbers in the national economy that [the claimant] can do, given [the claimant’s] residual 22 functional capacity and vocational factors” to support a finding that a claimant is not disabled at 23 step five. 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). 24 The Ninth Circuit has found that 25,000 jobs nationally was ultimately significant but a 25 “close call.” Gutierrez v. Comm’r Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014). In an 26 unpublished opinion, the Ninth Circuit considered whether 18,500 jobs nationally and 195 27 regionally were significant. Little v. Berryhill, 690 F. App’x 915, 917 (9th Cir. 2017). It found 1 that the 195 jobs regionally was not significant, though it did not explicitly state that 18,500 jobs 2 nationally was also not significant. Id. However, it did note that “[t]his court has held that 3 whether 25,000 jobs nationally is significant is a close call.” Id. (citing Gutierrez, 740 F.3d at 4 529) (internal quotations omitted). District courts in this jurisdiction have reached inconsistent 5 conclusions as to whether 19,000 jobs nationally is a significant number. See Vasni L. v. 6 O’Malley, No. 5:23-cv-01970-AJR, 2024 U.S. Dist. LEXIS 131762, at *15 (C.D. Cal. July 25, 7 2024) (collecting cases). 8 Social security cases should be remanded if additional proceedings can remedy defects in 9 the underlying administrative proceeding. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 10 However, courts are empowered to affirm, modify, or reverse a decision by the Commissioner 11 “with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g) (emphasis added). 12 “Courts have generally exercised this power when it is clear from the record that a claimant is 13 entitled to benefits . . . .” Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). Courts 14 considering the issue of whether 19,000 jobs nationally is significant have remanded for further 15 development of the record because the question of whether a significant number of jobs exist is a 16 question of fact for the ALJ. See Vasni L., 2024 U.S. Dist. LEXIS 131762, at *15–16. 17 Here, it is unclear whether 19,000 jobs nationally is significant, and additional 18 proceedings can remedy this defect. Accordingly, this Court remands the case for further 19 proceedings at step five for the ALJ to determine whether work exists in significant numbers in 20 the national economy that Plaintiff can do given her RFC and vocational factors. 21 IV. CONCLUSION 22 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Reversal and/or Remand 23 (ECF No. 11) is GRANTED. 24 IT IS FURTHER ORDERED that this matter is remanded for further proceedings 25 consistent with the above decision. 26 / / 27 / / ] IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment in 2 | favor of Plaintiff and close this case. 3 4 DATED: June 12, 2026 5

BRENDA WEKSLER 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1]