Perez Luna v. O'Malley

• Court: District Court, D. Nevada
• Decided: February 4, 2025
• Docket: 2:24-cv-00550
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Victor H. P. L., Case No. 2:24-cv-00550-DJA 6 Plaintiff, 7 Order v. 8 Martin O’Malley, Commissioner of Social 9 Security,

10 Defendant.

11 12 Before the Court is Plaintiff Victor H. P. L.’s brief moving for reversal and payment of 13 benefits (ECF No. 12) and the Commissioner’s motion to remand (ECF No. 16). Plaintiff filed a 14 reply. (ECF No. 17). Because the Court finds that remand, and not an award of benefits, is the 15 appropriate relief, it denies Plaintiff’s motion and grants the Commissioner’s motion. The Court 16 finds these matters properly resolved without a hearing. LR 78-1. 17 BACKGROUND 18 I. Procedural history. 19 Plaintiff filed an application for a period of disability and disability insurance benefits on 20 March 17, 2018, alleging disability commencing March 1, 2015. (ECF No. 12 at 3). The 21 Commissioner denied the claim by initial determination on September 21, 2018, and on 22 reconsideration on May 2, 2019. (Id.). Plaintiff requested a de novo hearing and on November 3, 23 2020, the ALJ presiding over the matter published an unfavorable decision. (Id.). The Appeals 24 Council denied Plaintiff’s request for review on June 22, 2021. (Id.). Plaintiff appealed the 25 decision and this court remanded the matter for further proceedings on September 8, 2022. (Id.). 26 The ALJ on remand published an unfavorable decision on January 19, 2024. (Id.). Plaintiff did 27 not file exceptions within thirty days of the ALJ decision and the Appeals Council did not assume 1 became the final decision sixty days after January 19, 2024, and Plaintiff filed his application to 2 proceed in forma pauperis less than sixty days after the decision became final. (ECF No. 1). 3 II. The ALJ decision. 4 The ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 5 § 404.1520(a). (AR 3472-1482). At step one, the ALJ found that Plaintiff had not engaged in 6 substantial gainful activity during the period of the alleged onset date of March 1, 2015, through 7 his date last insured of December 31, 2018. (AR 1473). At step two, the ALJ found that Plaintiff 8 has the following severe impairments: right shoulder SLAP tear, acromioclavicular joint arthrosis 9 status-post decompression and repair; right hip osteoarthritis; lumbar spine degenerative disc 10 disease; and cervical spine degenerative disc disease. (AR 1473-1474). At step three, the ALJ 11 found that Plaintiff does not have an impairment or combination of impairments that meets or 12 medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 13 Appendix 1. (AR 1474). In making this finding, the ALJ considered Listings 1.15 and 1.18. 14 (AR 1474-1475). 15 At step four, the ALJ found that Plaintiff, 16 has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except lift and carry 20 pounds 17 occasionally and 10 pounds frequently; sit for six hours, stand for 18 six hours, and walk for six hours; push and pull as much as he can lift and carry; occasionally reach overhead to the left and 19 occasionally reach overhead to the right; frequently reach to the left and frequently reach to the right for all other reaching; climb ramps 20 and stairs frequently, climb ladders, ropes, or scaffolds occasionally, balance frequently, stoop occasionally, kneel frequently, crouch 21 frequently, and crawl occasionally; and work at unprotected heights 22 and around moving mechanical parts frequently. 23 (AR 1475-1480). 24 25 At step five, the ALJ found that Plaintiff is unable to perform any past relevant work. 26 (AR 1481). At the October 11, 2023, hearing preceding the ALJ’s decision, the vocational expert 27 testified that a person with Plaintiff’s RFC could perform the jobs of assembler, electrical 1 expert, “[w]ould any of these jobs be affected adversely by an inability to speak, read, or write 2 English?” (AR 1415). The vocational expert responded that “that would rule out, based on your 3 hypothetical, the three jobs…” (AR 1415). The ALJ then asked “[a]re there other jobs with the 4 RFC that do not require English-speaking?” (AR 1415). The vocational expert then confirmed 5 that there are no other jobs available where the hypothetical individual was not able to speak 6 English. (AR 1415). The ALJ did not question the vocational expert further on this topic. 7 However, in the ALJ’s written decision, at step five, the ALJ found that Plaintiff could 8 perform these jobs. (AR 1482). The ALJ stated that he “rejects the vocational expert’s testimony 9 that the inability to communicate in English would eliminate all light jobs because the unskilled 10 jobs identified do not themselves require literacy in any language.” (AR 1482). Accordingly, the 11 ALJ found that Plaintiff had not been disabled from March 1, 2015, the alleged onset date, 12 through December 31, 2018, the date last insured. (AR 1482). 13 STANDARD 14 The court reviews administrative decisions in social security disability benefits cases 15 under 42 U.S.C. § 405(g). See Akopyan v. Barnhard, 296 F.3d 852, 854 (9th Cir. 2002). Section 16 405(g) states, “[a]ny individual, after any final decision of the Commissioner of Social Security 17 made after a hearing to which he was a party, irrespective of the amount in controversy, may 18 obtain a review of such decision by a civil action…brought in the district court of the United 19 States for the judicial district in which the plaintiff resides.” The court may enter, “upon the 20 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 21 decision of the Commissioner of Social Security, with or without remanding the case for a 22 rehearing.” Id. The Ninth Circuit reviews a decision of a District Court affirming, modifying, or 23 reversing a decision of the Commissioner de novo. Batson v. Commissioner, 359 F.3d 1190, 24 1193 (9th Cir. 2003). 25 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 26 See 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the 27 Commissioner’s findings may be set aside if they are based on legal error or not supported by 1 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines 2 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 3 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 4 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 5 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 6 supported by substantial evidence, the court “must review the administrative record as a whole, 7 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 8 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 9 F.3d 1273, 1279 (9th Cir. 1996). Under the substantial evidence test, findings must be upheld if 10 supported by inferences reasonably drawn from the record. Batson, 359 F.3d at 1193. When the 11 evidence will support more than one rational interpretation, the court must defer to the 12 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 13 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). 14 DISABILITY EVALUATION PROCESS 15 The individual seeking disability benefits has the initial burden of proving disability. 16 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995). To meet this burden, the individual must 17 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 18 determinable physical or mental impairment which can be expected . . . to last for a continuous 19 period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual 20 must provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 21 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 22 shifts to the Commissioner to show that the individual can perform other substantial gainful work 23 that exists in the national economy. Reddick, 157 F.3d at 721. 24 The ALJ follows a five-step sequential evaluation process in determining whether an 25 individual is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. 26 27 1 §§ 404.1520, 416.920).1 If at any step the ALJ determines that she can make a finding of 2 disability or non-disability, a determination will be made, and no further evaluation is required. 3 See 20 C.F.R. § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires 4 the ALJ to determine whether the individual is engaged in substantial gainful activity (“SGA”). 5 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(a)(4)(i). SGA is defined as work activity that is 6 both substantial and gainful; it involves doing significant physical or mental activities usually for 7 pay or profit. 20 C.F.R. § 404.1572(a)-(b). If the individual is engaged in SGA, then a finding of 8 not disabled is made. If the individual is not engaged in SGA, then the analysis proceeds to step 9 two. 10 Step two addresses whether the individual has a medically determinable impairment that 11 is severe or a combination of impairments that significantly limits her from performing basic 12 work activities. 20 C.F.R. § 404.1520(c); 20 C.F.R. § 920(a)(4)(ii). An impairment or 13 combination of impairments is not severe when medical and other evidence establishes only a 14 slight abnormality or a combination of slight abnormalities that would have no more than a 15 minimal effect on the individual’s ability to work. 20 C.F.R. § 404.1521; 20 C.F.R.§ 920(c); see 16 also Social Security Rulings (“SSRs”) 85-28. If the individual does not have a severe medically 17 determinable impairment or combination of impairments, then a finding of not disabled is made. 18 If the individual has a severe medically determinable impairment or combination of impairments, 19 then the analysis proceeds to step three. 20 Step three requires the ALJ to determine whether the individual’s impairments or 21 combination of impairments meet or medically equal the criteria of an impairment listed in 20 22 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526; 20 23 C.F.R. § 416.920(a)(4)(iii). If the individual’s impairment or combination of impairments meet 24 or equal the criteria of a listing and the duration requirement (20 C.F.R. § 404.1509; 20 C.F.R. 25 § 416.909), then a finding of disabled is made. 20 C.F.R. § 404.1520(h); 20 C.F.R. 26 27 1 20 C.F.R. § 404 addresses federal old-age, survivors, and disability insurance while 20 C.F.R. § 416 addresses supplemental security income for the aged, blind, and disabled. However, the 1 § 416.920(a)(4)(iii). If the individual’s impairment or combination of impairments does not meet 2 or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to 3 step four. 4 Before moving to step four, however, the ALJ must first determine the individual’s RFC, 5 which is a function-by-function assessment of the individual’s ability to do physical and mental 6 work-related activities on a sustained basis despite limitations from impairments. See 20 C.F.R. 7 § 404.1520(e); see also SSR 96-8p. In making this finding, the ALJ must consider all the 8 relevant evidence, such as all symptoms and the extent to which the symptoms can reasonably be 9 accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. 10 § 404.1529; 20 C.F.R. § 416.945; see also SSR 16-3p. To the extent that statements about the 11 intensity, persistence, or functionally limiting effects of pain or other symptoms are not 12 substantiated by objective medical evidence, the ALJ must evaluate the individual’s statements 13 based on a consideration of the entire case record. The ALJ must also consider opinion evidence 14 in accordance with the requirements of 20 C.F.R. § 404.1527 and 20 C.F.R. § 416.913(a)(2). 15 Step four requires the ALJ to determine whether the individual has the RFC to perform 16 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f); 20 C.F.R. § 416.920(a)(1)(iv). PRW 17 means work performed either as the individual actually performed it or as it is generally 18 performed in the national economy within the last fifteen years or fifteen years before the date 19 that disability must be established. In addition, the work must have lasted long enough for the 20 individual to learn the job and performed at SGA. 20 C.F.R. §§ 404.1560(b) and 404.1565; 20 21 C.F.R. § 416.960(b)(1)(i). If the individual has the RFC to perform her past work, then a finding 22 of not disabled is made. If the individual is unable to perform any PRW or does not have any 23 PRW, then the analysis proceeds to step five. 24 Step five requires the ALJ to determine whether the individual can do any other work 25 considering her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(g); 20 C.F.R. 26 § 416.920(a)(4)(v). If she can do other work, then a finding of not disabled is made. Although 27 the individual generally continues to have the burden of proving disability at this step, a limited 1 responsible for providing evidence that demonstrates that other work exists in significant numbers 2 in the national economy that the individual can do. Yuckert, 482 U.S. at 141-42. 3 ANALYSIS AND FINDINGS. 4 I. Whether remand or award of benefits is appropriate to address the ALJ’s error. 5 A. The parties’ arguments. 6 Plaintiff argues that the ALJ erred at step five because, at that stage, the vocational expert 7 only identified jobs that require Plaintiff to read, write, and speak English, which he does not. 8 (ECF No. 12 at 5-9). In response to a hypothetical from the ALJ asking whether Plaintiff’s ability 9 to perform the jobs of assembler, electrical accessories; subassembler; and routing clerk would be 10 impacted by Plaintiff’s inability to read, write, or speak English, the vocational expert responded 11 that Plaintiff’s inability would rule out those jobs. (AR 1415). The vocational expert was unable 12 to identify any other light occupations. (AR 1415). Plaintiff asserts that the ALJ erred by then 13 rejecting the vocational expert’s testimony, even though the ALJ is not a vocational expert and 14 even though that the Dictionary of Occupational Titles (“DOT”) still states that all three 15 occupations require a language level of 2.2 (ECF No. 12 at 7). Plaintiff argues that, because the 16 record has been fully developed and the uncontradicted vocational expert testimony demonstrates 17 2 Language Level 2 requires the following: 18 READING: Passive vocabulary of 5,000-6,000 words. Read at a 19 rate of 190-215 words per minute. Read adventures stories and comic books, looking up unfamiliar words in dictionary for 20 meaning, spelling, and pronunciation. Read instructions for 21 assembling model cars and airplanes. WRITING: Write compound and complex sentences, using cursive 22 style, proper end punctuation, and employing adjectives and 23 adverbs. SPEAKING: Speak clearly and distinctly with appropriate pauses 24 and emphasis, correct punctuation, variations in word order, using 25 present, perfect, and future tenses. United States Department of Labor, Employment and Training Administration, Dictionary of 26 Occupational Titles, Appendix C (4th ed.), 27 https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTAPPC (last visited January 23, 2025); see id. at 729.687-010 (assembler, electrical accessories I); see id. at 729.684- 1 that there are no jobs that exist in significant numbers in the national economy, the Court should 2 reverse and award benefits. (Id. at 8). 3 The Commissioner moves to remand the decision, conceding that the ALJ did err, but 4 disagreeing with the remedy of awarding benefits. 3 (ECF No. 16 at 2). The Commissioner 5 argues that remand, not an award of benefits, is appropriate here because “it is not clear that 6 Plaintiff would be unable to perform any other work in the national economy.” (Id.). The 7 Commissioner asserts that the requirements necessary for the Court to credit the vocational 8 expert’s testimony as true are not present here because the vocational expert’s testimony is not 9

10 3 The Commissioner argues two points that the Court does not address here. 11 First, the Commissioner argues that, in 2020, the Social Security Administration changed the way it considers a claimant’s education abilities by removing a claimant’s inability to communicate in 12 English as an education category. See Social Security Ruling (“SSR”), 20-01p, 2020 WL 1083309 (Apr. 27, 2020); see Removing Inability to Communicate in English as an Education 13 Category, 85 Fed. Reg. 10,586 (Feb. 25, 220) (to be codified at 20 C.F.R. § 404 and § 416). But 14 the Commissioner does not address whether the Court should apply these changes to determine Plaintiff’s case given the fact that they became active when Plaintiff’s case was pending before 15 the ALJ. This discussion is particularly absent given the fact that the United States Supreme Court has adopted a presumption against retroactivity with respect to statutes, which presumption 16 at least one court in this district has applied to the Social Security context. See Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994); see Kokal v. Massanari, 163 F.Supp.2d 1122, 1130 (C.D. 17 Cal. 2001). Additionally, the changes to which the Commissioner cites address education 18 categories and not language levels included in the DOT. But Plaintiff’s argument centers on the language levels in the DOT, not on the educational category that the ALJ assessed. The 19 Commissioner even concedes this argument, stating that he “agrees that the ALJ did not address the apparent conflict between the jobs identified at step five and the [DOT], which shows that 20 they each required language level 2.” (ECF No. 16 at 4). And the Commissioner provides no 21 argument or reasoning about why the Court should find that the changes related to education categories also apply to language levels for the purposes of its analysis. Because the 22 Commissioner’s arguments regarding these changes are underdeveloped, the Court does not consider them. See Kor Media Group, LLC v. Green, 294 F.R.D. 579, 582 n.3 (D. Nev. 2013). 23 Second, the Commissioner brings up that “the prior vocational expert testified that an individual 24 with Plaintiff’s residual functional capacity could perform other jobs.” (ECF No. 16 at 5) (quoting AR 100-01). But Plaintiff already appealed the issue of the prior vocational expert’s 25 testimony in Victor H.P.L. v. Kijakazi, No. 2:21-cv-01376-BNW (D. Nev.). And the court there found that the vocational expert’s “brief testimony does not provide substantial evidence that 26 Plaintiff could perform the three occupations identified.” Victor H.P.L., No. 2:21-cv-01376- 27 BNW, at ECF No. 20 pg. 11 (D. Nev. Sept. 8, 2022). The Commissioner proffers no argument or authority providing a basis for the Court to reconsider the prior vocational expert’s testimony at 1 consistent with Plaintiff’s own work history. (Id.). The Commissioner points out that Plaintiff’s 2 work history shows that he was gainfully employed for over a decade despite his difficulties with 3 the English language. (Id. at 5). The Commissioner adds that just because Plaintiff cannot 4 communicate in English and just because the underlying proceedings have lasted for a long time 5 does not mean that Plaintiff is disabled and thus entitled to benefits. (Id. at 7). The 6 Commissioner concludes that the Court should remand the case to the ALJ for the ALJ to: 7 (1) further consider Plaintiff’s ability to perform work in the national economy; and (2) take any 8 further action needed to complete the administrative record and issue a new decision. (Id. at 8). 9 Plaintiff replies that there are no outstanding issues that need to be resolved. (ECF No. 17 10 at 3). Responding to Defendant’s argument that the vocational expert’s testimony is contradicted 11 by Plaintiff’s work history, Plaintiff asserts that the law of the case is that he lacks the ability to 12 speak, read, or write English and that the Commissioner should not get another chance to 13 relitigate the issue. (Id. at 3-4). Plaintiff adds that, on remand, the ALJ was directed to reconcile 14 the conflict between the DOT and the vocational expert’s testimony. (Id.). And on remand, 15 “[t]he vocational expert stated quite clearly that due to the inability to speak, read and write 16 English, the jobs identified would be eliminated and that no other light jobs would exist,” which 17 testimony is consistent with the DOT.” (Id.). So, Plaintiff asserts that any conflict has now been 18 resolved in Plaintiff’s favor. (Id.). Plaintiff concludes that he satisfies the three-part test for 19 determining when reversal and award of benefits is warranted. (Id. at 5). 20 B. Analysis. 21 When evaluating whether this case presents the “rare circumstances” justifying a reversal 22 and remand for payment, the court normally applies a three-step test. Treichler v. Commissioner 23 of Social Security, 775 F.3d 1090, 1100-01 (9th Cir. 2014). First, the court asks whether the ALJ 24 has failed to provide legally sufficient reasons for rejecting evidence. Id. Second, if the ALJ has 25 erred, the court asks whether the record has been fully developed, whether there are outstanding 26 issues that must be resolved before a determination of disability can be made, and whether further 27 administrative proceedings would be useful. Id. Third, if the court concludes that no outstanding 1 testimony true as a matter of law and then must determine whether the record, taken as a whole, 2 leaves not the slightest uncertainty as to the outcome of the proceeding. Id. When all three 3 elements of the test are satisfied, a case raises the “rare circumstances” that allow the court to 4 exercise its discretion to depart from the ordinary remand rule and to award benefits. Id. at 1101- 5 1102. However, even when those “rare circumstances” are present, the decision whether to 6 remand a case for additional evidence or simply to award benefits is in the court’s discretion. Id. 7 1. Whether the ALJ erred. 8 Here, both Plaintiff and the Commissioner agree that the ALJ erred in rejecting the 9 vocational expert’s testimony and in assessing that Plaintiff could complete the jobs of assembler, 10 electrical accessories; subassembler; and routing clerk, despite the fact that the DOT shows that 11 each job requires language level 2.4 So, the first prong of the analysis is satisfied in favor of 12 Plaintiff’s request for reversal and award of benefits. The Court thus moves on to the second 13 step. 14 2. Whether the record has been fully developed. 15 In considering the second prong, the Court asks whether the record as a whole is free from 16 conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the 17 claimant’s entitlement to benefits is clear under the applicable legal rules. Treichler, 775 F.3d 18 1090, 1103-1104 (9th Cir. 2014). The Ninth Circuit’s decision in Treichler stands for the 19 proposition that significant factual conflicts exist in the record when the claimant’s testimony 20 conflicts with the objective medical evidence. Id. The Ninth Circuit noted that, when read in 21

22 4 SSR 00-4p, requiring the ALJ to resolve conflicts between vocational experts’ occupational information and the DOT, was in force at the time of the ALJ’s decision here. The agency 23 rescinded it on January 6, 2025, and replaced with SSR 24-3p, through which ruling the agency 24 “will no longer require our adjudicators to identify and resolve conflicts between occupational information provided by [vocational specialists] and [vocational experts] and information in the 25 DOT.” SSR 24-3p (Jan. 6, 2025). However, the amended rule explicitly states that the agency “expect[s] that Federal courts will review our final decisions using the rules that were in effect at 26 the time we issued the decisions.” SSR 24-3p (Jan. 6, 2025). So, the Court finds that the ALJ 27 erred by not resolving the conflict between the DOT and the ALJ’s ultimate conclusion that Plaintiff could perform the jobs of assembler, electrical accessories; subassembler; and routing 1 context, the record “indicates only that [the claimant] required medical assistance to manage the 2 pain stemming from his injuries; it does not establish that this pain rendered him unemployable.” 3 Id. at 1105. So, the Ninth Circuit concluded that, because the record raised questions regarding 4 the extent of the claimant’s impairment, the case involved “exactly the sort of issues that should 5 be remanded to the agency for further proceedings.” Id. 6 Here, the record has not been fully developed because the factual issue of whether 7 Plaintiff’s inability to communicate in English renders him unemployable is unresolved. Like the 8 record in Treichler, where the claimant’s testimony conflicted with the objective medical 9 evidence, here, the vocational expert’s testimony conflicts with Plaintiff’s work history. The 10 vocational expert stated that there “are no jobs available where the hypothetical individual is not 11 able to speak English,” which statement conflicts with evidence of Plaintiff performing his former 12 job as a taper. Compare (AR 1415) (vocational expert’s testimony) with (AR 324) (showing that 13 Plaintiff was employed as a taper from March 2003 until March 2015). 14 Plaintiff’s arguments to the contrary do not change this conclusion. Plaintiff is correct 15 that the vocational expert’s testimony—that Plaintiff could not perform the jobs consistent with 16 his RFC due to his limited English language abilities—is consistent with the DOT, which 17 assesses a language level of 2 for these jobs. But that single consistency does not mean that the 18 record has been fully developed. Additionally, the Court recognizes that Plaintiff’s ability to 19 perform one job despite his English language limitations does not mean he could perform all jobs 20 that require a similar language level. But the Court does not need to reach that conclusion to find 21 that the record raises questions regarding the extent to which Plaintiff’s English language 22 limitations impact his ability to work. Ultimately, when read in context, the record does not 23 establish that Plaintiff’s English language limitations render him unemployable. And where there 24 is conflicting evidence, a remand for award of benefits is inappropriate. 25 3. Whether the record leaves not the slightest uncertainty as to the outcome. 26 Even if the Court were to consider the record fully developed, the Court does not find that 27 the record leaves not the slightest uncertainty as to Plaintiff’s disability such that award of 1 case in which it is clear from the record that the claimant is unable to perform gainful 2 employment in the national economy…remand for an immediate award of benefits is 3 appropriate.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). The Ninth Circuit’s later 4 decision in Strauss v. Commissioner, stands for the proposition that “the court is without authority 5 to order payment of benefits absent a finding of disability.” Strauss v. Comm’r of the Soc. Sec. 6 Admin., 635 F.3d 1135, 1136 (9th Cir. 2011). There, the claimant had already gone through one 7 appeals process, and the district court remanded the case for further administrative proceedings, 8 providing specific instructions in the remand order. Id. at 1137. The ALJ failed to follow those 9 instructions on remand, and the claimant appealed again. Id. On that appeal, the district court 10 held that the ALJ had failed to comply with the remand order and, for that reason, awarded the 11 claimant benefits. Id. at 1136-37. The Commissioner appealed and the Ninth Circuit reversed. 12 Id. It explained that the district court could not award benefits solely because an ALJ did not 13 follow a court’s instructions on remand. See id. at 1138. Even if the ALJ did not follow 14 instructions, “the court may not move from that conclusion directly to an order requiring the 15 payment of benefits without the intermediate step of analyzing whether, in fact, the claimant is 16 disabled.” Id. “Notably, the required analysis centers on what the record evidence shows about 17 the existence or non-existence of a disability.” Id. 18 The Ninth Circuit has also clarified that illiteracy is not a disability. “A claimant is not 19 per se disabled if he or she is illiterate, i.e. unable to speak English.” Mui Si Voong v. Astrue, 641 20 F.Supp.2d 996, 1010 (E.D. Cal. 2009) (citing Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 21 2001)). In Pinto, the Ninth Circuit noted that the ALJ had failed to clarify how a claimant’s 22 language and literacy abilities factored into the ALJ’s analysis that the claimant could perform 23 her past relevant work at step four. Id. at 846. This was despite the fact that the DOT description 24 for that work required language ability above that possessed by the claimant. Id. at 846. The 25 Ninth Circuit found that the ALJ erred, but clarified that “[w]e do not suggest that applicants who 26 are illiterate are entitled to a finding at step four of the disability proceeding that they are 27 disabled. A claimant is not per se disabled if he or she is illiterate. We merely hold that in order 1 for an ALJ to rely on a job description in the [DOT] that fails to comport with a claimant’s noted 2 limitations, the ALJ must definitively explain this deviation.” Id. 3 Here, the Court does not find that the record leaves no question as to whether Plaintiff has 4 a disability such that award of benefits is appropriate. Unlike the record in Benecke, from which 5 the claimant’s inability to perform gainful employment in the national economy was clear, the 6 record here does not make Plaintiff’s inability to perform gainful employment in the national 7 economy clear. Instead, Plaintiff’s case is more like Strauss because the Court cannot find that 8 Plaintiff is disabled. Like the case in Strauss, which went through more than one appeals process 9 and in which the ALJ erred on remand, Plaintiff’s case has also proceeded through the appeals 10 process before and the ALJ erred on remand. And just like the court in Strauss could not award 11 benefits simply because the ALJ did not follow instructions on remand, here, the Court is 12 similarly limited. The Court cannot award benefits without first determining whether Plaintiff is, 13 in fact, disabled. But the Court cannot do so because the sole reason that the vocational expert 14 testified that Plaintiff could not find work in the national economy was because of his illiteracy in 15 English. 16 As the Ninth Circuit has noted in Pinto, illiteracy is not a disability. And so, the Court 17 cannot conclude from the record that Plaintiff is disabled just because he cannot communicate in 18 English. Although the ALJ here erred in a similar fashion to the ALJ in Pinto—by not 19 reconciling the discrepancy between his conclusion and the DOT—as the Ninth Circuit explained, 20 this error does not mean that Plaintiff is automatically disabled and entitled to an award of 21 benefits. Instead, it merits remand for the ALJ to address the discrepancy between the DOT and 22 the jobs that the ALJ asserted Plaintiff could perform. 23 24 25 26 /// 27 /// 1 IT IS THEREFORE ORDERED that Plaintiff’s motion for reversal (ECF No. 12) is 2 denied. 3 IT IS FURTHER ORDERED that the Commissioner’s motion for remand (ECF No. 16) 4 is granted. 5 IT IS FURTHER ORDERED that this case is remanded for further proceedings so that 6 the ALJ can: (1) further consider Plaintiff’s ability to perform work in the national economy and 7 specifically address the discrepancy between the DOT’s language levels and the assembler, 8 electrical accessories; subassembler; and routing clerk jobs that the ALJ assessed Plaintiff as 9 being capable of performing; and (2) take any further action needed to complete the 10 administrative record and issue a new decision. 11 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to enter 12 judgment accordingly and close this case. 13 14 DATED: February 4, 2025 15 DANIEL J. ALBREGTS 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27