(SS) Lugo v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: August 28, 2019
• Docket: 1:18-cv-00807
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 ADOLFO LUGO, ) Case No.: 1:18-cv-0807 - JLT ) 12 Plaintiff, ) ORDER REMANDING THE ACTION PURSUANT ) TO SENTENCE FOUR OF 42 U.S.C. § 405(G) 13 v. ) ) ORDER DIRECTING ENTRY OF JUDGMENT IN 14 COMMISSIONER OF SOCIAL SECURITY, ) FAVOR OF PLAINTIFF ADOLOFO LUGO AND ) AGAINST DEFENDANT, THE COMMISSIONER 15 Defendant. ) OF SOCIAL SECURITY ) 16 )

17 Adolfo Lugo asserts he is entitled to benefits under Title II of the Social Security Act. Plaintiff 18 argues the administrative law judge erred in her evaluation of the vocational evidence in the action. 19 Because the ALJ failed to apply the proper legal standards and ignored significant, probative evidence 20 in the record, the matter is REMANDED for further proceedings pursuant to sentence four of 42 21 U.S.C. § 405(g). 22 BACKGROUND 23 On May 19, 2014, Plaintiff filed an application a period of disability and disability insurance 24 benefits. (Doc. 11-7 at 2) The Social Security Administration denied his applications at the initial 25 level and upon reconsideration. (See generally Doc. 11-4; Doc. 11-3 at 24) Plaintiff requested a 26 hearing and testified before an ALJ on February 2, 2017. (See Doc. 11-3 at 24, 41) At that time, the 27 ALJ also obtained testimony from a vocational expert. (See id. at 52) The ALJ determined Plaintiff 28 was not disabled and issued an order denying benefits on February 24, 2017. (Id. at 24-32) 1 Plaintiff requested review by the Appeals Council, asserting that “ALJ failed to acknowledge or 2 consider [the] vocational analysis by Ms. Judith Najarian.” (Doc. 11-8 at 69) In addition, Plaintiff 3 argued the ALJ erred in her classification of the past relevant work. (Id.) On April 11, 2018, the 4 Appeals Council denied Plaintiff’s request for review, finding “no reason under [the] rules to review 5 the Administrative Law Judge’s decision.” (Doc. 11-3 at 2-4) Therefore, the ALJ’s determination 6 became the final decision of the Commissioner of Social Security. 7 STANDARD OF REVIEW 8 District courts have a limited scope of judicial review for disability claims after a decision by 9 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, 10 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s 11 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s 12 determination that the claimant is not disabled must be upheld by the Court if the proper legal standards 13 were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health & 14 Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 15 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 17 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 18 must be considered, because “[t]he court must consider both evidence that supports and evidence that 19 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 20 DISABILITY BENEFITS 21 To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to 22 engage in substantial gainful activity due to a medically determinable physical or mental impairment 23 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 24 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 25 his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work 26 experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in 27 which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 28 1 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. 2 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability, 3 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial 4 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). 5 ADMINISTRATIVE DETERMINATION 6 To achieve uniform decisions, the Commissioner established a sequential five-step process for 7 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920(a)-(f). The process requires 8 the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of 9 alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the 10 listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had 11 the residual functional capacity to perform to past relevant work or (5) the ability to perform other work 12 existing in significant numbers at the state and national level. Id. 13 A. Work History Report 14 On July 10, 2014, Plaintiff completed a work history report regarding the jobs he held in the 15 past fifteen years. (Doc. 11-8 at 13-22) He indicated he worked as a “letter sorter” for the census, a 16 stocker for a grocery store and as a warehouse employee. (Id. at 13) Plaintiff reported that in the letter 17 sorter position, he stood for eight hours a day and handled boxes with letters. (Id. at 15) He indicated 18 the heaviest boxes he lifted weighed fifty pounds and he was required to “move the boxes to the 19 machine.” (Id.) He lifted these boxes “2/3 of the workday.” (Id.) 20 B. Vocational Expert’s Report 21 At the request of counsel, vocational expert Judith Najarian, provided a report to clarify 22 Plaintiff’s past work. (Doc. 11-8 at 63-65) Ms. Najarian noted that Plaintiff reported: 23 At his work station, he would go to a mail cart, already filled with mail, and push it about 10 feet to the mail sorting machine. 24 The wheeled mail cart that he pushed is described as 6 feet tall, 4 feet wide, with four 25 shelves on it. On the shelves are plastic mail bins, similar to those used by the Post Office. There are 16 bins to a cart and each bin is filled by another worker with 26 mail/correspondence. Depending on how full each bin is, Mr. Lugo estimated the bins weigh 30-50 pounds each. 27 The mail sorting machine is programmed by a supervisor to sort by desired location. If 28 a jam occurs, he is to call a supervisor and not clear the jam himself. 1 His job was to individually take each bin off the cart in turn, place the bin on a 3-foot tall table by the sorting machine, and hand remove mail from the bin to feed into the 2 machine. He would then return the empty bins to the cart, return the empty cart, and acquire another full cart to repeat this process throughout his shift. 3 4 (Id. at 63-64) According to Ms. Najarian, “There was no [Dictionary of Occupational Titles] code that 5 accurately reflects this job as performed.” (Id. at 64) She observed the Dictionary of Occupational 6 Titles1 includes the following positions: 7 Mail Clerk (209.687-026) Light, SVP 2, is an individual who works in a mail room, 8 opening, stamping, and distributing mail.

9 Mail Machine Operator (208.462-050) Medium, SVP 5, is an individual who operates the bundling/addressing machine and adjusts the machine itself to produce the desired 10 results.

11 Feeder (651.686-014) Heavy, SVP 3, is an individual who feeds paper onto an offset press and will make adjustments to the press. 12 Machine Feeder (699.686-010) Medium, SVP 2, feeds stock onto a machine but this 13 classification envisions fabricating machines, not mail machines.

14 Material Handler (929.687-030) Heavy, SVP 3, addresses moving materials as reflected in moving the carts but the focus is in a warehouse setting and the individual 15 may operate a piece of equipment in moving the material.

16 (Id. at 64-65) Ms. Najarian opined that each of these job descriptions under the Dictionary of 17 Occupational Titles “fall short.” (Id. at 65) She explained, “Mr. Lugo was not the mail sorter/clerk. He 18 was a machine feeder/loader and the machine did the sorting.” (Id. at 64) In addition, she opined 19 Plaintiff “was performing heavy work at an SVP 2 level.” (Id.) Ms. Najarian concluded Plaintiff’s 20 work was “best reflected as a hybrid of the Feeder and Machine Feeder job titles.” (Id.) 21 Plaintiff submitted the report of Ms. Najarian, and it was incorporated into the record as Exhibit 22 13E. (See Doc. 11-8 at 63-75) The ALJ admitted Exhibit 13E as evidence in the record at the hearing 23 held on February 2, 2017. (Doc. 11-3 at 41) 24 C. Administrative Hearing Testimony 25 Plaintiff testified with the assistance of an interpreter before the ALJ at the administrative 26

27 1 The Dictionary of Occupational Titles (“DOT”) by the United States Dept. of Labor, Employment & Training Admin., may be relied upon “in evaluating whether the claimant is able to perform work in the national economy.” Terry v. 28 Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements and may 1 hearing in February 2017. (Doc. 11-3 at 45) He reported his past work included working for the 2 census, which required him to “sort [letters] in the machine.” (Id. at 46) Plaintiff explained the boxes 3 he lifted varied in weight, from thirty pounds to fifty pounds. (Id.) Plaintiff stated that he would put 4 the letters into the machine, and the machine did the sorting. (Id.) 5 Vocational expert Susan Moranda reported that she reviewed Plaintiff’s work history exhibits 6 and classified Plaintiff’s past work for the census under the Dictionary of Occupational Titles as “a 7 mail sorter,” DOT 222.687-022. (Doc. 11-3 at 53-54) She reported that under the DOT, the position 8 was unskilled and required “light exertion.” (Id. at 54) In addition, Ms. Moranda opined Plaintiff 9 performed the work at a medium exertion level. (Id.) 10 The ALJ asked Ms. Moranda to “assume a hypothetical person of the same age, education, work 11 background, and also language, which is Spanish speaking.” (Doc. 11-3 at 54) In addition, the ALJ 12 indicated the individual could “lift and carry 50 pounds occasionally, 25 pounds frequently[;] sit, stand, 13 or walk six to eight [hours].” (Id.) Ms. Moranda opined an individual with these limitations could 14 perform Plaintiff’s past work. (Id.) 15 Next, the ALJ asked Ms. Moranda to consider an individual who was limited to light exertion, 16 who could lift and carry 20 pounds occasionally and 10 pounds frequently; sit, stand, and walk six to 17 eight hours; and occasionally “climb, kneel, crouch, crawl, [and] stoop.” (Doc. 11-3 at 54) Further, the 18 ALJ indicated the hypothetical person was limited to frequently balancing; no climbing ladders, ropes, 19 or scaffolds; and “need[ed] to avoid concentrated exposure to heights and extreme cold.” (Id.) Ms. 20 Moranda responded an individual with these limitations could work as a “letter sorter but not as 21 [Plaintiff] performed it.” (Id. at 54-55) 22 D. The ALJ’s Findings 23 Pursuant to the five-step process, the ALJ first determined that Plaintiff “did not engage in 24 substantial gainful activity during the period from his alleged onset date of May 1, 2013 through his 25 date last insured of December 31, 2015.” (Doc. 11-3 at 26) Second, the ALJ found Plaintiff’s severe 26 impairments included “lumbar degenerative disc disease and obesity.” (Id.) At step three, the ALJ 27 opined Plaintiff’s impairments did not meet or medically equal a listed impairment. (Id. at 27) Next, 28 the ALJ determined: 1 [T]rough the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567 (c), including lifting and carrying 20 2 pounds occasionally and 10 pounds frequently; standing and walking for six to eight hours; and sitting for six to eight hours in an eight-hour workday, with occasional 3 climbing, kneeling, crouching, crawling, and stooping; and frequent balancing. He is unable to climb ladders, ropes or scaffolds, and must avoid concentrated exposure to 4 heights and cold temperatures.

5 (Id. at 27) Considering this residual functional capacity, the ALJ determined Plaintiff “was capable of 6 performing past relevant work as a mail sorter” through his date last insured. (Id. at 32) The ALJ 7 noted Ms. Moranda “testified that an individual with the same residual functional capacity as the 8 claimant could perform the claimant’s past relevant work as a mail sorter as per the Dictionary of 9 Occupational Titles.” (Id.) Thus, the ALJ concluded Plaintiff was “not under a disability, as defined in 10 the Social Security Act, at any time from May 1, 2013, the alleged onset date, through December 31, 11 2015, the date last insured.” (Id.) 12 DISCUSSION AND ANALYSIS 13 Plaintiff argues, “The ALJ committed reversible error by failing to weigh the opinion evidence 14 from the Vocational Expert, Judith Najarian.” (Doc. 17 at 10, emphasis omitted) In addition, Plaintiff 15 challenges the classification of his job work by Ms. Moranda as a mail sorter, asserting the definition in 16 the Dictionary of Occupational Titles “bears no resemblance to [his] past relevant work.” (Id. at 11) 17 The Commissioner argues the ALJ properly relied on the testimony of Ms. Moranda and that Plaintiff 18 “waived [any] argument to the contrary.” (Doc. 19 at 18) 19 A. Step Four of the Sequential Evaluation 20 At step four, a claimant has the burden to establish that he cannot perform his past relevant 21 work “either as actually performed or as generally performed in the national economy.” Lewis v. 22 Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). Past relevant work is work performed in the last 15 23 years that lasted long enough to learn it and was substantial gainful employment. SSR 82-61, 1982 SSR 24 LEXIS 31.2 The ALJ is not required to make “explicit findings at step four regarding a claimant’s past 25 relevant work both as generally performed and as actually performed.” Pinto v. Massanari, 249 F.3d 26 840, 845 (9th Cir. 2001). Nevertheless, the Ninth Circuit explained that “the ALJ still has a duty to 27 2 Although Social Security Rulings issued by the Commissioner to clarify regulations and policies do not have the 28 force of law, the Ninth Circuit gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or 1 make the requisite factual findings to support his conclusion.” Id., 249 F.3d at 844. 2 The Social Security Administration has identified three tests for an ALJ to determine whether a 3 claimant retains the capacity for past relevant work, including: 4 1. Whether the claimant retains the capacity to perform a past relevant job based on a broad generic, occupational classification of that job, e.g., “delivery job,” “packing 5 job,” etc.

6 2. Whether the claimant retains the capacity to perform the particular functional demands and job duties peculiar to an individual job as he or she actually performed it. 7 3. Whether the claimant retains the capacity to perform the functional demands the 8 job duties of the job as ordinarily required by employers throughout the national economy. 9

10 SSR 82-61, 1982 SSR LEXIS 31, at *2-3. To determine how a claimant actually performed his work, 11 an ALJ may consider: “(1) the claimant’s own testimony, and (2) a properly completed vocational 12 report.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002), citing Pinto, 249 F.3d at 845, accord. 13 SSR 82-61, SSR 82-41; see also SSR 82-62, 1982 SSR LEXIS 27, at * 6-7 (“statements by the 14 claimant regarding past work are generally sufficient for determining the skill level, exertional demands 15 and nonexertional demands of such work”). Usually, “the best source for how a job is generally 16 performed” in determining the requirements of a claimant’s past relevant work is the Dictionary of 17 Occupational Titles, and vocational expert testimony may be considered at step four of the sequential 18 analysis. Pinto, 249 F.3d at 845-46. 19 1. Whether a step four challenge was waived 20 As an initial matter, the Commissioner contends Plaintiff waived any argument as to the ALJ’s 21 step four findings because “during the hearing, Plaintiff’s counsel did not challenge VE Miranda (sic) 22 or her classification of past work.” (Doc. 19 at 18) The Commissioner observes Plaintiff’s counsel 23 “offered no objections to the expert’s testimony either at the hearing or in a post-hearing brief to the 24 ALJ.” (Id. at 19) In addition, the Commissioner notes that “Plaintiff’s attorney never mentioned to the 25 ALJ Ms. Najarian’s report classifying Plaintiff’s past work differently from the vocational expert’s 26 testimony during the administrative hearing or after the hearing.” (Id. at 20) Thus, the Commissioner 27 argues “Plaintiff forfeited his challenge to the ALJ’s reliance on the vocational expert’s testimony 28 when his attorney failed to raise the past work classification issue during the administrative hearing 1 proceedings.” (Id. at 20) 2 In response, Plaintiff argues that he “properly raised conflicting vocational evidence before the 3 Agency.” (Doc. 20 at 2, emphasis omitted) Plaintiff notes that he submitted Ms. Najarian’s report 4 prior to the hearing, and it was “admitted...into evidence within the first few moments of the hearing 5 proceedings.” (Id. at 20, citing Doc. 11-3 at 41 [AR 40]) Plaintiff observes, “When expert testimony 6 conflicts with other opinions in the file, the ALJ has an automatic duty to weigh the evidence and 7 accord weight to the opinion that is well-supported and consistent with the record; it is not done only 8 upon request.” (Id., citing SSR 82-62) Thus, Plaintiff contends the Commissioner errs in placing a 9 burden upon a hearing representative “to discuss each exhibit during the hearing and request it be 10 weighed.” (Id.) Further, Plaintiff asserts his “explicit request to the Appeals Council raising the Step 11 Four issue sufficed to preserve this issue for appeal.” (Id. at 3, citing Lamear v. Berryhill, 865 F. 3d 12 1201, 1206 (9th Cir. 2017)) 13 As noted by Plaintiff, the Ninth Circuit determined that an issue raised to the Appeals Council 14 was not waived when a claimant seeks judicial review. Lamear, 865 F.3d at 1206; see also Harhaw v. 15 Colvin, 2014 WL 972269 at *4 (E.D. Cal. Mar. 10, 2014) (“issues raised before the Appeals Council, 16 but not the ALJ, are not waived on appeal to the district court,” citing Brewes v. Comm'r of Soc. Sec. 17 Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)), aff’d Fed. App’x 316 (9th Cir. 2015); see also Guerrero 18 v. Colvin, 2017 WL 1520016, at *5 (S.D. Cal. Apr. 26, 2017) (“if an issue is raised before the Appeals 19 Council but not with the ALJ that issue is likewise not waived in the district court”). Plaintiff 20 challenged the ALJ’s step four findings before the Appeals Council, asserting that the ALJ erred 21 through the failure “to acknowledge or consider [the] vocational analysis by Ms. Judith Najarian” and 22 challenged the classification of his “past job as a mail sorter [as] inconsistent with the Dictionary of 23 Occupational Titles.” (Doc. 11-8 at 69, emphasis omitted) Because Plaintiff raised these issues to the 24 Appeals Council, the Court finds Plaintiff has not waived a challenge to the ALJ’s analysis and 25 findings at step four. 26 2. The ALJ’s findings 27 The ALJ called Ms. Moranda to testify at the administrative hearing regarding Plaintiff’s past 28 relevant work. (Doc. 11-3 at 53-54) Ms. Moranda classified Plaintiff’s past relevant work “as a mail 1 sorter,” with DOT code 222.687-022. (Id. at 54) The ALJ then asked Ms. Moranda to consider “a 2 hypothetical person of the same age, education, work background, and also language, which is Spanish 3 speaking,” [and] the same residual functional capacity of Plaintiff. (Id.) Ms. Moranda opined the 4 hypothetical individual could perform the work as a “letter sorter” under the DOT “but not as [Plaintiff] 5 performed it.” (Id. at 54-55) Relying upon this testimony, the ALJ concluded at step four that Plaintiff 6 “was capable of performing past relevant work as a mail sorter” through his date last insured. (Id. at 32) 7 As Plaintiff observes, the ALJ did not address the vocational report prepared by Ms. Najarian 8 at step four—or at any point in her decision—which expressly contradicted the job classification 9 offered by Ms. Moranda at the hearing. (See Doc. 17 at 12) The report, which is identified as Exhibit 10 13E in the record, was admitted into evidence by the ALJ at the hearing (Doc. 11-3 at 40) and 11 identified in the “List of Exhibits” document attached to the ALJ’s decision. (Doc. 11-3 at 36 [noting 12 Exhibit 13E as “Misc Disability Development and Documentation” from “VE Judith Najarian]; Doc. 13 11-3 at 40 [admitting exhibits “1E to 15E” at the hearing]). Nevertheless, the ALJ did not address Ms. 14 Najarian’s opinions, including her conclusions that “Mr. Lugo was not the mail sorter/clerk. He was a 15 machine feeder/loader and the machine did the sorting.” (Doc. 11-8 at 64) In addition, Ms. Najarian 16 opined Plaintiff “was performing heavy work at an SVP 2 level.” (Id.) Instead, without comment, the 17 ALJ adopted the conclusions of Ms. Moranda that Plaintiff was a “mail sorter” and that he performed 18 the work at a medium exertion. (Doc. 11-3 at 32) 19 Significantly, an ALJ “may not reject ‘significant probative evidence’ without explanation.” 20 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 21 1395 (9th Cir. 1984); see also Jelinek v. Bowen, 870 F.2d 457, 458 (8th Cir. 1989) (finding the ALJ’s 22 evaluation of the evidence was “totally deficient” where the ALJ “arbitrarily reject[ed] the claimant’s 23 vocational expert’s reasoned opinion”). Because the ALJ ignored the vocational report and opinions 24 from Ms. Najarian, the Court finds the ALJ erred in her evaluation of Plaintiff’s past relevant work. 25 3. Whether the ALJ’s errors were harmless 26 An error is harmless only if it is not prejudicial to the claimant or “inconsequential" to the 27 ALJ’s “ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 28 (9th Cir. 2006); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The analysis as to whether an 1 error is harmless requires a “case-specific application of judgment” by the reviewing court.” Molina, 2 674 F.3d at 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009), 28 U.S.C. § 2111)). 3 The Court is unable to find the ALJ’s error was inconsequential to the disability determination 4 where the inquiry ended at step four with a finding that Plaintiff could perform his past relevant work 5 as classified as a “mail sorter” under the Dictionary of Occupational Titles, DOT 222.687-022. Under 6 the Dictionary of Occupational Titles, the position of “routing clerk” or “mail sorter” includes the 7 following tasks: 8 Sorts bundles, boxes, or lots of articles for delivery: Reads delivery or route numbers marked on articles or delivery slips, or determines locations of addresses indicated on 9 delivery slips, using charts. Places or stacks articles in bins designated according to route, driver, or type. 10

11 DOT 222.687-022, 1991 WL 672133. In addition, the position is classified as requiring a light 12 exertion level. Id. However, as Plaintiff observes, Ms. Najarian determined this was not a proper 13 classification because Plaintiff “was a machine feeder/loader and the machine did the sorting.” (Doc. 14 11-8 at 64) Instead, Ms. Najarian opined Plaintiff’s past relevant work was “a hybrid of the Feeder 15 and Machine Feeder job titles,” which require medium and heavy exertion. (Doc. 11-8 at 64-65; see 16 also DOT 651.686-014, 1991 WL 685713 [feeder position, requiring heavy work]; DOT 699.686-010, 17 1991 WL 678871 [machine feeder position, requiring medium work]) Because Plaintiff was limited to 18 light exertion with postural limitations, under Ms. Najarian’s analysis, he would be precluded from 19 performing his past relevant work.3 Thus, the Court is unable to find the error of the ALJ was 20 harmless. 21 B. Remand is Appropriate 22 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to 23 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 24 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative 25 agency determination, the proper course is to remand to the agency for additional investigation or 26 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 27 3 Notably, a claimant is entitled to challenge an ALJ’s classification of his past relevant work under the DOT. See 28 Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986); see also Goodenow-Boatsman v. Apfel, 2001 WL 253200, at *7 (N.D. 1 12, 16 (2002)). Generally, an award of benefits is directed when: 2 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a 3 determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 4

5 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed 6 where no useful purpose would be served by further administrative proceedings, or where the record is 7 fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). 8 The Social Security Act requires the ALJ, and not the Court, to resolve conflicts in the 9 evidence. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also McCaffrey v. Colvin, 10 978 F. Supp. 2d 88, 92 (D. Mass. 2013) (observing that an ALJ is empowered to “resolve conflicting 11 evidence” from two vocational experts); Richardson v. Berryhill, 2018 U.S. Dist. LEXIS 133251 (W.D. 12 La. July 23, 2018) (“conflicts in the evidence, including conflicts between two vocational experts, are 13 to be resolved by the Commissioner, not by the courts”). Consequently, the matter should be remanded 14 for the ALJ to address the vocational report from Ms. Najarian and resolve the conflict between the two 15 vocational experts related to the classification of Plaintiff’s past relevant work. See Goforth v. Colvin, 16 2015 WL 5190819 (E.D. Tex. Sept. 4, 2015) (remanding the matter for consideration of the report of a 17 vocational expert hired by the claimant). 18 CONCLUSION AND ORDER 19 For the reasons set forth above, the Court finds the ALJ failed to consider significant, probative 20 evidence related to Plaintiff’s past relevant work and failed to resolve a conflict in the record between 21 two vocational experts. Consequently, the Court cannot uphold the ALJ’s decision. See Sanchez, 812 22 F.2d at 510. Because the Court finds remand is appropriate on this ground, it offers no findings on the 23 remaining issue presented in Plaintiff’s opening brief. 24 Accordingly, the Court ORDERS: 25 1. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 26 proceedings consistent with this decision; and 27 /// 28 /// 1 2. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Adolfo Lugo, 2 and against Defendant, Andrew M. Saul, Commissioner of Social Security. 3 4 IT IS SO ORDERED.

5 Dated: August 27, 2019 /s/ Jennifer L. Thurston 6 UNITED STATES MAGISTRATE JUDGE

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