(SS) Valdizon v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: February 8, 2022
• Docket: 1:20-cv-01271
• Status: Unknown

Opinion

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

10 NELSON VALDIZON, Case No. 1:20-cv-01271-SKO 11 Plaintiff,

12 v. ORDER ON PLAINTIFF’S SOCIAL 13 SECURITY COMPLAINT KILOLO KIJAKAZI, 14 Acting Commissioner of Social Security,1 15 Defendant. (Doc. 1)

17 _____________________________________/ 18

19 20 I. INTRODUCTION 21 On September 8, 2020, Plaintiff Nelson Valdizon (“Plaintiff”) filed a complaint under 42 22 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security 23 (the “Commissioner” or “Defendant”) denying his application for disability insurance benefits 24 (“DIB”) under Title II of the Social Security Act (the “Act”). (Doc. 1.) The matter is currently 25 before the Court on the parties’ briefs, which were submitted, without oral argument, to the 26

27 1 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 28 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 1 Honorable Sheila K. Oberto, United States Magistrate Judge.2 2 II. BACKGROUND 3 On August 20, 2018, Plaintiff protectively applied for a period of disability and DIB, 4 alleging disability beginning December 23, 2017, due to back and neck problems; hernia; left 5 shoulder pain and tear; pain in both legs; high blood pressure; dizziness; headaches; brain slow; 6 ear noise; heart pain; vertigo; thyroid; and low vitamin B. (Administrative Record (“AR”) 21, 24, 7 52, 53, 64, 65, 76, 84, 183, 193, 209, 215, 220.) Plaintiff was born on December 23, 1965, and 8 was 52 years old on the alleged disability onset date. (AR 26, 52, 63, 64, 75, 193, 209, 220.) 9 Plaintiff received an eighth-grade education in El Salvador and has work history as a truck driver. 10 (AR 36, 184.) 11 A. Relevant Medical Evidence3 12 In December 2017, Plaintiff telephoned Kaiser Permanente complaining of headaches and 13 requested an appointment with a Spanish-speaking physician. (AR 272.) The note documenting 14 Plaintiff’s call indicated that his preferred language is Spanish, and an interpreter was requested. 15 (AR 271.) 16 Plaintiff presented to Lenita Williamson, M.D. in April 2018 for treatment for pain in his 17 left shoulder following a motor vehicle accident. (AR 251–53.) The intake form indicates that 18 Plaintiff’s preferred language is Spanish. (AR 251.) 19 In July 2018, Plaintiff presented to Valery D. Tarasenko, M.D. of the Advanced Pain 20 Management Institute for an initial pain consultation. (AR 300–304.) The visit note indicated that 21 “[a] Spanish Language interpreter . . . was present throughout the evaluation due to a 1anguage 22 barrier between the staff and the patient. This increased the time and complexity of the evaluation.” 23 (AR 300, 419.) 24 Records from Kaiser Permanente Medical Group from July 2019 indicate that while 25 Plaintiff’s spoken and written language is Spanish, no interpreter is needed. (AR 445.) A 26 medication list from that same month instruct the Pharmacy Department to “[p]lease set the Spanish 27 2 The parties consented to the jurisdiction of a U.S. Magistrate Judge. (See Doc. 9.) 28 3 Because the parties are familiar with the medical evidence, it is summarized here only to the extent relevant to the 1 label flag for this patient.” (AR 446.) 2 B. Administrative Reports 3 1. Disability Report—Adult 4 An Adult Disability Report dated August 30, 2018, indicates that Plaintiff cannot speak or 5 understand English and that his preferred language is Spanish. (AR 182–92.) The report also states 6 that Plaintiff cannot read, understand, or write more than his name in English. (AR 182.) Plaintiff 7 would write and complete reports in his job as a truck driver, but the language of those reports is 8 not indicated. (AR 185.) The report further notes that Plaintiff has a 12th grade education. (AR 9 184.) 10 2. Work History Report 11 Plaintiff completed a handwritten Work History Report in English on September 10, 2018 12 (AR 195–200.) At the hearing, Plaintiff testified, with the aid of an interpreter, that he “looked on 13 Google and he, he—even though it’s in English, he had it translated into Spanish and that’s how 14 he filled in the form.” (AR 44–45.) 15 3. Pain Questionnaire 16 Plaintiff completed a handwritten Pain Questionnaire in English on September 10, 2017. 17 (AR 203–205.) 18 C. Administrative Proceedings 19 The Commissioner denied Plaintiff’s application for benefits initially on September 18, 20 2018, and again on reconsideration on December 21, 2018. (AR 76–80, 84–89.) Consequently, 21 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 90–112.) The 22 ALJ conducted a hearing on January 30, 2019. (AR 42–82.). Plaintiff appeared at the hearing, 23 represented by counsel, and testified as to his alleged disabling conditions and work history. (AR 24 36–45.) 25 1. Plaintiff’s Testimony 26 Plaintiff testified through an interpreter. (AR 39.) He testified he “finished eighth grade 27 and had just begun the ninth” in El Salvador. (AR 36.) When asked whether he spoke English 28 while he was working as a truck driver, Plaintiff replied that he “does know some -- a little English 1 and when it was necessary, he would.” (AR 37.) Plaintiff also testified that he knows how to 2 write in English “very little.” (AR 38.) When asked whether he can read an English newspaper 3 and understand an article, he replied that he “doesn’t understand it, but he tries to understand, and 4 he does know some words in English.” (AR 38.) With respect to the Work History Report, 5 Plaintiff testified that “he looked on Google and he, he—even though it’s in English, he had it 6 translated into Spanish and that’s how he filled in the form.” (AR 45.) 7 2. VE Testimony 8 A Vocational Expert (“VE”) testified at the administrative hearing that Plaintiff had past 9 work as a truck driver, Dictionary of Operational Titles (DOT) code 906.683-022, which was semi- 10 skilled and medium work (medium and heavy as performed), with a specific vocational preparation 11 (SVP)4 of 3. (AR 45.) The ALJ asked the VE to consider a person of Plaintiff’s age, education, 12 and with his work experience. (AR 45.) The VE was also to assume this person could: lift 20 13 pounds occasionally and ten pounds frequently; stand, walk, and or sit for six out of eight hours; 14 occasionally climb ramps or stairs, ladders, ropes, or scaffolds; frequently balance; occasional 15 stoop, crouch, or crawl; frequently kneel; occasionally reach with the left upper extremity; and 16 speak and write, and read some English, but is not entirely fluent, but can communicate verbally. 17 (AR 46.) The VE testified that such a person could not perform Plaintiff’s past relevant work, but 18 could perform other, light, and unskilled jobs in the national economy, such as produce weigher, 19 DOT code 299.587-010 with an SVP of 1; and cleaner and polisher, DOT code 709.687-010 with 20 an SVP of 2. (AR 47.) The VE further stated that Plaintiff could perform the job of “cashier self- 21 service,” DOT code is 211.462-010 with an SVP of 2, “assuming that the person can communicate 22 at least rudimentarily, rudimentary communication.” (AR 47.) According to the VE, “the first two 23 jobs don’t require communication at all. The third job is the only one that has any base for -- for 24 oral communication.” (AR 47.) 25 The ALJ asked the VE, in a second hypothetical, to consider the individual presented in the 26 4 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in 28 the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level 1 first hypothetical with the added limitation that such person would need three 15-minute breaks in 2 addition to those breaks normally and regularly scheduled throughout the day. (AR 48.) The VE 3 testified that there would be no work such person could perform. (AR 48.) 4 Plaintiff’s attorney asked the VE whether there would be any jobs available if the person in 5 the first hypothetical could not communicate in rudimentary English, and the VE replied that “[i]t 6 would eliminate the Cashier. It wouldn’t eliminate the first two.” (AR 48.) 7 D. The ALJ’s Decision 8 In a decision dated November 12, 2019, the ALJ found that Plaintiff was not disabled, as 9 defined by the Act. (AR 21–28.) The ALJ conducted the five-step disability analysis set forth in 10 20 C.F.R. § 404.1520. (AR 23–28.) The ALJ decided that Plaintiff had not engaged in substantial 11 gainful activity since his alleged onset date of December 23, 2017 (step one). (AR 23.) The ALJ 12 found that Plaintiff had the following severe impairments: left torn rotator cuff and degenerative 13 disc disease of the cervical, thoracic and lumbar (step two). (AR 23.) However, Plaintiff did not 14 have an impairment or combination of impairments that met or medically equaled one of the listed 15 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step three). (AR 24.) 16 The ALJ then assessed Plaintiff’s RFC and applied that assessment at step four. See 20 C.F.R. § 17 404.1520(a)(4) (“Before we go from step three to step four, we assess your residual functional 18 capacity . . . . We use this residual functional capacity assessment at both step four and step five 19 when we evaluate your claim at these steps.”). 20 The ALJ determined that Plaintiff retained the RFC: 21 to lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for 6 hours and sit for 6 hours in an 8-hour workday. He can 22 occasionally climb ramps, stairs, ladders, ropes or scaffolds. He can frequently balance and kneel, and occasionally stoop, crouch, and crawl. He is limited to 23 occasional reaching with the left upper extremity (non-dominant). He can speak, 24 read and write some English, though not fluently. 25 (AR 24.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be expected 26 to cause the alleged symptoms[,]” the ALJ rejected Plaintiff’s subjective testimony as “not entirely 27 consistent with the medical evidence and other evidence in the record.” (AR 25.) 28 1 The ALJ determined that, given his RFC, Plaintiff could not perform his past relevant work 2 (step four), but could perform a significant number of other jobs in the local and national 3 economies, specifically produce weigher, cleaner and polisher, and cashier (step five). (AR 27– 4 28.) The ALJ further concluded that Plaintiff was defined as an individual closely approaching 5 advanced age on the alleged disability onset date; he had a limited education and was able to 6 communicate in English; and the transferability of job skills was not material to the disability 7 determination because Plaintiff was “not disabled” under the Medical–Vocational Rules whether 8 or not Plaintiff had transferrable job skills. (AR 26–27.) 9 Plaintiff sought review of this decision before the Appeals Council, which denied review 10 on July 15, 2020. (AR 1–8.) Therefore, the ALJ’s decision became the final decision of the 11 Commissioner. 20 C.F.R. § 404.981. 12 III. LEGAL STANDARD 13 A. Applicable Law 14 An individual is considered “disabled” for purposes of disability benefits if they are unable 15 “to engage in any substantial gainful activity by reason of any medically determinable physical or 16 mental impairment which can be expected to result in death or which has lasted or can be expected 17 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 18 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 19 impairment or impairments are of such severity that [they] [are] not only unable to do his previous 20 work but cannot, considering [their] age, education, and work experience, engage in any other kind 21 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 22 “The Social Security Regulations set out a five-step sequential process for determining 23 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Pavel, 24 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520). The Ninth Circuit has provided 25 the following description of the sequential evaluation analysis: In step one, the ALJ determines whether a claimant is currently engaged in 26 substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ proceeds to step two and evaluates whether the claimant has a medically severe 27 impairment or combination of impairments. If not, the claimant is not disabled. If 28 so, the ALJ proceeds to step three and considers whether the impairment or 1 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 2 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, the 3 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to perform any other substantial gainful activity in the national economy. If so, the 4 claimant is not disabled. If not, the claimant is disabled. 5 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If a claimant is found to be ‘disabled’ or 6 ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” Tackett, 7 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 8 “The claimant carries the initial burden of proving a disability in steps one through four of 9 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 10 1989)). “However, if a claimant establishes an inability to continue [their] past work, the burden 11 shifts to the Commissioner in step five to show that the claimant can perform other substantial 12 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 13 B. Scope of Review 14 “This court may set aside the Commissioner’s denial of [social security] benefits [only] 15 when the ALJ’s findings are based on legal error or are not supported by substantial evidence in 16 the record as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence” means 17 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 18 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 19 305 U.S. 197, 229 (1938)). “Substantial evidence is more than a mere scintilla but less than a 20 preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 21 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 22 Admin., 574 F.3d 685, 690 (9th Cir. 2009). The ALJ’s decision denying benefits “will be disturbed 23 only if that decision is not supported by substantial evidence or it is based upon legal error.” 24 Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). Additionally, “[t]he court will uphold the 25 ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Id.; 26 see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“If the evidence is susceptible 27 to more than one rational interpretation, the court may not substitute its judgment for that of the 28 Commissioner.” (citations omitted)). 1 In reviewing the Commissioner’s decision, the Court may not substitute its judgment for 2 that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). The Court must 3 instead determine whether the Commissioner applied the proper legal standards and whether 4 substantial evidence exists in the record to support the Commissioner’s findings. See Lewis v. 5 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Nonetheless, “the Commissioner’s decision ‘cannot be 6 affirmed simply by isolating a specific quantum of supporting evidence.’” Tackett, 180 F.3d at 7 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). “Rather, a court must 8 ‘consider the record as a whole, weighing both evidence that supports and evidence that detracts 9 from the [Commissioner’s] conclusion.’” Id. (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 10 1993)). 11 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 12 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 13 454 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record 14 that ‘the ALJ’s error was inconsequential to the ultimate nondisability determination.’” 15 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Circ. 2008) (quoting Robbins, 466 F.3d at 885). 16 “[T]he burden of showing that an error is harmful normally falls upon the party attacking the 17 agency’s determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 18 IV. DISCUSSION 19 Plaintiff contends that the ALJ erred by failing to make an adequate finding of Plaintiff’s 20 literacy and ability to communicate in English, and this Court should reverse and find Plaintiff 21 entitled to benefits or, alternatively, remand the decision. (Doc. 16.) Specifically, Plaintiff asserts 22 that the ALJ failed to meet the step five burden of showing that there are jobs that Plaintiff can 23 perform in light of his age, education, work experience, and RFC, because a person who has an 24 RFC for light exertion, is closely approaching advanced age, has a limited education, and is unable 25 to either communicate in English or is illiterate in English, is presumed to be disabled. (Id. at 4 26 (citing the Medical–Vocational Guidelines (the “Grids”), 20 C.F.R., Pt. 404, Subpt. P, App. 2, Rule 27 202.09).) Plaintiff asserts that the ALJ is required to find that a claimant is both literate and able 28 to communicate in English. (Doc. 16 at 5.) Plaintiff contends that the ALJ failed to find Plaintiff 1 literate in English and that the finding that Plaintiff could communicate in English was not 2 supported. (Id. at 6–9.) As such, the ALJ’s conclusion of literacy and ability to communicate in 3 English does not constitute a sufficient finding on the record. (Id. at 9.) 4 Defendant contends that the ALJ’s determination, which is no longer required under the 5 current regulations, that Plaintiff could communicate in English, and could speak, read, and write 6 some English, although not fluently, was supported by substantial evidence and should be upheld. 7 (Doc. 19 at 8–10.) 8 A. Legal Standard 9 The Commissioner considers education as a vocational factor. 20 C.F.R. § 404.1564. 10 Under the regulation applicable at the time of the ALJ’s decision, the categories of education that 11 were considered included literacy and the ability to communicate in English.5 Id. at 12 404.1564(b)(1), (b)(5). A distinction exists between an assessment of literacy and an assessment 13 of the ability to communicate in English, and an ALJ must consider both in determining whether a 14 claimant can perform work pursuant to the regulations. Id.; see also Calderon v. Astrue, No. 1:08– 15 cv–01015 GSA, 2009 WL 3790008, at *9 (E.D. Cal. Nov.10, 2009). 16 Illiteracy is defined as “the inability to read or write. [The Commissioner] consider[s] 17 someone illiterate if the person cannot read or write a simple message such as instructions or 18 inventory lists even though the person can sign his or her name. Generally, an illiterate person has 19 had little or no formal schooling.” 20 C.F.R. §§ 404.1564(b)(1). 20 The Commissioner further considers a claimant’s ability to communicate in English: 21 Since the ability to speak, read and understand English is generally learned or increased at school, we may consider this an educational factor. Because English 22 is the dominant language of the country, it may be difficult for someone who doesn’t speak and understand English to do a job, regardless of the amount of 23 education the person may have in another language. Therefore, we consider a person’s ability to communicate in English when we evaluate what work, if any, he 24 or she can do. It generally doesn’t matter what other language a person may be 25 fluent in. 26

27 5 Regulation 20 C.F.R. § 404.1564 was amended on February 25, 2020, with an effective date of April 27, 2020. See REMOVING INABILITY TO COMMUNICATE IN ENGLISH AS AN EDUCATION CATEGORY, 85 Fed. Reg. 10586-01, 10856, 28 2020 WL 885690 (Feb. 25, 2020). There is no longer an “inability to communicate in English” category, and 1 Id. at 404.1564(b)(5). In Silveira v. Apfel, 204 F.3d 1257 (9th Cir.2000), the Ninth Circuit clarified 2 that a claimant is illiterate if she is illiterate or unable to communicate in English, or both, not that 3 a claimant must be both illiterate and unable to communicate in English. Id. at 1262, n.13. 4 B. The ALJ’s Consideration of Plaintiff’s Language Abilities 5 Plaintiff speaks primarily Spanish. (See AR 251, 271–72, 445.) An Adult Disability Report 6 dated August 30, 2018, indicates that Plaintiff cannot speak or understand English and that his 7 preferred language is Spanish. (AR 182–92.) The report also states that Plaintiff cannot read, 8 understand, or write more than his name in English. (AR 182.) Plaintiff would write and complete 9 reports in his job as a truck driver, but the language of those reports is not indicated. (AR 185.) 10 Plaintiff completed a handwritten Work History Report in English on September 10, 2018. (AR 11 195–200.) 12 At the administrative hearing, Plaintiff testified through an interpreter that he had the Work 13 History Report translated into Spanish using Google so he could complete it. (AR 44–45.) Plaintiff 14 further testified he knows how to write in English “very little” and knows how to read “some 15 words” in English. (AR 38.) Although the Adult Disability Report indicates that Plaintiff has a 16 12th grade education, at the hearing Plaintiff testified he “finished eighth grade and had just begun 17 the ninth” in El Salvador. (AR 36.) When asked whether he spoke English while he was working 18 as a truck driver, Plaintiff replied that he “does know some—a little English” and would speak it 19 “when it was necessary.” (AR 37.) The hypotheticals posed by the ALJ to the VE assume an 20 “individual of the same age, education, and work experience as the Claimant,” but the ALJ did not 21 explain what specific language skills the VE should consider. (AR 45–46.) 22 The ALJ determined however that Plaintiff was able to communicate in English, finding as 23 follows: 24 Although the claimant utilized the services of a Spanish interpreter at the hearing, he testified that he did speak English while working as a milk truck driver. He also 25 testified that he could read and write some English, and admitted to completing the 26 Work History [R]eport in the file. 27 (AR 27.) These findings, however, misstate Plaintiff’s testimony: he testified that he spoke only a 28 “little” English while working as a truck driver and knows how to write “very little” English. The 1 findings also ignore the fact that Plaintiff had to translate the Work History Report into Spanish 2 using a translation service before completing it. Additionally, the ALJ did not attempt to determine 3 what Plaintiff meant by “a little,” “very little,” or “some words.” This evidence is insufficient to 4 support a finding that Plaintiff is literate. A vague response that Plaintiff can read “some words” 5 and write “very little” is insufficient to establish that Plaintiff can read or write a simple message 6 in the English language. Calderon, 2009 WL 3790008, at *9; 20 C.F.R. § 404.1564(b)(1). See 7 also Jeffrey v. Berryhill, No. 17-1444, 2018 WL 3656154, at *4-5 (S.D. Cal. Aug. 2, 2018) (“Other 8 courts have found that similarly scant evidence of a plaintiff’s ability to read and write in English 9 falls short of carrying the Commissioner’s burden of establishing literacy.”) (collecting cases). In 10 the same way, testimony that Plaintiff spoke only “a little” English while working falls short of 11 demonstrating that Plaintiff is able to communicate in English. See Obispo v. Astrue, No. 11-9381, 12 2012 WL 4711763, at *4 (C.D. Cal. Oct. 3, 2012) (finding error where claimant testified that he 13 could read and speak “a little bit” of English, but it was unclear what plaintiff meant by “a little 14 bit” or how significant this evidence was in relation to the other evidence of claimant’s English 15 skills); 20 C.F.R. § 404.1564(b)(5). Perhaps indeed Plaintiff does possess these abilities, but the 16 record is far from clear.6 Silveira, 204 F.3d at 1262. 17 Plaintiff is an individual closely approaching advanced age. (AR 26.) Grid Rule 202.09, 18 as interpreted by the Ninth Circuit, directs a finding of “disabled” when a person is closely 19 approaching advanced age, “has a skilled or semi-skilled work history with no transferable skills 20 or an unskilled work history,” and is illiterate or unable to communicate in English. Silveira, 204 21 F.3d at 1260–61 & n.11. See Adriana R. v. Saul, No. 2:20-CV-00261-MKD, 2021 WL 1413081, 22 at *4 (E.D. Wash. Apr. 14, 2021) (“While Rule 202.09 states a finding of disability is directed for 23 those with unskilled or no work, the rule also applies to individuals with skilled work who can no 24 longer perform their past work and who do not have transferrable skills.”) (citing DI 25025.025 25 VOCATIONAL FACTORS DO NOT MATCH A MEDICAL-VOCATIONAL RULE, SSA POMS DI 26

27 6 The Court also notes the record contains written correspondence from the Commissioner to Plaintiff in Spanish. (See AR 18–20, 95–97, 102, 104–105, 120–26, 137, 151, 157, 239). Yet, Plaintiff also completed a handwritten Pain 28 Questionnaire in English (AR 203–05), and completed the Work History Report in English (despite translating it to 1 25025.025). 2 At the administrative hearing, the VE testified that Plaintiff’s former job as a truck driver 3 was semi-skilled. (AR 45.) The ALJ determined that Plaintiff was unable to perform any past 4 relevant work, and made no determination regarding the transferability of Plaintiff’s job skills. 5 (AR 26.) The ALJ’s decision stated that “[t]he transferability of job skills is not material to the 6 determination of disability because using the Medical–Vocational Rules [(the Grids)] as a 7 framework supports a finding that the claimant is ‘not disabled’ whether or not the claimant has 8 transferable job skills.” (AR 27.) However, as Plaintiff is limited to light work (with additional 9 limitations), is unable to perform his past work, and there has been no finding of transferable skills, 10 Grid Rule 202.09 would direct the ALJ to find Plaintiff disabled if Plaintiff was found illiterate or 11 unable to communicate in English. See Garcia v. Astrue, No. 1:11-CV-01965-SKO, 2013 WL 12 394517, at *6 (E.D. Cal. Jan. 30, 2013). Consideration of Plaintiff’s literacy and ability to 13 communicate in English is therefore crucial in determining disability in this case. See id. 14 It is the ALJ’s burden to determine if Plaintiff is literate. Silveira, 204 F.3d at 1261–62. 15 The ALJ did not meet its burden here, as its findings that Plaintiff is literate and able to 16 communicate in English are not supported by substantial evidence. It was incumbent on the ALJ 17 to develop the record further. See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (“The 18 ALJ always has a special duty to fully and fairly develop the record and to assure that the claimant’s 19 interests are considered . . . even when the claimant is represented by counsel.”) (internal citations 20 omitted). The Court therefore finds that the ALJ erred at step five in failing to fully develop the 21 record with respect to Plaintiff’s literacy and ability to communicate in English and failing to 22 consider the application of Grid Rule 202.09 in the determination of whether Plaintiff was disabled. 23 C. The ALJ’s Error Warrants Remand for Further Proceedings 24 The law is well established that the decision whether to remand for further proceedings or 25 simply to award benefits is within the discretion of the Court. See Salvador v. Sullivan, 917 F.2d 26 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. 27 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional 28 administrative proceedings could remedy defects in the decision. See Kail v. Heckler, 722 F.2d 1 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is 2 appropriate where no useful purpose would be served by further administrative proceedings, see 3 Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980) (claimant deceased); where the record has 4 been fully developed, see Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where 5 remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 6 (9th Cir. 1985) (“[T]he uncontroverted evidence establishes total disability.”). 7 Here, the Court concludes that this is not an instance where no useful purpose would be 8 served by further administrative proceedings; rather, additional administrative proceedings still 9 could remedy the ALJ’s errors at step five of their analysis. See Silveira, 204 F.3d at 1261–62 10 (remanding where ALJ made no express finding that claimant was literate in English and there was 11 insufficient evidence in the record to determine whether he was literate in English). See also 12 Salinas v. Berryhill, No. 18-CV-04522-KAW, 2019 WL 4751945, at *7 (N.D. Cal. Sept. 30, 2019); 13 Calderon, 2009 WL 3790008, at *10. 14 V. CONCLUSION AND ORDER 15 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 16 substantial evidence and is, therefore, VACATED and the case REMANDED to the ALJ for further 17 proceedings consistent with this Order. The Clerk of this Court is DIRECTED to enter judgment 18 in favor of Plaintiff Nelson Valdizon and against Defendant Kilolo Kijakazi, Acting Commissioner 19 of Social Security. 20 IT IS SO ORDERED. 21

22 Dated: February 8, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23

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