Yanez-Palmer v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: November 10, 2020
• Docket: 2:19-cv-05865
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mary Yanez-Palmer, No. CV-19-05865-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 At issue is the denial of Plaintiff Mary Yanez-Palmer’s Application for Disability 17 Insurance benefits by the Social Security Administration (SSA) under the Social Security 18 Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 19 of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 12, “Pl. Br.”), 20 Defendant SSA Commissioner’s Answering Brief and Motion to Remand (Doc. 13, “Def. 21 Br.”), and Plaintiff’s Reply (Doc. 16, “Reply”). The Court has reviewed the briefs and 22 Administrative Record (Doc. 9, “R.”), and now reverses the Administrative Law Judge’s 23 (“ALJ”) decision (R. at 27–47) as upheld by the Appeals Council (R. at 1–6). The Court 24 orders that this case be remanded for further proceedings consistent with this Order. 25 I. BACKGROUND 26 Plaintiff filed her Application for Disability Insurance benefits on June 24, 2015, 27 alleging disability beginning March 3, 2015. (Id. at 30.) Her claim was denied initially on 28 February 5, 2016, and was denied on reconsideration on November 22, 2016. (Id.) On 1 October 3, 2018, Plaintiff appeared and testified at a hearing before the ALJ. (Id.) On 2 November 28, 2018, the ALJ denied Plaintiff’s claim, and on October 24, 2019, the 3 Appeals Council denied her Request for Review. (Id. at 1–6, 27–47.) 4 The Court has reviewed the medical evidence and will discuss the pertinent 5 evidence in addressing the issues raised by the parties. Upon considering the medical 6 records and opinions, the ALJ evaluated Plaintiff’s disability based on the following severe 7 impairments: history of traumatic subdural hemorrhage and neurocognitive disorder. (Id. 8 at 33.) 9 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 10 that Plaintiff was not disabled from the alleged disability onset-date through the date of the 11 decision. (Id. at 41.) The ALJ found that Plaintiff “does not have an impairment or 12 combination of impairments that meets or medically equals the severity of one of the listed 13 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Id. at 34.) Next, the ALJ 14 calculated Plaintiff’s residual functional capacity (“RFC”): 15 [Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) with the following exceptions: the claimant is able to stand 16 and/or walk for six hours in an eight-hour day; she is able to sit for six hours 17 in an eight-hour day; she is frequently able to climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; she is occasionally able to climb ladders, 18 rope, and scaffolds; she must avoid concentrated exposure to industrial 19 hazards; she is occasionally able to reach, handle, and finger with the left upper extremity; she is capable of performing no more than simple, repetitive 20 tasks; and she is not able to perform a job requiring production quotas. 21 22 (Id. at 36.) Accordingly, the ALJ found that “there are jobs that exist in significant numbers 23 in the national economy that [Plaintiff] can perform.” (Id. at 40.) Specifically, the ALJ 24 found that she could perform the representative occupations of Usher, of which there are 25 5,300 such jobs in the national economy, and Investigator, Dealer Accounts 26 (“Investigator”), of which there are approximately 6,500 such jobs in the national economy. 27 (Id. at 41.) Additionally, the vocational expert (VE) at Plaintiff’s hearing testified that if 28 Plaintiff had the same limitations as the ALJ found but was limited to sedentary work, she 1 would be able to perform only one job—Callout Operator—of which there are 5,900 jobs 2 in the national economy. (Id. at 79.) 3 II. LEGAL STANDARDS 4 In determining whether to reverse an ALJ’s decision, the district court reviews only 5 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 6 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 7 determination only if it is not supported by substantial evidence or is based on legal error. 8 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 9 that a reasonable person might accept as adequate to support a conclusion considering the 10 record as a whole. Id. To determine whether substantial evidence supports a decision, the 11 Court must consider the record as a whole and may not affirm simply by isolating a 12 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 13 susceptible to more than one rational interpretation, one of which supports the ALJ’s 14 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 15 (9th Cir. 2002) (citations omitted). 16 To determine whether a claimant is disabled for purposes of the Act, the ALJ 17 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 18 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 19 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 20 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 21 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 22 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 23 step three, the ALJ considers whether the claimant’s impairment or combination of 24 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 25 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 26 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 27 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 28 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 1 determines whether the claimant can perform any other work in the national economy 2 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 3 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 4 III. ANALYSIS 5 Plaintiff raises two primary arguments. First, Plaintiff argues that the ALJ 6 incorrectly calculated her RFC because the ALJ improperly evaluated her symptom 7 testimony and the medical opinion evidence.1 (Pl. Br. 9–20.) Second, Plaintiff argues that 8 Defendant failed to meet his burden to establish that Plaintiff can perform substantial 9 gainful employment that exists in significant numbers in the national economy.2 (Id. at 20– 10 23.) Plaintiff argues this second point in two distinct ways: (1) the ALJ found that there are 11 only 11,800 jobs in the national economy that Plaintiff can perform and that total is not 12 significant; and/or (2) Plaintiff’s limitation to simple, repetitive tasks precludes her 13 performance of the Investigator job the ALJ found she can perform so there are actually 14 only 5,300 jobs that Plaintiff can perform and that total is not significant. (Id.) 15 The Court disagrees that substantial evidence does not support the ALJ’s RFC 16 calculation, but agrees that Defendant failed to establish that Plaintiff can perform 17 substantial gainful employment that exists in significant numbers in the national economy. 18 Taking Plaintiff’s arguments in order, the Court finds that substantial evidence supports 19 the ALJ’s evaluation of Plaintiff’s symptom testimony and the opinions of Dr. William 20 Allison and Dr. Byron Willis. The ALJ appropriately rejected Plaintiff’s symptom 21 testimony based on her improvement with treatment and her failure to appear for 22 consultative examinations without good reason. Furthermore, the ALJ correctly evaluated 23 Dr. Allison’s opinion and appropriately rejected Dr. Willis’s opinions based on their 24 vagueness. 25 However, the Court finds that a new hearing is appropriate for the ALJ to determine 26 which jobs Plaintiff can perform, how many of those jobs exist in the national economy,

27 1 Defendant does not concede this issue. (Def. Br. at 13.) 28 2 Defendant concedes this issue. (Def. Br. at 10.) 1 and whether they exist in significant numbers. On the current record, the Court concludes 2 that substantial evidence does not support the ALJ’s finding that Plaintiff can perform 3 substantial gainful employment that exists in significant numbers in the national economy. 4 Still, the record does not presently establish that Plaintiff cannot perform jobs that exist in 5 significant numbers in the national economy. It is ambiguous whether Plaintiff can perform 6 the jobs the ALJ and VE found she can perform. Before the Court can evaluate whether 7 substantial evidence supports the ALJ’s finding that Plaintiff can perform jobs that exists 8 in a significant number in the national economy, the Court must know which jobs Plaintiff 9 can actually perform and how many of those jobs exist. This factual issue is reserved for 10 the ALJ. 11 A. Substantial evidence supports the ALJ’s calculation of Plaintiff’s RFC. 12 The Court rejects Plaintiff’s challenges to the ALJ’s evaluation of her symptom 13 testimony and the opinions of Dr. Allison, her examining physician, and Dr. Willis, her 14 treating physician. The ALJ appropriately discounted Plaintiff’s symptom testimony based 15 on her improvement with treatment and her failure to appear for consultative examinations. 16 Next, the ALJ appropriately evaluated Dr. Allison’s opinion even without adopting the 17 opinion wholesale. Finally, the ALJ correctly rejected Dr. Willis’s opinions because they 18 were vague. 19 1. The ALJ correctly rejected Plaintiff’s symptom testimony based on her improvement with treatment and her failure to appear for 20 consultative examinations. 21 22 The ALJ provided three reasons for rejecting Plaintiff’s symptom testimony. First 23 the ALJ found that Plaintiff’s impairments and symptoms improved with time and 24 treatment. (R. at 38.) Next, the ALJ found that Plaintiff pursued only conservative 25 treatment since she purportedly did not follow-up with a neurologist. (Id.) Finally, the ALJ 26 found that Plaintiff’s repeated failures to appear for a consultative examination without 27 good reason is a basis to discount her allegations. (Id.) 28 . . . . 1 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 2 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 3 evaluates whether the claimant has presented objective medical evidence of an impairment 4 “which could reasonably be expected to produce the pain or symptoms alleged.” 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 6 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 7 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 8 about the severity of her symptoms only by offering specific, clear and convincing reasons 9 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 10 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 11 “In evaluating the credibility of pain testimony after a claimant produces objective medical 12 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 13 complaints based solely on a lack of medical evidence to fully corroborate the alleged 14 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 15 Substantial evidence supports the ALJ’s finding that Plaintiff improved with 16 treatment. This rationale justifies the ALJ’s discounting of Plaintiff’s testimony. See 17 Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). Though Plaintiff cites some 18 evidence that she had persistent problems despite her treatment, ultimately, substantial 19 evidence is a low threshold and the ALJ supported his reasoning with substantial evidence. 20 (Pl. Br. at 12.) For example, the ALJ cites records indicating that Plaintiff did well 21 following discharge from surgery, she was able to complete all functional activities of daily 22 living, and she had normal range of motion and strength in her extremities. (R. at 474–75, 23 676–80, 877–78.) Though the evidence points both ways on this issue, the ALJ’s 24 interpretation is a reasonable one, and thus, is entitled to deference. See Thomas, 278 F.3d 25 at 954. 26 Similarly, the ALJ also appropriately relied on Plaintiff’s repeated no-shows for 27 consultative examinations in rejecting her testimony. 20 C.F.R. § 404.1518 (“If you are 28 applying for benefits and do not have a good reason for failing or refusing to take part in a 1 consultative examination or test which we arrange for you to get information we need to 2 determine your disability or blindness, we may find that you are not disabled or blind.”). 3 The ALJ noted that Plaintiff missed scheduled consultative examinations in November 4 2015, December 2015, and October 2016. (R. at 38, 881, 890, 925.) Plaintiff argues that 5 she missed the appointments for good reason: she thought they were optometry 6 examinations, but her optometry issues were already being treated by her own providers. 7 (Pl. Br. at 13–14; R. at 67–68.) Thus, Plaintiff argues her absences were not evidence that 8 she was unwilling to cooperate with the adjudication of her claim. (Pl. Br. at 14.) 9 Nevertheless, substantial evidence supports the ALJ’s finding that Plaintiff missed the 10 appointments without good reason. Here, the ALJ relied on a report that Plaintiff missed 11 one of the appointments because she went to the wrong address, which contradicts her 12 explanation for her absences. (R. at 38, 67–68, 881.) Thus, the ALJ appropriately found 13 that Plaintiff missed the appointments without good reason. (Pl. Br. at 13–14.) Regardless 14 of whether Plaintiff thought she did not need to attend the consultations, substantial 15 evidence supports the ALJ’s finding that she did not have good reason for her absences. 16 Accordingly, her testimony was properly rejected on this basis. 17 Since the ALJ provided specific, clear, and convincing reasons for rejecting 18 Plaintiff’s testimony and those reasons are supported by substantial evidence, he did not 19 err by rejecting Plaintiff’s testimony.3 20 2. Substantial evidence supports the ALJ’s evaluation of Drs. Allison and Willis’s opinions. 21 22 Dr. Allison submitted an opinion regarding Plaintiff’s functional limitations that 23 was based on his consultative examination of Plaintiff. (R. at 882–89.) Regarding 24 Plaintiff’s ability to adapt to change, Dr. Allison found that “[s]he would have moderate 25 difficulty coping with changes in work procedures. She would have significant difficulty

26 3 Though the ALJ erroneously found that Plaintiff did not follow-up with a 27 neurologist, that error was harmless because the ALJ provided other valid reasons for rejecting her testimony. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 28 (defining harmless error as error that is inconsequential to the ALJ’s nondisability determination). 1 coping with more stressful working conditions or demands for increased productivity.” (Id. 2 at 888.) The ALJ gave great weight to Dr. Allison’s opinion. (Id. at 39.) Nevertheless, 3 Plaintiff argues that the RFC did not “encompass all of Dr. Allison’s findings.” (Pl. Br. at 4 17.) Plaintiff’s specific argument is unclear, though she apparently argues that because all 5 jobs are stressful, the ALJ did not adequately account for the above limitations by limiting 6 Plaintiff to no more than simple, repetitive tasks and no production quotas. (Pl. Br. at 17.) 7 Plaintiff’s treating physician, Dr. Willis, submitted four letters within two months 8 regarding Plaintiff’s functional ability. (R. at 874, 875, 876, 880.) The August 2015 letter 9 states that Plaintiff “may return to sedentary work, effective immediately.” (Id. at 874.) 10 The September 3, 2015 letter states she “may return to sedentary work as tolerated, 11 effective immediately on a part time basis only.” (Id. at 875.) The September 14, 2015 12 letter states, “[w]ork status has been re-evaluated and it has been determined that patient 13 remain on a off work status until further notice.” (Id. at 876.) Finally, the October 8, 2015 14 letter states, “Patient may not return to work due to chronic pain and nerve damage due to 15 stroke. Patient has an upcoming appointment in December and we may re-evaluate her 16 work status at that point.” (Id. at 880.) The ALJ rejected these opinions because they: (1) 17 are vague; (2) are contradicted by the medical evidence; (3) appear to “accommodate” 18 Plaintiff; and (4) opine to an issue—disability— reserved to the ALJ. (Id. at 38–39.) 19 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 20 among the sources of medical opinions. Tommasetti, 533 F.3d at 1041. Those who have 21 treated a claimant are treating physicians, those who examined but did not treat the claimant 22 are examining physicians, and those who neither examined nor treated the claimant are 23 nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating 24 physician’s opinion is not given controlling weight, then the ALJ must consider the relevant 25 factors listed in 20 C.F.R. § 404.1527(c)(1)–(6) and determine the appropriate weight to 26 give the opinion. Orn, 495 F.3d at 632. If a treating physician’s opinion “is contradicted 27 by another doctor’s opinion, the ALJ cannot reject the treating physician’s opinion unless 28 he provides specific and legitimate reasons that are based on substantial evidence in the 1 record.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Similarly, “[t]he opinion 2 of an examining physician is . . . [generally] entitled to greater weight than the opinion of a 3 nonexamining physician.” Lester, 81 F.3d at 830. “[T]he opinion of an examining doctor, 4 even if contradicted by another doctor, can only be rejected for specific and legitimate 5 reasons that are supported by substantial evidence in the record.” Id. at 830–31. 6 First, the ALJ correctly evaluated Dr. Allison’s opinion and appropriately accounted 7 for all of his opined-to limitations in Plaintiff’s RFC. Significantly, Plaintiff does not identify 8 any specific limitation that was included in Dr. Allison’s opinion that the ALJ did not include 9 in Plaintiff’s RFC. (Pl. Br. at 17.) Instead, Dr. Allison noted that Plaintiff would have 10 significant difficulty adapting to changes in the workplace; accordingly, substantial evidence 11 supports the ALJ’s finding that she is limited to simple, repetitive tasks and no production 12 quotas. (R. at 36, 888.) Ultimately, it is the ALJ’s duty to evaluate the medical evidence, 13 resolve conflicts and ambiguities in the record and determine a claimant’s RFC. See 14 Tommasetti, 533 F.3d at 1041. Further, the RFC need not match any particular medical 15 source opinion since it is a legal determination. 20 C.F.R. §§ 404.1527(d)(2), 404.1545, 16 404.1546(c). 17 Next, regardless of the ALJ’s other offered rationales, the ALJ appropriately 18 rejected Dr. Willis’s opinions because they are vague. ALJs may consider the level of 19 explanation in evaluating the weight of medical opinions. 20 C.F.R. § 404.1527(c)(3). 20 Here, even if Dr. Willis’s letters are not viewed as opining to the ultimate disability issue 21 reserved to the ALJ, substantial evidence supports the ALJ’s view that the letters are vague. 22 Each letter consists of only a few sentences and focuses on whether Plaintiff can sustain 23 work, but Dr. Willis does not elaborate on Plaintiff’s functional limitations. (R. at 874, 875, 24 876, 880.) The most descriptive letter states that Plaintiff’s inability to work is “due to 25 chronic pain and nerve damage due to stroke.” (Id. at 880.) But without greater elaboration, 26 substantial evidence supports the ALJ’s discounting Dr. Willis’s opinions based on their 27 vagueness. 28 . . . . 1 Accordingly, substantial evidence supports the ALJ’s calculation of Plaintiff’s RFC. 2 Further, the ALJ appropriately rejected Dr. Willis’s opinions based on their vagueness and 3 correctly incorporated Dr. Allison’s opined-to limitations into Plaintiff’s RFC. 4 B. Further proceedings are required for the ALJ to determine which jobs Plaintiff can perform and whether they exist in a significant number in 5 the national economy. 6 7 Plaintiff argues that Defendant did not meet his burden to establish that Plaintiff can 8 perform substantial gainful employment that exists in significant numbers in the national 9 economy. (Pl. Br. 20–23.) Plaintiff further argues that Defendant cannot meet his burden 10 even if Plaintiff could perform the jobs the ALJ found she can perform—Usher and 11 Investigator—because those jobs do not exist in a significant number (11,800) in the 12 national economy. (Id.) Alternatively, Plaintiff argues that there is a conflict between 13 Plaintiff’s limitation to simple, repetitive tasks and the required “Reasoning Level” of the 14 Investigator job such that she cannot perform it. (Id. at 22–23.) Therefore, Plaintiff argues 15 that she can only perform the Usher job, and since there are only 5,300 such jobs in the 16 national economy, she cannot perform work that exists in significant numbers in the 17 national economy. (Id.) 18 The Court agrees that Defendant did not meet his burden to establish that Plaintiff 19 can perform substantial gainful employment that exists in significant numbers in the 20 national economy. However, the Court disagrees that Defendant cannot meet his burden— 21 it is ambiguous whether he can. Thus, the appropriate remedy is to remand Plaintiff’s case 22 for further proceedings. Taking Plaintiff’s arguments in order, if Plaintiff can perform the 23 Investigator job, then it is possible that Plaintiff can perform jobs that exist in significant 24 numbers in the national economy. However, because it is ambiguous whether Plaintiff can 25 actually perform that job, further proceedings are required. 26 . . . . 27 . . . . 28 . . . . 1 1. If Plaintiff can perform the Investigator job then she may be able to perform jobs that exist in significant numbers in the national 2 economy. 3 4 Once a claimant establishes that she cannot perform her past relevant work, it is the 5 Commissioner’s duty to establish that she can perform substantial gainful employment that 6 exists in significant numbers in the national economy. Reddick v. Chater, 157 F.3d 715, 7 721 (9th Cir. 1998); 20 C.F.R. § 416.966. Though there is not a bright-line for determining 8 whether employment exists in significant numbers in the national economy, “[i]solated 9 jobs that exist only in very limited numbers in relatively few locations outside of the region 10 where [a claimant] live[s] are not considered work which exists in [significant numbers in] 11 the national economy.” 20 C.F.R. § 416.966(b) (italics removed). The Ninth Circuit has 12 declined to find that there is a bright-line determining the total number of jobs that is 13 significant. Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528–29 (9th Cir. 2014) 14 (finding 25,000 national jobs significant). In Gutierrez, the Ninth Circuit found that 25,000 15 jobs was a “close call”. Id. at 529. District Courts in the Ninth Circuit have varied in their 16 conclusions. Compare, e.g., Montalbo v. Colvin, 231 F. Supp. 3d 846, 863 (D. Haw. 2017) 17 (finding 12,300 national jobs significant) and Evans v. Colvin, No. ED CV 13-01500, 2014 18 WL 3845046, at *2–3 (C.D. Cal. Aug. 4, 2014) (finding 6,200 national jobs significant) 19 with Baker v. Comm’r of Soc. Sec., 2014 WL 3615497, at *8 (E.D. Cal. July 21, 2014) 20 (finding 14,500 national jobs insignificant) and Valencia v. Astrue, No. C 11-06223, 2013 21 WL 1209353 at *18 (N.D. Cal. Mar. 25, 2013) (finding 14,082 national jobs insignificant). 22 If Plaintiff can perform the Investigator job, then the ALJ could permissibly find 23 that she can perform work that exists in significant numbers in the national economy. The 24 total number of jobs Plaintiff could perform (11,800) would fall within the range of 25 discretion afforded to ALJs in determining whether work exists in significant numbers. The 26 cases cited above demonstrate the discretion ALJ’s have in evaluating these close cases. 27 The waters are further muddied (or perhaps clarified) by the VE’s testimony that Plaintiff 28 could also perform the job of Callout Operator if she were limited to sedentary work. (R. 1 at 79.) According to the VE, there are 5,900 such jobs in the national economy, so if 2 Plaintiff could perform that job then that total would be added to the other jobs she can 3 perform. (Id.) Presumably, Plaintiff could also perform this job since the ALJ found she 4 can perform more than sedentary work, provided she meets the other functional 5 requirements (though it is not entirely clear that she does meet the other functional 6 requirements as discussed in the next section). (Id. at 36.) If Plaintiff can perform 17,700 7 jobs (Usher, Investigator, and Callout Operator) that exist in the national economy, the 8 Court cannot confidently state that the ALJ would err by finding that total constitutes a 9 significant number of jobs in the national economy. 10 Of course, if Plaintiff could perform only the Usher job, then its 5,300 jobs in the 11 national economy would not constitute a significant number. Nevertheless, there is 12 ambiguity about whether Usher is, in fact, the only job that she can perform. Without a 13 clear determination of what jobs Plaintiff can perform, the Court cannot determine whether 14 there is a significant number of jobs that Plaintiff can perform in the national economy. 15 2. Plaintiff’s case must be remanded for a new hearing because there is ambiguity about whether she can perform the jobs of 16 Investigator and Callout Operator. 17 18 Plaintiff argues that she cannot perform the jobs of Investigator and Callout 19 Operator because the ALJ limited her to simple, repetitive tasks and these jobs require 20 reasoning inconsistent with her limitations. (Pl. Br. at 23; Reply at 4.) Plaintiff bases her 21 argument on Zavalin v. Colvin, 778 F.3d 842, 846–47 (9th Cir. 2015), where the Ninth 22 Circuit held that there is an apparent conflict between the functional abilities of claimants 23 limited to simple, routine, or repetitive tasks, and the demands of jobs requiring “Level 3 24 Reasoning.”4 These reasoning levels refer to the reasoning abilities required of workers in 25 representative jobs contained in the Dictionary of Occupational Titles (DOT). Dictionary

26 4 Level 3 Reasoning requires a worker to: [a]pply commonsense understanding to 27 carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations. Dictionary of 28 Occupational Titles, Fourth Edition, Revised, APPENDIX C - COMPONENTS OF THE DEFINITION TRAILER, (1991) WL 688702. 1 of Occupational Titles, Fourth Edition, Revised, APPENDIX C - COMPONENTS OF 2 THE DEFINITION TRAILER, (1991) WL 688702. 3 Since Zavalin held that there is an apparent conflict between the ability to perform 4 only simple, repetitive tasks and jobs requiring Level 3 reasoning, Plaintiff argues that 5 there is, in fact, a conflict between her limitation to simple, repetitive tasks and the 6 Investigator job, which requires Level 4 reasoning.5 (Pl. Br. at 23.) She also argues that 7 since Callout Operator is a job requiring Level 3 reasoning, Zavalin establishes she cannot 8 do that job either. (Reply at 4.) 9 The Court rejects Plaintiff’s arguments because she misreads Zavalin. The Ninth 10 Circuit in Zavalin did not hold that there is a conflict between a claimant’s ability to 11 perform only simple, repetitive tasks and jobs requiring Level 3 reasoning. Zavalin, 778 12 F.3d at 846–47. Instead, Zavalin held only that there was an apparent conflict between 13 Zavalin’s limitation to simple, repetitive tasks and the requirements of Level 3 Reasoning 14 jobs. Id. at 847 (“In sum, because the ALJ failed to recognize an inconsistency, she did not 15 ask the expert to explain why a person with Zavalin’s limitation could nevertheless meet 16 the demands of Level 3 Reasoning. We conclude that the ALJ erred in failing to reconcile 17 this apparent conflict.”). Accordingly, the court held that “[w]hen there is an apparent 18 conflict between the vocational expert’s testimony and the DOT—for example, expert 19 testimony that a claimant can perform an occupation involving DOT requirements that 20 appear more than the claimant can handle—the ALJ is required to reconcile the 21 inconsistency.” (Id.) Because there was ambiguity about whether Zavalin could perform 22 jobs which require Level 3 reasoning given his limitations, the court determined that a new 23 hearing was necessary. (Id.) 24 . . . .

25 5 Level 4 Reasoning requires a worker to: [a]pply principles of rational systems to 26 solve practical problems and deal with a variety of concrete variables in situations where only limited standardization exists. Interpret a variety of instructions furnished in written, 27 oral, diagrammatic, or schedule form. (Examples of rational systems include: bookkeeping, internal combustion engines, electric wiring systems, house building, farm management, 28 and navigation.) Dictionary of Occupational Titles, Fourth Edition, Revised, APPENDIX C - COMPONENTS OF THE DEFINITION TRAILER, (1991) WL 688702. 1 Here, the same ambiguity exists. It is unclear whether Plaintiff can perform the job 2 of Investigator which requires Level 4 reasoning. Since the reasoning level required is even 3 greater than what was required by the Level 3 jobs at issue in Zavalin, the Court speculates 4 that Plaintiff cannot perform the Investigator job. Nevertheless, that is a factual 5 determination reserved to the ALJ. Even if the Court found that Plaintiff cannot perform 6 the Investigator job because of its reasoning level requirement, it would remain ambiguous 7 whether she can perform the Callout Operator job since it requires only Level 3 reasoning. 8 Perhaps Plaintiff cannot perform the Investigator job but can perform the Callout Operator 9 job. That is for the ALJ to determine by questioning the VE. See Zavalin, 778 F.3d at 846 10 (“The ALJ’s failure to resolve an apparent inconsistency may leave us with a gap in the 11 record that precludes us from determining whether the ALJ’s decision is supported by 12 substantial evidence.”). Further, if Plaintiff can perform the Callout Operator job and the 13 Usher job, which requires only Level 2 reasoning, then there may be jobs that exist in a 14 significant number in the national economy that she can perform. Ultimately, these are 15 outstanding questions for the ALJ to answer. 16 In sum, since there is apparent conflict between Plaintiff’s functional limitations and 17 the reasoning requirements of the Investigator and Callout Operator jobs, further 18 proceedings are necessary. Given these ambiguities, the Court cannot determine whether 19 Plaintiff can perform either position or whether substantial evidence supports the ALJ’s 20 finding that Plaintiff can perform jobs that exist in significant numbers in the national 21 economy. 22 IV. CONCLUSION 23 Though substantial evidence supports the ALJ’s calculation of Plaintiff’s RFC, 24 substantial evidence does not support the ALJ’s nondisability determination. Since there 25 remains an apparent conflict between Plaintiff’s functional limitations and the reasoning 26 requirements of the jobs the ALJ and VE found she can perform, further proceedings are 27 necessary. A new hearing is required to determine which jobs Plaintiff can perform and 28 whether those jobs exist in significant numbers in the national economy. 1 IT IS THEREFORE ORDERED reversing the November 28, 2018 decision of 2|| the Administrative Law Judge (R. at 27-47.), as upheld by the Appeals Council (R. at I- || 6). 4 IT IS FURTHER ORDERED remanding this case to the Social Security 5 || Administration for further proceedings consistent with this Order. 6 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 8 Dated this 9th day of November, 2020. 9 10 oC. . fo □ norable' Diang4. Huretewa 2 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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