1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ABDIAS L.B.G., ) NO. CV 19-822-E ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION ) 14 ANDREW SAUL, Commissioner of ) AND ORDER OF REMAND Social Security, ) 15 ) Defendant. ) 16 ___________________________________) 17 18 Pursuant to sentence four of

(g), IT IS 19 HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary 20 judgment are denied, and this matter is remanded for further 21 administrative action consistent with this Opinion. 22 23 PROCEEDINGS 24 25 On February 4, 2019, Plaintiff filed a Complaint seeking review 26 of the Commissioner’s denial of disability benefits. On February 22, 27 2019, the parties consented to a Magistrate Judge. On June 11, 2019, 28 Plaintiff filed a motion for summary judgment. On July 11, 2019, 1 Defendant filed a motion for summary judgment. The Court has taken 2 both motions under submission without oral argument. See L.R. 7-15; 3 “Order,” filed February 6, 2019. 4 5 BACKGROUND 6 7 Plaintiff asserts disability based on a combination of alleged 8 impairments (Administrative Record (“A.R.”) 38-41, 195). The 9 Administrative Law Judge (“ALJ”) found Plaintiff suffers from severe 10 impairments which preclude the performance of Plaintiff’s past 11 relevant work (A.R. 23-26). The ALJ purported to find that Plaintiff 12 retains a residual functional capacity “to perform light work as 13 defined in 20 C.F.R. 416.967(b)” (A.R. 23-24). However, the ALJ also 14 determined that Plaintiff can stand or walk only two hours in an eight 15 hour day and requires an assistive device to ambulate (A.R. 23-24, 16 26). These restrictions effectively limit Plaintiff to sedentary work 17 (A.R. 44 (ALJ conceding that Plaintiff’s residual functional capacity 18 equates to a capacity for only sedentary work because a person limited 19 to standing and walking two hours a day “cannot do light work”)). 20 21 The ALJ further determined that Plaintiff, who had only a sixth 22 grade education in Guatemala, “is not able to communicate in English, 23 and is considered . . . illiterate in English” under 20 C.F.R. 24 416.9641 (A.R. 26, 36-37; but see A.R. 26 (Plaintiff “does speak some 25 English”)). The ALJ stated that Plaintiff had acquired transferable 26 work skills from his past relevant work as an automobile salesperson 27 1 Illiteracy is “the inability to read or write.” 20

(b)(1). 2 1 (A.R. 26). The ALJ also stated that Plaintiff could make the 2 vocational adjustment to perform the sedentary job of telephone 3 solicitor, and the ALJ concluded that Plaintiff is not disabled (A.R. 4 27-28 (adopting vocational expert’s testimony at A.R. 40-45 over the 5 contrary opinion of Plaintiff’s expert at A.R. 236-44)). 6 7 Before reaching this conclusion of nondisability, the ALJ did not 8 inquire of the vocational expert whether an illiterate person who 9 cannot communicate in English can perform the job of telephone 10 solicitor. The ALJ implicitly rejected the argument of Plaintiff’s 11 counsel that Plaintiff would not be able to adjust to the job of 12 telephone solicitor due in part to Plaintiff’s “limited ability to 13 speak English.” See A.R. 41, 50-51 (counsel making argument and ALJ 14 taking argument under advisement). 15 16 The ALJ observed that Plaintiff testified at the hearing “with 17 the assistance of a Spanish interpreter” (A.R. 21).2 Plaintiff 18 testified that, when he was an automobile salesperson, he had sold 19 cars only to people who spoke Spanish (A.R. 38). According to 20 Plaintiff, he then had tried to sell cars to English speakers, “but 21 they wouldn’t buy” (A.R. 38). Nevertheless, the ALJ found Plaintiff 22 could perform a job requiring the telephone solicitation of English 23 speakers (A.R. 27-28). The Appeals Council denied review (A.R. 1-3). 24 /// 25 26 2 Several notations in the record indicate that Plaintiff 27 also had the assistance of a Spanish language interpreter during medical evaluations (A.R. 249, 256, 300, 351, 360, 407, 411, 28 463). 3 1 STANDARD OF REVIEW 3 Under

(g), this Court reviews the 4) Administration’s decision to determine if: (1) the Administration’s 5| findings are supported by substantial evidence; and (2) the 6] Administration used correct legal standards. See Carmickle v. 7|| Commissioner,

(9th Cir. 2008); Hoopai v. Astrue,

(9th Cir. 2007); see also Brewes v. Commissioner 9] of Social Sec. Admin.,

(9th Cir. 2012). 10) Substantial evidence is “such relevant evidence as a reasonable mind 11] might accept as adequate to support a conclusion.” Richardson v. 12] Perales,

(1971) (citation and quotations omitted) ; 13] see Widmark v. Barnhart,

(9th Cir. 2006). 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. But the 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. 22 23|| Tackett v. Apfel,

(9th Cir. 1999) (citations and 24], quotations omitted). 25] /// 26] /// 271 /// 28] ///

1 DISCUSSION 2 3 The ALJ erred by failing properly to consider the limitations of 4 illiteracy and inability to communicate in English in relation to the 5 job of telephone solicitor. Remand is appropriate. 6 7 Where, as here, a claimant is 55 years of age or older, “[i]n 8 order to find transferability of skills to skilled sedentary work 9 . . . there must be very little, if any, vocational adjustment 10 required in terms of tools, work processes, work settings, or the 11 industry.” 20 C.F.R. pt. 404, Subpt P, App. 2, § 200.00(f); accord 20

(d)(4), 416.968(d)(4) (the sedentary work must be 13 “so similar to your previous work that you would need to make very 14 little, if any, vocational adjustment”). In the present case, the ALJ 15 relied on vocational expert testimony to find that Plaintiff 16 supposedly would require very little vocational adjustment from his 17 prior work as an automobile salesperson to perform sedentary work as a 18 telephone solicitor. Neither the ALJ nor the vocational expert 19 expressly considered whether Plaintiff’s English language limitations 20 would affect the transferability of skills or otherwise impact on 21 Plaintiff’s ability to perform the job of telephone solicitor. This 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 5 1| was error.’ 3 The Dictionary of Occupational Titles (“DOT”) provides that a 4) telephone solicitor must be able to “[s]peak before an audience with 5|| poise, voice control, and confidence, using correct English” and 6| “[w]lrite reports and essays .. . using all parts of speech.” See DOT 7) 299.357-014 (noting job has a Language Level 3 requirement) (emphasis 8] added). In the present case, the hypothetical questions the ALJ posed 9]} to the vocational expert did not include any English language 10] limitation (A.R. 41-42). 11 12 Where a hypothetical question fails to include all of the 13] claimant’s limitations, the vocational expert’s answer to the question 14] cannot constitute substantial evidence to support an ALJ’s decision. 15] See, e.g., DeLorme v. Sullivan,

(9th Cir. 1991); 16] Gamer v. Secretary,

(9th Cir. 1987); Gallant v. 17] Heckler,

(9th Cir. 1984). The ALJ’s general 18] reference to Plaintiff’s “education” did not suffice to include 19] Plaintiff’s language limitations in the hypothetical questions posed 20] to the vocational expert. See, e.g., Kim v. Berryhill,

) 626206, at *7 (C.D. Cal. Jan. 30, 2018) (ALJ’s general reference to 22| the claimant’s “educational background,” while omitting any reference 23], to the claimant’s limited language skills, did not make hypothetical L454] 5 3 The error was potentially material. If the ALJ had found that Plaintiff has no transferrable skills from his 26|| automobile salesperson job, Plaintiff would be deemed disabled under the Grids. See 20 C.F.R. Pt. 404, Subpt. P. App. 2 27|| (“Grids”) §§ 202.02, 202.03; see also Cooper v. Sullivan,

(9th Cir. 1989) (a conclusion of disability, 281 gdirected by the Grids, is irrebuttable).

1 questions sufficient). Nor could the ALJ’s error be nullified by the 2 vocational expert’s possible awareness that Plaintiff was being 3 assisted by a Spanish language interpreter at the hearing. See, e.g., 4 Amezcua v. Berryhill,

, at *7 (C.D. Cal. July 31, 2017) 5 (where ALJ failed to pose hypothetical questions to vocational expert 6 accurately reflecting all of the claimant’s relevant characteristics, 7 “it does not become the [vocational expert’s] burden to correct the 8 ALJ and utilize characteristics that the [vocational expert] observes 9 at the hearing,” i.e., the use of an interpreter). 10 11 A proper hypothetical question adding an inability “to 12 communicate in English” may well have elicited a response from the 13 vocational expert that the hypothetical claimant could not work as a 14 telephone solicitor. See DOT 299.357-014. Such question also may 15 very well have elicited a response that Plaintiff did not have skills 16 that would transfer to the telephone solicitor job. See Cooley v. 17 Colvin,

, at *6 n.5 (C.D. Cal. March 30, 2015) 18 (“customer service sales skills” acquired in restaurant work by a 19 claimant “closely approaching advanced age” could not transfer to a 20 telemarketer job because the telemarketer job would require 21 “vocational adjustments ‘in terms of tools, work process, work 22 settings [and] industry’”) (citations omitted). 23 24 The ALJ also erred by invoking DOT 299.357-014 without sufficient 25 explanation regarding the conflict between the information in the DOT 26 and the limitations the ALJ found to exist. When, as here, the job 27 requirements set forth in the DOT conflict with the claimant’s 28 limitations, the ALJ must “definitively explain this deviation.” 7 1 Pinto v. Massanari,

(9th Cir. 2001) (ALJ erred in 2 failing to address the impact of claimant’s illiteracy on claimant’s 3 ability to perform a particular job). Here, the ALJ made no attempt 4 to explain the deviation from the DOT’s language requirements. 5 Rather, the ALJ stated that the information in the DOT was 6 “consistent” with the vocational expert’s testimony, despite the fact 7 that the ALJ never asked the vocational expert if a person who “is not 8 able to communicate in English” could work as a telephone solicitor 9 (A.R. 27). 10 11 In attempted avoidance of the conclusion that the ALJ erred, 12 Defendant argues that: (1) Plaintiff allegedly waived any language 13 issue by supposedly failing to argue the issue before the 14 Administration; (2) Plaintiff allegedly “did not need a translator at 15 the administrative hearing”; and (3) according to the DOT, the 16 automobile salesperson job requires a language ability level of four, 17 whereas the telephone solicitor job requires a language ability level 18 of three. See Defendant’s Motion, p. 2. As discussed below, these 19 arguments do not alter the Court’s conclusion. 20 21 First, as noted above, Plaintiff’s counsel did argue to the ALJ 22 that Plaintiff’s limited ability to speak English impacted whether 23 Plaintiff could adjust to the job of telephone solicitor (A.R. 50-51). 24 Counsel also argued to the Appeals Council that Plaintiff did not have 25 the language ability to perform the job of telephone solicitor (A.R. 26 246). No waiver occurred. In any event, the Administration has an 27 unwaivable duty to reconcile apparent conflicts between the DOT and 28 vocational expert testimony. See Lamear v. Berryhill,

, 8 1) 1206 (9th Cir. 2017). 3 Second, the transcript of the administrative hearing reflects 4) that “Mr. Conception was duly sworn to act as interpreter” (A.R. 21). 5| The ALJ acknowledged that Plaintiff “testified with the assistance of a Spanish interpreter” (A.R. 36). Thus, the record does not support 7| Defendant’s argument regarding a supposed lack of need for 8] translation. 10 Third, while the DOT provides descriptions for how jobs are 11] usually performed in the national economy, the record suggests that 12) Plaintiff's automobile salesperson job as actually performed was 13] essentially confined to Spanish speaking customers (A.R. 38). Indeed, 14] Plaintiff testified he had not succeeded in selling any automobiles to 15] non-Spanish speaking customers (id.). Thus, the DOT’s description of 16] how automobile salesperson jobs usually are performed is inapposite to 17] the issues herein. 18 19 The Court is unable to deem the errors in the present case to 20] have been harmless. See Molina v. Astrue,

(9th 21] Cir. 2012) (an error “is harmless where it is inconsequential to the 22| ultimate non-disability determination”) (citations and quotations 23] omitted); McLeod v. Astrue,

(9th Cir. 2011) (error 24| not harmless where “the reviewing court can determine from the 25] ‘circumstances of the case’ that further administrative review is 26|| needed to determine whether there was prejudice from the error”); see 27|| also Kim v. Berryhill,

, at *7 (ALJ’s failure to resolve 28| apparent conflict between claimant’s English language abilities and

1] vocational expert’s testimony that the claimant could perform work 2| that required a Language Level 4 - where record showed that claimant’s 3]) past relevant work as actually performed was at a store where she 4| could speak to customers and employees in Korean - could not be deemed 5| harmless because vocational expert’s testimony left unresolved 6| potential inconsistencies in the evidence) (citation omitted). 8 The circumstances of this case suggest that further 9] administrative review could remedy the ALJ’s error. Therefore, remand is appropriate. See McLeod v. Astrue,

; see also INS 11] v.. Ventura,

(2002) (upon reversal of an administrative 12] determination, the proper course is remand for additional agency 13] investigation or explanation, except in rare circumstances); Leon v. 14) Berryhill,

(9th Cir. 2018) (“an automatic award of 15] benefits in a disability benefits case is a rare and prophylactic 16] exception to the well-established ordinary remand rule”); Dominguez v. 17] Colvin,

(9th Cir. 2016) (“Unless the district court 18] concludes that further administrative proceedings would serve no 19) useful purpose, it may not remand with a direction to provide 20] benefits”); Treichler v. Commissioner,

, 1101 n.5 (9th 21] Cir. 2014) (remand for further administrative proceedings is the 22|| proper remedy “in all but the rarest cases”); Harman v. Apfel, 211 23] F.3d 1172, 1180-81 (9th Cir.), cert. denied,

(2000) 24|| (remand for further proceedings rather than for the immediate payment 25| of benefits is appropriate where there are “sufficient unanswered 26|| questions in the record”). There remain significant unanswered 27|| questions in the present record relating to the transferability of 28] skills from Plaintiff's past relevant work and Plaintiff’s ability to 10

1 perform the telephone solicitor job. 2 3 CONCLUSION 4 5 For all of the foregoing reasons,4 Plaintiff’s and Defendant’s 6 motions for summary judgment are denied and this matter is remanded 7 for further administrative action consistent with this Opinion. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: August 9, 2019. 12 13 /s/ CHARLES F. EICK 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 4 The Court has not reached any other issue raised by 27 Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be 28 appropriate at this time. 11