1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHAWN KIRBY HANNA, Case No. 2:18-cv-08773-JFW-MAA

12 Plaintiff, ORDER ACCEPTING FINDINGS 13 v. AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE 14 ANDREW M. SAUL, Commissioner JUDGE of Social Security, 15 16 Defendant. 17

18 Pursuant to

, the Court has reviewed the Complaint and all 19 other records on file, as well as the Report and Recommendation of the United 20 States Magistrate Judge (“R&R,” ECF No. 26). 21 The Court also has reviewed the Objections filed by Defendant, as well as 22 Plaintiff’s response to the Objections. (“Objections,” ECF No. 21; and “Response,” 23 ECF No. 22.) For the reasons discussed below, the Objections are overruled. 24 Defendant objects that, contrary to the findings in the R&R, the new 25 vocational evidence presented for the first time to the Appeals Council does not 26 warrant reversing the ALJ’s decision to deny disability benefits. According to 27 Defendant, that evidence was “outside the record,” not “material,” and presented 28 without “good cause.” (Objections at 2, 4.) To the contrary, the new vocational 1 evidence was a part of the record before the Commissioner (not outside of it) and 2 material. See Brewes v. Commissioner of Social Sec. Admin.,

, 1163- 3 64 (9th Cir. 2012) (holding that, where the Appeals Council incorporated new 4 evidence presented to it for the first time, the evidence was a part of the record and 5 material). Moreover, because the evidence was presented for the first time to the 6 Appeals Council, no “good cause” requirement applied. See

at 1162 7 (“Claimants need not show ‘good cause’ before submitting new evidence to the 8 Appeals Council.”). 9 Defendant further objects that the ALJ’s decision should be affirmed because 10 the ALJ properly exercised her authority to resolve the ambiguities and conflicts in 11 the vocational evidence before her. (Objections at 3, 7, 8.) This is an inaccurate 12 characterization of what happened. If it were merely the case that the ALJ had 13 resolved an ambiguity or conflict in the evidence, then the Court would be required 14 to uphold that resolution. (R&R at 7.) But the vocational evidence before the ALJ 15 contained no ambiguities or conflicts. Rather, that evidence was possibly outdated 16 and erroneous. The vocational expert who testified before the ALJ was unable to 17 shed any light on that possibility because he had no personal knowledge of the 18 relevant occupation. (R&R at 7.) Thus, the ALJ relied instead on the Dictionary of 19 Occupational Titles (“DOT”) to conclude that Plaintiff could still perform his past 20 relevant occupation. As discussed in the R&R, that conclusion was called into 21 question by the new evidence presented to the Appeals Council, by a vocational 22 expert with personal knowledge of the occupation. (R&R at 7-8.) 23 Defendant finally objects that, because this case was resolved at step four of 24 the Commissioner’s five-step evaluation, the testimony by a vocational expert was 25 not even required. (Objections at 5-6.) But in the particular circumstances here, 26 vocational evidence was critical at step four because the ALJ’s conclusion relied on 27 Plaintiff’s past relevant work as it is “generally” performed in the national 28 economy. See Pinto v. Massanari,

(9th Cir. 2001) (noting 1 | that, at step four, the best source of information for how past relevant work is 2 || generally performed is vocational evidence such as the DOT, which may be 3 || rebutted by a vocational expert). The particular vocational evidence that the ALJ 4 || relied upon here at step four, the DOT, was called into question by the new 5 || vocational evidence submitted to the Appeals Council. (R&R at 7-8.) Contrary to 6 || Defendant’s suggestion, the DOT was not insulated from objection merely because 7 || this case ended at step four. See Pinto,

(holding that, at step 8 || four, an ALJ’s reliance on the DOT was “not sufficient” where the information in 9 || the DOT failed to comport with the claimant’s limitations). 10 After having made a de novo determination of the portions of the Report of 11 || Recommendation to which Defendant directed the Objections, the Court concurs 12 || with and accepts the findings and conclusions of the Magistrate Judge. 13 Accordingly, IT IS ORDERED: 14 1. The Report and Recommendation is accepted; 15 2. Defendant’s Objections are overruled; 16 3. Judgment shall be entered reversing the Commissioner’s decision and 17 remanding the matter for further administrative proceedings; and 18 4 The Clerk of Court shall serve this Order and the Judgment on counsel 19 for Plaintiff and for Defendant. 20 21 || DATED: January 14, 2020 22 2 □□ □□□ 23 Apa STATES DISTRICT JUDGE 24 25 26 27 28