1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GILBERTO F. E.,1 Case No. 2:19-cv-05368-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REVERSING DECISION 14 ANDREW SAUL, OF THE COMMISSIONER AND 15 Commissioner of Social Security, REMANDING FOR THE AWARDING OF BENEFITS 16 Defendant. 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying hisapplication for social security disability insurancebenefits. In accordance 20 with the Court’s case management order, the parties have filed briefs addressing the 21 merits of the disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 On February 18, 2016, Plaintiff protectively applied for disability insurance 24 benefits, alleging disability beginning February 12, 2014. Plaintiff’s application was 25 denied. (Administrative Record [“AR”] 80.) A hearing took place on April 30, 2018, 26 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 before an Administrative Law Judge (“ALJ”). Plaintiff, who was represented by 2 counsel, and a vocational expert (“VE”) testified at the hearing. (AR 32-63.) 3 In a decision dated July 2, 2018, the ALJ found that Plaintiff suffered from the 4 severe impairments of degenerative disc disease of the lumbar spine status post 5 discectomy and revision and fusion L5-S1. (AR 20.) After concluding that Plaintiff’s 6 impairments did not meet or equal any listed impairment for the period from 7 February 12, 2014 through July 18, 2015, the ALJ determined that Plaintiff retained 8 the residual functionalcapacity (“RFC”) to perform less than a full range of sedentary 9 work light work. Further, the ALJ determined that Plaintiff was not able to perform 10 his past relevant work and that Plaintiff wasdisabled for the period February 12, 2014 11 through July 18, 2015. (AR 24.) 12 The ALJ also determined that medical improvement occurred relating to 13 Plaintiff’s ability to work, and there was an increase in Plaintiff’s RFC. Beginning 14 July 19, 2015, Plaintiff had the ability to perform light work except with the 15 following limitations: lifting more than 15 pounds occasionally or 5 pounds 16 frequently; sitting for more than four hours in an eight hour workday and for more 17 than 45 minutes at a time; standing for more than two hours during an eight hour 18 workday or for more than 20 minutes at a time; walking for more than two hours in 19 an eight hour workday and for more than 15 minutes at a time; any work involving 20 uneven surfaces, ladders, crawling, heavy machinery, extreme cold or repetitive 21 twisting with the lumbar spine, working at heights, more than occasionally climbing 22 stairs, and more than occasionally stooping, crawling, or kneeling. (AR 24-25.) 23 Relying on the testimony of the VE, the ALJ concluded that beginning July 19, 2015, 24 and considering Plaintiff’s age, education, work experience and RFC, Plaintiff was 25 capable of making a successful adjustment to work that exists in significant numbers 26 in the national economy. Accordingly, the ALJ concluded that Plaintiff’s disability 27 ended July 19, 2015. (AR 26.) 28 1 The Appeals Council subsequently denied Plaintiff’s request for review (AR 2 1-6), rendering the ALJ’s decision the final decision of the Commissioner. 3 STANDARD OF REVIEW 4 Under

(g), this Court reviews the Commissioner’s decision to 5 determine whether the Commissioner’s findings are supported by substantial 6 evidence and whether the proper legal standards were applied. See Treichler v. 7 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2014). Substantial 8 evidence means “more than a mere scintilla” but less than a preponderance. See 9 Richardson v. Perales,

(1971); Lingenfelter v. Astrue,

1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 12 U.S. at 401. This Court must review the record as a whole, weighing both the 13 evidence that supports and the evidence that detracts from the Commissioner’s 14 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 15 than one rational interpretation, the Commissioner’s decision must be upheld. See 16 Orn v. Astrue,

(9th Cir. 2007). 17 DISCUSSION 18 Plaintiff contends the Commissioner’s decision should be reversed because the 19 ALJ erred in her Step 5 determination2 that an individual with Plaintiff’s limitations 20 could perform jobs that existed in sufficient numbers in the national economy.Plaintiff 21 also seeks an award of benefits by the Court. The Commissioner disagrees that the ALJ 22 23 2 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. 24 §§404.1520, 416.920. The steps are: (1) Is the claimant presently engaged in substantial gainful 25 activity? If so, the claimant is found not disabled. If not, proceed to step two; (2) Is the claimant’s impairment severe? If not, the claimant is found not disabled. If so, proceed to step three; (3) Does 26 the claimant’s impairment meet or equal the requirements of any impairment listed at 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four; 27 (4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five to determine if sufficient jobs exist in the national economy that could 28 1 erred in the Step 5 determination but contends that other errors by the ALJ require a 2 remand for further proceedings. 3 At step five, an ALJ addresses the question “Is the claimant able to do any 4 other work?” If not, the claimant is found disabled. If so, the claimant is found not 5 disabled.

(b)-(g)(1) & 416.920(b)-(g)(1). The burden is on the 6 Commissioner to establish the existence of other work for a person with claimant’s 7 impairments. The Commissioner may satisfy the burden to show jobs existed for the 8 claimant in the national economy either (1) by obtaining testimony from a vocational 9 expert or (2) by referencing the grids. Lounsburry v. Barnhart,

, 1115 10 (9th Cir. 2006). If the grids do not “completely and accurately represent a claimant’s 11 limitations,” the ALJ is required to obtain and consider vocational expert testimony. 12 Tackett v. Apfel,

(9th Cir. 1999) (emphasis in original); see 20 13 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(d) (“If an individual’s specific profile is not 14 listed within [the Medical–Vocational Guidelines], a conclusion of disabled or not 15 disabled is not directed.”). When the grids do not apply, they must be used only as a 16 “reference point” or “overall structure.” Desrosiers v. Sec’y of Health & Human 17 Servs.,

(9th Cir. 1988). If a plaintiff’s exertional level falls in the 18 middle of two rules that direct opposite conclusions under the grids, i.e., “not 19 disabled” under the higher rule but “disabled” under the lower rule, the ALJ must 20 “call a vocational expert and hear testimony as to whether the claimant can perform 21 enough light jobs in the national economy to warrant a finding of ‘not disabled.’”

22 at 579–80 (emphasis in original). 23 Here, there is no dispute that the ALJ’s RFC after July 19, 2015 was an 24 exertion level less than light work but more than sedentary. It is also undisputed that 25 as of February 4, 2017, Plaintiff changed age categories as he reached 50 and became 26 a person “closely approaching advanced age.” 20 C.F.R. Pt. 404, Subpt. P, Appendix 2, 27 28 1 § 201.10.3 Because Plaintiff reached age 50 on February 4, 2017 while still insured, he 2 would be disabled under the grids if could only perform sedentary work as of this date. 3 Under the RFC, Plaintiff was not able to perform all the requirements of light work, and 4 therefore, the ALJ asked a vocational expert to help determine whether an individual 5 with Plaintiff’s RFCcould perform jobs that existed in sufficient numbers in the national 6 economy. 7 The VE was called as an expert witness by the ALJ, and the VE’squalifications 8 as an expert were not questioned. Plaintiff’s reply provides a description of the 9 questioning of the VE at the hearing, which the Court finds to be as an accurate 10 summary: 11 TheALJ asked but one hypothetical question which contained restrictions 12 identical tothe restrictions of the medical advisor who had earlier testified 13 (see AR 48-49 andcompare to the ALJ’s hypothetical at AR 58). Nowhere 14 did the VE indicate he was “confused,” and there is nothing to suggest he 15 was. The VE asked the ALJ for “clarification” regarding the precise 16 amount of sitting and standing the hypothetical question asked him to 17 presume (AR 59). The ALJ provided that clarification, as well as a 18 reminder that “the weight limitation” also must be considered, and also 19 pointing out “that’s what the doctor said”(AR 59). The ALJ then correctly 20 pointed out “you’re the expert” and “you need to tell me,” clearly 21 anticipating the VE would respond by identifying the occupational base 22 available to the hypothetical persondescribed in her question (AR 59). The 23 VE responded “I’m going to have to bring it down to sedentary” (AR 59). 24 He then cited three sedentary, unskilled occupations (AR 60). The ALJ did 25 not further question the VE about his understanding of the hypothetical 26 27 3 The Medical–Vocational Rules under 20 C.F.R. Part 404, Subpart P, Appendix 2 are sometimes 28 1 question. Nor did she challenge the VE’s understanding of herquestion in 2 her written decision. [ECF No. 22 at 2.] 3 Based on this testimony of the VE – identifying only sedentary jobs – Plaintiff 4 argues that the ALJ was required to find him disabled as of February 4, 2017 because 5 that is what the grids provide for one closely approaching advanced age. The 6 Commissioner, on the other hand, contends that the ALJ properly consulted the VE and 7 that the VE identified several occupations with a total of 130,000 jobs that a person like 8 Plaintiff could perform given the RFC – thus leading the ALJ to find that Plaintiff was 9 not disabled. 10 Although not cited by either side, the Court finds this issue to be addressed by 11 Distasio v. Shalala,

(9th Cir. 1995). In Distasio, “[t]he ALJ found that 12 [the plaintiff] was capable of light work, but with limitations.”

. “The 13 vocational expert testified that [the plaintiff] could only perform what she believed 14 were sedentary jobs [and] [t]he Secretary accepted the testimony of the vocational 15 expert without qualification.”

Because “[t]he Secretary failed to account for the 16 discrepancy between a finding that [the plaintiff] could perform light work and was 17 therefore not disabled, [and] the [VE’s] testimony establishing that, at best, [the 18 plaintiff] could perform jobs that fell within the sedentary category,” the Ninth 19 Circuit reversed and remanded for an award of benefits.

. 20 As in Distasio, the ALJ here found Plaintiff capable of light work with 21 limitations and “accept[ed] the [VE’s] testimony.” And – just as in Distasio – the VE 22 here testified that Plaintiff could only perform sedentary work. The Ninth Circuit in 23 Distasio found reversible error because the Commissioner had not met her burden of 24 proof at Step 5: “The vocational expert’s testimony established that, at best, [the 25 plaintiff] could perform jobs that fall within the sedentary category. The Secretary 26 has thus produced no evidence that [the plaintiff] is capable of any job other than 27 sedentary work.”

.” Likewise, in the present case, the VE confirmed that 28 sedentary work is all that falls within the ALJ’s RFC, and the VE explained why that 1 is the only kindof work available to an individual with those limitations.Under these 2 circumstances, the Commissioner failed to meet his burden at Step 5 of showing that 3 there is other work that Plaintiff can perform. To the contrary, for an individual of 4 Plaintiff’s age who is only capable of only sedentary work, the gridssupporta finding 5 of“disabled”as of February 4, 2017. As a result, the decision of the ALJ for that time 6 period was error and must be reversed. 7 REMEDY 8 “When the ALJ denies benefits and the court finds error, the court ordinarily 9 must remand to the agency for further proceedings before directing an award of 10 benefits.” Leon v. Berryhill,

(9th Cir. 2018). Ninth Circuit case 11 law “precludes a district court from remanding a case for an award of benefits unless 12 certain prerequisites are met.” Dominguez v. Colvin,

(9th Cir. 13 2016) (citations omitted). “The district court must first determine that the ALJ made 14 a legal error, such as failing to provide legally sufficient reasons for rejecting 15 evidence. If the court finds such an error, it must next review the record as a whole 16 and determine whether it is fully developed, is free from conflicts and ambiguities, 17 and all essential factual issues have been resolved.” Dominguez,

18 (citation and internal quotation marks omitted). 19 Here, the record is free from conflicts or ambiguities, and all essential factual 20 issues have been resolved. Although the Commissioner makes a one-paragraph 21 argument that the administrative record contains “inconsistencies and ambiguities,” 22 he does not specify what these are. Instead, the Commissioner generally asserts that 23 the testifying medical examiner, Dr. Levine, lacked certain records that he requested 24 during the administrative hearing. The Commissioner, however, does not contend 25 that these records existed then or could now be obtained if the case were remanded 26 for additional proceedings on the disability issue. After indicating that additional 27 records would be helpful, Dr. Levine eventually provided a medical opinion during 28 1 the hearing upon which the ALJ relied,4 and there is no indication in Dr. Levine’s 2 testimony that additional records would likely cause him to reduce Plaintiff’s 3 physical limitations. To the contrary, Dr. Levine’s testimony suggests that additional 4 records – if they existed – could permit him to find greater impairments from 5 Plaintiff’s spinal condition. (AR 39, 40, 43, 44, 47, 48.) The Commissioner also 6 attempts to challenge the ALJ’s disability finding for February 12, 2014 to July 18, 7 2015 with a generalized argument – stating simply that the ALJ did not adequately 8 explain how she found an RFC for less than the full range of sedentary work during 9 this time period. Again, the Commissioner’s assertion is conclusory and contrary to 10 the record. The ALJ’s decision cited and discussed substantial medical and 11 vocational evidence from the 2014-15 time period that provided the basis for the 12 disability finding. The Court has examined the record and does not find unresolved 13 factual issues, conflicts or ambiguities. Simply because the Commissioner failed to 14 meet the burden of showing other work at Step 5 does give rise to a right to a remand 15 and “do over” hearing before the ALJ. 16 In short, the Commissioner’s arguments fail to show that a remand for further 17 factual findings is warranted. Accordingly, as the Ninth Circuit did in Distasio, the 18 Court finds that the appropriate remedy in the present case is an award of benefits. 19 * * * * * * 20 IT IS THEREFORE ORDERED that Judgment be entered as follows: 21 22 (1) For the period February 12, 2014, to July 18, 2015, the decision of the 23 Commissioner that Plaintiff was disabled during that period is 24 AFFIRMED. 25 26 27 4 The ALJ also instructed Dr. Levine that “we’ve got to rely on the documents provided and the claimant does have the burden to establish the medical problems and the extent thereof, so at this 28 1 (2) For the period beginning February 4, 2017, the ALJ’s decision is 2 REVERSED, and Plaintiff is found to be disabled from February 4, 2017 3 through the present date. 4 5 (3) In accordance with the foregoing, the matter is remanded for the awarding 6 of benefits. 7 . Weck 9 || DATED: 7/7/2020 10 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28