(SS) Julian v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHEYENNE LOLA JULIAN, No. 2:22-cv-01775 AC 12 Plaintiff, 13 v. ORDER 14 MARTIN O’MALLEY, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under 20 Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f.1 For the reasons that 21 follow, the court will grant plaintiff’s motion for summary judgment and deny the 22 Commissioner’s cross-motion for summary judgment. 23 //// 24 //// 25 26 1 SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) 27 (“Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall 28 below specified levels . . .”). 1 I. PROCEDURAL BACKGROUND 2 Plaintiff filed applications for supplemental security income and child disability benefits 3 in 2014 and 2015, respectively. AR 239, 248. ALJ Mary Beth O’Connor originally denied the 4 applications on October 3, 2017. AR 16-27. The matter was remanded by this court after a 5 stipulated motion to remand in December 2019. AR 901-903. ALJ Michael Cabotaje held 6 another hearing on May 13, 2021 (AR 847-880) and issued a decision on May 26, 2021 (AR 944- 7 956). Plaintiff’s counsel submitted a written brief with exceptions to the ALJ’s decision. AR 8 1385-1392. The ALJ, on his own initiative, reopened the case, obtained new medical expert 9 testimony from A. Pdczerwinsky, a medical expert, and held a supplemental hearing on 10 September 23, 2021. AR 803-04, 828-847. The ALJ issued the decision now before the court on 11 October 27, 2021. AR 803-819. The ALJ’s decision became the agency’s final decision when the 12 Appeals Council denied review on September 9, 2022. AR 794-96. 13 Plaintiff filed this action on October 7, 2022. ECF No. 1; see 42 U.S.C. §§ 405(g), 14 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF No. 10. The 15 parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the 16 Commissioner, have been fully briefed. ECF Nos. 11 (plaintiff’s summary judgment motion), 15 17 (Commissioner’s summary judgment motion), 16 (plaintiff’s response). 18 II. FACTUAL BACKGROUND 19 Plaintiff was born in 1996, and she alleged disability beginning prior to age 22. AR 239. 20 Plaintiff can communicate in English. Id. Plaintiff attended special education classes while in 21 school and has a 12th grade education. AR 291. Plaintiff alleged impairments due to an enlarged 22 heart, leakage across ventricular septal defect, and learning disability. AR 290. 23 III. LEGAL STANDARDS 24 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 25 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 26 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 27 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 28 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 1 Substantial evidence is “more than a mere scintilla,” but “may be less than a 2 preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 3 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 4 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While 5 inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from 6 the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation 7 omitted). 8 Although this court cannot substitute its discretion for that of the Commissioner, the court 9 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 10 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 11 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 12 court must consider both evidence that supports and evidence that detracts from the ALJ’s 13 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 14 “The ALJ is responsible for determining credibility, resolving conflicts in medical 15 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 16 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 17 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 18 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 19 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 20 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 21 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 22 evidence that the ALJ did not discuss”). 23 The court will not reverse the Commissioner’s decision if it is based on harmless error, 24 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 25 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 26 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 //// 1 IV. RELEVANT LAW 2 Supplemental Security Income is available for every eligible individual who is “disabled.” 3 42 U.S.C. § 1381a. Plaintiff is “disabled” if she is “‘unable to engage in substantial gainful 4 activity due to a medically determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 5 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. § 1382c(a)(3)(A). 6 The Commissioner uses a five-step sequential evaluation process to determine whether an 7 applicant is disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4); Barnhart v. Thomas, 540 8 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine 9 disability” under Title II and Title XVI). The following summarizes the sequential evaluation: 10 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 11 20 C.F.R. § 416.920(a)(4)(i), (b). 12 Step two: Does the claimant have a “severe” impairment? If so, 13 proceed to step three. If not, the claimant is not disabled. 14 Id., § 416.920(a)(4)(ii), (c). 15 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, 16 Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four. 17 Id., § 416.920(a)(4)(iii), (d). 18 Step four: Does the claimant’s residual functional capacity make him 19 capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 20 Id., § 416.920(a)(4)(iv), (e), (f). 21 Step five: Does the claimant have the residual functional capacity 22 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 23 Id., § 416.920(a)(4)(v), (g). 24 25 The claimant bears the burden of proof in the first four steps of the sequential evaluation 26 process. 20 C.F.R. § 416.912(a) (“In general, you have to prove to us that you are blind or 27 disabled”); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the sequential analysis, 28 the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can 1 engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698 2 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 3 V. THE ALJ’s DECISION 4 The ALJ made the following findings: 5 1. Born on June 16, 1996, the claimant had not attained age 22 as of June 16, 2014, the amended alleged onset date (20 CFR 6 404.102, 416.120(c)(4) and 404.350(a)(5)). 7 2. [Step 1] The claimant engaged in substantial gainful activity during the following periods: July of 2019 through September of 8 2020 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.). 9 3. [Step 1] However, there have been continuous 12-month periods 10 during which the claimant did not engage in substantial gainful activity. The remaining findings address the periods the claimant 11 did not engage in substantial gainful activity. 12 4. [Step 2] The claimant has the following severe impairments: congenital heart disease, borderline intellectual functioning, 13 specific learning disability (20 CFR 404.1520(c) and 416.920(c)). 14 5. [Step 3] The claimant does not have an impairment or 15 combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, 16 Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). 17 6. [Preparation for Step 4] After careful consideration of the entire 18 record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 19 404.1567(c) and 416.967(c) except she can stand and walk for six hours and sit for six hours in an eight-hour workday and 20 occasionally climb ladders, ropes, and scaffolds. She can perform no work at unprotected heights. She has the concentration, 21 persistence, and pace to perform one- to two-step tasks, and she requires assistance with reading and math. 22 7. [Step 4] The claimant has no past relevant work (20 CFR 23 416.965). 24 8. [Step 5] The claimant was born [in 1996] and was 18 years old, which is defined as a younger individual age 18-49, on the 25 amended alleged disability onset date (20 CFR 404.1563 and 416.963). 26 9. [Step 5, continued] The claimant has at least a high school 27 education (20 CFR 416.964). 28 1 10. [Step 5, continued] Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 2 404.1568 and 416.968). 3 11. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs 4 that exist in significant numbers in the national economy that the claimant can perform (20 CF'R 416.969 and 416.969(a)). 5 12. The claimant has not been under a disability, as defined in the 6 Social Security Act, from January 1, 1999, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(g) and 7 416.920(g)). 8 AR 806-19. As noted, the ALJ concluded that plaintiff was “not disabled” under 9 Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 819. 10 VI. ANALYSIS 11 Plaintiff alleges that the ALJ erred by (1) erroneously discounting social work restrictions 12 assessed by the State agency mental health consultants, E. Adamo, Ph.D., and L. Colsky, M.D.; 13 (2) failing to properly evaluate the examining opinion of the consulting psychologist, Sherry 14 Lebeck, Ph.D.; and (3) failing to resolve apparent inconsistencies between the vocational expert’s 15 testimony and the Dictionary of Occupational Titles. ECF No. 11 at 6. 16 A. Evaluation of Drs. Adamo and Colsky 17 Plaintiff contends that the ALJ erred in discounting restrictions related to social 18 interaction that were assessed by Agency mental health consultants Dr. E. Adamo and Dr. L. 19 Colsky. ECF No. 11 at 6-8. Generally, there are three types of physicians that can offer opinions 20 in Social Security cases: “(1) those who treat the claimant (treating physicians); (2) those who 21 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 22 nor treat the claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th 23 Cir.1995), see also Pitzer v. Sullivan, 908 F.2d 502, 506, n4 (9th Cir.1990).2 The opinion of a 24 treating physician is normally given more weight than the opinion of an examining physician, and 25 the opinion of a non-examining physician is given the least amount of weight. Id.; Baxter v. 26 27 2 Plaintiff filed for disability prior to March 27, 2017. Therefore, the Social Security Administration’s 2017 revised regulations governing the consideration of medical opinions do not 28 apply. See 20 C.F.R. §§ 404.1520c, 416.920c (2017). 1 Sullivan, 923 F.2d 1391, 1396 (9th Cir.1991). For the ALJ to reject the opinion of a physician, 2 they must put forth the required rationale. If the ALJ rejects the opinion of a treating or 3 examining physician, where that opinion is not contradicted, the ALJ must point to “clear and 4 convincing” reasons for the rejection. Lester, 81 F.3d at 830–31. If the opinion is contradicted 5 by another doctor, the opinion of the treating or examining physician can be rejected only if the 6 ALJ provides “specific and legitimate” reasons for doing so. Id.; Andrews v. Shalala, 53 F.3d 7 1035, 1043 (9th Cir. 1995). “An ALJ may reject the opinion of nonexamining physicians so long 8 as the ALJ references specific evidence in the medical record that supports doing so.” Burkett v. 9 Saul, 806 Fed.Appx. 509, 511 (9th Cir. Mar. 6, 2020) (internal citations omitted). 10 Here, State agency psychologist, E. Adamo, Ph.D., reviewed plaintiff’s record and opined 11 that plaintiff could perform simple work, but that she was limited to interacting verbally with 12 others on a brief and superficial level. AR 95. Dr. Adamo assessed moderate limitations in the 13 ability to get along with coworkers and peers without distracting them or exhibiting behavioral 14 extremes, and moderate limitations interacting with the general public. AR 95. Dr. Adamo noted 15 that plaintiff had expressive language weakness, and specifically cited to an expressive 16 vocabulary score of 79 and articulation errors that reduced overall speech intelligibility. AR 105. 17 On April 20, 2015, a State agency psychiatrist, L. Colsky, M.D., agreed with the mental work 18 restrictions assessed by Dr. Adamo. AR 124. 19 The ALJ “gave weight” to the State agency mental health consultants’ opinions regarding 20 the to the limitation to simple tasks, but found the limitations on interacting with others to be 21 unsupported and inconsistent with evidence at the hearing. AR 817. The ALJ acknowledged that 22 the consultants’ “review of the evidence generally supports their opinion[,]” citing plaintiff’s 23 failure of her high school exit exam, IQ scores in the borderline range, a history of speech 24 problems, and testing that showed she had cognitive deficits. AR 817. However, citing the 25 hearing testimony generally, the ALJ reasoned that because plaintiff has worked since 2016 and 26 reported no problems interacting with customers, and the records reflect “no persistent symptoms 27 or ongoing treatment[,]” the record was inconsistent with a limitation on interacting with others. 28 AR 817. 1 The ALJ’s rationale for discounting the assessed social limitations is not well supported 2 by the non-specific reference to hearing testimony or by the non-specific reference to the lack of 3 ongoing treatment. The May 13, 2021 hearing transcript reflects that plaintiff’s aunt, who got 4 plaintiff the position at Lucky Supermarket, testified that she was surprised plaintiff still has the 5 job because she has difficulty interacting with her managers and has been written up. AR 867-69. 6 Indeed, regarding plaintiff’s work activity, her description of duties (bagging groceries, cleaning 7 spills, moving carts) did not indicate that she engaged in more than brief and superficial 8 interaction with customers or coworkers. See AR 856. She testified she gets along with her 9 bosses “occasionally.” AR 858. Earlier hearing testimony from April 28, 2017, shows that when 10 asked whether plaintiff got along with her coworkers, plaintiff responded “sometime” and 11 explained that they would “get on my case of not doing the job properly.” AR 47. The ALJ 12 followed up, “So other than that, have you pretty much gotten along with, you know, the other 13 workers?” and plaintiff responded “yeah.” AR 48. This is not a clear statement that plaintiff was 14 able to maintain more than minimal functional interactions with coworkers and customers. The 15 ALJ did not reference specific evidence in the record to support discounting the assessed social 16 limitations, and a review of the ALJ’s general references does not support the ALJ’s conclusion. 17 The ALJ erred by discounting the assessed social limitations without a proper basis. 18 B. The ALJ Failed to Properly Evaluate Dr. Lebeck’s Opinion 19 On May 26, 2016, plaintiff attended a psychological evaluation performed under the 20 supervision of Sherry Lebeck, Ph.D. AR 739-751. Plaintiff scored a full-scale IQ of 71 on 21 intelligence testing and was diagnosed with borderline intellectual functioning. AR 742, 748. As 22 mentioned above, the ALJ may only reject a treating or examining physician’s uncontradicted 23 medical opinion based on clear and convincing reasons. Where such an opinion is contradicted, 24 however, it may be rejected for specific and legitimate reasons that are supported by substantial 25 evidence in the record.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 26 2008) (internal citations omitted). Here, the ALJ gave the opinion “little weight as it does not 27 provide a function-by-function assessment, but suggests the claimant is capable of working with a 28 //// 1 limitation to simple tasks, consistent with the evidence of record.” AR 815. Plaintiff asserts this 2 is error. The court agrees. 3 The parties both acknowledge that when presented with a medical opinion that does not 4 use typical terminology, the ALJ must “translate” terms of art contained in non-Social Security 5 medical opinions “into the corresponding Social Security terminology in order to accurately 6 assess the implications of those opinions for the Social Security disability determination.” Booth 7 v. Barnhart, 181 F. Supp. 2d 1099, 1106 (C.D. Cal. 2002). They disagree on whether such 8 “translation” occurred in this case. 9 Dr. Lebeck opined that plaintiff “would benefit from learning in small chunks of no more 10 than four components of information at a time that are simple in nature[;] repeated exposure to 11 new information and [being] allowed at least 20 minutes to consolidate newly learned 12 information[; and] being given new information in verbal and visuospatial forms, to include 13 making written notes.” AR 750. Defendant argues that though the ALJ found Dr. Lebeck did not 14 complete a “a function-by-function assessment,” he that these recommendations were consistent 15 “with a limitation to simple tasks . . . .” AR 815. Thus, argues defendant, the ALJ adopted and 16 exceeded Dr. Lebeck’s opinion by limiting plaintiff to “one- to two-step tasks” and requiring 17 “assistance with reading and math.” ECF No. 15 at 8. Plaintiff argues that the “little weight” 18 comment indicates the opinion was rejected and not “translated,” and that contrary to defendant’s 19 assertion, a limitation to simple work did not accommodate Dr. Lebeck’s assessment of 20 limitations regarding how plaintiff learns new information because regardless of the simplicity of 21 work tasks, plaintiff would need to learn how to perform any new occupation, and restrictions on 22 her ability to retain and process new information constituted a substantial barrier to employment. 23 ECF No. 16 at 3. 24 The court agrees with plaintiff that the ALJ did not translate Dr. Lebeck’s assessment into 25 typical functional limitations. The opinion itself is quite clear that ALJ assigned “little weight” to 26 the opinion because it did not contain a function-by-function assessment, and the ALJ did not 27 address the learning limitations identified by Dr. Lebeck at all. AR 815. The ALJ finding the 28 opinion consistent with a limitation to one-to-two step tasks does not clearly incorporate Dr. 1 Lebeck’s findings, which include significant limitations regarding the integration of new 2 information. The ALJ was not permitted to summarily reject Dr. Lebeck’s argument because it 3 did not contain a function-by-function assessment; that rationale does not constitute “clear and 4 convincing reasons that are supported by substantial evidence.” Revels v. Berryhill, 874 F.3d 5 648, 654 (9th Cir. 2017). Thus, the ALJ erred. 6 C. The ALJ Did Not Fail to Resolve Inconsistencies Between the VE and the DOT 7 At step five of the sequential evaluation process, the Commissioner has the burden “to 8 identify specific jobs existing in substantial numbers in the national economy that [a] claimant 9 can perform despite [his] identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 10 Cir.1995); see also 20 C.F.R. § 416.920(g). The ALJ may consult a series of vocational 11 resources, including a vocational expert (VE) and the Dictionary of Occupational Titles (DOT). 12 See Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017). 13 Although evidence provided by a vocational expert “generally should be consistent” with the Dictionary of Occupational Titles, 14 ‘[n]either the [Dictionary of Occupational Titles ] nor the [vocational expert] ... evidence automatically ‘trumps’ when there is a conflict.’ 15 Thus, the ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the vocational expert's 16 explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the Dictionary of Occupational 17 Titles. 18 Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007), quoting SSR 00–4p at *2. “For a 19 difference between an expert’s testimony and the Dictionary’s listings to be fairly characterized 20 as a conflict, it must be obvious or apparent. This means that the testimony must be at odds with 21 the Dictionary’s listing of job requirements that are essential, integral, or expected.” Gutierrez v. 22 Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 23 Here, the VE testified that an individual with plaintiff’s RFC “would be able to perform 24 the requirements of representative occupations such as laundry laborer (DOT # 361.687-018; 25 unskilled (SVP 2); reasoning level 1; medium exertion; 10,000 jobs nationally), general inspector 26 (DOT # 739.687-038; unskilled (SVP 2); reasoning level 1; light exertion; 12,500 jobs 27 nationally), and lens inserter (DOT # 713.687-026; unskilled (SVP 2); reasoning level 1; 28 sedentary exertion; 11,000 jobs nationally).” AR 818-819. Plaintiff asserts that the ALJ failed to 1 resolve a conflict because the VE’s testimony that a hypothetical person restricted to 1 to 2-step 2 tasks and requiring assistance with reading and math could perform these jobs, where the DOT 3 identifies each of these occupations as involving a Language Level of 1 and a Math Level of 1. 4 ECF No. 11 at 11. 5 The DOT describes a Language Level of 1 as involving “Recognize meaning of 2,500 6 (two- or three-syllable) words. Read at rate of 95-120 words per minute. Compare similarities 7 and differences between words and between series of numbers.” See, e.g., DOT No. 361.687- 8 018, 1991 WL 672992. The DOT describes a Math Level of 1 as involving: “Add and subtract 9 two-digit numbers. Multiply and divide 10’s and 100’s by 2, 3, 4, 5. Perform the four basic 10 arithmetic operations with coins as part of a dollar. Perform operations with units such as cup, 11 pint, and quart; inch, foot, and yard; and ounce and pound.” Id. The VE testified that each of the 12 aforementioned jobs could be learned with a short demonstration and did not require any reading 13 or math. AR 877. The ALJ did not ask whether the “no reading” and “no math” statements were 14 consistent with the descriptions in the DOT. 15 Defendant argues that there is no apparent conflict between the DOT and the VE’s 16 testimony because nothing in the actual “job descriptions suggests there was any reading or math 17 involved in [the named jobs’] performance, and so reading and math were not essential, integral, 18 or expected in these occupations.” ECF No. 15 at 1. Defendant relies on Gutierrez v. Colvin, in 19 which the Ninth Circuit stated that for a conflict to be apparent, “the testimony must be at odds 20 with the Dictionary’s listing of job requirements that are essential, integral, or expected. This is 21 not to say that ALJs are free to disregard the Dictionary’s definitions or take them with a grain of 22 salt—they aren’t. But tasks that aren’t essential, integral, or expected parts of a job are less likely 23 to qualify as apparent conflicts that the ALJ must ask about.” 844 F.3d at 808. 24 Here, the DOT’s description of the job “laundry laborer” includes, among other duties, 25 “weighs laundry on scales and records weight on tickets.” 361.687-018 Laundry Laborer, 26 DICOT 361.687-018, 1991 WL 672992. The description of “block inspector” reads: “Observes 27 wooden match blocks passing on conveyor and removes those containing pitch pockets, faulty 28 grain, and knots.” 739.687-038 Block Inspector, DICOT 739.687-038, 1991 WL 680182. The 1 job “lens inserter” description reads: “Fits lenses into plastic sunglass frames and places frames 2 on conveyor belt that passes under heat lamps which soften frames preparatory to setting of 3 lenses.” 713.687-026 Lens Inserter, DICOT 713.687-026, 1991 WL 679273. The court agrees 4 with defendant that at least two of these occupations, block inspector and lens inserter, do not 5 contain duties that conflict with the VE testimony. While the position of laundry laborer contains 6 a possible conflict, any error is harmless because at least two other occupations are available. 7 D. Remand for Further Consideration is Necessary 8 As discussed above, the ALJ erred in erred by improperly considering the medical 9 opinions of Drs. Adamo, Colsky, and Lebeck. The undersigned agrees with plaintiff that the 10 ALJ’s error is harmful and remand for further proceedings by the Commissioner is necessary. An 11 error is harmful when it has some consequence on the ultimate non-disability determination. 12 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s error in this 13 matter was harmful; correcting the errors may very well result in a more restrictive residual 14 functional capacity assessment, which may in turn alter the finding of non-disability. 15 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 16 and, ultimately, whether he is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 17 (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 18 Security Administration in the first instance, not with a district court”). “Remand for further 19 administrative proceedings is appropriate if enhancement of the record would be useful.” 20 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Further development of the record 21 consistent with this order is necessary, and remand for further proceedings is the appropriate 22 remedy. 23 VII. CONCLUSION 24 For the reasons set forth above, IT IS HEREBY ORDERED that: 25 1. Plaintiff’s motion for summary judgment (ECF No. 11), is GRANTED; 26 2. The Commissioner’s cross-motion for summary judgment (ECF No. 15), is DENIED; 27 3. The matter is REMANDED to the Commissioner for further proceedings consistent 28 with this order; and ] 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. 2 SO ORDERED. 3 | DATED: February 28, 2024 4 ttt0n— ALLISON CLAIRE 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13