(SS) Lazar v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ISHAC ESHOO LAZAR, Case No. 1:21-cv-00972-SAB 12 Plaintiff, ORDER GRANTING PLAINTIFF’S SOCIAL SECURITY APPEAL 13 v. (ECF Nos. 11, 13, 14) 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 I. 18 INTRODUCTION 19 Ishac Eshoo Lazar (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying his application for 21 disability benefits pursuant to the Social Security Act. The matter is currently before the Court 22 on the parties’ briefs, which were submitted, without oral argument, to Magistrate Judge Stanley 23 A. Boone.1 Plaintiff argues the ALJ’s step four determination that Plaintiff could perform his 24 past relevant work (“PRW”) is not supported by substantial evidence. For the reasons set forth 25 below, Plaintiff’s Social Security appeal shall be granted. 26 / / / 27 / / / 1 II. 2 BACKGROUND 3 A. Procedural History 4 On March 19, 2019, Plaintiff filed a Title II application for a period of disability and 5 disability insurance benefits, alleging a period of disability beginning on September 1, 2017. 6 (AR 198-202.) Plaintiff’s application was initially denied on April 18, 2019, and denied upon 7 reconsideration on October 25, 2019. (AR 123-127.) Plaintiff requested a hearing, and appeared 8 on November 12, 2020, for a hearing before Administrative Law Judge Karen Kostol (the 9 “ALJ”). (AR 31-71, 131-32, 161-185.) Plaintiff appeared for a hearing before the ALJ on 10 February 11, 2020. (AR 32-66.) On December 1, 2020, the ALJ issued a decision finding that 11 Plaintiff was not disabled. (AR 18-36.) The Appeals Council denied Plaintiff’s request for 12 review on April 29, 2021. (AR 7-12.) 13 On June 17, 2021, Plaintiff filed this action for judicial review. (ECF No. 1.) On March 14 17, 2022, Defendant filed the administrative record (“AR”) in this action. (ECF No. 9.) On 15 April 26, 2022, Plaintiff filed an opening brief. (Pl.’s Opening Br. (“Br.”), ECF No. 11.) On 16 June 10, 2022, Defendant filed an opposition brief. (Def.’s Opp’n (“Opp’n”), ECF No. 13.) On 17 June 27, 2022, Plaintiff filed a reply brief. (Pl.’s Reply (“Reply”), ECF No. 14.) 18 B. The ALJ’s Findings of Fact and Conclusions of Law 19 The ALJ made the following findings of fact and conclusions of law as of the date of the 20 decision, November 20, 2020: 21 • The claimant meets the insured status requirements of the Social Security Act through 22 December 31, 2021. 23 • The claimant has not engaged in substantial gainful activity since September 1, 2017, the 24 alleged onset date (20 CFR 404.1571 et seq.). 25 • The claimant has the following severe impairments: coronary artery disease with history 26 of coronary artery bypass graft x 3; generalized anxiety disorder; leg length discrepancy; 27 and lumbar spine degenerative joint disease and degenerative disc disease (20 CFR 1 • The claimant does not have an impairment or combination of impairments that meets or 2 medically equals the severity of one of the listed impairments in 20 CFR Part 404, 3 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 4 • The claimant has the residual functional capacity to perform light work as defined in 20 5 CFR 404.1567(b) except: can occasionally climb ladders, ropes or scaffolds; can 6 frequently climb ramps or stairs, balance, stoop, crouch, kneel or crawl; work should not 7 have fast-paced production requirements, such as fast-paced assembly line work or high 8 volume piecemeal quotas; capable of occasional interaction with the general public, co- 9 workers or supervisors; and must be afforded the opportunity for brief 1-2 minute 10 changes of position at intervals not to exceed 30 minutes without being off task. 11 • The claimant is capable of performing past relevant work as a cost clerk. This work does 12 not require the performance of work-related activities precluded by the claimant’s 13 residual functional capacity (20 CFR 404.1565). 14 • The claimant has not been under a disability, as defined in the Social Security Act, from 15 September 1, 2017, through the date of this decision (20 CFR 404.1520(f)). 16 (AR 21-30.) 17 III. 18 LEGAL STANDARD 19 To qualify for disability insurance benefits under the Social Security Act, the claimant 20 must show that she is unable “to engage in any substantial gainful activity by reason of any 21 medically determinable physical or mental impairment which can be expected to result in death 22 or which has lasted or can be expected to last for a continuous period of not less than 12 23 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step 24 sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 25 404.1520;2 Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1194 (9th 26 2 The cases generally cited herein reference the regulations which apply to disability insurance benefits, 20 C.F.R. 27 §404.1501 et seq., however Plaintiff is also seeking supplemental security income, 20 C.F.R. § 416.901 et seq. The regulations are generally the same for both types of benefits. Therefore, further references are to the disability 1 Cir. 2004). The five steps in the sequential evaluation in assessing whether the claimant is 2 disabled are: 3 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 4 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or 5 her ability to work? If so, proceed to step three. If not, the claimant is not disabled. 6 Step three: Does the claimant’s impairment, or combination of impairments, meet 7 or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 8 Step four: Does the claimant possess the residual functional capacity (“RFC”) to 9 perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 10 Step five: Does the claimant’s RFC, when considered with the claimant’s age, 11 education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not 12 disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). 14 Congress has provided that an individual may obtain judicial review of any final decision 15 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 16 In reviewing findings of fact in respect to the denial of benefits, this court “reviews the 17 Commissioner’s final decision for substantial evidence, and the Commissioner’s decision will be 18 disturbed only if it is not supported by substantial evidence or is based on legal error.” Hill v. 19 Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means more than a 20 scintilla, but less than a preponderance. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) 21 (internal quotations and citations omitted). “Substantial evidence is relevant evidence which, 22 considering the record as a whole, a reasonable person might accept as adequate to support a 23 conclusion.” Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) (quoting Flaten v. Sec’y of 24 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 25 “[A] reviewing court must consider the entire record as a whole and may not affirm 26 simply by isolating a specific quantum of supporting evidence.” Hill, 698 F.3d at 1159 (quoting 27 Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006). However, it is not 1 for the ALJ’s. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is 2 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be 3 upheld.”). 4 IV. 5 DISCUSSION AND ANALYSIS 6 Plaintiff argues the ALJ’s determination that Plaintiff could perform his past relevant 7 work (“PRW”) as a cost clerk as actually and generally performed was not based on substantial 8 evidence, and thus the ALJ erred at step four of the sequential analysis. 9 A. General Legal Standards Applicable to Step Four 10 “At step four, claimants have the burden of showing that they can no longer perform their 11 past relevant work.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing 20 C.F.R. §§ 12 404.1520(e), 416.920(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir.1990)); see also Lewis v. 13 Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (claimant has burden of showing they do not have the 14 RFC to engage in past relevant work). While the claimant has the burden of proof at step four, 15 “the ALJ still has a duty to make the requisite factual findings to support his conclusion.” Pinto, 16 249 F.3d at 844. “This is done by looking at the ‘residual functional capacity and the physical 17 and mental demands’ of the claimant’s past relevant work.” Id. at 844-45 (quoting 20 C.F.R. §§ 18 404.1520(e), 416.920(e)). The claimant must be able to perform: (1) the actual functional 19 demands and job duties of a particular past relevant job; or (2) the functional demands and job 20 duties of the occupation as generally required by employers throughout the national economy. 21 Pinto, 249 F.3d at 844 (citing Titles II & XVI: A Disability Claimant’s Capacity to Do Past 22 Relevant Work, in Gen., SSR 82-62 (S.S.A. 1982)). Thus, the ALJ must make specific factual 23 findings as to the claimant’s RFC, the physical and mental demands of the past relevant work, 24 and the relation of the RFC to the past work. Id. 25 B. Relevant Aspects of the Hearing Testimony, ALJ’s Decision, and Record 26 The ALJ found that Plaintiff had the following severe impairments: coronary artery 27 disease with history of coronary artery bypass graft times three; generalized anxiety disorder; leg 1 23-24.) The ALJ found that Plaintiff had the residual functional capacity to perform light work 2 with specified limitations, most relevant here being the limitation to occasional interaction with 3 the general public, co-workers, or supervisors. (AR 26–27.)3 The ALJ called James Ganoe to 4 testify as a vocational expert witness (the “VE”), who testified without objection. (AR 37, 39.) 5 At step four, the ALJ found that Plaintiff could still perform his past relevant work as a cost clerk 6 both as actually and generally performed. (AR 29–30.) The ALJ concluded that the work does 7 not require the performance of work-related activities precluded by the Plaintiff’s RFC, for the 8 following reasons: 9 The vocational expert classified the claimant’s past relevant work as a cost clerk (DOT 216.382- 034) (sedentary as generally 10 performed, light actually performed, and SVP 4) . . . 11 . . . In comparing the claimant’s residual functional capacity with the physical and mental demands of this work, the undersigned 12 finds that the claimant is able to perform it as actually and generally performed. The vocational expert testified that the above 13 residual functional capacity would not preclude the performance of the claimant’s past relevant work. 14 15 (AR 29-30.) 16 Plaintiff directs the Court to a description of his work as an “estimates desk” in the 17 transportation industry: 18 I had unique job only few position statewide, Worked with contractors and administered processes, generated monthly 19 estimates for all contractors and resident engineers, maintain expenditure and contingency balance for each contract, checking 20 estimates for arithmetic errors and preparing forms to transfer funds from other departments, Audits and verify over and under 21 paid items and codes, checked all extra work bills, verified all items to be paid, verified all contract change orders for each 22 month. 23 (AR 346.) Plaintiff notes testimony that he performed office work; that he worked with 10–15 24 engineers in the field; performed calculations to match specifications; generated estimates; and 25 3 The ALJ found Plaintiff to have the RFC to perform light work as defined in 20 CFR 404.1567(b) except: can 26 occasionally climb ladders, ropes or scaffolds; can frequently climb ramps or stairs, balance, stoop, crouch, kneel or crawl; work should not have fast-paced production requirements, such as fast-paced assembly line work or high 27 volume piecemeal quotas; capable of occasional interaction with the general public, co- workers or supervisors; and must be afforded the opportunity for brief 1-2 minute changes of position at intervals not to exceed 30 minutes 1 provided recommendations for headquarters in Sacramento. (AR 45-46.) Plaintiff highlights 2 that the VE required no clarification when the ALJ asked whether the VE had any questions for 3 Plaintiff regarding the PRW. (AR 47-48.) The Court now turns to discuss the VE testimony. 4 The VE identified Plaintiff’s past work as a cost clerk, classified in the Dictionary of 5 Occupational Titles (“DOT”) at 216.382-034, semi-skilled, with an SVP of 4, generally 6 performed at exertional level sedentary, but actually performed at the light exertional level. (AR 7 65.) As most relevant to the Plaintiff’s appeal here, the ALJ first directed the VE to assume a 8 person largely reflective of Plaintiff’s RFC, but did not include a limitation for occasional 9 contact with the public, coworkers, or supervisors. (AR 66.) The VE testified that such person 10 could perform Plaintiff’s past work. (Id.) The VE also testified such person could perform the 11 following positions: (1) mail clerk (DOT 209.687-026); (2) hand packer (DOT 920.687-166); 12 and price marker (DOT 209.587-034). (AR 66.) The VE then confirmed that adding a limitation 13 excluding fast paced production requirements, would not affect the ability to perform Plaintiff’s 14 past work. (AR 66.) This aligns with the RFC determination, except for the limitation to no 15 more than occasional contact. 16 The ALJ then asked “if you add a limitation that said individual should have no more 17 than occasional interaction with the general public, workers, and supervisors, would that affect 18 the ability to perform claimant’s past work?” (AR 66-67.) The following exchange then 19 occurred: 20 [VE] Well, based upon my professional experience, I would say that it would affect his past work. He would probably have more 21 than occasional contact with workers. 22 [ALJ] What about if it’s just occasional interaction with the general public, would that affect the ability to perform the past 23 work? 24 [VE] No, it would not . . . 25 [ALJ] Now returning to the hypothetical wherein the limitation would be occasional interaction with coworkers and supervisors, in 26 addition to occasional interaction with the general public. You said you believe that would affect the ability to perform the past 27 work? 1 [ALJ] Would that eliminate the past work? 2 [VE] I don’t think it would eliminate it but it would affect it. 3 [ALJ] So the individual could still perform the past work? 4 [VE] Well, we’re working in an office setting is what we’re 5 working in. And usually in an office setting the individual has to be around coworkers more than occasionally. They can offset their 6 worksite a little bit to accommodate for that if they need to. But in general, they’re around coworkers more than occasionally. 7 [ALJ] So it could be a simple accommodate of change in the 8 worksite slightly or – 9 [VE] Yes, it could be. 10 [ALJ] So the past work would remain available? 11 [VE] I think accommodations would be made and I think the individual could do the past work, yes. 12 13 (AR 67-69.) Plaintiff’s counsel asked for clarification on the issue: 14 [Counsel] And the accommodations for occasional interaction with coworkers and supervisors, why type of accommodation 15 would need to be made? 16 [VE] Well, the individuals could put him in a cubicle, that’s something, they could put a cubicle around the individual where 17 they mainly sit at their desk and did the paperwork without, you know, without close contact to other individuals. 18 19 (AR 70.) Plaintiff contends that an ALJ erred by finding the ability to perform PRW but the 20 evidence requires an accommodation. (Br. 6.) 21 C. The Court finds the ALJ Erred in the Actually Performed Determination 22 Plaintiff emphasizes that he worked at a desk providing estimates on roadway projects; 23 worked with contractors, engineers, and checked their work; worked with 10–15 engineers; and 24 interacted with headquarters in Sacramento. (AR 45–46, 346.) Given the VE testified the nature 25 of office work probably requires more than occasional contact with the public, coworkers, and 26 supervisors (AR 67), Plaintiff argues a finding that Plaintiff had occasional or less contact with 27 public, coworkers, and supervisors as a cost clerk as actually performed would lack the support of substantial evidence. Plaintiff argues the ALJ pointed to no evidence for the inference that 1 Plaintiff actually or really had occasional or less contact with others, nor explained how the 2 evidence led to the conclusion that Plaintiff actually or really had occasional or less contact with 3 others. 4 Defendant’s arguments in opposition are mainly applicable to the generally performed 5 prong of step four. Defendant’s opposition as pointed to the actually performed prong is 6 essentially limited to arguing “even if the Court accepts Plaintiff’s argument that the ALJ erred 7 in relying on the vocational expert’s testimony in finding Plaintiff able to perform his past 8 relevant work as actually performed, any misstep was harmless because the ALJ both found that 9 Plaintiff could perform his PRW as generally performed and the vocational expert testified that 10 there are other jobs which exist in significant numbers in the national economy that Plaintiff 11 could perform (AR 66).” (Opp’n 6.) Plaintiff argues this is a concession of error as to the 12 actually performed prong. (Reply 4.) While not wholly a concession (Opp’n 3-4), the lack of 13 pointed argument and reliance on the harmless error doctrine demonstrates Defendant essentially 14 left the substance of the ALJ’s actually performed analysis undefended. 15 Again, the ALJ concluded “[i]n comparing the claimant’s residual functional capacity 16 with the physical and mental demands of this work, the undersigned finds that the claimant is 17 able to perform it as actually and generally performed,” and that the “vocational expert testified 18 that the above residual functional capacity would not preclude the performance of the claimant’s 19 past relevant work.” (AR 30.) The Court finds no supporting analysis in the opinion, nor 20 support in the hearing testimony or the record for the ALJ to make the determination that the 21 limitation to no more than occasional contact with the general public, co-workers or supervisors, 22 allows for the performance of Plaintiff’s PRW as actually performed. The VE testified that as a 23 general office position, the limitation to occasional contact would impact the ability to perform 24 the PRW: “based upon my professional experience, I would say that it would affect his past 25 work. He would probably have more than occasional contact with workers.” (AR 67.) There is 26 no testimony that Plaintiff actually performed the position in a more isolated than normal office 27 setting, and rather, the Plaintiff’s description of the work as actually performed indicates greater 1 proffered by the ALJ for the alternative conclusion. (AR 45–46, 346.) 2 Having found the ALJ erred as to the actually performed prong of the step four analysis, 3 the Court considers the Defendant’s proffer of harmless error. In Tommasetti, cited by 4 Defendant, the ALJ did made alternative findings at step five. See Tommasetti v. Astrue, 533 5 F.3d 1035, 1044 (9th Cir. 2008) (“[A]lthough the ALJ erred at step four in finding that 6 Tommasetti could perform his past work, this error was harmless because the ALJ properly 7 concluded as an alternative at step five that he could perform work in the national and regional 8 economies.”). Here, the ALJ did not make a step five determination. Defendant argues harmless 9 error because Defendant proffers the VE testified that there are other jobs which exist in 10 significant numbers in the national economy that Plaintiff could perform. 11 Courts have found harmless error where a VE testified there are other jobs which exist in 12 significant numbers in the national economy that Plaintiff could perform, and the ALJ did not 13 actually proceed to make a step five determination. See Cowan v. Astrue, No. C 07-1136 VRW, 14 2008 WL 2761684, at *10 (N.D. Cal. July 14, 2008) (“Even if the court were to find that the ALJ 15 erred in his step four determination, the error would be harmless. Plaintiff could not pass the 16 fifth step of the disability determination because he is capable, according to the testimony of the 17 VE, of performing many other kinds of work outside his past work experience that exist in 18 significant numbers in the national economy.”); Summers v. Astrue, No. EDCV 10-1060 RNB, 19 2011 WL 1211860, at *1, 3 (C.D. Cal. Mar. 30, 2011) (“As a result of this error by the ALJ, the 20 Court is unable to affirm the ALJ’s determination at Step four . . . given the testimony of the 21 vocational expert (“VE”) that there were other jobs existing in significant numbers in the 22 regional and national economies that a hypothetical person with plaintiff’s vocational profile and 23 other exertional and non-exertional limitations, who also had all of the environmental limitations 24 to which the State Agency review physicians had opined, remained capable of performing . . . the 25 Court has no doubt that a remand for further proceedings here would be pointless.”); Hadnot v. 26 Astrue, No. C 07-5504 PJH, 2008 WL 5048428, at *12 (N.D. Cal. Nov. 25, 2008) (finding 27 harmless error at step four where hypothetical presented to VE contained all limitations but ALJ 1 While affirmed in Hadnot, it does not appear the step four/step five harmless error 2 finding was clearly challenged or discussed at the Ninth Circuit level in Hadnot. See 371 F. 3 App’x 875. In this regard, in Harris, the court noted the “parties did not cite, nor could the Court 4 find, any Ninth Circuit opinion addressing the circumstances here, when the ALJ did not make 5 an alternative step five finding but the VE testified sufficiently for the record to support a step 6 five finding.” Harris v. Berryhill, No. 3:16-CV-0977-SI, 2017 WL 3034888, at *5 (D. Or. July 7 18, 2017). The court noted district courts in the Ninth Circuit “are divided on whether a court 8 must remand in such circumstances, because to do otherwise would be affirming on a ground not 9 relied on by the ALJ, or whether a court may affirm because the record is sufficient to show that 10 the ALJ's error is inconsequential to the ultimate non-disability determination.” Id. (collecting 11 cases). The Harris court concluded that because there was another error in the ALJ’s opinion it 12 did not “reach the issue of whether a court may affirm the Commissioner's finding of non- 13 disability when the record contains evidence that the plaintiff is capable of performing other 14 work in the national economy, even when the ALJ stopped his or her analysis at step four.” Id. 15 In Lamb, the defendant argued any error at step four was harmless, however potential 16 inconsistencies were not addressed by the VE: 17 The Defendant contends that any step-four error was harmless nonetheless, because, although the ALJ did not make 18 a step-five determination, the VE testified that Plaintiff was capable of performing other jobs—telemarketer, receptionist, and 19 general office clerk—that existed in the national economy. However, the other jobs identified by the VE—telemarketer, 20 receptionist, and general office clerk—also require either frequent or occasional omni-directional reaching according to the DOT. 21 Therefore, a potential inconsistency also exists between the VE's testimony regarding Plaintiff's ability to perform these 22 jobs and the DOT's description of the requirements of these jobs. As a result, the VE's testimony that Plaintiff can perform these jobs 23 in light of her RFC cannot be credited until this potential inconsistency is resolved. 24 25 Lamb v. Colvin, No. 1:13-CV-00137 GSA, 2014 WL 3894919, at *7 (E.D. Cal. Aug. 4, 2014). 26 The court found that “had the ALJ proceeded to step five of the sequential disability analysis, the 27 Court possibly could have found the step-four error to be harmless . . . [if] the ALJ made a step- 1 at step four and did not make a step-five finding to the effect that Plaintiff was capable of 2 performing other jobs that existed in the national economy consistent with her RFC [and] 3 [t]herefore, the Court cannot find that the ALJ's step-four error was harmless.” Id. at *6–7; see 4 also Albritten v. Berryhill, No. CV 17-0925-JPR, 2018 WL 3032860, at *6 (C.D. Cal. June 14, 5 2018) (“The ALJ’s step-four error was not harmless . . .[the ALJ] made no step-five finding, and 6 the VE testified to no other available jobs . . . given the ALJ’s lack of relevant findings in 7 addition to his step-four error, it is unclear whether he would still have found Plaintiff not 8 disabled had his past relevant work been properly analyzed.”) (citing Lamb, 2014 WL 3894919, 9 at *6); Carreras v. Berryhill, No. CV 16-01728-RAO, 2017 WL 4274498, at *7 (C.D. Cal. Sept. 10 25, 2017) (“Because the ALJ ended the analysis at step four and did not make a step-five 11 alternative finding that Plaintiff was capable of performing other jobs that existed in the national 12 economy consistent with an RFC that incorporated limitations arising from her PTSD, the Court 13 cannot find that that ALJ’s non-severity finding was harmless on this record.”) (citing Lamb, 14 2014 WL 3894919, at *6); Thomas S. v. Comm’r, Soc. Sec. Admin., No. 6:19-CV-1808-BR, 15 2020 WL 5876942, at *6 (D. Or. Oct. 2, 2020) (“[T]he ALJ did not make any findings at Step 16 Five and, therefore, did not identify any other work that Plaintiff could do nor find Plaintiff had 17 any transferable skills.”) (citing Lamb, 2014 WL 3894919, at *6). 18 Here, in addition to the ALJ never actually proceeding to make a step five finding 19 concerning other jobs in the national economy, most significant, and omitted from the 20 Defendant’s proffer,4 is the fact that the VE’s testimony as to these other jobs was not provided 21 in conjunction with a hypothetical that included the limitation to no more than occasional 22 contact. As noted above, the ALJ first directed the VE to assume a person largely reflective of 23 Plaintiff’s RFC, but did not include a limitation for occasional contact with the public, 24 coworkers, or supervisors, and the VE testified such person could perform the following 25 positions: (1) mail clerk (DOT 209.687-026); (2) hand packer (DOT 920.687-166); and price 26 27 4 It is not clear whether this was an intentional choice of limited wording in the description of the testimony or a mistake. (Opp’n 6 n. 2.) Plaintiff does not address the discrepancy between the hypothetical and the testimony in 1 marker (DOT 209.587-034). (AR 66.) The ALJ and VE did not thereafter discuss other jobs in 2 the national economy with that additional limitation included in a hypothetical. (AR 66-71.) 3 Thus, the Court need not necessarily determine whether it may generally find harmless error 4 without a step five finding from the ALJ, as the VE testimony in of itself does not convince the 5 Court that it could find harmless error in either regard. Accordingly, the Court cannot find an 6 error as to the actually performed prong of the ALJ’s step four analysis harmless based on what a 7 presumptive step five determination would have been based on the VE testimony here, given the 8 VE did not actually make a finding as to other jobs in the national economy in relation to the 9 actual RFC determination here. 10 However, the error in the actually performed prong of the step four analysis may be 11 appropriately found to be harmless if the Court determines that the ALJ’s determination as to the 12 generally performed prong of the step four determination was proper. See, e.g., Parsons v. 13 Comm’r of Soc. Sec., No. 1:18-CV-00892-JDP, 2019 WL 3943987, at *1 (E.D. Cal. Aug. 21, 14 2019) (“The Commissioner concedes that the ALJ erred in finding that claimant can perform this 15 work as actually performed, but argues that this error was harmless since claimant can do the 16 work as generally performed. I agree.”); Theodore M. v. Saul, No. CV 20-4382-JPR, 2021 WL 17 2646906, at *4 (C.D. Cal. June 28, 2021) (“But even if the ALJ erred in finding that Plaintiff 18 could still do the job as actually performed, any error was harmless because he clearly could do 19 the work as generally performed.”); Hipolito D. v. Saul, No. 18CV1649-WQH(MSB), 2019 WL 20 3492231, at *3 (S.D. Cal. Aug. 1, 2019), report and recommendation adopted sub nom. 2019 WL 21 4141198 (S.D. Cal. Aug. 30, 2019). 22 Therefore, given the error in the actually performed prong of the step four analysis, the 23 Court now proceeds to determine whether the ALJ’s determination under the generally 24 performed prong is free from legal error, thus making the above error ultimately harmless. 25 D. The ALJ’s Generally Performed Determination was Erroneous 26 1. The Parties’ Arguments 27 Plaintiff argues the VE posited on the record that Plaintiff’s past work could be 1 of generally performed in the national economy, and rejects the possibility of accommodation in 2 assessing the ability to perform past jobs as generally performed. The Social Security 3 Administration’s Program Operations Manual System (“POMS”) provides that, when evaluating 4 work with accommodations provided by employers, “[d]o not assume disability accommodations 5 would be available when assessing ability to do PRW as workers generally perform it in the 6 national economy.” POMS DI 25005.020 § F, available at 7 https://secure.ssa.gov/poms.nsf/lnx/0425005020 (last accessed September 27, 2022). “POMS is 8 an internal SSA manual, for the internal use of SSA employees, and has no legal force and does 9 not bind the Social Security Administration.” Knott v. Barnhart, 269 F. Supp. 2d 1228, 1234 10 (E.D. Cal. 2003). It can, however, be persuasive authority in discerning the agency’s 11 interpretation. See Hermes v. Sec’y of Health & Human Servs., 926 F.2d 789 n.1 (9th Cir. 12 1991). Plaintiff correctly proffers that POMS are entitled to “respect.” See Lockwood v. 13 Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) (“POMS constitutes an agency 14 interpretation that does not impose judicially enforceable duties on either this court or the ALJ . . 15 . such agency interpretations are entitled to respect, but only to the extent that those 16 interpretations have the power to persuade . . .[w]e are not persuaded by the cited section of 17 POMS that the statute and regulations require the ALJ to provide further explanation with 18 specific factors, for several reasons.”) (citations and internal quotations omitted). 19 Plaintiff contends that to the extent that the term generally contains any latent ambiguity, 20 POMS meets the deference criteria. See Kisor v. Wilkie, 130 S.Ct. 2400, 2415–18 (2019). 21 Additionally, Plaintiff directs the Court to language from the Supreme Court regarding 22 reasonable accommodations in the context of both social security claims, as well as claims under 23 the Americans with Disabilities Act (“ADA”): 24 By way of contrast, when the SSA determines whether an individual is disabled for SSDI purposes, it does not take the 25 possibility of “reasonable accommodation” into account, nor need an applicant refer to the possibility of reasonable accommodation 26 when she applies for SSDI. See Memorandum from Daniel L. Skoler, Associate Comm'r for Hearings and Appeals, SSA, to 27 Administrative Appeals Judges, reprinted in 2 Social Security Practice Guide, App. § 15C[9], pp. 15–401 to 15–402 (1998). The 1 million claims for disability benefits each year; its administrative resources are limited; the matter of “reasonable accommodation” 2 may turn on highly disputed workplace-specific matters; and an SSA misjudgment about that detailed, and often fact-specific 3 matter would deprive a seriously disabled person of the critical financial support the statute seeks to provide. See Brief for United 4 States et al. as Amici Curiae 10–11, and n. 2, 13. The result is that an ADA suit claiming that the plaintiff can perform her 5 job with reasonable accommodation may well prove consistent with an SSDI claim that the plaintiff could not perform her own 6 job (or other jobs) without it. 7 Cleveland v. Pol’y Mgmt. Sys. Corp., 526 U.S. 795, 803, 119 S. Ct. 1597, 1602, 143 L. Ed. 2d 8 966 (1999) (“Cleveland”). 9 Plaintiff argues the ALJ’s finding he could perform the work of a cost clerk as generally 10 performed in the national economy lacks the support of substantial evidence as “could be 11 accommodated” does not mean typically performed with an accommodation; thus the finding 12 violates the regulation and its intentional use of generally in assessing past relevant work; 13 violates agency policy construing as generally performed as excluding possible accommodation; 14 and violates the binding ruling that the Commissioner never considers accommodation in the 15 context of a disability claim adjudicated in the administrative law context under the Social 16 Security Act’s disability provisions. 17 Defendant argues the regulations and Social Security Rulings are supportive of finding 18 the ALJ made a proper step four determination. Under Social Security Ruling (SSR) 82-61, to 19 properly determine that a claimant can return to his PRW, an ALJ must identify the claimant’s 20 RFC, the demands of his past work, and find that the RFC does not prevent him from performing 21 that past work. Titles II & Xvi: Past Relevant Work-the Particular Job or the Occupation As 22 Generally Performed, SSR 82-61 (S.S.A. 1982).5 The Social Security regulations state that 23 5 This SSR provides: 24 3. Whether the claimant retains the capacity to perform the functional demands and job duties of 25 the job as ordinarily required by employers throughout the national economy. (The Dictionary of Occupational Titles (DOT) descriptions can be relied upon--for jobs that are listed in the DOT -- to define the job as it is usually performed in the national economy.) It is understood that some 26 individual jobs may require somewhat more or less exertion than the DOT description. A former job performed in by the claimant may have involved functional demands and job duties 27 significantly in excess of those generally required for the job by other employers throughout the national economy. Under this test, if the claimant cannot perform the excessive functional 1 vocational experts or other resources, such as the DOT, may be used to help determine whether a 2 claimant can perform past relevant work, and that “a vocational expert or specialist may offer 3 expert opinion testimony in response to a hypothetical question about whether a person with the 4 physical and mental limitations imposed by the claimant’s medical impairment(s) can meet the 5 demands of the claimant’s previous work, either as the claimant actually performed it or as 6 generally performed in the national economy.” 20 C.F.R. § 404.1560(b)(2). 7 Defendant contends Plaintiff misleadingly characterizes the slight change in worksite 8 discussed by the VE as a “reasonable accommodation,” however, such characterization is not 9 supported by the evidence or the VE testimony. Instead, Defendant argues the hypothetical 10 change was described as “a simple accomodat[ion] of change in the worksite” to account for the 11 limitation to only occasional coworker contact, and the VE testified Plaintiff could sit in a 12 cubicle at work and remained capable of performing his PRW as generally performed (AR 69- 13 70). (Opp’n 4-5.) Defendant argues the Plaintiff improperly attempts to characterize the VE 14 testimony as a reasonable accommodation as defined under the ADA, requiring “isolation.” 15 As for Plaintiff’s citing of Cleveland, 526 U.S. at 803, Defendant proffers therein the 16 Supreme Court also stated a “reasonable accommodation” involves “making existing facilities 17 used by employees readily accessible to and usable by individuals with disabilities,” including 18 “acquisition or modification or equipment or devices.” However, these quotations do not appear 19 in Cleveland; Defendant’s citation is incorrect. The Supreme Court did cite one portion of the 20 ADA for the definition, noting that “[r]easonable accommodations may include: ‘job 21 restructuring, part-time or modified work schedules, reassignment to a vacant position, 22 acquisition or modification of equipment or devices, appropriate adjustment or modifications of 23 demands and job duties as generally required by employers throughout the economy, the claimant 24 should be found to be “not disabled.” POLICY STATEMENT: Under sections 404.1520(e) and 416.920(e) of the regulations, a 25 claimant will be found to be “not disabled” when it is determined that he or she retains the RFC to perform: 1. The actual functional demands and job duties of a particular past relevant job; or 26 2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy. 27 SSR 82-61 (S.S.A. 1982). 1 examinations, training materials or policies, the provision of qualified readers or interpreters, and 2 other similar accommodations.’ ” Cleveland, 526 U.S. at 803 (quoting 42 U.S.C. § 3 12111(9)(B)). Nonetheless, the quoted statute does contain the rest of Defendant’s proffered 4 definition of reasonable accommodation under the ADA, as the statute states “[t]he term 5 ‘reasonable accommodation’ may include--(A) making existing facilities used by employees 6 readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part- 7 time or modified work schedules, reassignment to a vacant position, acquisition or modification 8 of equipment or devices, appropriate adjustment or modifications of examinations, training 9 materials or policies, the provision of qualified readers or interpreters, and other similar 10 accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(A)-(B). 11 Based on the definition of reasonable accommodation in the ADA, Defendant argues 12 Plaintiff’s challenge fails because a slight modification to the worksite by having Plaintiff sit in a 13 cubicle to reduce coworker contact to the occasional level does not meet the definition of a 14 reasonable accommodation as considered by the Court in Cleveland. Defendant proffers that 15 many offices utilize cubicles as a seating and working option for their employees, and having 16 Plaintiff sit in a cubicle does not rise to the level of a reasonable accommodation under the ADA. 17 See Loop v. Colvin, 651 F. App’x 694, 696–97 (9th Cir. 2016) (unpublished) (“Loop”). 18 In reply, Plaintiff urges the Court to use the ordinary dictionary definition of generally, 19 and apply commonsense understanding to the dichotomy between actually performed, and 20 generally or usually performed in the national economy. Plaintiff contends the ALJ did not 21 consider the evidence to suggest any material difference between as actually and as generally 22 performed, and the Court should not interject a material factual finding that the ALJ did not 23 actually make. As for the Defendant’s argument that that giving a person a cubicle to work in 24 does not constitute an accommodation, Plaintiff responds that Loop is an unpublished opinion 25 from the Ninth Circuit; that the evidence in Loop permitted the inference that workers in a call 26 center generally had a sit/stand option as that is how that job is typically performed; and here the 27 VE did not testify that cost clerks generally have secluded work stations that obviated more than 1 2. The ALJ Erred in the Step Four Generally Performed Determination 2 The VE testified PRW would not be eliminated, but the limitation on occasional contact 3 with others would affect it. (AR 68.) Again the most relevant aspect of the exchange between 4 the ALJ and VE, and Plaintiff’s counsel and the VE, are as follows: 5 [VE] Well, we’re working in an office setting is what we’re working in. And usually in an office setting the individual has to 6 be around coworkers more than occasionally. They can offset their worksite a little bit to accommodate for that if they need to. But in 7 general, they’re around coworkers more than occasionally. 8 [ALJ] So it could be a simple accommodate of change in the worksite slightly or – 9 [VE] Yes, it could be. 10 [ALJ] So the past work would remain available? 11 [VE] I think accommodations would be made and I think the 12 individual could do the past work, yes . . . 13 . . . [Counsel] And the accommodations for occasional interaction with coworkers and supervisors, why type of accommodation 14 would need to be made? 15 [VE] Well, the individuals could put him in a cubicle, that’s something, they could put a cubicle around the individual where 16 they mainly sit at their desk and did the paperwork without, you know, without close contact to other individuals. 17 18 (AR 69-70.) 19 The Court finds that the analysis in Loop, and the number of related cases that the 20 Court’s research uncovered, are the most pointed authority to the issues at hand here. Loop and 21 other cases stand for the proposition an ALJ may rely on an expert’s testimony in determining 22 whether an “accommodation”6 is so normal or prevalently accepted or available in an industry, 23 that it may be considered to be part of the position as generally performed. Here, given the tenor 24 of the testimony from the VE, the Court finds the VE did not clearly testify a particular 25 accommodation is prevalent or generally accepted in the industry. The Court finds the testimony 26 at least did not clearly substantiate enough of a connection, as the Loop holding and related 27 6 As apparent from the caselaw, it is not really the terminology utilized that is determinative of whether the ALJ 1 caselaw is largely confined to the sit/stand option, and those decisions relied on considerable 2 established support already in the caselaw for finding such sit/stand option to be an 3 accommodation that is essentially part of an occupation as generally performed in the economy. 4 Extensions of the principle outside of the sit/stand option involved testimony establishing the 5 general practice of allowing a specific accommodation. 6 Here, the “accommodation” of a cubicle or some other change to the layout of the office 7 structure entirely, does not appear to have the natural support for the Court to defer or read more 8 into the testimony that actually occurred, particularly given the ALJ’s opinion made no mention 9 of the accommodation or it being prevalent in the industry as to distinguish it from the ALJ’s 10 actually performed determination, which the Court found erroneous above. It was the Plaintiff’s 11 counsel that actually elicited testimony as to what the accommodation’s form would take, and 12 thus it is difficult for the Court to conclude the ALJ elicited testimony that a specific 13 accommodation is prevalent enough to be encompassed within a category of work as generally 14 performed. 15 In Loop, the court rejected a challenge similar to the one here, but as to a sit/stand option 16 for a call center position: 17 Finally, substantial evidence supported the ALJ’s finding, at step four, that Loop was capable of performing her past relevant work 18 as a call center customer service representative. See Ghanim, 763 F.3d at 1166. Loop contends that this finding was in error because 19 the vocational expert testified that she could perform the call center work with the “accommodation” of a sit/stand option, but the 20 possibility of reasonable accommodation may not be taken into consideration in the determination whether a Social Security 21 claimant is disabled. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) 22 (contrasting Social Security disability claims and claims under Americans with Disabilities Act). Loop’s contention lacks merit 23 because the gist of the vocational expert’s testimony was that allowing a sit/stand option is commonplace in call center 24 workplaces, and this is how the call center job is generally performed in the national economy. See 20 C.F.R. § 25 404.1560(b)(2) (providing that vocational expert may testify as to how claimant's past relevant work is “generally performed in the 26 national economy”); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that ALJ may take administrative notice of any 27 reliable job information, including information provided by vocational expert); see also Jones v. Apfel, 174 F.3d 692, 693–94 1 expert's testimony indicating that allowing for employee to alter between sitting and standing is prevalent accommodation in 2 workplace). 3 Loop, 651 F. App’x at 696–697. As recognized in other cases in and out of the Circuit, the key 4 to the Ninth Circuit’s analysis appears to be whether the “gist” of the VE testimony equated to an 5 opinion that the accommodation is commonplace, and thus an allowance by an employer of such 6 a sit/stand option is actually how the job is generally performed in the national economy. The 7 Ninth Circuit did not appear to directly substantively discuss the interplay between the ADA and 8 the SSA regime, and the holding in Cleveland,7 instead focusing on whether the VE’s testimony 9 provided substantial evidence for the ALJ to make the determination under the appropriate social 10 security regulations that allow an ALJ to utilize VE testimony in determining how the job is 11 generally performed in the national economy. 12 13 7 A reading of the Loop opinion appears to show the Ninth Circuit was restating the Plaintiff’s argument without necessarily analyzing the contours of the interplay between the ADA and the disability analysis. The Eighth Circuit has taken the position that it matters not whether certain terminology can be used to describe a workplace 14 modification as a reasonable accommodation, and rather, it matters is if the testimony reflects that the modification has become common or prevalently offered, similar to the “gist” of the testimony view taken by the Ninth Circuit in 15 Loop: 16 These cases merely demonstrate that ALJs may properly rely on VE testimony that a certain needed modification is part of the functional workplace. It makes no difference that a particular 17 workplace modification, such as a bariatric chair, might be called an “accommodation” or even a “reasonable accommodation.” See 42 U.S.C. § 12111(9) (defining “reasonable accommodation” 18 for ADA purposes). The use of the phrase is immaterial. It also makes no difference that a particular modification or accommodation is offered because the ADA requires employers to do 19 so. What matters is the functional workplace as it actually exists. If a particular modification or “accommodation” has become prevalent and is commonly offered—whether considered required 20 by the ADA or not—an ALJ may, of course, consider this evidence in making its determination. 21 Higgins v. Comm’r, Soc. Sec. Admin., 898 F.3d 793, 796 (8th Cir. 2018). Tanner appears to reasonably state the interplay, citing the Eighth Circuit: 22 To be sure, as a general rule “when the SSA determines whether an individual is disabled for 23 SSDI purposes, it does not take the possibility of ‘reasonable accommodation’ [under the ADA] into account, nor need an applicant refer to the possibility of reasonable accommodation when she 24 applies for SSDI.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803, 119 S. Ct. 1597, 1602, 143 L.Ed. 2d 966 (1999). Yet, while Social Security disability determinations typically may 25 not be grounded upon an ALJ's belief regarding what the law may require as a reasonable accommodation under the ADA, the fact that many employers, as a matter of custom and practice, make accommodations to their workers is a relevant factor to consider when making this disability 26 determination. Courts have long recognized this distinction between ADA mandates and general industry practices. 27 Tanner v. Berryhill, No. 1:18-CV-1433, 2019 WL 2184767, at *11 (M.D. Pa. May 21, 2019) (citing Higgins, 898 1 The Court notes that in looking at the underlying district court opinion in Loop, the 2 testimony from the VE provided that the sit/stand option is normally provided, however, the VE 3 specifically stated that the call centers generally also require a doctor’s note for what was 4 described as a “reasonable accommodation,” and the ALJ and VE discussed as to whether it was 5 specially or regularly done: 6 The ALJ then added a requirement that the individual be allowed to sit or stand at will. The VE testified that in her experience call 7 center employers were “very willing to provide a reasonable accommodation and actually adapt work stations to allow a person 8 to sit and stand at will.” The ALJ queried whether this was a “special accommodation” or one that was done regularly. The VE 9 replied that she had “seen it done with regularity.” She testified that call center employers “will tell you that they do need a note 10 from the doctor and they’re willing to make that accommodation,” and that all the employers she had dealt with would allow 11 employees to sit or stand at will if a note from a doctor was provided. 12 Loop v. Colvin, No. 3:12-CV-01674-JE, 2014 WL 463265, at *4 (D. Or. Feb. 4, 2014), aff'd, 651 13 F. App’x 694 (9th Cir. 2016). Thus on one hand the underlying testimony reflected the fact that 14 in order to receive the accommodation, a request typically required a doctor’s note in support, 15 but also that based on her professional experience, it was done regularly and all employers she 16 dealt with allowed it with such doctor’s note. 17 The principle in Loop has almost uniformly been accepted as to the sit/stand option. See 18 Deanne E. v. Saul, No. 2:20-CV-05731 KES, 2021 WL 1612089, at *5 (C.D. Cal. Apr. 26, 2021) 19 (“Consistent with this common-sense conclusion, multiple VEs in other cases have opined that 20 claimants can perform the functional demands and job duties of a customer service 21 representative as generally required by employers throughout the national economy with a 22 sit/stand option.”) (collecting seventeen cases). Courts appear to find support in the fact the 23 sit/stand option has repeatedly been affirmed as the general way a job is performed: 24 It is true that “when the SSA determines whether an individual is 25 disabled for SSDI purposes, it does not take the possibility of ‘reasonable accommodation’ into account, nor need an applicant 26 refer to the possibility of reasonable accommodation when she applies for SSDI.” Cleveland v. Policy Management Systems 27 Corp., 526 U.S. 795, 803 (1999). However, plaintiff's characterization of the sit/stand option as a reasonable 1 expert's testimony was that allowing a sit/stand option is commonplace in” the jobs 2 identified. Loop v. Colvin, 651 Fed. Appx. 694, 696 (9th Cir. 2016 ). In this regard, the sit/stand option is not a reasonable 3 accommodation; it is a permissible method for performing an identified job that has long been recognized by the 4 courts. See Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 628 (9th Cir. 2011) (“The vocational expert in this case found that the 5 recommended jobs would allow for an at-will sit-stand option.”); Thomas v. Barnhart, 278 F.3d 947, 955 (9th Cir. 2002) 6 (“Rather, a sit/stand option was required.”); Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995) (noting “sit/stand options”). 7 8 Goldman v. Berryhill, No. 2:17-CV-2450 DB, 2019 WL 498996, at *6 (E.D. Cal. Feb. 8, 2019). 9 The comments in Erwin are similar: 10 The Ninth Circuit has further observed that “allowing a sit/stand option is commonplace in call center workplaces, and this is how 11 the call center job is generally performed in the national economy.” Loop v. Colvin, 651 F. App'x 694, 696 (9th Cir. 2016) ( 12 emphasis added). Thus, because a sit/stand option is “commonplace” in call center workplaces, the Court confidently 13 concluded that the failure to include a sit/stand was harmless. Based on common experience, no reasonable ALJ would have 14 found that a sit/stand option precludes working as a customer service representative in a call center, even if the ALJ failed to 15 explicitly question the VE on this issue. See Alexander v. Saul, 817 F. App'x 401, 404 n.1 (9th Cir. 2020) (“the testimony of a 16 vocational expert at step four is ‘useful, but not required’ ”) (quoting Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 17 1993)); see also Gutierrez, 844 F.3d at 808–09 (noting that while the DOT does not restrict a cashier to no overhead reaching, it is 18 harmless error if the ALJ fails to question the VE on this apparent conflict because it is “obvious or apparent” that the typical cashier 19 does not need to reach overhead). 20 Erwin v. Saul, No. 2:20-CV-05731-KES, 2021 WL 3082588, at *1 (C.D. Cal. June 21, 21 2021); see also Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (noting that where the 22 DOT is “silent on whether the jobs in question allow for a sit/stand option,” there is no conflict 23 with a vocational expert’s testimony that a claimant can perform a job with a sit/stand option). 24 The Court considers whether these holdings may be appropriately extended out into other 25 types of “accommodations,” given the observations by some courts as to the established nature 26 of the sit/stand option. The Court finds support in a number of cases demonstrating it can be 27 appropriately extended out, if the testimony provides that the accommodation is so prevalent or accepted as to be the way a particular job is generally practiced in the national economy. 1 The principle was extended to a high-back stool by a district court, finding the testimony 2 did not equate to a reasonable accommodation under the ADA, and actually noted a distinction 3 between preexisting accommodations and reasonable accommodations to be made. See Saeed v. 4 Berryhill, No. 16-CV-11928-ADB, 2018 WL 1243953, at *10 n.15 (D. Mass. Mar. 9, 2018) 5 (“The Court rejects Claimant’s argument that the VE’s testimony regarding the availability of a 6 high-back stool constitutes a “reasonable accommodation” under the Americans with Disabilities 7 Act . . . her argument fails because the VE’s testimony addressed jobs with “pre-existing 8 accommodations to suit [Claimant’s] sit/stand option” rather than jobs that would require a 9 reasonable accommodation to be made specifically for Claimant.”) (citing Ramirez v. Comm’r of 10 Soc. Sec., No. 1:14-CV-01176-SAB, 2015 WL 5544501, at *4 (E.D. Cal. Sept. 18, 2015); Loop, 11 651 F. App’x at 696). In Ramirez, the court focused on the manner of testimony in that the VE 12 did not indicate it was a reasonable accommodation, nor even that the employer would have to 13 make a modification to the existing job site, but rather, the district court interpreted the testimony 14 as indicating 40% of the jobs would be able to accommodate a sit/stand option because the 15 employee would have access to a seat of some kind: 16 Plaintiff argues that the VE invoked the “reasonable accommodation” concept from the ADA context when she testified 17 that the job numbers would be eroded by 60% to “accommodate” the fact that Plaintiff would need to be able to get on and off her 18 feet at her discretion. However, given the context of the VE's testimony, the Court disagrees. The Americans with Disabilities 19 Act was not mentioned once during the entirety of the VE's testimony. Accordingly, it is unlikely that the VE intended to 20 invoke ADA terminology simply by mentioning “accommodate.” Further, the VE said “accommodate,” not “reasonable 21 accommodation.” The VE did not mention modification of an existing job to provide “reasonable accommodation” for Plaintiff's 22 impairment. Thus, it is more likely that the VE's testimony referred to the percentage of jobs with pre-existing accommodations to suit 23 Plaintiff's sit/stand option. In other words, approximately 40% of all the parking lot attendant jobs in the nation could naturally 24 accommodate a sit/stand option because the employee would have access to a pre-existing seat or stool, and not because the employer 25 could provide a seating option that did not otherwise exist. Similarly, 40% of all the cashier II jobs in the national could 26 naturally accommodate a sit/stand option because the employee would have access to a seat of some kind. The VE made no 27 mention of modifying or adding special stools or chairs to existing jobs to accommodate the sit/stand option. Accordingly, 1 accommodation” concept from the ADA context in his testimony. The Court finds that the ALJ's interpretation of the VE's testimony 2 was reasonable. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.2005) (“Where evidence is susceptible to more than one 3 rational interpretation, it is the ALJ's conclusion that must be upheld.”) 4 5 Ramirez, 2015 WL 5544501, at *4 (emphasis added). 6 In Richards, extending the analysis out to bathroom break accommodations, the court 7 there rested its affirmance on the fact the VE testimony was clearly describing that the bathroom 8 break option was something that in her experience, was tolerated as an alternative option, and 9 thus was less of a formal accommodation and more of how the job was typically or generally 10 allowed to be performed by employers in those particular fields: 11 The VE never qualified her answer by stating that extra bathroom breaks would require employer accommodation. Likewise, she did 12 not presume that employers would be willing to afford such an accommodation, or made the availability of jobs contingent upon 13 an employer's willingness to allow extra bathroom breaks. Rather, the VE testified that in her experience, employers of addressers, 14 telephone clerks, and hand packers typically tolerated an employee taking three five-minute bathroom breaks in the morning and three 15 five-minute bathroom breaks in the afternoon in place of two standard fifteen-minute breaks. (Tr. at 49–51). The ALJ was 16 entitled to rely on the VE's opinion, which was based upon her knowledge and experience. See Loop v. Colvin, No. 3:12–cv– 17 01674–JE, 2014 WL 463265, at *7 (D. Or. Feb 4, 2014) (finding that the ALJ was permitted to accept a VE's testimony that a 18 sit/stand option was not an accommodation, but rather, was an option virtually assured in the typical workplace); Eaglebarger v. 19 Astrue, No. 1:11–CV–00038, 2012 WL 602022, at *6 (N.D.Ind. Feb. 23, 2012) (holding that the ALJ could rely upon the VE's 20 testimony that certain allowances were generally accepted in the workplace); and Titus v. Astrue, No. 1:11CV1286, 2012 WL 21 3113165, at *13 (N.D.Ohio Jun. 12, 2012) (holding that the ALJ properly relied on the VE's opinion that the claimant could perform 22 work, which allowed for a workplace modification that was not a formal accommodation). Consequently, if the act of allowing extra 23 bathroom breaks does not constitute an “accommodation” in every work setting, it follows that including extra bathroom breaks in the 24 RFC finding was not an erroneous incorporation of a workplace accommodation. See Harris, 2013 WL 4517866, at *4. 25 Richards v. Colvin, No. 2:14-CV-26508, 2015 WL 8489032, at *6 (S.D.W. Va. Oct. 7, 26 2015), report and recommendation adopted, No. CV 2:14-26508, 2015 WL 8492761 (S.D.W. 27 Va. Dec. 10, 2015). Similarly, in Benitez, the testimony pertained to a specific accommodation 1 of allowing breaks every two hours as being accepted as “common in industry” and thus as 2 generally performed. Benitez v. Berryhill, No. CV 16-9243 SS, 2017 WL 6403086, at *5 (C.D. 3 Cal. Dec. 14, 2017) (“The ALJ properly relied on the VE’s testimony that there are a significant 4 number of jobs in the national economy that allow fifteen-minute breaks every two hours.”). 5 Similarly, in Hall, the VE testimony concerning oxygen tanks was not viewed as 6 describing a change to the workplace to accommodate the claimant, but as an aspect of a “broad 7 vocational pattern,” or as “routinely permitted”: 8 In any event, the VE in the instant action did not testify that employers would be bound by the ADA to make a special 9 accommodation for Claimant. Instead, when questioned by Claimant's attorney as to whether he would consider Claimant's use 10 of an oxygen tank to be an “accommodation” the VE replied that it “could” be considered an accommodation, but explained that jobs 11 in the sedentary “office work” category, which the VE had listed in response to the second and third hypothetical scenarios, “would 12 allow that normally.” (Tr. at 72).[8] Accordingly, the VE was merely noting that the type of accommodation required by 13 Claimant was routinely permitted in the relevant job category. Put simply, the VE's testimony described a “broad vocational pattern” 14 relevant to the assessment of jobs available to Claimant, which was an entirely appropriate consideration in the disability analysis. See 15 Jones, F.3d 692 at 694. Courts have frequently upheld ALJ decisions, which rely on a VE's determination that certain 16 accommodations are generally allowed by employers. See Higgins v. Comm'r, Soc. Sec. Admin., 898 F.3d 793, 796 (8th Cir. 2018) 17 (“[t]hese cases merely demonstrate that ALJs may properly rely on VE testimony that a certain needed modification is part of the 18 functional workplace. It makes no difference that a particular workplace modification, such as a bariatric chair, might be called 19 an ‘accommodation’ or even a ‘reasonable accommodation.’ ”); see also Martin v. Berryhill, No. CV 1:16-3741-SVH, 2017 WL 20 3446573, at *14-15 (D.S.C. Aug. 11, 2017) (finding that the ALJ did not err when he relied on the VE's testimony to find that jobs 21 would generally accommodate claimant's restriction); Golini v. Astrue, No. 2:10-CV-525, 2011 WL 4409223, at *6 (E.D. Va. Aug. 22 16, 2011), report and recommendation adopted, No. 2:10-CV-525, 2011 WL 4408789 (E.D. Va. Sept. 20, 2011), aff'd, 483 F. App'x 23 806 (4th Cir. 2012); (the ALJ correctly used the VE testimony to 24 8 The Court notes that the testimony in Hall, that the employer “would allow that normally,” is similar to the VE 25 testimony offered here. However in Hall, the VE testified that the specific need of the claimant, the use of the oxygen tank, was something employers normally allowed as a general practice. Here in contrast, no specific accommodation was even mentioned until Plaintiff’s counsel inquired, and the VE answered the employer could put 26 Plaintiff in a cubicle, but never did the VE testify that employers allow for the installation of cubicles in their office space as part of the general practice of this particular job category. (AR 69-70.) Again, given the lack of any 27 reference to this accommodation for the limitation in the ALJ’s opinion and no reference to reliance on the VE’s testimony as to the accommodation in conjunction with the as actually performed error, the Court cannot defer to the 1 determine that many light jobs would be able to accommodate the claimant's need to switch between sitting and standing 2 frequently); McElmurray v. Colvin, No. CIV.A. 2:13-189-MGL, 2014 WL 607503, at *3 (D.S.C. Feb. 18, 2014) (ALJ may consider 3 a VE's testimony that certain limitations are, based on their vocational experience, generally accommodated in the 4 marketplace); Harris v. Colvin, No. 3:12-CV-2302, 2013 WL 4517866, at *4 (N.D. Ohio Aug. 21, 2013) (“the VE's response to 5 the ALJ's hypotheticals reflected his professional opinion on common workplace accommodations—not formal 6 accommodations that must be requested under the ADA.”). 7 As the Commissioner points out, (ECF No. 13 at 9), this Court has considered a similar issue and found that it was not impermissible 8 to rely on a VE's determination that the type of accommodation required by the claimant was “typically tolerated” by a significant 9 number of employers. Richards v. Colvin, No. 2:14-CV- 26508, 2015 WL 8489032, at *6 (S.D.W. Va. Oct. 7, 2015), report 10 and recommendation adopted, No. CV 2:14-26508, 2015 WL 8492761 (S.D.W. Va. Dec. 10, 2015) (remanded on other 11 grounds). Here, as in Richards, the VE was not testifying that Claimant's limitations would require a formal accommodation; he 12 merely opined that Claimant's limitations were of the type generally accepted by employers in an office setting with clerical 13 positions. (Tr. at 73). 14 Hall v. Berryhill, No. 2:18-CV-00302, 2018 WL 8017182, at *14 (S.D.W. Va. Dec. 6, 15 2018), report and recommendation adopted, No. 2:18-CV-00302, 2019 WL 495586 (S.D.W. Va. 16 Feb. 8, 2019). 17 While the Plaintiff has the burden at step four, the ALJ is required to make requisite 18 factual findings to support the conclusion that the Plaintiff is able to perform the functional 19 demands and job duties of the occupation as generally required by employers throughout the 20 national economy. Pinto, 249 F.3d at 844 (citing SSR 82-62; 20 C.F.R. §§ 404.1520(e), 21 416.920(e)). “[A] vocational expert or specialist may offer expert opinion testimony in response 22 to a hypothetical question about whether a person with the physical and mental limitations 23 imposed by the claimant’s medical impairment(s) can meet the demands of the claimant’s 24 previous work, either as the claimant actually performed it or as generally performed in the 25 national economy.” 20 C.F.R. § 404.1560(b)(2). However, based on the above caselaw, the 26 testimony of the VE excerpted above as elicited by the ALJ and Plaintiff’s counsel, and the 27 ALJ’s opinion, the Court finds the ALJ erred in the manner of reliance on the VE, and did not sufficiently explain the reliance on the VE testimony in making the step four determination. 1 Further, the VE did not clearly testify that a particular specific accommodation is prevalent or 2 generally accepted in the industry to the extent that it is essentially part of an occupation as 3 generally performed in the economy, and the tangential discussion of a cubicle accommodation 4 would involve a possible change to the layout of an office structure entirely, rather than a 5 preexisting accommodation. The VE never connected the cubicle testimony to an opinion that 6 such specific accommodation was generally accepted. 7 The Court finds the step four findings legally erroneous and not supported by substantial 8 evidence in the record. See Loop, 651 F. App’x at 696–697 (“[T]he gist of the vocational 9 expert’s testimony was that allowing a sit/stand option is commonplace in call center 10 workplaces, and this is how the call center job is generally performed in the national economy.”); 11 Higgins, 898 F.3d at 796 (“What matters is the functional workplace as it actually exists. If a 12 particular modification or ‘accommodation’ has become prevalent and is commonly offered— 13 whether considered required by the ADA or not—an ALJ may, of course, consider this evidence 14 in making its determination.”); Goldman, 2019 WL 498996, at *6 (“the sit/stand option is not a 15 reasonable accommodation; it is a permissible method for performing an identified job that has 16 long been recognized by the courts.”); Erwin, 2021 WL 3082588, at *1 (“because a sit/stand 17 option is ‘commonplace’ in call center workplaces, the Court confidently concluded that the 18 failure to include a sit/stand was harmless.”); Saeed, 2018 WL 1243953, at *10 n.15 (“The Court 19 rejects Claimant’s argument that the VE’s testimony regarding the availability of a high-back 20 stool constitutes a ‘reasonable accommodation’ under the Americans with Disabilities Act . . . 21 her argument fails because the VE’s testimony addressed jobs with ‘pre-existing 22 accommodations to suit [Claimant’s] sit/stand option’ rather than jobs that would require a 23 reasonable accommodation to be made specifically for Claimant.”); Ramirez, 2015 WL 5544501, 24 at *4 (The VE did not mention modification of an existing job to provide ‘reasonable 25 accommodation’ for Plaintiff's impairment . . . made no mention of modifying or adding special 26 stools or chairs to existing jobs to accommodate the sit/stand option.”); but see Tanner, 2019 WL 27 2184767, at *11 (“the fact that many employers, as a matter of custom and practice, make 1 determination.”). 2 E. The Court finds Remand is Appropriate 3 The ordinary remand rule provides that when “the record before the agency does not 4 support the agency action, . . . the agency has not considered all relevant factors, or . . . the 5 reviewing court simply cannot evaluate the challenged agency action on the basis of the record 6 before it, the proper course, except in rare circumstances, is to remand to the agency for 7 additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 8 1090, 1099 (9th Cir. 2014). This applies equally in Social Security cases. Treichler, 775 F.3d at 9 1099. Under the Social Security Act “courts are empowered to affirm, modify, or reverse a 10 decision by the Commissioner ‘with or without remanding the cause for a rehearing.’ ” 11 Garrison, 759 F.3d at 1019 (quoting 42 U.S.C. § 405(g)). The decision to remand for benefits is 12 discretionary. Treichler, 775 F.3d at 1100. In Social Security cases, courts generally remand 13 with instructions to calculate and award benefits when it is clear from the record that the 14 claimant is entitled to benefits. Garrison, 759 F.3d at 1019. Even when the circumstances are 15 present to remand for benefits, “[t]he decision whether to remand a case for additional evidence 16 or simply to award benefits is in our discretion.” Treichler, 775 F.3d at 1102 (quoting Swenson 17 v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)). 18 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which 19 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and 20 award benefits: (1) the record has been fully developed and further administrative proceedings 21 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 22 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 23 discredited evidence were credited as true, the ALJ would be required to find the claimant 24 disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The credit as true 25 doctrine allows “flexibility” which “is properly understood as requiring courts to remand for 26 further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an 27 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled. 1 The Court finds that based on the ALJ’s opinion and review of the record, doubts remain 2 | as to whether Plaintiff is in fact disabled. The Court orders this action remanded for further 3 | administrative proceedings consistent with this opinion, and to further develop the record as 4 | deemed necessary. 5 V. 6 CONCLUSION AND ORDER 7 Based on all of the foregoing reasons, the Court finds the ALJ’s determination at step 8 | four concerning Plaintiff's ability to perform past relevant work as actually performed and as 9 | generally performed was erroneous and not supported by substantial evidence in the record. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the 11 | Commissioner of Social Security is GRANTED and this matter is remanded back to the 12 | Commissioner of Social Security for further proceedings consistent with this order. It is 13 | FURTHER ORDERED that judgment be entered in favor of Plaintiff Ishac Eshoo Lazar and 14 | against Defendant Commissioner of Social Security. The Clerk of the Court is directed to 15 | CLOSE this action. 16 17 IT IS SO ORDERED. DAM Le 18 | Dated: _September 30, 2022 _ ef 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28