(SS) Few v. Commissioner of Social Security

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 ERIC FEW, No. 2:19-cv-1491-KJN

12 Plaintiff, ORDER ON PARTIES’ CROSS-MOTIONS

FOR SUMMARY JUDGMENT

13 v.

(ECF Nos. 15, 17)

14 COMMISSIONER OF SOCIAL

SECURITY,

15

Defendant.

16

17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security

18 denying him Disability Insurance Benefits under Title II of the Social Security Act.1 In his

19 summary judgment motion, plaintiff contends the Administrative Law Judge erred in: assessing

20 the severity of his mental impairments; formulating his residual functional capacity; determining

21 the number of other jobs available to him; and discounting his subjective-symptom testimony.

22 The Commissioner filed a cross-motion for summary judgment, arguing the decision is supported

23 by substantial evidence and free from legal error. Upon consideration of the record and briefing,

24 the court GRANTS plaintiff’s motion for summary judgment, DENIES the Commissioner’s

25 cross-motion for summary judgment, and REMANDS for further proceedings.

26

27 1 This action was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local

Rule 302(c)(15). Both parties consented to proceed before a United States Magistrate Judge, and

28 the case was reassigned to the undersigned for all purposes. (ECF Nos. 7, 16, 19.)

1 I. RELEVANT LAW

2 The Social Security Act provides benefits for qualifying individuals with disabilities.

3 Disability is defined, in p a rt, as an inability to “engage in any substantial gainful activity” due to

4 “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a). An ALJ is

5 to follow a five-step sequence when evaluating an applicant’s eligibility for benefits.2 20 C.F.R.

6 § 404.1520(a)(4).

7 A district court may reverse the agency’s decision only if the ALJ’s decision “contains

8 legal error or is not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154 (9th

9 Cir. 2020). Substantial evidence is more than a mere scintilla, but less than a preponderance, i.e.,

10 “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

11 Id. The court reviews the record as a whole, including evidence that both supports and detracts

12 from the ALJ’s conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the

13 court may only review the reasons provided by the ALJ in the decision, and may not affirm on a

14 ground upon which the ALJ did not rely. Id. “[T]he ALJ must provide sufficient reasoning that

15 allows [the court] to perform [a] review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

16 The ALJ “is responsible for determining credibility, resolving conflicts in medical

17 testimony, and for resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is

18 susceptible to more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id.

19 Further, the court may not reverse the ALJ’s decision on account of harmless error. Id.

20

2 The sequential evaluation is summarized as follows:

21 Step one: Is the claimant engaging in substantial gainful activity? If so, the

claimant is found not disabled. If not, proceed to step two.

22

Step two: Does the claimant have a “severe” impairment? If so, proceed to step

23 three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant’s impairment or combination of impairments meet

24 or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the

claimant is automatically determined disabled. If not, proceed to step four.

25

Step four: Is the claimant capable of performing past relevant work? If so, the

claimant is not disabled. If not, proceed to step five.

26

Step five: Does the claimant have the residual functional capacity to perform any

27 other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The burden of proof rests with the

28 claimant through step four, and with the Commissioner at step five. Ford, 950 F.3d at 1148.

1 II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS

2 On February 24, 2016, plaintiff applied for Disability Insurance Benefits, alleging an

3 onset date of December 1 , 2011—which he later amended to January 1, 2012. (Administrative

4 Transcript (“AT”3) 175, 280.) Plaintiff’s application was denied initially and again upon

5 reconsideration. (AT 72, 86, 104-09, 111-16.) Plaintiff, aided by an attorney, sought review of

6 these denials with an Administrative Law Judge (“ALJ”). The ALJ held a hearing on

7 February 15, 2018, at which both p laintiff and a Vocational Expert (“VE”) testified. (AT 45-71.)

8 On June 20, 2018, the ALJ issued a decision that plaintiff was not disabled from his

9 amended onset date through March 31, 2016, his date last insured. (AT 22-33.) At step one, the

10 ALJ concluded plaintiff had not engaged in substantial gainful activity since his amended onset

11 date of January 1, 2012. (Id.) At step two, the ALJ determined that plaintiff had the following

12 severe impairments: lumbar spine degenerative disc disease, neuropathy, scoliosis, L2

13 compression fracture, bilateral quadriceps tendinitis, and obesity. (Id.) As relevant here, the ALJ

14 simultaneously found that plaintiff’s alleged psychiatric impairments from depression, insomnia,

15 and anxiety were not severe. (AT 26-28.) At step three, the ALJ determined plaintiff’s

16 impairments did not meet or medically equal the severity of an impairment listed in Appendix 1.

17 (AT 28-29) (citing 20 C.F.R. Part 404, Subpart P, Appendix 1).

18 The ALJ then found plaintiff had the residual functional capacity (“RFC”) to perform light

19 work as defined in 20 C.F.R. § 404.1567(b), with the following limitations:

20 he could have occasionally stooped, knelt, crouched, crawled, and

climbed stairs; he must have avoided hazards such as unprotected

21 heights and dangerous moving machinery; . . . he was unable to

ambulate uneven terrain; and he could have occasionally handled and

22 fingered.

23 (AT 29.)

24 At step four, based on the VE’s testimony, the ALJ found that plaintiff was not capable of

25 performing his past relevant work as a self-employed tile setter, and that he had no transferrable

26 skills from that work. (AT 31-32.) However, at step five, with further VE testimony, the ALJ

27

28 3 The AT is electronically filed at ECF No. 10.

1 found there were still a significant number of jobs available to plaintiff in the national economy in

2 representative occupations such as: investigator of dealer accounts, school bus monitor, and

3 usher. (AT 32-33.) Thu s , the ALJ determined plaintiff was not disabled. (Id.) The Appeals

4 Council denied plaintiff’s request for review on June 4, 2019 (AT 1-6), making the ALJ’s

5 decision the final decision of the Commissioner. Plaintiff then filed this action requesting judicial

6 review of the Commissioner’s final decision; and the parties filed cross-motions for summary

7 judgment. (ECF Nos. 1, 15, 17.)

8 III. ISSUES PRESENTED

9 Plaintiff argues the ALJ erred by (1) concluding at step two that plaintiff’s mental

10 impairments were not severe, (2) omitting a “reaching” limitation from the RFC and the

11 hypothetical posed to the VE, (3) concluding at step five that other work was available to plaintiff

12 in “significant numbers” in the national economy, and (4) discounting the testimony of plaintiff

13 and his family members. (ECF No. 15 at 5-13.) The court concludes that the ALJ reversibly

14 erred by finding plaintiff’s well-documented depression and anxiety not severe at step two, and

15 that substantial evidence does not support the ALJ’s step-five determination on the availability of

16 other work. Because remand is required based on these errors alone, the court does not rule on

17 the remaining issues.

18 IV. DISCUSSION

19 A. Step Two Severity of Mental Impairment

20 Legal Standard

21 “At step two of the five-step sequential inquiry, the Commissioner determines whether the

22 claimant has a medically severe impairment or combination of impairments.” Smolen v. Chater,

23 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987)).

24 Under the Commissioner’s regulations, an impairment or combination of impairments is deemed

25 to be severe at step two if it “significantly limits your physical or mental ability to do basic work

26 activities.” 20 C.F.R. §§ 404.1520(c), 404.1522(a). An impairment or combination of

27 impairments may be found “not severe only if the evidence establishes a slight abnormality that

28

1 has no more than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433

2 F.3d 683, 686 (9th Cir. 2005) (cleaned up). “Step two is merely a threshold determination meant

3 to screen out weak claim s .” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017); see

4 Smolen, 80 F.3d at 1290 (“the step-two inquiry is a de minimis screening device to dispose of

5 groundless claims” (cleaned up)).

6 Because plaintiff alleged that he was disabled, at least in part, due to mental impairment

7 from depression and anxiety, the A LJ was required “to follow a special psychiatric review

8 technique.” Keyser v. Comm’r., 648 F.3d 721, 725 (9th Cir. 2011); 20 C.F.R. § 404.1520a(a) (in

9 evaluating the severity of mental impairments, ALJs “must follow a special technique at each

10 level in the administrative review process”). First, under this technique, the ALJ must first

11 determine whether plaintiff has “a medically determinable mental impairment(s).” 20 C.F.R.

12 § 404.1520a(b)(1). Second, the ALJ must “rate the degree of functional limitation resulting from

13 the impairment(s)” in four broad functional areas: “[1] Understand, remember, or apply

14 information; [2] interact with others; [3] concentrate, persist, or maintain pace; and [4] adapt or

15 manage oneself.” 20 C.F.R. § 404.1520a(b)(2), (c)(3). The ALJ must rate the degree of

16 limitation using a “five-point scale: None, mild, moderate, marked, and extreme.” Id.

17 § 404.1520a(c)(4). Third, the ALJ must use the ratings to determine the severity of the mental

18 impairment. If the degrees of limitation are rated as “none” or “mild,” generally the

19 impairment(s) will be found “not severe, unless the evidence otherwise indicates that there is

20 more than a minimal limitation” in the plaintiff’s ability to do basic work activities. 20 C.F.R.

21 § 404.1520a(d)(1).

22 Analysis

23 Plaintiff asserts multiple distinct errors in the ALJ’s step-two analysis: (1) that the ALJ

24 did not consider plaintiff’s mental impairment in combination with the physical impairments, and

25 (2) that in finding plaintiff’s mental impairment not severe, the ALJ (a) improperly relied on

26 plaintiff’s “improvement” and normal mental status exams and (b) impermissibly rejected

27 plaintiff’s treating psychiatrist’s opinion. (ECF Nos. 15 at 5-9, 18 at 6.) The court need not delve

28 into each of plaintiff’s arguments in detail, however, because it agrees with plaintiff’s overall

1 position: that the ALJ applied an impermissibly high standard in assessing plaintiff’s mental

2 limitations at step two.

3 Despite finding s e veral other severe impairments, the ALJ determined that plaintiff’s

4 depression and anxiety were not severe. (AT 24-28.) The ALJ found that plaintiff “does not have

5 a severe psychiatric impairment,” first, based on the medical records and progress notes. The

6 ALJ reasoned that these records showed (a) plaintiff’s anxiety and depression was improving,

7 (b) plaintiff sometimes expressed th at he preferred no changes to his psychiatric medications, and

8 (c) his mental status examinations frequently reflected that he was within normal limits. (AT 26-

9 27.) Second, the ALJ relied on the concurring opinions of the reviewing state psychiatrist and

10 psychologist that plaintiff had only mild limitations in mental functioning, and no episodes of

11 decompensation (AT 78-79, 92)—which the ALJ credited over the opinion of plaintiff’s treating

12 psychiatrist, Dr. Richard Malek, who opined that plaintiff’s mental limitations were totally

13 disabling4 (AT 663-65). (AT 27-28.) The ALJ explained that he was giving “little weight” to Dr.

14 Malek’s opinion because the doctor provided no supporting rationale for his opinion which the

15 ALJ found inconsistent with the record notes of improvement and plaintiff’s normal mental status

16 exams. (AT 27-28.) Accordingly, the ALJ found plaintiff had only mild limitations in (1)

17 understanding, remembering, or applying information, (2) concentrating, persisting, or

18 maintaining pace, and (3) adapting or managing himself; and had no limitations in interacting

19 with others. (AT 28.) The ALJ concluded that “[a]ccordingly, the claimant’s psychiatric

20 impairments do not satisfy the de minimis severity standards of 20 CFR 404.1520(c).” (Id.)

21 Although the ALJ recited the proper “de minimis” step-two standard, it is clear that he did

22 not apply it. See Smolen, 80 F.3d at 1290. A psychiatric impairment may be found not severe

23 only if it is a slight abnormality with “no more than a minimal effect on an individual’s ability to

24 work.” See Social Security Ruling (“SSR”) 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th

25 4 Dr. Malek opined that plaintiff had a “moderate” ability to relate to co-workers, deal with the

public, interact with a supervisor, maintain his personal appearance, and relate predictably in

26

social situations; “marked” limitations in being able to use good judgment and perform simple

27 instructions; and “poor” ability to follow work rules, deal with work stress, function

independently, maintain attention and concentration, perform detailed or complex job

28 instructions, and demonstrate reliability. (AT 663-65.)

1 Cir. 1988). A “finding of no disability at step two” may be affirmed where there is a “total

2 absence of objective evidence of severe medical impairment.” Webb, 433 F.3d at 688 (emphasis

3 added); see SSR 85-28 (i f a finding of non-severity is not “clearly established by medical

4 evidence,” adjudication must continue through the sequential evaluation process).

5 Rather than assessing whether there was any objective evidence of severe mental

6 impairment in the record, the ALJ rushed all the way forward to weighing the arguably mixed

7 evidence of plaintiff’s depression a nd anxiety. The record undeniably contains evidence that

8 plaintiff’s depression and anxiety were more than a “slight abnormality.” Cf. Webb, 433 F.3d

9 at 686 (“An impairment is not severe if it is merely a slight abnormality . . . that has no more than

10 a minimal effect on the ability to do basic work activities.” (cleaned up)).

11 Throughout the claim period, plaintiff consistently was diagnosed by various providers

12 with major depressive disorder and generalized anxiety disorder for which he was prescribed a

13 variety of medications. (See, e.g., AT 356, 382-84, 390, 402, 571, 709, 718.) The record

14 contains at least three Patient Health Questionnaire-9 (“PHQ-9”) scores reflecting severe

15 depression in June 2015 (AT 384) and moderately severe depression in March and May 2017 (AT

16 720-22, 725-27). In May 2017, plaintiff also recorded a Global Assessment of Functioning

17 (“GAF”) score of 60—consistent with “moderate difficulty in social, occupational, or school

18 functioning,” Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014). (AT 718.) At an initial

19 appointment with a new doctor in March 2017, the doctor assessed plaintiff as having “Recurrent

20 major depressive disorder, in partial remission,” but noted that plaintiff’s “symptoms are clearly

21 still severe” and referred him to the clinic’s Behavioral Health team for evaluation and treatment.

22 (AT 728.) The court could go on, but even this evidence alone should have been found sufficient

23 to show a level of impairment that at least meets the de minimis threshold at step two. Smolen,

24 80 F.3d at 1290.

25 Further, the existence of contradictions between the opinions of consulting state-agency

26 mental health physicians and a treating psychiatrist is not a proper basis for rejecting a mental

27 impairment at step two. The detailed weighing of testimony and contradictory opinion evidence

28 that the ALJ undertook is meant to occur at step four of the sequential process, in assessing RFC,

1 rather than determining whether the de minimis step-two showing was made. See Kang Jin v.

2 Berryhill, 2020 WL 999795, at *2 (N.D. Cal. Mar. 2, 2020) (reversing and remanding where ALJ

3 ended disability analysis a t step two after weighing opinion evidence and making credibility

4 findings).

5 Without opining on whether the ALJ’s reasoning in this early portion of his decision

6 might be upheld had it been conducted as part of determining plaintiff’s RFC,5 the undersigned

7 can confidently conclude that the A LJ applied a far more stringent legal standard than is called

8 for at step two. And this error of co-mingling the step-two and step-four levels of inquiry was not

9 harmless because the ALJ failed to consider plaintiff’s mental impairments at later steps in the

10 disability analysis. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The ALJ considered

11 none of the limitations imposed by plaintiff’s mental impairments in his RFC determination. (See

12 AT 29-31.) Accordingly, remand is required for the ALJ to consider the degree to which

13 plaintiff’s severe mental impairments should be reflected in his RFC. See Vasquez v. Astrue, 572

14 F.3d 586, 596 (9th Cir. 2009) (remanding for further proceedings where evidence suggested that

15 plaintiff had severe mental impairment and where impairment was not accounted for in RFC

16 determination at step four).

17 B. Step Five Job Numbers

18 Legal Standard

19 “At step five, the burden shifts to the agency to prove that the claimant can perform a

20 significant number of other jobs in the national economy.” Ford v. Saul, 950 F.3d 1141, 1149

21 (9th Cir. 2020). The Commissioner must demonstrate that the claimant can perform “substantial

22 gainful work” that exists “in significant numbers either in the region where such individual lives

23 or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A); see Gutierrez v. Comm’r, 740

24 F.3d 519, 523-25 (9th Cir. 2014). “To meet this burden, the ALJ may rely on . . . the testimony of

25

5 The court will note, however, its agreement with plaintiff that the ALJ’s reliance on vague

26

references to the “improvement” of his mental health scattered across plaintiff’s subjective

27 reports to his clinicians is not a persuasive reason to rule out any mental limitation, given that

plaintiff still had “severe” symptoms even beyond the end of his disability coverage period. (See

28 AT 728.)

1 a vocational expert.” Ford, 950 F.3d at 1149. If substantial evidence shows the number of jobs at

2 either the regional or national level was significant, the ALJ’s decision must be upheld. Beltran

3 v. Astrue, 700 F.3d 386, 3 89-90 (9th Cir. 2012). Nationwide figures necessarily require a greater

4 total to constitute a “significant” number, as the jobs exist across “several regions” of the country.

5 See id.

6 Analysis

7 Here, the vocational expert (“VE”) testified that a person with the RFC ultimately

8 assigned to plaintiff—light duty with only occasional handling and fingering—could not perform

9 plaintiff’s past work as a tile-setter, but that there were “some,” “very few” other occupations

10 such person could perform. (AT 57.) The VE identified three representative occupations:

11 (1) “investigator of dealer accounts” (DOT 241.367-038), for which 6,900 jobs exist nationally;

12 (2) “school bus monitor” (DOT 372.667-042), for which 8,300 jobs exist nationally; and

13 (3) “usher” (DOT 344.677-014), for which 10,200 jobs exist nationally. (AT 57.) The VE did

14 not testify as to the availability of any of these jobs in plaintiff’s region.

15 However, the VE testified without prompting that the number of usher jobs “would have

16 to be eroded . . . . by two-thirds” to account for the number of part-time positions—agreeing with

17 the ALJ that would leave approximately 3,400 full-time usher jobs (of the 10,200 first cited)

18 available nationwide. (AT 58.) On cross-examination by plaintiff’s counsel, the VE further

19 testified about the part-time erosion for the other two occupations. (AT 64-69.) For the

20 investigator position, the VE stated that 18% were part-time only, meaning 1,242 jobs should be

21 subtracted. (AT 65.) Although the VE did not testify to the resulting eroded total, the

22 Commissioner agrees that this would leave 5,658 full-time investigator jobs of the 6,900 first

23 identified. (ECF No. 17 at 9, 18 n.5.) For the school bus monitor position, the VE stated—with

24 several starts and stops in the dialogue—that 65% were part-time only, meaning there were 2,862

25 full-time school bus monitor positions (of the 8,300 first cited). (AT 67-69.)

26 In the decision, however, the ALJ inaccurately and incompletely described the VE’s—

27 admittedly difficult to follow—job numbers testimony. According to the ALJ, the VE testified

28 that an individual with plaintiff’s vocational factors and RFC would have been able to perform

1 representative occupations such as:

2 • investigator of dealer accounts . . . , for which 6,900 positions exist

nationally;

3

• school bus monitor . . . , for which 8,200 [sic] positions exist

4 nationally; and

5 • usher . . . , for which 3,400 positions exist nationally.

6 (AT 33 (omitting DOT specifications for each).) The ALJ did not include an aggregate sum of

7 these positions in the decision, but concluded that “[b]ased on the [VE]’s testimony,” plaintiff

8 could perform work that existed in significant numbers in the national economy through the date

9 last insured—and thus was not disabled. (Id.)

10 This factual finding must be reversed for lack of substantial evidence, due to the ALJ’s

11 misrepresentation of the VE evidence on which he supposedly relied. First, the ALJ misreported

12 the total number of school bus monitor positions nationwide as 8,200—instead of the 8,300 the

13 VE originally cited. (AT 57.) More troublingly, however, the ALJ totally failed to acknowledge

14 the VE’s testimony about part-time erosion. And the nationwide numbers the ALJ recites for

15 each position are internally inconsistent in that the ALJ recites the eroded 3,400 number of usher

16 positions but recites the non-eroded numbers for the other two occupations. (AT 33.) The

17 numbers stated in the ALJ’s decision do not reflect that some two thirds (65%) of the school bus

18 monitor positions were only part-time and the same was true of 18% of the investigator positions;

19 although, the ALJ seems to have found part-time erosion warranted, at least in theory, given that

20 he recited the eroded number of usher jobs—excluding the two thirds of usher positions that were

21 only part-time. Thus, the court is left uncertain as to the basis for the ALJ’s conclusion that there

22 was “other work that existed in significant numbers in the national economy.” (AT 33.) See 20

23 C.F.R. § 404.1560(c)(2) (“In order to support a finding that you are not disabled at this fifth step

24 of the sequential evaluation process, [the Commissioner is] responsible for providing evidence

25 that demonstrates that other work exists in significant numbers in the national economy that you

26 can do, given your [RFC] and vocational factors.”).

27 At such low starting numbers, it is particularly important to ensure that the ALJ

28 understood and factored in the significance of the part-time erosion reported by the VE. Even

1 before accounting for part-time positions, the VE’s testimony only established some 25,400 jobs

2 available to plaintiff nationally (6,900 + 8,300 + 10,200). (AT 57.) That tally falls just above the

3 lowest number the Ninth C ircuit has ever upheld as “significant” in a published decision (where

4 part-time erosion was not at issue). See Gutierrez, 740 F.3d at 529 (concluding that 25,000

5 nationwide jobs was significant number, though a “close call”). The Commissioner argues here

6 that, even assuming the ALJ should have relied only on the full-time job numbers, that eroded

7 aggregate of 11,920 jobs nationwid e (5,658 + 2,862 + 3,400) qualifies as a significant number.

8 (ECF No. 17 at 18-20; see AT 58, 64-65, 67-69.) The undersigned cannot so readily agree,

9 having recently held that 10,000 jobs nationwide is not a significant number. Shade v. Comm’r,

10 No. 2:19-CV-1122-KJN, 2020 WL 2556753, at *4 (E.D. Cal. May 20, 2020) (relying on

11 persuasive, though unpublished, recent Ninth Circuit cases).

12 More importantly, though, the ALJ made no such finding, himself. As written, the

13 decision indicates only that the ALJ (erroneously) believed the VE had testified to 18,500 total

14 positions (6,900 + 8,200 + 3,400) without regard to their full-time versus part-time availability.

15 (AT 33.) There is no indication whether the ALJ would find 11,920 nationwide jobs a significant

16 number. See Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (“A reviewing court may

17 only consider the reasons provided by the ALJ in the disability determination and may not affirm

18 the ALJ on a ground upon which he did not rely.” (cleaned up)). Whether a given number of jobs

19 is significant is a factual determination for the ALJ to make in the first instance. See Gutierrez,

20 740 F.3d at 527-28 (courts defer to ALJ’s “supported finding that a particular number of jobs” is

21 significant) (citing, inter alia, Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986)). The

22 ALJ’s only factual determination on the significance of the job numbers here is not supported by

23 substantial evidence. Accordingly, on remand, the ALJ must reconsider whether other work is

24 available to plaintiff in the national economy, and—if he determines that it is—make a clear

25 record of the basis for so finding.6

26

6 Given the ambiguity of the record, the undersigned need not presently resolve the lurking legal

27 question of whether the Commissioner can rely on the availability of part-time jobs to satisfy his

step five burden to show that there is other “substantial gainful work” plaintiff can do that exists

28 “in significant numbers.” 42 U.S.C. § 423(d)(2)(A). Courts have come out in various ways on

1 Of course, reconsideration of plaintiff’s ability to adjust to other work may be required in

2 any event, if the ALJ determines that a more limited RFC is warranted after accounting for

3 plaintiff’s severe mental i mpairments, as discussed above. Should the RFC remain the same,

4 however, this step-five analysis is intended to inform the ALJ’s approach.

5 C. Additional RFC Observation

6 One additional point is worth mentioning here. Plaintiff briefly argues that the ALJ erred

7 by failing to include a “reaching” li mitation in both his RFC and the hypotheticals posed to the

8 VE. (ECF No. 15 at 10-11.) Plaintiff bases his argument on a notation in the disability

9 evaluation prepared by the consultative examiner, Dr. Jay Keystone, that plaintiff’s “abduction of

10 the shoulders was limited to 100 degrees bilaterally. He could not fully abduct his arms.” (AT

11 563; see AT 560 (plaintiff reporting that “reaching above 90 degrees is difficult”).)

12 Dr. Keystone indeed noted plaintiff’s restricted shoulder abduction (movement away from

13 the body’s midline) in the Musculoskeletal section of his physical exam observations. (AT 563.)

14 However, the closing “Physical Limitations” section of Dr. Keystone’s evaluation does not

15 include a place to specify any limitations in “reaching.” (AT 564-65 (reflecting headings only for

16 “Pushing, pulling, lifting and carrying”; “Standing and walking”; “Sitting”; “Activities requiring

17 agility”; “Use of hands, fine and gross manipulation”; “Postural limitations”; “Hearing and

18 seeing”; and “Environmental limitations”).) Thus, it appears that Dr. Keystone gave no formal

19 opinion that plaintiff was limited in this regard.

20 The ALJ briefly acknowledged Dr. Keystone’s notation of plaintiff’s “limited shoulders

21 and lower extremities range of motion” when fashioning the RFC, and stated that he gave Dr.

22 Keystone’s overall opinion “great weight.” (AT 30.) Yet, the ALJ did not incorporate any

23 “reaching” limitations into the RFC, or explain why such a limitation was not warranted. On

24 remand, the ALJ should also address whether Dr. Keystone’s observation of restricted shoulder

25 abduction should translate to any sort of “reaching” limitation in the ultimate RFC, and if not,

26

27 this question, which the Ninth Circuit has not yet answered and which is not addressed in the

applicable regulations. See generally Jaquez v. Saul, 2019 WL 4387327 (S.D. Cal. Sept. 13,

28 2019), rev’d and remanded, No. 19-56235, 2021 WL 1034959 (9th Cir. Mar. 17, 2021) (unpub.).

1 | should state why not.

2 Given that remand is required to address the defects identified in the ALJ’s step-two and

3 || step-five analyses, the undersigned does not rule on plaintiff's assertion of additional error in

4 | considering the testimony provided by plaintiff and his family members.

5 | V. CONCLUSION

6 In sum, the evidence shows mental impairments that qualify as severe at step two, but

7 | which might or might not prevent plaintiff from performing other work in the national economy;

8 | and even under the current RFC, the ALJ’s finding as to the availability of other work is not

9 | supported. Thus, the case must be remanded for further evaluation in accordance with the five-

10 | step sequential process.

11 Accordingly, IT IS HEREBY ORDERED that:

12 1. Plaintiff's motion for summary judgment (ECF No. 15) is GRANTED;

13 2. The Commissioner’s motion for summary judgment (ECF No. 17) is DENIED;

14 3. The Commissioner’s final decision is REVERSED and REMANDED for further

15 proceedings consistent with this opinion; and

16 4. The Clerk of Court shall enter judgment for plaintiff and CLOSE this case.

17 | Dated: March 23, 2021

i Aectl Aharon

19 KENDALL J. NE

UNITED STATES MAGISTRATE JUDGE

20

21

few.1491

22

23

24

25

26

27

28

13