Benny Ray Adkins v. Andrew Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 SOUTHERN DIVISION

11 BENNY R. A.,1 ) Case No. 8:20-cv-00878-JDE

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Plaintiff, ) MEMORANDUM OPINION AND

13 ) ORDER

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14 v. )

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15 ANDREW SAUL, ) )

Commissioner of Social Security, )

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17 Defendant. )

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19 Plaintiff Benny R. A. (“Plaintiff”) filed a Complaint on May 11, 2020,

20 seeking review of the Commissioner’s denial of his application for disability

21 insurance benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”)

22 regarding the issues in dispute on March 29, 2021. The matter now is ready for

23 decision.

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1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P.

27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and

Case Management of the Judicial Conference of the United States.

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1 I.

2 BACKGROUND

3 On March 27, 2014, Plaintiff applied for DIB, alleging disability

4 beginning April 29, 2012. Administrative Record (“AR”) 155-58. After his

5 application was denied initially (AR 81, 99-105), and on reconsideration (AR

6 95, 106-07), the first of two administrative hearings was held regarding

7 Plaintiff’s claim on April 6, 2012. AR 29-60, 76-77. Plaintiff, represented by

8 counsel, appeared in San Diego, California, and testified before Administrative

9 Law Judge (“ALJ”), as did a vocational expert (“VE”). AR 28-68. On

10 September 15, 2016, the ALJ issued a written decision finding Plaintiff was not

11 disabled. AR 10-27.

12 After the Appeals Council denied Plaintiff’s request for review (AR 1-6),

13 Plaintiff appealed to United States District Court for the Central District of

14 California. On September 28, 2018, the undersigned concluded that the ALJ’s

15 evaluation of Dr. Lincoln Yee’s opinion was legally insufficient. AR 1173-83;

16 Benny R. A. v. Berryhill, 2018 WL 4735714 (C.D. Cal. Sept. 28, 2018).

17 Specifically, the Court found that Dr. Yee’s assessed limitations against

18 “repetitive extension” of the right shoulder and “repetitive gripping [and]

19 grasping” were significant work-related limitations, and the ALJ erred by not

20 referencing or incorporating them in the residual functional capacity (“RFC”)

21 or in a hypothetical to the VE. AR 1180; Benny R. A., 2018 WL 4735714 at *4.

22 The Court noted the Commissioner’s argument that the ALJ did consider the

23 limitations of Dr. Mark A. Mandel against “very repetitive pushing and

24 pulling” and “very repetitive grasping” and that the parties disputed the

25 significance of the difference between “repetitive” and “very repetitive,” but the

26 Court found that as a matter of grammar and usage, a limitation against “very

27 repetitive” activities is less restrictive than a limitation against merely

28 “repetitive” activities. AR 1180-81; 2018 WL 4735714 at *4. The Court also

1 found that “the fact that the terms or phrases are subject to differing

2 interpretations, and may be terms of art used in the state worker’s

3 compensation system under which Dr. Yee and Dr. Mandel appeared to be

4 operating in making their respective findings,” further supported a finding that

5 the ALJ should have considered and addressed Dr. Yee’s assessed limitations,

6 citing, among other cases, Desrosiers v. Sec’y Health & Human Servs., 846

7 F.2d 573, 576 (9th Cir. 1988) (finding ALJ's decision was not supported by

8 substantial evidence because the ALJ had not adequately considered

9 definitional differences between the California workers’ compensation system

10 and the Social Security Act [“SSA]”). AR 1181; 2018 WL 4735714 at *4.

11 Accordingly, the Court reversed and remanded the matter for further

12 proceedings. AR 1182-83; 2018 WL 4735714 at *5.

13 On January 23, 2019, the Appeals Council vacated the Commissioner’s

14 prior decision, consolidated the case with a duplicate claim for DIB

15 subsequently filed by Plaintiff, and remanded to an ALJ for further proceedings

16 consistent with this Court’s order. AR 1187-88. On remand, a different ALJ

17 convened a second hearing on February 12, 2020, in Orange, California. AR

18 1118-51. Plaintiff did not appear at the hearing, but was represented by counsel,

19 who provided argument and examined the testifying VE. Id.

20 On March 4, 2020, the ALJ issued a written decision finding Plaintiff was

21 not disabled. AR 1096-1109. The ALJ found Plaintiff last met the insurance

22 status requirements through the date of the decision. AR 1098. The ALJ found

23 that, although Plaintiff engaged in substantial gainful activity at certain times

24 during the relevant period, there were continuous 12-months periods which he

25 did not engage in such activity. AR 1099-1100. The ALJ concluded Plaintiff

26 had the following severe impairments: right lateral medial epicondylitis,

27 cervical degenerative disc disease with history of fusion surgery, lumbar disc

28 protrusion/herniation, right-knee osteoarthritis, and right-shoulder

1 degenerative changes. AR 1100-01. The ALJ also found Plaintiff did not have

2 an impairment or combination of impairments that met or medically equaled a

3 listed impairment (AR 1102), and he had the RFC to perform light work2

4 except as follows (AR 1102-06):

5 [Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds

6 frequently, stand and walk 6 hours in an 8-hour day, and sit 6 hours

7 in an 8-hour day. He can occasionally walk on uneven terrain. He

8 can frequently push and pull with the upper extremities. He can

9 never climb ladders, ropes, or scaffolds. He can occasionally climb

10 ramps and stairs, balance, stoop, kneel, crouch, and crawl. He can

11 occasionally reach overhead with the bilateral arms. He can

12 occasionally perform forceful gripping and grasping. He must avoid

13 concentrated exposure to extreme cold. He cannot be exposed to

14 hazards such as dangerous moving machinery or unprotected

15 heights.

16 The ALJ next found that Plaintiff was unable to perform his past relevant

17 work as a cashier, checker (Dictionary of Occupational Titles [“DOT”] 211-

18 462-014) or retail manager (DOT 185.167-046). AR 1106-07. The ALJ also

19 found that Plaintiff is closely approaching advanced age, has at least a high

20 school education, and can communicate in English. AR 1107.

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2 “Light work” is defined as

23 lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight

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lifted may be very little, a job is in this category when it requires a good

25 deal of walking or standing, or when it involves sitting most of the time

with some pushing and pulling of arm or leg controls. To be considered

26 capable of performing a full or wide range of light work, [a claimant]

27 must have the ability to do substantially all of these activities.

20 C.F.R. § 404.1567(b); see also Aide R. v. Saul, 2020 WL 7773896, at *2 n.6 (C.D.

28 Cal. Dec. 30, 2020).

1 The ALJ then found that, if Plaintiff had the RFC to perform a full range

2 of light work, a Medical-Vocational rule would direct a finding of not disabled.

3 AR 1107. But, as Plaintiff’s ability to perform all or substantially all the

4 requirements of light work was impeded by additional limitations, the ALJ

5 consulted the testimony of the VE. AR 1107-08. Considering Plaintiff’s age,

6 education, work experience, RFC, and the VE’s testimony, the ALJ concluded

7 Plaintiff was capable of performing jobs that exist in significant numbers in the

8 national economy, including: office helper (DOT 239.567-010), counter

9 attendant (DOT 311.477-014), and mail clerk (DOT 209.687-026). AR 1108.

10 Thus, the ALJ found Plaintiff was not under a “disability,” as defined in the

11 SSA, from the alleged onset date through the date of the decision. AR 1108-09.

12 The ALJ’s remand decision became the final decision of the

13 Commissioner because neither Plaintiff filed exceptions nor did the Appeals

14 Council initiate review.3 Dkt. No. 1 at 2; Jt. Stip. at 3.

15 II.

16 LEGAL STANDARDS

17 A. Standard of Review

18 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s

19 decision to deny benefits. The ALJ’s findings and decision should be upheld if

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21 3 When a federal court remands a case for further consideration, the ALJ’s new

22 decision becomes the final decision of the Commissioner after remand unless the

Appeals Council assumes jurisdiction of the case. 20 C.F.R. §§ 404.983, 404.984(a). A

23 claimant who disagrees with the ALJ’s decision may file written exceptions with the

24 Appeals Council within 30 days of the decision. 20 C.F.R. § 404.984(b)(1). If no

exceptions are filed and the Appeals Council does not assume jurisdiction within 60

25 days of the decision, the ALJ’s new decision becomes the final decision of the

Commissioner after remand. 20 C.F.R. § 404.984(c), (d); see also Lopez-Frausto v.

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Saul, 2020 WL 6728196, *3 (E.D. Cal. Nov. 16, 2020).

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1 they are free from legal error and supported by substantial evidence based on

2 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.

3 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

4 Substantial evidence means such relevant evidence as a reasonable person

5 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504

6 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a

7 preponderance. Id. To assess whether substantial evidence supports a finding,

8 the court “must review the administrative record as a whole, weighing both the

9 evidence that supports and the evidence that detracts from the Commissioner’s

10 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the

11 evidence can reasonably support either affirming or reversing,” the reviewing

12 court “may not substitute its judgment” for that of the Commissioner. Id. at

13 720-21; see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even

14 when the evidence is susceptible to more than one rational interpretation, [the

15 court] must uphold the ALJ’s findings if they are supported by inferences

16 reasonably drawn from the record.”), superseded by regulation on other

17 grounds as stated in Thomas v. Saul, 830 F. App’x 196, 198 (9th Cir. 2020).

18 Lastly, even if an ALJ errs, the decision will be affirmed where such

19 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to

20 the ultimate nondisability determination,” or if “the agency’s path may

21 reasonably be discerned, even if the agency explains its decision with less than

22 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).

23 B. The Five-Step Sequential Evaluation

24 When a claim reaches an ALJ, the ALJ conducts a five-step sequential

25 evaluation to determine at each step if the claimant is or is not disabled. See

26 Ford v. Saul, 950 F.3d 1141, 1148-49 (9th 2020); Molina, 674 F.3d at 1110.

27 First, the ALJ considers whether the claimant currently works at a job

28 that meets the criteria for “substantial gainful activity.” Molina, 674 F.3d at

1 1110. If not, the ALJ proceeds to a second step to determine whether the

2 claimant has a “severe” medically determinable physical or mental impairment

3 or combination of impairments that has lasted for more than twelve months.

4 Id. If so, the ALJ proceeds to a third step to determine whether the claimant’s

5 impairments render the claimant disabled because they “meet or equal” any of

6 the “listed impairments” set forth in the Social Security regulations at 20

7 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec.

8 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the claimant’s impairments do

9 not meet or equal a “listed impairment,” before proceeding to the fourth step

10 the ALJ assesses the claimant’s RFC, that is, what the claimant can do on a

11 sustained basis despite the limitations from his impairments. See 20 C.F.R.

12 § 404.1520(a)(4); Social Security Ruling (“SSR”) 96-8p.

13 After determining the claimant’s RFC, the ALJ proceeds to the fourth

14 step and determines whether the claimant has the RFC to perform his past

15 relevant work, either as he “actually” performed it when he worked in the past,

16 or as that same job is “generally” performed in the national economy. See

17 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot

18 perform his past relevant work, the ALJ proceeds to a fifth and final step to

19 determine whether there is any other work, in light of the claimant’s RFC, age,

20 education, and work experience, that the claimant can perform and that exists

21 in “significant numbers” in either the national or regional economies. See

22 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can

23 do other work, he is not disabled; but if the claimant cannot do other work and

24 meets the duration requirement, the claimant is disabled. See id. at 1099.

25 The claimant generally bears the burden at steps one through four to

26 show he is disabled or meets the requirements to proceed to the next step and

27 bears the ultimate burden to show he is disabled. See, e.g., Ford, 950 F.3d at

28 1148; Molina, 674 F.3d at 1110. However, at Step Five, the ALJ has a

1 “limited” burden of production to identify representative jobs that the claimant

2 can perform and that exist in “significant” numbers in the economy. See Hill v.

3 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100.

4 III.

5 DISCUSSION

6 The parties present three disputed issues (Jt. Stip. at 5), reordered as:

7 Issue No. 1: Did the ALJ properly consider the findings of Dr. Yee;

8 Issue No. 2: Did the ALJ properly consider the findings of Dr. Thomas

9 Sabourin; and

10 Issue No. 3: Did the ALJ rely upon substantial evidence for job numbers.

11 A. Medical Opinion Evidence

12 In the first issue, Plaintiff contends that the ALJ did not properly

13 consider the findings of Dr. Yee. Jt. Stip. at 10-12, 15-16. Specifically, Plaintiff

14 contends that the ALJ did not reject Dr. Yee’s assessed limitations of repetitive

15 bending, twisting, or turning activities in relation to the cervical spine. Id. at

16 11, 16. Plaintiff also contends the ALJ was required consider “repetitive” as a

17 term of art in the California workers’ compensation context under Desrosiers,

18 846 F.2d at 576. Jt. Stip. at 11-12.

19 1. Applicable Law

20 In determining a claimant’s RFC, an ALJ must consider all relevant

21 evidence in the record, including medical records, lay evidence, and “the

22 effects of symptoms, including pain, that are reasonably attributable to the

23 medical condition.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.

24 2006) (citation omitted).

25 “There are three types of medical opinions in social security cases: those

26 from treating physicians, examining physicians, and non-examining

27 physicians.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th

28 Cir. 2009). “As a general rule, more weight should be given to the opinion of a

1 treating source than to the opinion of doctors who do not treat the claimant.”

2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The opinion of an

3 examining physician is, in turn, entitled to greater weight than the opinion of a

4 nonexamining physician.” Id. “[T]he ALJ may only reject a treating or

5 examining physician’s uncontradicted medical opinion based on clear and

6 convincing reasons” supported by substantial evidence in the record.

7 Carmickle v. Comm’r Sec. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)

8 (citation omitted). “Where such an opinion is contradicted, however, it may be

9 rejected for specific and legitimate reasons that are supported by substantial

10 evidence in the record.” Id. at 1164 (citation omitted).

11 2. Analysis

12 In August 2014, Dr. Yee performed a panel-qualified, complex

13 comprehensive medical-legal evaluation of Plaintiff, and prepared a 24-page

14 report of his findings. AR 804-27. He discussed three injuries related to

15 Plaintiff’s condition: (1) in 1989 a concrete block fell on Plaintiff’s head and he

16 had a subsequent decompressive laminectomy of his neck; (2) a head-on

17 automobile collision about 10 years later resulted in a discectomy and fusion for

18 left-sided radiculopathy; and (3) in 2011 Plaintiff injured his right elbow, upper

19 back, and right shoulder while attempting to perform a “buddy lift” of a heavy

20 stack of trays with a co-worker. AR 805-06, 808, 812. Dr. Yee provided a

21 detailed summary of Plaintiff’s subsequent work and treatment history, which

22 included being placed on disability by an orthopedist in 2012, elbow, neck, and

23 shoulder injections, opiate and other medication, wearing a brace/elbow strap,

24 long-arm and wrist splints, physical and occupational therapy, referrals to

25 spine, spinal surgery, and pain specialists, and an emergency hospital visit for

26 headaches in the temple, jaw, and radiating to the neck, among other

27 treatments. AR 806-08, 812-22. Dr. Yee conducted physical and neurological

28 examinations of Plaintiff and recorded his findings. AR 810-12. Dr. Yee’s

1 “clinical impression” was: (1) chronic cervical strain with right upper extremity

2 radiculitis; (2) probable right-sided C6-7 radiculopathy; (3) status post C5-6

3 anterior cervical discectomy and fusion (“ACDF”); (4) right elbow subluxing

4 ulnar nerve; (5) lateral epicondylitis, resolving; and (6) right shoulder scapula-

5 thoracic impingement, non-industrial. AR 822. Dr. Yee detailed a treatment

6 plan which included potentially more surgeries. AR 823.

7 Dr. Yee then assessed the following “disability” limitations and findings:

8 (1) cervical spine: Plaintiff is “unable to perform any repetitive pending,

9 twisting[,] or turning activities[,] and no repetitive heavy lifting”; (2) right

10 shoulder: “repetitive extension activity should be precluded”; (3) right elbow:

11 Plaintiff “should be prophylactically precluded from repetitive gripping,

12 grasping[,] and very heavy lifting[,] and torqueing activity with the right

13 elbow”; (4) right shoulder and right elbow is “considered permanent and

14 stationary unless [Plaintiff] options to undergo the proposed surgery to the

15 right elbow”; and (5) cervical spine: considered permanent and stationary, but

16 it is “unclear as to whether the surgery would be beneficial and would improve

17 his functional ability.” AR 823-24. Finally, Dr. Yee made several conclusions

18 related to workers’ compensation law pertaining to apportionment and

19 percentage of impairment. AR 824-25.

20 The ALJ stated that she read and considered Dr. Yee’s opinion and

21 noted that he opined Plaintiff “would be unable to perform any repetitive

22 bending, twisting, or turning activities and could not perform repetitive lifting

23 because of his cervical spine.” AR 1105. The ALJ also noted that Dr. Yee

24 “believed [Plaintiff] should be precluded from repetitive extension with his

25 right shoulder.” Id. The ALJ gave “some” weight to Dr. Yee’s opinion because

26 he examined Plaintiff. Id. However, the ALJ concluded that Dr. Yee’s

27 restrictions were “excessive given [Plaintiff]’s negative shoulder X-rays on

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1 October 7, 2016 (Exhibit 11F/47)4.” AR 1105. Additionally, the ALJ found,

2 “given the medical evidence as a whole, the other opinions, and [Plaintiff]’s

3 robust daily activities, the limitations in the above-stated [RFC] fully

4 accommodate [Plaintiff]’s conditions.” Id.

5 Later in the decision, the ALJ noted there were references in the

6 workers’ compensation records to the term “totally temporarily disabled”

7 (“TDD”) and explained that the criteria in that context was not the same used

8 to determine disability under the SSA. AR 1105. Therefore, the ALJ

9 concluded, the conclusion by a physician that a claimant is TDD “is not

10 relevant or binding with regard to an application under the SSA.” Id.

11 The Court again finds the ALJ’s analysis of Dr. Yee’s opinion is

12 insufficient, for the following reasons.

13 The opinion contains terms or phrases subject to differing

14 interpretations, and terms of art used in the workers’ compensation system—

15 such as “permanent and stationary,” and, of particular relevance here,

16 “repetitive”—that were not explained or translated in the decision. See

17 Desrosiers, 846 F.2d at 576; Khanh Giang v. Berryhill, 2019 WL 631898, *14

18 (C.D. Cal. Feb. 14, 2019) (noting numerous cases have “held that the ALJ

19 must address and incorporate the meaning of the term ‘repetitive’ in a Social

20 Security disability opinion”); Barcenas v. Berryhill, 2017 WL 3836040, *2

21 (C.D. Cal. Aug. 31, 2017) (“To the extent that the ALJ may have rejected . . .

22 opinion because it included Workers’ Compensation terms, the ALJ erred in

23 failing to translate [the] opinion about [p]laintiff’s limitations in the Workers’

24 Compensation context into the Social Security context.”); Echaury v. Astrue,

25 2013 WL 436007, *4 (C.D. Cal. Feb. 4, 2013) (“‘Repetitive’ is a term of art in

26 the California Workers' Compensation system” and the ALJ erred by failing to

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4 The cited record reflects the X-ray was conducted October 7, 2015. AR 1011.

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1 translate it into corresponding social security terminology); Fuentes v. Comm’r

2 Soc. Sec. Admin., 2013 WL 140290, *4 (C.D. Cal. Jan. 7, 2013) (ALJ erred by

3 failing to explain significance of “permanent and stationary” finding for the

4 purposes of the social security disability evaluation). Although the ALJ

5 discussed the term “TDD” and explained why that it was not relevant to the

6 analysis, Dr. Yee did not make a TDD finding,5 and, most importantly here,

7 “repetitive” was the key restriction for the three assessed limitations to

8 Plaintiff’s cervical spine, right shoulder, and right elbow. As argued by

9 Plaintiff, the ALJ discounted only the shoulder limitation with a citation to a

10 single x-ray, and did not specifically reject, or explain the significance of, the

11 other “repetitive” limitations. Jt. Stip. at 11; AR 1105.

12 In workers’ compensation parlance, “a restriction from ‘repetitive’

13 motion indicates a 50% loss of pre-injury capacity.” See Alvarado v. Comm’r

14 Soc. Sec., 2018 WL 4616344, *5 (C.D. Cal. Sept. 24, 2018) (noting

15 Commissioner did not dispute that definition); Echaury, 2013 WL 436007 at

16 *4. The ALJ included no neck limitation in the RFC. AR 1102. Although she

17 included other functional limitations that might overlap with Dr. Yee’s cervical

18 spine limitation, such as pushing and pulling or reaching, the ALJ couched

19 those limitations in the social security terms of “frequently” and

20 “occasionally.” Id. And nowhere did the ALJ equate Dr. Yee’s “repetitive”

21 restrictions to either of those social security terms. Based on the record, it

22 cannot be said that the terms mean the same thing. See Macapagal v. Astrue,

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5 Indeed, the ALJ’s citation in her paragraph defining the workers’

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compensation terminology of “TDD” and explaining its non-binding nature was to

25 other records (see AR 1105, citing Exhibits 1F [AR 233-670]; 9F/5 [AR 838]; 10F

[AR 894-964]), and omitted Dr. Yee’s opinion (Exhibit 7F [AR 804-27]). See, e.g.,

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Barcenas, 2017 WL 3836040 at *3 (citation to other exhibits in discussion of workers’

27 compensation records, but not to the exhibit where the opinion at issue was located,

is not a rejection of that opinion).

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1 2008 WL 4449580, at *3 (N.D. Cal. Sept. 29, 2008) (restriction from repetitive

2 work equivalent to neither a limitation to frequent nor a limitation occasional

3 work). Indeed, the Ninth Circuit has observed—although not in the workers’

4 compensation context—that “repetitively . . . appears to refer to a qualitative

5 characteristic,” i.e., how or what type of motion is required, whereas

6 “frequently . . . seem[s] to describe a quantitative characteristic,” i.e., how

7 often one uses his hands in a certain manner. See Gardner v. Astrue, 257 F.

8 App’x 28, 30 n.5 (9th Cir. 2007) (emphasis in original); Sanchez v. Berryhill,

9 2017 WL 5508515, at *6 (C.D. Cal. Nov. 16, 2017) (noting this apparent

10 distinction in Gardner).

11 Moreover, again even if there was some overlap in the cervical

12 limitations to the limitations in the RFC, “frequently” appears to conflict with

13 “repetitive,” but it is not entirely clear from the case law. Alvarado, 2018 WL

14 4616344 at *5 (remanding because “the conclusion that Plaintiff could perform

15 job tasks frequently is not necessarily consistent with a finding that Plaintiff

16 was restricted from performing those activities repetitively”); Brooks v. Astrue,

17 2012 WL 2373628, at *5 (C.D. Cal. June 22, 2012) (remanding because

18 opinion that claimant was precluded from using her right shoulder, elbow, and

19 left arm on a “repetitive” basis was inconsistent with the ALJ’s finding that she

20 was capable of performing “frequent” handling, fingering, feeling, and

21 reaching). It is less clear whether “occasionally” conflicts with repetitive. See

22 Freddy E. P. v. Berryhill, 2019 WL 266963, at *7 (C.D. Cal. Jan. 18, 2019)

23 (noting that “[a]t least one VE has testified that in California workers’

24 compensation jargon, a restriction against ‘repetitive’ activity equates to the

25 ability to perform the activity occasionally” and that “[s]ome courts outside the

26 Ninth Circuit have found no inconsistency in the determination that claimant

27 cannot perform ‘repetitive’ motion but can perform occupations requiring

28 ‘frequent’ motion”). However, because the ALJ failed to translate the opinion

1 into the social security context and make that determination, the issue is

2 unreviewable by this Court. See Brown-Hunter, 806 F.3d at 492 (federal courts

3 “demand that the agency set forth the reasoning behind its decisions in a way

4 that allows for meaningful review”); Alvarado, 2018 WL 4616344 at *5;

5 Brooks, 2012 WL 2373628 at *5.

6 Finally, although the ALJ alluded to generic reasons for discounting the

7 opinion (e.g., medical evidence “as a whole,” “other opinions,” and daily

8 activities), it is unclear which reason applied to which limitation, and, without a

9 definitional explanation of “repetitive,” why. As a result, the Court finds the

10 ALJ erred in failing to translate Dr. Yee’s opinion into the social security

11 context, as contemplated by the Court’s opinion and order on remand, and,

12 without such translation, the Court cannot find such error harmless. See

13 Brown-Hunter, 806 F.3d at 492 (if ALJ fails to specify adequate reasoning,

14 reviewing court will be unable to meaningfully review without substituting its

15 conclusion for the ALJ’s, or speculating as to grounds for the ALJ’s

16 conclusions; in such a situation, “such error will usually not be harmless”);

17 Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (citations omitted) (“We

18 require the ALJ to build an accurate and logical bridge from the evidence to her

19 conclusions so that we may afford the claimant meaningful review of the SSA’s

20 ultimate findings.”).

21 B. Remand is appropriate.

22 The decision whether to remand for further proceedings is within this

23 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000)

24 (as amended). Where further proceedings would serve no useful purpose or

25 where the record has been fully developed, a court may direct an immediate

26 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004);

27 Harman, 211 F.3d at 1179 (noting that “the decision of whether to remand for

28 further proceedings turns upon the likely utility of such proceedings”). A

1 remand for further proceedings is appropriate where outstanding issues must

2 be resolved before a determination of disability can be made and it is not clear

3 from the record that the claimant is disabled. See Bunnell v. Barnhart, 336

4 F.3d 1112, 1115-16 (9th Cir. 2003).

5 The Court notes that the Commissioner did not address the Desrosiers

6 workers’ compensation translation issue in the Joint Stipulation. See Kinley v.

7 Astrue, 2013 WL 494122, at *3 (S.D. Ind. Feb. 8, 2013) (“The Commissioner

8 does not respond to this [aspect of claimant’s] argument, and it is unclear

9 whether this is a tacit admission by the Commissioner that the ALJ erred or

10 whether it was an oversight. Either way, the Commissioner has waived any

11 response.”). However, in similar fashion, Plaintiff, despite having the benefit of

12 the Court’s prior opinion and remand order flagging the issue, did not appear

13 to raise the issue of workers’ compensation translation in exceptions before the

14 Appeals Council. Accordingly, the Appeals Council did not have an

15 opportunity to address this specific challenge in the first instance following

16 remand. Steward v. Astrue, 2012 WL 4210624, at *4 (D. Or. Sept. 19, 2012)

17 (finding claimant waived argument not raised before Appeals Council).

18 Nonetheless, considering both parties’ failures to address the relevant

19 issue in this proceeding or in prior proceedings, and noting that exhaustion is

20 not jurisdictional, because the underlying decision and record are insufficient

21 to determine the harmfulness of the error, the Court reverses and remands the

22 case to the Agency yet again. See Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir.

23 1993) (“The exhaustion requirement . . . is not jurisdictional, and thus, is

24 waivable by either the Secretary or the courts.”). Because it is unclear whether

25 Plaintiff was in fact disabled, remand here is on an “open record.” See Brown-

26 Hunter, 806 F.3d at 495; Bunnell, 336 F.3d at 1115-16. The parties may freely

27 take up all issues raised in the Joint Stipulation, and any other issues relevant

28 to resolving Plaintiff’s claim of disability, before the ALJ.

1 Accordingly, on remand, the Agency shall translate Dr. Yee’s opinion

2 the social security context with particular attention to the “repetitive”

3 || terminology and the assessed repetitive limitations, obtain competent workers’

4 compensation medical expert testimony or interrogatories if necessary, then

5 || assess the repetitive limitations and all other significant findings in Dr. Yee’s

6 |}and any other relevant opinion, reassess Plaintiff's RFC and determine

7 || whether Plaintiffs limitations conflict with the RFC, and proceed through the

8 ||remaining steps of the disability analysis to determine whether Plaintiff can

9 || perform other work, if any, that exists in significant numbers.

10 IV.

11 ORDER

12 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS

13 |} ORDERED that Judgment be entered reversing the decision of the

14 || Commissioner of Social Security and remanding this matter for further

15 ||administrative proceedings consistent with this Order.

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Dated: April 08, 2021

18 ND. EARLY s

19 nited States Magistraté Judge

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