Garcia

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ELIZABETH G.,1 Case No. 6:24-cv-02045-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

Elizabeth G. (“Plaintiff”) filed this appeal challenging the Commissioner of Social

Security’s (“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”)

and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act.

For the reasons explained below, the Court reverses the Commissioner’s decision and remands

for further proceedings.

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1 In the interest of privacy, this opinion uses only the first name and the initial of the last

name of the non-governmental party and lay witness.

STANDARD OF REVIEW

“As with other agency decisions, federal court review of social security determinations is

limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). That is

because “[f]or highly fact-intensive individualized determinations like a claimant’s entitlement to

disability benefits, Congress places a premium upon agency expertise, and, for the sake of

uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their

discretion for that of the agency.” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 621

(1966)). Adhering to this principle, courts “follow three important rules” in reviewing social

security determinations. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).

First, courts “leave it to the [agency] to determine credibility, resolve conflicts in the

testimony, and resolve ambiguities in the record.” Id. (quoting Treichler, 775 F.3d at 1098).

Second, courts “will ‘disturb the Commissioner’s decision to deny benefits only if it is not

supported by substantial evidence or is based on legal error.’” Id. (quoting Treichler, 775 F.3d at

1098). Third, if the agency “‘commits legal error, [courts] uphold the decision where that error is

harmless,’ meaning that ‘it is inconsequential to the ultimate nondisability determination,’ or

that, despite the legal error, ‘the agency’s path may reasonably be discerned, even if the agency

explains its decision with less than ideal clarity.’” Id. (quoting Treichler, 775 F.3d at 1098); see

also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“And even where this modest

[substantial evidence] burden is not met, [courts] will not reverse an [agency] decision where the

error was harmless.” (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded

on other grounds by regulation as recognized in Farlow v. Kijakazi, 53 F.4th 485, 487 (9th Cir.

2022))).

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BACKGROUND

I. PLAINTIFF’S APPLICATIONS

Plaintiff filed applications for benefits on November 19, 2021 (DIB) and January 8, 2022

(SSI).2 (Tr. 365-76.) Following an initial remand from the Appeals Council, Plaintiff and an

impartial vocational expert (“VE”) appeared and testified at a hearing before an Administrative

Law Judge (“ALJ”) on June 21, 2024. (Id. at 39-63.) On July 19, 2024, the ALJ issued a written

opinion denying Plaintiff’s applications. (Id. at 15-32.) On October 4, 2024, the Appeals Council

denied Plaintiff’s request for review, making the ALJ’s written decision the final decision of the

Commissioner. (Id. at 1-6.) Plaintiff now seeks review of the ALJ’s decision.

II. THE SEQUENTIAL PROCESS

A claimant is considered disabled if he or she is unable to “engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment

which . . . has lasted or can be expected to last for a continuous period of not less than 12

months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential

process for determining whether an applicant is disabled within the meaning of the Social

Security Act.” Keyser v. Comm’r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those

five steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the

claimant has a severe impairment; (3) whether the impairment meets or equals a listed

impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the

claimant can perform other work that exists in significant numbers in the national economy. Id.

at 724-25.

2 The Commissioner denied Plaintiff’s previous DIB and SSI applications on May 23,

2019. (Tr. 15.)

The claimant bears the burden of proof for the first four steps. See Bustamante v.

Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any

of those steps, the claimant is not disabled. See id. at 954. The Commissioner bears the burden of

proof at step five, where the Commissioner must show the claimant can perform other work that

exists in significant numbers in the national economy, “taking into consideration the claimant’s

residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d

1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is

disabled. See Bustamante, 262 F.3d at 954.

III. THE ADMINISTRATIVE LAW JUDGE’S DECISION

The ALJ applied the five-step sequential evaluation process to determine if Plaintiff was

disabled. (Tr. 15-32.) At step one, the ALJ determined that Plaintiff had not engaged in

substantial gainful activity since May 24, 2019, the alleged onset date. (Id. at 18.) At step two,

the ALJ found that Plaintiff suffered from the following severe, medically determinable

impairments: persistent depressive disorder with anxious distress; major depressive disorder;

generalized anxiety disorder; obesity; chronic tension headaches versus migraines; peripheral

neuropathy; bipolar disorder; and attention-deficit hyperactivity disorder. (Id.)

At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or

medically equals a listed impairment. (Id. at 20.) The ALJ then found that Plaintiff had the

residual functional capacity (“RFC”) to perform light work subject to the following limitations:

lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk for

two hours per eight-hour workday and sit for six hours per eight-hour workday; never climb

ladders, ropes, or scaffolds; occasionally climb ramps or stairs; occasionally balance, stoop,

kneel, crouch, and crawl; understand, remember, carry out, and persist at simple, routine,

repetitive tasks; no assembly-line pace; no teamwork; occasional contact with the general public,

supervisors, and coworkers; no exposure to moving mechanical parts; no exposure to workplace

hazards such as unprotected heights and moving machinery; work must require no reading skills

greater than a fifth-grade level and no math skills greater than a fourth-grade level; and

instructions should be given by way of demonstration. (Id. at 22.)

At step four, the ALJ concluded Plaintiff was unable to perform any past relevant work.

(Id. at 31.) At step five, the ALJ determined that Plaintiff was not disabled because a significant

number of jobs existed in the national economy Plaintiff could perform, including small products

assembler I, production assembler, and sub-assembler. (Id. at 32.)

DISCUSSION

On appeal, Plaintiff argues that substantial evidence does not support the ALJ’s step five

findings because the VE’s testimony conflicted with the Dictionary of Occupational Titles

(“DOT”) and the ALJ did not resolve the conflict. (Pl.’s Opening Br. (“Pl.’s Br.”) at 1-7, ECF

No. 9; see also Pl.’s Reply at 1-3, ECF No. 11.) The Commissioner responds that there was no

obvious or apparent conflict between the VE’s testimony and the DOT, if there was a conflict the

VE’s testimony reconciled the conflict, and the ALJ appropriately relied on the VE’s testimony.

(Def.’s Br. at 1-6, ECF No. 10.) For the reasons discussed below, the Court finds that the ALJ

erred by not resolving the conflict and therefore reverses the Commissioner’s decision and

remands for further proceedings.

I. APPLICABLE LAW

At step five, the Commissioner has the burden “to identify specific jobs existing in

substantial numbers in the national economy that a claimant can perform despite his identified

limitations.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (simplified) (first quoting

Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); and then citing 20 C.F.R. § 416.920(g)).

The ALJ “first assesses a claimant’s ‘residual functional capacity,’ defined as the most

that a claimant can do despite ‘physical and mental limitations’ caused by his impairments and

related symptoms.” Id. (quoting 20 C.F.R. § 416.945(a)(1)). The ALJ “then considers potential

occupations that the claimant may be able to perform.” Id. (citing 20 C.F.R. § 416.966). In

making this determination, “the ALJ relies on the DOT, which is the SSA’s ‘primary source of

reliable job information’ regarding jobs that exist in the national economy.” Id. at 845-46 (first

quoting Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); then citing 20 C.F.R. § 416.969;

and then citing 20 C.F.R. § 416.966(d)(1)). In addition to the DOT, “the ALJ relies on the

testimony of vocational experts who testify about specific occupations that a claimant can

perform in light of his residual functional capacity.” Id. at 846 (first citing 20 C.F.R. §

416.966(e); and then citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir.

2009)).

“If the expert’s opinion that the applicant is able to work conflicts with, or seems to

conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert to reconcile

the conflict before relying on the expert to decide if the claimant is disabled.” Gutierrez v.

Colvin, 844 F.3d 804, 807 (9th Cir. 2016) (citing SSR 00-4P, 2000 WL 1898704, at *2 (2000));

see also Zavalin, 778 F.3d at 846 (“When there is an apparent conflict between the vocational

expert’s testimony and the DOT—for example, expert testimony that a claimant can perform an

occupation involving DOT requirements that appear more than the claimant can handle—the

ALJ is required to reconcile the inconsistency.”).

“Thus, the ALJ must first determine whether a conflict exists.” Massachi v. Astrue, 486

F.3d 1149, 1153 (9th Cir. 2007). “If it does, the ALJ must then determine whether the vocational

expert’s explanation for the conflict is reasonable and whether a basis exists for relying on the

expert rather than the [DOT].” Id.; see also Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir.

2017) (“[A]n ALJ is required to investigate and resolve any apparent conflict between the VE’s

testimony and the DOT, regardless of whether a claimant raises the conflict before the agency.”)

(citations omitted).

“[T]he conflict must be ‘obvious or apparent’ to trigger the ALJ’s obligation to inquire

further.” Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (citing Gutierrez, 844 F.3d at

808). In other words, “not all potential conflicts between an expert’s job suitability

recommendation and the Dictionary’s listing of ‘maximum requirements’ for an occupation will

be apparent or obvious.” Gutierrez, 844 F.3d at 807-08. “[T]asks that aren’t essential, integral, or

expected parts of a job are less likely to qualify as apparent conflicts that the ALJ must ask

about.” Id. at 808. “Likewise, where the job itself is a familiar one—like cashiering—less

scrutiny by the ALJ is required.” Id.

II. ANALYSIS

Plaintiff argues that the ALJ erred by limiting Plaintiff to “no assembly-line pace” (Tr.

22), but then relying on the VE’s testimony that Plaintiff could perform jobs within the small

products assembler I and production assembler occupations (id. at 32) which require assembly

line work without resolving the conflict. (Pl.’s Br. at 1-7.) The Court agrees.

First, the Court finds that the conflict between a “no assembly-line pace” limitation and

the small products assembler I and production assembler positions was obvious or apparent. See

Lamear, 865 F.3d at 1205 (“[T]he conflict must be ‘obvious or apparent’ to trigger the ALJ’s

obligation to inquire further.” (citing Gutierrez, 844 F.3d at 808)). The DOT description for

“small products assembler I” reflects jobs performed on an assembly line: “Performs any

combination of following repetitive tasks on assembly line to mass produce small products[.] . . .

Frequently works at bench as member of assembly group assembling one or two specific parts

and passing unit to another worker. Loads and unloads previously setup machines, . . . to perform

fastening, force fitting, or light metal-cutting operation on assembly line.” DOT 706.684-022,

available at 1991 WL 679050 (emphasis added). The job description for “production assembler”

similarly includes work on an “assembly line.” See DOT 706.687-010, available at 1991 WL

679074 (“Performs repetitive bench or line assembly operations to mass-produce products, such

as automobile or tractor radiators, blower wheels, refrigerators, or gas stoves: Places parts in

specified relationship to each other. . . . May tend machines, such as arbor presses or riveting

machine, to perform force fitting or fastening operations on assembly line. May be assigned to

different work stations as production needs require. May work on line where tasks vary as

different model of same article moves along line[.]”) (emphasis added). Thus, there is an obvious

or apparent conflict between Plaintiff’s ability to perform jobs in these assembly line occupations

when she cannot perform at an assembly-line pace.

In light of the obvious or apparent conflict between no assembly-line pace and assembly

line jobs, the ALJ was required to ask the VE to reconcile the conflict before relying on the

testimony. See Gutierrez, 844 F.3d at 807 (“If the expert’s opinion that the applicant is able to

work conflicts with, or seems to conflict with, the requirements listed in the [DOT], then the ALJ

must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant

is disabled.” (citing SSR 00-4P, 2000 WL 1898704, at *2 (2000))); see also Zavalin, 778 F.3d at

846 (“When there is an apparent conflict between the vocational expert’s testimony and the

DOT—for example, expert testimony that a claimant can perform an occupation involving DOT

requirements that appear more than the claimant can handle—the ALJ is required to reconcile the

inconsistency.”).

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Here, the ALJ did not ask the VE to resolve the conflict between Plaintiff’s assembly-line

pace limitation and the available jobs. Although the VE testified that these two occupations

“would be more like in the bench assembly kind of positions where it’s not on a conveyer belt

type situation” (Tr. 54), the VE’s testimony is contradicted by the DOT which defines both

positions to include jobs working on an assembly line or as a member of an assembly group

assembling parts and passing units to another worker. Whether sitting at a bench or standing at a

conveyor belt, both positions appear to require the assembling of something and passing it to

another worker which necessarily requires an assembly-line pace. The VE’s testimony that all of

the jobs encompassed by these occupations were “more like in the bench assembly kind of

positions” was not reasonable in light of the DOT definitions and the ALJ erred by not asking the

VE to reconcile this conflict.

The ALJ’s error was not harmless because the only other occupation the VE identified

without an assembly line requirement was sub-assembler with only 13,270 jobs available

nationally. (Tr. 32.) That number of jobs does not satisfy the ALJ’s burden of demonstrating that

Plaintiff can perform other work that exists in “significant” numbers in the national economy.3

See Gutierrez, 740 F.3d at 529 (finding that 25,000 jobs in the national economy was a “close

call”); see also Ma v. Bisignano, No. 24-7435, 2025 WL 3124479, at *2 (9th Cir. Nov. 7, 2025)

(reversing and remanding where “[i]t [wa]s not clear that the ALJ would find 17,219 jobs to be a

3 Even if Plaintiff could perform some jobs encompassed by the small products assembler

I or production assembler occupations, the VE did not testify about what percentage of the

available jobs would be available to a worker subject to a “no assembly-line pace” limitation. Cf.

Moore v. Comm’r of Soc. Sec., No. 2:14-cv-911, 2015 WL 4399787, at *3 (S.D. Ohio July 17,

2015), report and recommendation adopted, 2015 WL 5749464 (S.D. Ohio Sept. 30, 2015)

(noting that when the VE identified “small product assembler” as a possible occupation for the

claimant, the ALJ asked the VE “whether someone who could not do work that involved a fast

assembly line pace or strict production quotas could do [that] job” and the VE “said the number

of assembler jobs would be reduced but not completely eliminated”).

significant number” and noting that “we have held that 25,000 jobs are enough to support a

finding of non-disability, but that it is a ‘close call’” (quoting Gutierrez, 740 F.3d at 529));

Rasmussen v. Kijakazi, No. 21-35468, 2022 WL 2287566, at *2 (9th Cir. June 24, 2022)

(“[O]nly 6,349 jobs would exist in the national economy that [the claimant] can perform, and

that number would be well below what we have held was a ‘close call’ as to significance[.]”

(quoting Gutierrez, 740 F.3d at 529)).

For these reasons, the Court holds that the ALJ erred at step five by failing to reconcile

the obvious or apparent conflict between Plaintiff's assembly-line pace limitation and the small

products assembly I and production assembler positions the VE identified. The Court therefore

remands to allow the ALJ to (1) obtain VE testimony to reconcile the conflict and (2) determine

if Plaintiff can perform other work that exists in “significant” numbers in the national economy.

See De Rivera v. Berryhill, 710 F. App’x 768, 769 (9th Cir. 2018) (“On remand, the ALJ should:

(1) reconcile the identified inconsistency regarding [the claimant]’s ability to perform the

conveyor line bakery worker position; and/or (2) determine, in the first instance, whether the job

numbers for the fish scaling machine operator position are significant.”).

CONCLUSION

For the reasons stated, the Court REVERSES the Commissioner’s decision and

REMANDS for further proceedings consistent with this opinion.

IT IS SO ORDERED.

DATED this 24th day of February, 2026.

HON. STACIE F. BECKERMAN

United States Magistrate Judge

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