Kirsch v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DONNA K.1
Plaintiff,
vs.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,2
Defendant.
Case No. 3:20-CV-00286-JMK
ORDER REMANDING FOR FURTHER
PROCEEDINGS
I. 	INTRODUCTION
On or around January 14, 2019, Plaintiff Donna K. (“Plaintiff”) filed claims
for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
under Title II and Title XVI of the Social Security Act (“the Act”), alleging disability
beginning on December 15, 2017.3 	After receiving an unfavorable decision from an
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 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. See Memorandum, Committee on Court Administration
and Case Management of the Judicial Conference of the United States (May 1, 2018), available at
https://www.uscourts.gov/sites/default/files/18-ap-c-suggestion_cacm_0.pdf.
2 On August 12, 2021, Defendant Kilolo Kijakazi, Acting Commissioner of the Social
Security Administration, was substituted for Andrew M. Saul, Commissioner of the Social
Security Administration, pursuant to Federal Rule of Civil Procedure 25(d). 	See Docket
Annotation, August 12, 2021.
3 Administrative Record (“A.R.”) 292–99. The Court uses the term “disability benefits”
to include both DIB and SSI. Plaintiff brought claims under Title II and Title XVI in this case.
See Docket 1. Although each program is governed by a separate set of regulations, the regulations
governing disability determinations are substantially the same for both programs. 	Compare
20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title II) with 20 C.F.R.
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Administrative Law Judge (“ALJ”), Plaintiff exhausted all administrative remedies and
filed a Complaint, on November 10, 2020, seeking relief from this Court.4 	Plaintiff’s
opening brief asks the Court to vacate the ALJ’s decision and remand the case back to the
Commissioner of Social Security (the “Commissioner”) under 42 U.S.C. § 405(g), with
instructions.5 The Commissioner filed an Answer to the Complaint6 and a response brief
in opposition.7 Plaintiff filed a reply brief.8 This Court has jurisdiction to hear an appeal
from a final decision of the Commissioner.9
For the reasons set forth below, Plaintiff’s request for relief is GRANTED,
the final decision of the Commissioner is VACATED, and this case is REMANDED to
the Commissioner for further proceedings.
II. 	PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born May 10, 1966, and was 53 years old at the time of the
ALJ’s June 2, 2020, unfavorable decision.10 She was 51 years old on December 15, 2017,
the alleged disability onset date.11 	She has a high school education with some college
courses completed and past work experience as a Certified Nurse Assistant (“CNA”) and
§§ 416.901–999d (governing disability determinations under Title XVI). 	For convenience, the
Court cites the regulations governing disability determinations under both titles.
4 See Docket 1.
5 Docket 19 at 15.
6 Docket 13.
7 Docket 22.
8 Docket 24.
9 42 U.S.C. § 405(g).
10 A.R. 132.
11 Id.
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Administrative Assistant.12 	On January 14, 2019, Plaintiff filed claims for SSI and DIB
under the Act, alleging that the following restricted her ability to work: 	diabetes, high
blood pressure, sleep problems, vision problems, neuropathy, depression, and other mental
impairments.13 	On September 6, 2019, the Social Security Administration (“SSA”)
initially determined that Plaintiff was not disabled, denying her claims for SSI and DIB.14
On September 26, 2019, Plaintiff requested a hearing on her claims before an ALJ.15 She
appeared and testified by telephone at a hearing before ALJ Cecilia LaCara on May 13,
2020.16 Plaintiff was represented by counsel at the hearing.17 William Weiss, a vocational
expert 	(“VE”), 	and 	non-examining 	medical 	experts 	(“ME”) 	Margaret 	Moore, 	a
psychologist, and Wayne Robert Kidder, a physician, also testified at the hearing.18
On June 2, 2020, the ALJ issued an unfavorable decision.19 On June 5, 2020,
Plaintiff filed a request for review to the Appeals Council.20 On September 16, 2020, the
Appeals Council denied the request for review, thereby making the ALJ’s decision the final
decision of the Commissioner.21 	On November 10, 2020, Plaintiff filed a Complaint
12 A.R. 62, 75–76 (According to the Vocational Expert, the Administrative Assistant
position was considered a “sedentary job, [with a] SVP of 7, skilled, with a GED [requirement] of
5, 3, and 5[;]” while the CNA position had a “heavier SVP of 4, and [was considered] semiskilled,
and [had] a GED [requirement] of 3, 2, and 2.”).
13 A.R. 314, 321–22, 326.
14 A.R. 24, 157 (SSI), 163 (DIB).
15 A.R. 169–70.
16 A.R. 39–82.
17 A.R. 24.
18 A.R. 48–61 (medical expert testimony); A.R. 74–80 (vocational expert testimony).
Within this Order, “the ME” refers to Dr. Kidder.
19 A.R. 21–38.
20 A.R. 15–20.
21 A.R. 1–6.
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appealing the Commissioner’s final decision to this Court.22 	Plaintiff is represented by
counsel in this appeal.
III. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be
overturned unless it either is not supported by substantial evidence or is based upon legal
error.23 	“Substantial evidence” has been defined by the United States Supreme Court as
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”24 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”25 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the ALJ’s conclusion.26 	If the evidence is susceptible to more than one rational
interpretation, the ALJ’s conclusion must be upheld.27 	A reviewing court may consider
only the reasons provided by the ALJ in the disability determination and “may not affirm
the ALJ on a ground upon which she did not rely.”28 	An ALJ’s decision will not be
reversed if it is based on “harmless error,” meaning that the error “is inconsequential to the
ultimate nondisability determination . . . or that, despite the legal error, the agency’s path
22 Docket 1.
23 Matney ex. rel Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez
v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
24 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
25 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam).
26 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
27 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438
F.2d 920, 921 (9th Cir. 1971)).
28 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
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may reasonably be discerned, even if the agency explains its decision with less than ideal
clarity.”29 Finally, the ALJ has a “special duty to fully and fairly develop the record and
to assure that the claimant’s interests are considered.”30
IV. 	DETERMINING DISABILITY
The Act provides for the payment of disability insurance benefits to
individuals who have contributed to the Social Security program and who suffer from a
physical or mental disability.31 	In addition, SSI may be available to individuals who do
not have insured status under the Act, but who are age 65 or older, blind, or disabled.32
Disability is defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of
not less than 12 months[.]33
The Act further provides:
An individual shall be determined to be under a disability only
if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy, regardless of whether such
work exists in the immediate area in which he lives, or whether
a specific job vacancy exists for him, or whether he would be
hired if he applied for work. 	For purposes of the preceding
29 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks
and citations omitted).
30 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996), (quoting Brown v. Heckler, 713
F.2d 441, 443 (9th Cir. 1983) superseded in part by statute on other grounds, 20 C.F.R.
§ 416.929(c)(3). See also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
31 42 U.S.C. § 423(a).
32 42 U.S.C. § 1381a.
33 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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sentence (with respect to any individual), “work which exists
in 	the 	national 	economy” 	means 	work 	which 	exists 	in
significant numbers either in the region where such individual
lives or in several regions of the country.34
The Commissioner has established a five-step process for determining
disability within the meaning of the Act.35 A claimant bears the burden of proof at steps
one through four in order to make a prima facie showing of disability.36 	If a claimant
establishes a prima facie case, the burden of proof then shifts to the agency at step five.37
The Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.”38 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. 	Determine whether the claimant is involved in “substantial gainful
activity.”39 	The ALJ determined that Plaintiff had not engaged in substantial gainful
activity since the alleged disability onset date of December 15, 2017.40
Step 2. Determine whether the claimant has a medically severe impairment
or combination of impairments.41 	A severe impairment significantly limits a claimant’s
physical or mental ability to do basic work activities and does not consider age, education,
34 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
35 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
36 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014)
(quoting Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
37 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098.
38 Tackett, 180 F.3d at 1099.
39 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
40 A.R. 27.
41 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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or work experience.42 The severe impairment or combination of impairments must satisfy
the twelve-month duration requirement.43 	The ALJ determined that Plaintiff had the
following severe impairments: 	insulin dependent diabetes mellitus, post-toe amputation,
and peripheral neuropathy.44 The ALJ determined that Plaintiff’s pneumonia; psoriasis;
carpal tunnel syndrome; degenerative disc disease, spine; and GERD were non-severe
impairments.45 	The ALJ further determined that Plaintiff did not have any medically
determinable mental impairments or, in the alternative, any mental disorders Plaintiff may
have are non-severe, as Plaintiff did “not have more than minimal limitations in her ability
to perform basic mental work activities.”46
Step 3. 	Determine whether the impairment or combination of impairments
meet(s) or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404,
Subpart P, Appendix 1, precluding substantial gainful activity. If the impairment(s) is (are)
the equivalent of any of the listed impairments, and meet(s) the duration requirement, the
claimant is conclusively presumed to be disabled.47 	If not, the evaluation goes on to the
fourth step. The ALJ determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.48
42 20 C.F.R. §§ 404.1520(c), 416.920(c).
43 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
44 A.R. 27.
45 Id.
46 Id. (noting that Plaintiff lacks a formal bipolar disorder diagnosis and the record’s
identification of a mood disorder is unsupported by testing or examinations).
47 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
48 A.R. 28.
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Before proceeding to step four, a claimant’s residual functional capacity
(“RFC”) is assessed. Once determined, the RFC is used at both step four and step five.49
An RFC assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from her impairments, including impairments that are not severe.50
The ALJ determined that Plaintiff had the RFC to perform light work with the following
exceptions:
[S]he can stand and/or walk for up to four hours in an eight
hour workday; she can sit for up to six hours in an eight hour
workday; 	she 	can 	never 	operate 	foot 	controls; 	she 	can
occasionally climb ramps or stairs; she can occasionally
balance and stoop; she can never climb ladders, ropes, or
scaffolds; she can frequently kneel, crouch, and crawl; she can
frequently bilaterally handle, finger, and feel with no repetitive
manipulations; she must avoid moderate exposure to non-
weather related extreme cold; she must avoid concentrated
exposure to wetness, humidity, and excessive vibration; she
must avoid all exposure to unprotected heights and hazardous
machinery; and she is limited to occupations that require only
frequent near acuity.51
Step 4. 	Determine whether the claimant is capable of performing past
relevant work. 	At this point, the analysis considers whether past relevant work requires
the performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do her past relevant work, the claimant is deemed not to be disabled.52
Otherwise, the evaluation process moves to the fifth and final step. 	The ALJ determined
49 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
50 See SSR 96-8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996).
51 A.R. 28 (italics added).
52 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
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that Plaintiff was capable of performing her past relevant work as an administrative
assistant, as generally performed.53
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.54 The
ALJ did not reach Step Five in the five-step sequential evaluation process.55
The ALJ concluded that Plaintiff was not disabled within the meaning of the
Act at any time from December 15, 2017, the alleged disability onset date, through June 2,
2022, the date of the ALJ’s decision.56
V. 	DISCUSSION
Plaintiff alleges that the ALJ erred by: 	(1) failing to comply with the
Commissioner 	of 	Social 	Security’s 	Hearings, 	Appeals, 	and 	Litigation 	Manual
(“HALLEX”); (2) constructing an RFC that is internally inconsistent; (3) constructing an
RFC that is unsupported by substantial evidence; and (4) failing to resolve “apparent
conflicts” between the VE’s testimony and job requirements listed in the Dictionary of
Occupational Titles (“DOT”).57 	As a result of those errors, Plaintiff argues that the ALJ
53 A.R. 33.
54 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
55 Because erosion of a claimant’s occupational base only becomes relevant at step five,
and the ALJ failed to conduct a Step 5 analysis, the Court does not address Plaintiff’s arguments
regarding “job erosion.” Docket 19 at 10. See 20 C.F.R. §§ 404.1520(g), 416.920(g).
56 A.R. 34.
57 Docket 19 at 4, 7.
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erred at step four of the sequential evaluation by finding that Plaintiff “could perform her
past work as [an] administrative assistant[,] as generally performed in the DOT.”58
Plaintiff requests that the Court vacate the ALJ’s decision and remand the
case back to the Commissioner under 42 U.S.C. § 405(g) with instructions to reevaluate
the finding at step four of the sequential process.
A. 	Lack of Compliance with HALLEX I-2-6-70(b)
As a preliminary matter, the Court acknowledges Plaintiff’s complaint that,
by taking the ME’s testimony before that of Plaintiff at the administrative hearing, the ALJ
violated agency policy set forth in HALLEX, an internal Social Security Administration
policy manual.59 According to Plaintiff, she was prejudiced by that violation because, had
the ME been aware of her difficulties “grasping, holding, and turning” things, as she later
testified, “there exists a reasonably [sic] probability that [she] would have been limited to
only occasional [, rather than frequent,] handling and fingering.”60
Plaintiff is correct that the ALJ failed to comply with HALLEX I-2-6-70(b),
which provides that “[i]f the ME [is] not present to hear pertinent testimony, such as
testimony regarding the claimant’s current medications or sources and types of treatment,
the ALJ will summarize the testimony for the ME on the record.” Because the ME testified
before Plaintiff, 	the ALJ was unable to summarize Plaintiff’s potentially pertinent
testimony for the ME, and thereby violated agency policy. 	While the ALJ clearly did
58 Docket 24 at 9.
59 Docket 19 at 7 (citing HALLEX I-2-6-70(b)).
60 Id.
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violate HALLEX, “the Ninth Circuit has plainly . . . taken the position that HALLEX does
not . . . create judicially enforceable duties” upon ALJs or courts.61 The ALJ’s failure to
comply with HALLEX in this case thus is not a reversible error.
B. 	Internal Consistency of RFC
Plaintiff argues that the RFC is either ambiguous or internally inconsistent
because it “contains confusing terms that are in conflict with each other.”62 Specifically,
Plaintiff takes issue with the ALJ’s use of the terms “frequently” and “repetitive” in its
conclusion that she “has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except . . . 	[that] she can frequently bilaterally
handle, finger, and feel with no repetitive manipulations.”63 	According to Plaintiff, “the
RFC completely precludes the hypothetical individual from any repetitive manipulation
while simultaneously . . . allow[ing] the hypothetical individual to frequently handle,
finger, and feel.”64 	In so doing, she argues, the “ALJ’s assessment is at odds with itself
and creates an internally inconsistent RFC.”65 The Court disagrees.
Plaintiff’s argument requires the Court to accept that allowing frequent
manipulations is intrinsically at odds with prohibiting repetitive manipulations. 	Yet,
neither the authorities to which Plaintiff cites—namely, Social Security Ruling (“SSR”)
61 Lehman v. Saul, No. 3:20-CV-0184-HRH, 2021 WL 1232670, at *10 (D. Alaska
Apr. 1, 2021). See also Ronquillo v. Saul, No. 1:19-CV-1665 JLT, 2021 WL 614637, at *4 (E.D.
Cal. Feb. 17, 2021) (“[T]he Ninth Circuit determined failure to comply with HALLEX standards
is not a reversible error because ‘HALLEX is strictly an internal guidance tool’”) (quoting Moore
v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000)).
62 Docket 19 at 5.
63 Id. at 5–6 (citing A.R. 28).
64 Id. at 6.
65 Id.
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83-1066 and Gardner v. Astrue, 257 F. App’x 28 (9th Cir. 2007)—nor the plain meanings
of the terms, support such a conflict.67
Pursuant to SSR 83-10, for the purposes of assessing an individual’s ability
to perform “light work,” frequent means “occurring from one-third to two-thirds of the
time” over the course of an eight-hour workday.68 	While there is no SSR that defines
repetitive, in Gardner, the Ninth Circuit provides the following helpful observation
regarding the distinction between the two terms:
“repetitively” in . . . [the social security context] appears to
refer to a qualitative characteristic—i.e., how one uses his
hands, 	or what type of motion is required—whereas . . .
“frequently” seem[s] to describe a quantitative characteristic—
i.e., how often one uses his hands in a certain manner. Under
this reading, a job might require that an employee use his hands
in a repetitive manner frequently, or it might require him to use
his hands in a repetitive manner constantly.69
Pursuant to Gardner, this Court finds no internal inconsistency or ambiguity
in the RFC’s allowance of light work requiring “frequent[] bilateral[] handle, finger, and
feel. . . [but] no repetitive manipulations.”70 The Court understands the RFC to limit, rather
66 SSR 83-10, 1983 WL 31251 (S.S.A. January 1, 1983).
67 See Docket 19 at 4–6.
68 SSR 83-10, 1983 WL 31251, at *6 (S.S.A. January 1, 1983). The purpose of SSR 83-
10 is to “address the issue of capability to do other work, and to provide definitions of terms and
concepts frequently used in evaluating disability under the medical-vocational rules.” Id. at *1.
See also Program Operations Manual System for Social Security (“POMS”), DI 25001.001(A)(33)
(“Use of th[e] term [frequently] in the SCO or RFC means that the activity or condition occurs
one-third to two-thirds of an 8-hour workday.”) available at https://secure.ssa.gov/poms.nsf/
lnx/0425001001.
69 Gardner, 257 F. App’x at 30 n.5. See also Everett v. Astrue, No. 1:10-CV-1831 LJO-
BAM, 2012 WL 1965958, at *14 (E.D. Cal. May 31, 2012) (“[A]nalysis of Ninth Circuit social
security case law reveals that the definitions of frequent and repetitive in the social security context
are distinct.”).
70 A.R. 28.
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than prohibit, the amount of repetitive bilateral handling, fingering, and feeling that
Plaintiff can be required to perform in a given workday. 	Put another way, assuming an
eight-hour workday, the RFC would preclude Plaintiff from occupying a hypothetical job
that typically required her to perform repetitive bilateral handling, fingering, and feeling
more than two hours and 40 minutes in a given workday, but might allow a job that only
required an hour of such manipulations.
C. 	Lack of Substantial Evidence
(1) 	An ALJ’s duty to develop the record
In making findings regarding a claimant’s RFC, an ALJ “must consider
limitations and restrictions imposed by all of an individual’s impairments, even those that
are not ‘severe.’”71 	An “RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations).”72 An ALJ has a
“special duty to fully and fairly develop the record and to assure that the claimant’s interests
are considered.”73 This duty includes a responsibility to “study[] the record and resolv[e]
any conflicts or ambiguities in it.”74 	It exists “even when the claimant is represented by
71 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting SSR 96-8p, 1996 WL
374184, at *5 (S.S.A. July 2, 1996). See also 20 C.F.R. §§ 404.1520(e), 404.1545(e), 416.920(e),
416.945(e).
72 Bradley v. Colvin, No. 2:15-CV-1026-EFB, 2016 WL 5395956, at *3 (E.D. Cal.
Sept. 26, 2016) (quoting SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996)).
73 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996), (quoting Brown v. Heckler, 713
F.2d 441, 443 (9th Cir. 1983) superseded in part by statute on other grounds, 20 C.F.R.
§ 416.929(c)(3); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
74 Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017).
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counsel.”75 The existence of ambiguous evidence or a finding that the record is inadequate
to allow for proper evaluation triggers an ALJ’s duty to “develop the record further”76 and
“conduct an appropriate inquiry.”77
For the reasons explained below, this Court concludes that the ALJ erred by
failing to adequately account for the ME’s testimony regarding Plaintiff’s visual and typing
limitations in the RFC and failing to explain omission of the ME’s recommendations
regarding Plaintiff’s visual and typing limitations in the RFC.
(a) 	Visual limitations
Plaintiff contends that the ALJ failed to adequately account for the ME’s
testimony regarding Plaintiff’s visual limitations in the RFC assessment “in violation of
SSR 96-8p [and] 20 CFR § 404.1545.”78 The Court agrees.
(i) 	The ME’s testimony regarding plaintiff’s visual limitations
The ME testified that Plaintiff’s medical records reflected treatment for
“moderate non-prolific diabetic retinopathy, hypertensive retinopathy and branch retinal
vein occlusion in the right eye with macular edema.”79 The ME noted “some visual field
deficits . . . [and h]er visual acuity with correction was fair in 2016,” but also noted that he
had not seen “any recent records” relating to Plaintiff’s visual acuity.80 He further testified
75 DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
76 Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
77 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at
1288). 78 Docket 24 at 3.
79 A.R. 55.
80 Id.
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that Plaintiff had “mild-to-moderate visual limitation,” though he did not believe such
limitations “would be a major problem unless the job called for some critical visual
skills.”81 The ALJ subsequently asked the ME whether Plaintiff’s visual limitations would
allow her to engage in an occupation that required “frequent use such as near acuity like
. . . jewelry making or being a brain surgeon or a lab tech or something like that?”82
Responding to that prompt, the ME expressed his belief “that for many activities, she would
be fine,” but that an occupation “that required very close focusing and clear vision . . .
would not be appropriate for her.”83 	In response to a follow-up question by the ALJ
regarding Plaintiff’s ability to “look at a document, either on the computer or on paper,”
the ME clarified that he believed “[t]hat would be ok.”84 	The ALJ asked no further
questions, 	and 	the 	ME 	provided 	no 	further 	testimony, 	regarding 	Plaintiff’s 	visual
limitations.
(ii) 	Absence of reference to all visual limitations in the RFC
was legal error
SSR 96-8p provides that an “RFC assessment must always consider and
address medical source opinions . . . [and, i]f the RFC assessment conflicts with an opinion
from a medical source, the adjudicator must explain why the opinion was not adopted.”85
Despite the ME’s extended testimony regarding Plaintiff’s visual limitations, the only
reference to such limitations in the ALJ’s findings was a statement that the ME had testified
81 A.R. 59.
82 A.R. 59–60.
83 A.R. 60.
84 Id.
85 SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996).
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that Plaintiff “has some visual limitations.”86 	The RFC, in turn, limited Plaintiff to
“occupations that require only frequent near acuity.”87 The ALJ made no reference to the
fact that the ME’s acceptance of Plaintiff’s ability to engage in employment requiring
frequent near acuity was qualified by the additional limitation of being unsuited for
employment requiring “very close focusing and clear vision.”88 	There similarly was no
reference to the ME’s testimony that Plaintiff would have a problem with jobs requiring
“critical visual skills.”89
While very close focusing and clear vision are not defined terms within the
social security context, the ME’s testimony makes clear that he used the terms to describe
visual limitations not encompassed by a simple “frequent near acuity” limitation. 	By
failing to include the ME’s additional prohibition against occupations requiring very close
focusing and clear vision, the RFC thus “conflict[ed] with an opinion from a medical
source.”90 Yet, the ALJ provided no explanation for failing to adopt the ME’s opinion and
did not even acknowledge that the RFC conflicted with the ME’s testimony. In so doing,
the ALJ violated SSR 96-8p.91 To the extent that the ME’s usage of terms close focusing,
clear vision, and critical visual skills, which are terms lacking standard definitions within
86 A.R. 32. 	This statement is made at the conclusion of a paragraph in which the ALJ
purports to summarize the ME’s testimony regarding Plaintiff’s limitations. The vagueness of the
statement strikes a stark contrast with the specificity of the rest of the paragraph.
87 A.R. 28.
88 A.R. 60.
89 A.R. 59.
90 SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996).
91 While SSRs do not have the precedential value of caselaw, they are “binding on all
components of the Social Security Administration . . . [and] represent precedent final opinions and
orders and statements of policy and interpretations that [the Social Security Administration has]
adopted.” 20 C.F.R. § 402.35(b).
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the social security context, created an ambiguity in the record, the ALJ additionally erred
in failing develop the record by making appropriate inquiries to resolve those ambiguities.
(b) 	Typing limitation
(i) 	The 	ME’s 	testimony 	regarding 	plaintiff’s 	typing
limitations
When asked by Plaintiff’s attorney about Plaintiff’s ability to perform a job
that “required [her] to use a keyboard throughout the day,” the ME testified that he believed
“occasional [typing] would be ok,” with the proviso that she should not “be using the
keyboard . . . more than . . . a third of the [work]day.”92 When asked by the ALJ to repeat
himself, the ME responded that he thought “it would be okay for her to have occasional,
you know, up to a third of the day using a keyboard intermittently. But [he did not] think
that she should be using a keyboard all day long because both of her peripheral neuropathy
and the carpal tunnel syndrome.”93
(ii) 	Absence of reference to typing limitations in the RFC was
legal error
Despite the ME’s testimony that Plaintiff’s peripheral neuropathy and the
carpal tunnel limited her to occupations that required only occasional94 and intermittent
typing, there is no reference to that testimony, in the ALJ’s findings, or to typing
limitations, in the RFC. 	There is, additionally, no reference to typing limitations in the
hypotheticals the ALJ posed to the VE. By failing to include ME-specified typing limits
92 A.R. 61.
93 Id.
94 The ME’s definition of “occasionally” as up to a third of the workday is consistent with
that included in SSR 83-10. See SSR 83-10, 1983 WL 31251, at *5 (January 1, 1983).
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in the RFC or provide a reason for that omission, the ALJ thus violated SSR 96-8p’s
requirement that an “RFC assessment must always consider and address medical source
opinions . . . [and, i]f the RFC assessment conflicts with an opinion from a medical source,
the adjudicator must explain why the opinion was not adopted.”95
(c) 	The RFC is not supported by substantial evidence
“Substantial evidence” has been defined by the Supreme Court as “such
relevant 	evidence 	as 	a 	reasonable 	mind 	might 	accept 	as 	adequate 	to 	support 	a
conclusion.”96 Considering the nature of Plaintiff’s past relevant work as an administrative
assistant, both under the DOT and as commonly understood, the ALJ’s failure to include
limitations—articulated by an ME whose testimony the ALJ found persuasive97—with
respect to vision and typing in the RFC, and failure to provide any explanation for those
omissions, renders the RFC unsupported by substantial evidence. It follows, therefore, that
VE testimony based on a flawed RFC cannot constitute substantial evidence to support the
ALJ’s findings.98 The ALJ’s step four conclusion that Plaintiff is “capable of performing
past relevant work as an administrative assistant” is, 	accordingly, not based upon
substantial evidence, in that it relied upon the VE’s testimony.
95 SSR 96-8p, 1996 WL 374184, at *7 (S.S.A. July 2, 1996).
96 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305U.S. 197, 229 (1938)).
97 A.R. 32 (“The undersigned finds the opinion of Dr. Kidder persuasive.”).
98 See Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (quoting Gallant v. Heckler,
753 F.2d 1450, 1456 (9th Cir. 1984) (When “neither the hypothetical nor the answer properly set
forth all of [a claimant’s] impairments, the vocational expert’s testimony cannot constitute
substantial evidence to support the ALJ’s findings.”).
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D. 	Alleged Conflict Between the VE’s Testimony and the DOT
As the Ninth Circuit has explained, “[w]hen 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.”99 	An
ALJ confronted with such an apparent conflict must “ask the expert to explain the conflict
and ‘then determine whether the vocational expert’s explanation for the conflict is
reasonable’ before relying on the expert’s testimony to reach a disability determination.”100
An ALJ’s failure to resolve an apparent conflict, in turn, “may leave [a reviewing court]
with a gap in the record that precludes [it] from determining whether the ALJ’s decision is
supported by substantial evidence.”101 To be considered an “apparent conflict,” the VE’s
testimony typically must “be at odds with the DOT’s listing of job requirements that are
essential, integral, or expected.”102
The Ninth Circuit cautions, however, against assuming that every task
contained within a DOT occupational description represents an “essential, integral, or
99 Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (citing Massachi v. Astrue, 486
F.3d 1149, 1153–54 (9th Cir. 2007)). 	See also SSR 00-4P, 2000 WL 1898704, at *2 (S.S.A.
Dec. 4, 2000) (“When there is an apparent unresolved conflict between VE or VS evidence and
the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the
VE or VS evidence to support a determination or decision about whether the claimant is disabled.
At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator
will inquire, on the record, as to whether or not there is such consistency.”).
100 Zavalin, 778 F.3d at 846 (internal citation omitted).
101 Id.
102 See I.R. v. Saul, No. 3:19-CV-05934-JCS, 2021 WL 1056633, at *9 (N.D. Cal. Mar. 19,
2021) (quoting Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016)).
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expected requirement.”103 After all, the DOT “refers to ‘occupations,’ not to specific jobs
. . . [and] ‘[o]ccupation’ is a broad term that includes ‘the collective description’ of
‘numerous 	jobs’ 	and 	lists 	‘maximum 	requirements’ 	of 	the 	jobs 	as 	‘generally
performed.’”104 	Consequently, “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.”105
Because this Court is remanding for further proceedings due to an RFC that
is not supported by substantial evidence, the Court need not address Plaintiff’s arguments
that there were apparent conflicts between the DOT administrative assistant job description
requirements and both the VE’s and ME’s testimonies; or that the ALJ failed to resolve
those conflicts.106 	Upon remand, Plaintiff and her attorney will have the opportunity to
question the experts regarding such discrepancies, if the ALJ does not adequately do so in
the first instance.
VI. 	FINDINGS AND INSTRUCTIONS ON REMAND
Plaintiff requests that the Court vacate the ALJ’s decision and remand the
case back to the Commissioner under 42 U.S.C. § 405(g) with instructions to reevaluate
the finding at step four of the sequential process.107 	The Supreme Court’s “ordinary
103 Gutierrez, 844 F.3d at 807–08.
104 Id. at 807 (quoting SSR 00-4P, 2000 WL 1898704, at *2–3 (S.S.A. Dec. 4, 2000).
105 Id. at 807–08.
106 Docket 19 at 13–15.
107 Docket 19 at 11. Sentence four of 42 U.S.C. § 405(g) provides that “[t]he court shall
have power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”
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remand rule” applies in this case.108 Under this rule, if “the reviewing court simply cannot
evaluate the challenged agency action on the basis of the record before it, the proper course,
except in rare circumstances, is to remand to the agency for additional investigation or
explanation.”109 Here, as explained above, the ALJ erred by assessing an RFC that did not
adequately account for Plaintiff’s visual and manipulative limitations. Because the ALJ’s
step four conclusion that Plaintiff was able to meet the requirements of her past relevant
work was based upon that flawed RFC, that conclusion was not based upon substantial
evidence. 	As a result, there are outstanding issues that need to be resolved before a
disability determination can be made. Remand, accordingly, is necessary.
The Court reverses and remands this matter to the ALJ with instructions to:
1. 	Comply with HALLEX I-2-6-70(b) by allowing Plaintiff to
testify prior to the ME and “[i]f the ME [is] not present to hear pertinent testimony
. . . summariz[ing] the testimony for the ME on the record[;]”110
2. 	Obtain additional testimony from an ME to clarify the nature
and 	extent 	of 	Plaintiff’s 	limitations 	from 	her 	impairments 	and 	resolve 	any
ambiguities of language;
3. 	Formulate an accurate RFC that reflects all of Plaintiff’s
limitations, including vision and typing limitations;
108 Treichler, 775 F.3d at 1099 (“The ordinary remand rule applies equally to Social
Security cases”). See Gonzales v. Thomas, 547 U.S. 183, 185 (2006).
109 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729,
744 (1985)).
110 Pertinent testimony would include, but not be limited to, testimony regarding Plaintiff’s
difficulties grasping, holding, and turning things.
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4. 	Obtain new testimony from a VE;
5. 	Revisit step four of the sequential analysis, based upon the
accurate RFC and new VE testimony;
6. 	Include in the decision “a thorough discussion and analysis of
the objective medical and other evidence, including the individual’s complaints of
pain 	and 	other 	symptoms 	and 	the 	adjudicator’s 	personal 	observations, 	if
appropriate;111 and
7. 	Conduct step five of the sequential analysis, for the purpose of
making alternative findings, if Plaintiff is determined at step four to be capable of
performing her past relevant work as an administrative assistant, as generally
performed, rather than as actually performed.
VII. 	CONCLUSION
The Court, having carefully reviewed the administrative record, finds that
the ALJ’s determinations are not free from legal error and are not supported by substantial
evidence. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for relief at
Docket 19 is GRANTED; the Commissioner’s final decision is VACATED, and this
matter is REMANDED for further proceedings, consistent with this Order.
IT IS SO ORDERED this 28th day of March, 2022, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
111 See Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quoting Garrison v.
Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (“In other words, the ALJ must take ‘the claimant’s
subjective experiences of pain’ into account when determining the RFC.”).
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