June L. W., Plaintiff(s), v. Frank Bisignano, Defendant(s). (2026)

ORDER

This case involves judicial review of administrative action by the Commissioner of Social Security (“Commissioner”) denying Plaintiff's application for benefits pursuant to Titles II and XVI of the Social Security Act. Pending before the Court is Plaintiff's opening brief seeking reversal and remand. Docket No. 20. The Commissioner filed a responsive brief in opposition. Docket No. 22. Plaintiff filed a reply. Docket No. 23. The parties consented to resolution of this matter by magistrate judge. See Docket Nos. 3-4.

I. STANDARDS

A. Disability Evaluation Process

The standard for determining disability is whether a social security claimant has an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ․ to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(3)(A). That determination is made by following a five-step sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing 20 C.F.R. §§ 404.1520, 416.920). The first step addresses whether the claimant is currently engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b).¹ The second step addresses whether the claimant has a medically determinable impairment that is severe or a combination of impairments that significantly limits basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). The third step addresses whether the claimant's impairments or combination of impairments meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. There is then a determination of the claimant's residual functional capacity, which assesses the claimant's ability to do physical and mental work-related activities. 20 C.F.R. §§ 404.1520(e), 416.920(e). The fourth step addresses whether the claimant has the residual functional capacity to perform past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The fifth step addresses whether the claimant is able to do other work considering the residual functional capacity, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g).

B. Judicial Review

After exhausting the administrative process, a claimant may seek judicial review of a decision denying social security benefits. 42 U.S.C. § 405(g). The Court must uphold a decision denying benefits if the proper legal standard was applied and there is substantial evidence in the record as a whole to support the decision. Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). Substantial evidence is “more than a mere scintilla,” which equates to “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019). “[T]he threshold for such evidentiary sufficiency is not high.” Id.

II. BACKGROUND

A. Procedural History

On February 17, 2023, Plaintiff filed an application for disability insurance benefits and supplemental security income with an alleged onset date of November 3, 2018. See, e.g., Administrative Record (“A.R.”) 527-36. On September 13, 2023, Plaintiff's application was denied initially. A.R. 207, 220. On March 27, 2024, Plaintiff's claim was denied on reconsideration. A.R. 233, 245. On May 24, 2024, Plaintiff filed a request for a hearing before an administrative law judge (“ALJ”). A.R. 350-51. On January 16, 2025, Plaintiff, Plaintiff's representative, and a vocational expert appeared for a hearing before ALJ David Lacy. A.R. 85-109. On January 29, 2025, the ALJ issued an unfavorable decision finding that Plaintiff had not been under a disability. A.R. 25-58. On August 1, 2025, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. A.R. 1-6. On October 1, 2025, Plaintiff commenced this suit for judicial review. Docket No. 1.

B. The Decision Below

The ALJ's decision followed the five-step sequential evaluation process. A.R. 32-48. At step one, the ALJ found that Plaintiff met the insured status requirements and had not engaged in substantial gainful activity since September 9, 2020. A.R. 32. At step two, the ALJ found that Plaintiff has the following severe impairments:

lumbar degenerative disc disease with radiculopathy; cervical spine degenerative disc disease; obesity; bilateral carpal tunnel syndrome; neuropathy secondary to carpal tunnel syndrome; enthesopathy of the right fibula/ankle and foot status post unspecified injury; degenerative joint disease with left ankle nondisplaced lateral malleolar fracture status post repair of fibrous nonunion with intraoperative drilling and open reduction internal fixation (ORIF) of the lateral left ankle with plate and screws; asthma; diabetes with neuropathy; right shoulder impairment; peroneal tendon tear with nerve entrapment status post left peroneal tendon repair and nerve decompression; pancolitis and gastritis; chronic pain syndrome; left knee joint effusion; bilateral plantar heel spurs; major depressive disorder; and generalized anxiety disorder.

A.R. 32-33. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. A.R. 33-35. The ALJ found that Plaintiff has the residual functional capacity to perform

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except as specifically follows: the claimant is limited to lifting and carrying up to 10 pounds occasionally and 10 pounds frequently. The claimant can sit for 6 hours and stand and walk for 2 hours in an 8-hour workday, for 5 days a week. The claimant also has the following limitations:

• A cane is necessary for walking.

• Frequent pushing, pulling, reaching, handling, fingering, and feeling with the bilateral upper extremities.

• Occasional pushing and pulling with the bilateral lower extremities.

• No exposure to hazards or climbing ladders, ropes, or scaffolds, and occasional uneven terrain, balancing, crawling, crouching, kneeling, stooping, or climbing ramps or stairs, as those are defined in the Dictionary of Occupational Titles (DOT) and Selected Characteristics of Occupations (SCO).

• Can tolerate occasional exposure to extreme temperatures, wetness, humidity, vibration, and atmospheric conditions such as fumes, noxious odors, dusts, mists, gases, and poor ventilation as defined in the SCO.

• Can understand, remember, and carry out simple instructions.

A.R. 35-46. At step four, the ALJ found Plaintiff had no past relevant work. A.R. 46. At step five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff can perform based on her age, education, work experience, and residual functional capacity. A.R. 49-50. In doing so, the ALJ defined Plaintiff as a younger individual with at least a high school education. A.R. 46. The ALJ found transferability of job skills to be immaterial. A.R. 46. The ALJ considered Medical Vocational Rules, which provide a framework for finding Plaintiff not disabled, along with vocational expert testimony that an individual with the same residual functional capacity and vocational factors could perform work as a document preparer, order clerk, and change clerk. A.R. 46-48. Based on these findings, the ALJ found Plaintiff not disabled. A.R. 48.

III. ANALYSIS

Plaintiff argues on appeal that the ALJ erred in failing to provide substantial evidence that she can perform the jobs identified by the vocational expert, all of which require level 3 reasoning, given the inconsistency with Plaintiff's RFC limitation to “simple instructions.” See Docket No. 20 at 10-13; see also Docket No. 23 at 1-7. The Commissioner responds that published Ninth Circuit authority is distinguishable and that there was no obvious conflict between the RFC limitation and the identified jobs. Docket No. 22 at 4-8. Plaintiff has the better argument.

The Commissioner bears the burden at step 5 of showing that the claimant can perform a significant number of jobs in the national economy given her limitations. See, e.g., White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022). This burden can be met through reliance on vocational expert testimony. See id. When the vocational expert testimony and the Dictionary of Titles conflict, however, the record must also contain evidence supporting the deviation.² The Ninth Circuit has held that a conflict exists between a claimant's limitation to “simple, routine, or repetitive work” and jobs that demand level 3 reasoning. Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). Although the papers do not cite controlling Ninth Circuit authority extending this reasoning to find a conflict between a limitation to “simple instructions” and jobs that demand level 3 reasoning, ample persuasive authority does so. See, e.g., Luchsinger v. Kijakazi, 2023 WL 3735568, at *2 (9th Cir. May 31, 2023); Lewis v. Berryhill, 708 Fed. Appx. 919, 920 (9th Cir. Jan. 16, 2018).

In this case, the ALJ crafted an RFC that includes a limitation to simple instructions. A.R. 36. The ALJ then relied on the vocational expert's testimony of available jobs that Plaintiff can perform, but the jobs identified require level 3 reasoning. See, e.g., DOT 249.587-018, 1991 WL 672349 (document preparer). There is an obvious conflict between a limitation to simple instructions and jobs requiring level 3 reasoning. See, e.g., Luchsinger, 2023 WL 3735568, at *2. No testimony or other evidence has been presented addressing that contradiction, so the Court concludes that the ALJ erred.³

The Court also agrees with Plaintiff that this error was not harmless. Docket No. 20 at 11.⁴ Given that this error applies to all of the jobs identified by the ALJ, a remand for further proceedings is warranted. See Buck v. Berryhill, 869 F.3d 1040, 1051-52 (9th Cir. 2017) (finding no harmless error when all identified jobs were unsupported); see also Zavalin, 778 F.3d at 848 (concluding that the ALJ's failure to reconcile the apparent conflict between VE testimony and the DOT was not harmless error, where the court was unable to determine from the “mixed record” whether substantial evidence supported ALJ's step-five finding that plaintiff could perform other work identified by the VE).

IV. CONCLUSION

The decision below is REVERSED and this case is REMANDED for further proceedings consistent with this order. The Clerk's Office is instructed to ENTER FINAL JUDGMENT accordingly and to CLOSE this case.

IT IS SO ORDERED.

FOOTNOTES

1.   The five-step process is largely the same for both Title II and Title XVI claims. For a Title II claim, however, a claimant must also meet insurance requirements. 20 C.F.R. § 404.130.

2.   Case law indicates that an ALJ must resolve inconsistencies between the Dictionary of Titles and the vocational expert testimony pursuant to SSR 00-4p. See, e.g., Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). As Plaintiff acknowledges in the briefing, her appeal is instead governed by SSR 24-3p. See Docket No. 20 at 9. The new regulations in SSR 24-3p provide that the Social Security Administration “will no longer require our adjudicators to identify and resolve conflicts between occupational information provided by VSs and VEs and information in the DOT.” See 2024 WL 4988840, at *97159. Nonetheless, Plaintiff argues that the Commissioner is still required to support his step 5 findings with substantial evidence. See, e.g., Docket No. 20 at 7-9. For his part, the Commissioner does not argue that the change in governing regulation has any impact on this appeal; instead, he says that the issue is “irrelevant” given his underlying contention of a lack of contradiction. Docket No. 22 at 8. The Court also notes Ninth Circuit case law explaining predating the SSRs that “an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).

3.   In finding error, the Court notes that Plaintiff's attorney below did not aid the ALJ by raising this issue during the administrative hearing. See A.R. 101-107. On the other hand, the Commissioner does not argue that the failure to address this issue below results in waiver. See Docket No. 22.

4.   The Commissioner does not dispute that any error would be harmful and require remand. See Docket No. 22.

Nancy J. Koppe United States Magistrate Judge