CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

MEMORANDUM OPINION AND ORDER OF REMAND

Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

PROCEEDINGS

Plaintiff filed a complaint on October 28, 2015, seeking review of the Commissioner's denial of disability insurance benefits. The parties filed a consent to proceed before a United States Magistrate Judge on December 8, 2015. Plaintiff filed a motion for summary judgment on June 17, 2016. Defendant filed a motion for summary judgment on August 17, 2016. The Court has taken the motions under submission without oral argument. See L.R. 7-15; "Order," filed November 2, 2015.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

Plaintiff asserts disability since October 10, 2003, based on alleged physical impairments (Administrative Record ("A.R.") 162, 444). In 2012, an Administrative Law Judge ("ALJ") denied benefits. See A.R. 140-49. At that time, the ALJ found Plaintiff capable of performing certain of Plaintiff's past relevant work (A.R. 148-49).

The Appeals Council remanded the matter, instructing the ALJ to, inter alia: (1) evaluate further Plaintiff's ability to perform his past relevant work at step four of the sequential evaluation process; and (2) if the ALJ were to find Plaintiff could not perform his past relevant work, obtain supplemental evidence from a vocational expert to clarify the effect of Plaintiff's assessed limitations on the occupational base (A.R. 156). The Appeals Council specifically instructed the ALJ to "identify and resolve any conflicts between the vocational expert's occupational evidence and information in the Dictionary of Occupational Titles ("DOT") and its companion publication, the Selected Characteristics of Occupations" (A.R. 156 (citing Social Security Ruling ("SSR") 00-4p)).

Following remand, the ALJ heard testimony from Plaintiff and a vocational expert (A.R. 4-56). The ALJ found that Plaintiff has severe physical impairments that restrict Plaintiff to a limited range of light work as follows:

[T]he claimant can lift, carry, push or pull 20 pounds occasionally and 10 pounds frequently; would need a sit/stand option of sitting for 30 to 45 minutes with brief position changes; no standing or walking for no [sic] more than 15 to 20 minutes at a time; can occasionally bend, stoop, climb stairs, and balance; can rarely squat, kneel, crouch, or crawl; cannot climb ladders, ropes, or scaffolds; cannot work around hazards; cannot repetitively or constantly reach or work overhead with either arm; no concentrated exposure to extreme cold; no repetitive or constant movement of the head or neck; and no static position of the head or neck for more than two hours at a time.

The vocational expert testified that a person so limited could perform two of Plaintiff's past relevant jobs as generally performed (A.R. 29-31). Plaintiff's counsel asked the expert whether the DOT addressed the standing and walking limitation to only 15 minutes at a time (A.R. 45). The vocational expert answered "no" and said, "I was integrating my knowledge and experience" (A.R. 46). The vocational expert further testified that a person with Plaintiff's limitations could perform light work as: (1) an information clerk (DOT 237.367-018), of which 45,000 jobs reportedly exist in the national economy; (2) a cafeteria cashier (DOT 211.462-010), of which 80,000 jobs reportedly exist in the national economy; and (3) a counter clerk (DOT 249.366-010), of which 21,000 jobs reportedly exist in the national economy (A.R. 48-49). The vocational expert did not indicate whether his testimony was consistent with the DOT, or whether Plaintiff's limitations would erode any of the occupational bases for these jobs (A.R. 49).

The ALJ found Plaintiff unable to perform any of his past relevant work (A.R. 171). However, the ALJ adopted part of the vocational expert's testimony, finding Plaintiff capable of making "a successful adjustment to other work that existed in significant numbers in the national economy" (A.R. 172-73). Although the ALJ had not asked the vocational expert whether the expert's testimony regarding the identified jobs was consistent with the information in the DOT, the ALJ "determined" that the expert's testimony was consistent with the information in the DOT (A.R. 173). The ALJ concluded that Plaintiff had not been disabled from October 10, 2003 (the alleged onset date) through December 31, 2008 (Plaintiff's last insured date) (A.R. 163, 173).

The Appeals Council denied review (A.R. 182-85). /// ///

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.

DISCUSSION

I. Substantial Evidence Does Not Support the ALJ's Finding that Plaintiff Can Perform Other Work.

"[T]he best source for how a job is generally performed is usually the Dictionary of Occupational Titles." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (citations omitted). However, the DOT "is not the sole source of admissible information concerning jobs"; an ALJ also may rely on the testimony of a vocational expert concerning the requirements of a particular occupation. See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) (citations and quotation omitted). Before relying on vocational expert testimony concerning the requirements of a particular occupation, "the ALJ must ask the [vocational expert] if his or her testimony is consistent with the DOT." Wentz v. Commissioner Social Sec. Admin., 401 Fed. App'x 189, 191 (9th Cir. 2010) (citing Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007)); see also Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (discussing the ALJ's duty to resolve an apparent conflict between vocational expert testimony and the DOT; the "failure to resolve an apparent inconsistency may leave. . . a gap in the record that precludes us from determining whether the ALJ's decision is supported by substantial evidence") (citing, inter alia, SSR 00-4p). /// /// /// ///

Social Security Ruling 00-4p provides:

When a [vocational expert] provides evidence about the requirements of a job or occupation, the [ALJ] has an affirmative responsibility to ask about any possible conflict between that [vocational expert] evidence and information provided in the DOT. . . .

If the [vocational expert's] evidence appears to conflict with the DOT, the [ALJ] will obtain a reasonable explanation for the apparent conflict.

When vocational evidence provided by a [vocational expert] is not consistent with information in the DOT, the [ALJ] must resolve this conflict before relying on the [vocational expert] evidence to support a determination or decision that the individual is or is not disabled. The [ALJ] will explain in the determination or decision how he or she resolved the conflict. The adjudicator must explain the resolution of the conflict irrespective of how the conflict was identified (emphasis added).

Elsewhere, SSR 00-4p similarly provides that "[w]hen there is an apparent unresolved conflict between [vocational expert] evidence and the DOT, the [ALJ] must elicit a reasonable explanation for the conflict before relying on the [vocational expert] evidence to support a determination or decision about whether the claimant is disabled." (emphasis added). "The procedural requirements of SSR 00-4p ensure that the record is clear as to why an ALJ relied on a vocational expert's testimony, particularly in cases where the expert's testimony conflicts with the [DOT]." Massachi v. Astrue, 486 F.3d at 1153.

Here, the ALJ purported to rely on vocational expert testimony to find Plaintiff not disabled at step five of the evaluation process without inquiring whether the testimony was consistent with the DOT. See A.R. 29-52, 172-73. Although the matter is somewhat unclear, the DOT appears to provide that a person precluded from repetitive or constant reaching or overhead work with either arm could not perform the jobs the vocational expert identified. According to the DOT, the information clerk job requires performing "repetitive or short-cycle work," and "frequent" reaching (i.e., from 1/3 to 2/3 of the time). See DOT 237.367-018 Information Clerk, 1991 WL 672187, at *3 (4th Ed. R 1991). The job of "cashier II" (identified by the vocational expert as a "cafeteria cashier") requires "frequent" reaching. See DOT 211.462-010 Cashier II, 1991 WL 671840, at *3 (4th Ed. R 1991). The job of counter clerk requires "occasional" reaching (i.e., up to 1/3 of the time). See DOT 249.366-010 Counter Clerk, 1991 WL 672323, at *3 (4th Ed. R 1991). /// ///

"Reaching" means "extending the hands and arms in any direction." SSR 85-15 (emphasis added); see Mkhitaryan v. Astrue, 2010 WL 1752162, at *3 (C.D. Cal. April 27, 2010) (citing the "Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles," Appendix C). "Any direction" would appear to include reaching overhead. See id. Consequently, many courts have discerned a conflict between the requirement of reaching and a preclusion or restriction on reaching (or working) overhead or above the shoulder. See, e.g., Nelson v. Colvin, 2016 WL 1532226, at *3-4 (C.D. Cal. Apr. 14, 2016); Cameron v. Colvin, 2016 WL 1367709, at *6 (C.D. Cal. Apr. 6, 2016); Bochat v. Colvin, 2016 WL 1125549, at *2 (C.D. Cal. March 22, 2016); Hernandez v. Colvin, 2016 WL 1071565, at *5 (C.D. Cal. March 14, 2016); Imran v. Colvin, 2015 WL 5708500, at *5 (C.D. Cal. Sept. 28, 2015); Carpenter v. Colvin, 2014 WL 4795037, at *7-8 (E.D. Cal. Sept. 25, 2014); Skelton v. Commissioner, 2014 WL 4162536, at *13 (D. Or. Aug. 18, 2014); Lamb v. Colvin, 2014 WL 3894919, at *5-6 (E.D. Cal. Aug. 4, 2014); Riffner v. Colvin, 2014 WL 3737963, at *4-5 (C.D. Cal. July 29, 2014); Nguyen v. Colvin, 2014 WL 2207058, at *2-3 (C.D. Cal. May 28, 2014); Barnes v. Colvin, 2014 WL 931123, at *7-8 (W.D. Wash. March 10, 2014); Giles v. Colvin, 2013 WL 4832723, at *4 (C.D. Cal. Sept. 10, 2013); Winder v. Astrue, 2013 WL 489611, at *2-3 (C.D. Cal. Feb. 6, 2013); Duff v. Astrue, 2012 WL 3711079, at *3-4 (C.D. Cal. Aug. 28, 2012); McQuone v. Astrue, 2012 WL 3704795, at *3-4 (E.D. Cal. Aug. 24, 2012); Newman v. Astrue, 2012 WL 1884892, at *5 (C.D. Cal. May 23, 2012); Richardson v. Astrue, 2012 WL 1425130, at *4-5 (C.D. Cal. April 25, 2012); Bentley v. Astrue, 2011 WL 2785023, at *3-4 (C.D. Cal. July 14, 2011); Hernandez v. Astrue, 2011 WL 223595, at *5 (C.D. Cal. Jan. 21, 2011); Mkhitaryan v. Astrue, 2010 WL 1752162, at *3; Caruso v. Astrue, 2008 WL 1995119, at *7 (N.D. N.Y. May 6, 2008); see also Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006) ("It is not clear to us whether the DOT's requirements include reaching above shoulder level and this is exactly the sort of inconsistency the ALJ should have resolved with the expert's help").

Here, the ALJ did not ask whether the vocational expert's testimony was consistent with the DOT. The only comment by the vocational expert that concerned any possible conflict with the DOT was the expert's indication that he was relying on his knowledge and experience regarding Plaintiff's standing and walking limitations (A.R. 45-46). Neither the vocational expert nor the ALJ recognized the possible conflict between the vocational expert's testimony and the DOT's reaching requirements for the jobs of information clerk, cafeteria cashier or counter clerk. Consequently, neither the vocational expert nor the ALJ provided any explanation that might support preferring the vocational expert's testimony over the arguably conflicting information in the DOT. This was error. See SSR 00-4p; Light v. Social Sec. Admin., 119 F.3d 789, 794 (9th Cir. 1997) (error that "[n]either the ALJ nor the vocational expert explained the reason for departing from the DOT"); Johnson v. Shalala, 60 F.3d at 1435 ("an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation").

At step five of the sequential evaluation process, the burden shifts from the claimant to the Administration to show that the claimant is able to perform other work that exists in significant numbers in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); 20 C.F.R. § 416.960(b)(3). Absent vocational expert testimony elicited in compliance with SSR 00-4p, the record in this case lacks substantial evidence that a person with Plaintiff's limitations could perform other work. See Zavalin v. Colvin, 778 F.3d at 846; see generally Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988) (administration may not speculate concerning the requirements of particular jobs).

Defendant argues that the failure by Plaintiff's counsel to point out the possible inconsistency at the time of the administrative hearing or before the Appeals Council should bar Plaintiff from arguing the possible inconsistency before this Court (Defendant's Motion at 3-5 (citing, inter alia, Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) ("Meanel"))). The Court disagrees. In Sims v. Apfel, 530 U.S. 103, 112 (2000) ("Sims"), the Supreme Court held that a claimant may raise for the first time before the court arguments not raised before the Appeals Council. "Claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues." Id.; see also Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (court discerned error in the ALJ's failure to address an apparent conflict between the DOT and the testimony of the vocational expert, even though plaintiff's counsel had failed to argue the error at the administrative level; "a plaintiff challenging a denial of disability benefits under 42 U.S.C. § 405(g) need not preserve issues in the proceedings before the Commissioner or her delegates" [citing Sims]); Harris v. Apfel, 2001 WL 204836, at *1 (D. Or. Feb. 19, 2001), aff'd, 40 Fed. App'x 581 (2002) (Commissioner conceded that Sims "requires" the conclusion that a claimant does not waive his or her argument by failing to raise the argument before the ALJ). "Social security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits. . . ." Sims, 530 U.S. at 110-11.

Defendant's citation to Meanel does not persuade the Court otherwise. First, the Supreme Court's decision in Sims casts considerable doubt on the continuing validity of the Ninth Circuit's decision in Meanel.

Second, as indicated above, it was the Administration and not Plaintiff who had the burden of proof at step five of the evaluation process. See Tackett v. Apfel, 180 F.3d at 1100. The ALJ did not make her step five finding until after the administrative hearing when she issued her adverse decision. Plaintiff's counsel should not be faulted for failing to anticipate at the hearing how the ALJ would rule in her final decision.

Third, upon receipt of the ALJ's final decision, Plaintiff's counsel did challenge before the Appeals Council the propriety of the ALJ's reliance on the vocational expert's testimony. See A.R. 503-04. Plaintiff's counsel quoted SSR 00-4p and argued that the ALJ should have clarified whether a person having Plaintiff's limitations could perform the identified jobs. Id. Although Plaintiff's counsel did not then question specifically whether the DOT's description of the identified jobs was consistent with Plaintiff's reaching and overhead work limitations, the validity of the ALJ's step five reliance on the vocational expert's testimony was placed in issue before the Appeals Council.

Fourth, in an attempt to prove administrative error, the claimant in Meanel sought to rely on new evidence which had not been presented to the ALJ or to the Appeals Council. See Meanel, 172 F.3d at 1115. In the present case, the Court need not receive any new evidence to determine that the ALJ erred. Cf. Silveira v. Apfel, 204 F.3d 1257, 1260 n.8 (9th Cir. 2000) (considering issue raised for the first time on appeal "because it is a pure question of law and the Commissioner will not be unfairly prejudiced by [plaintiff's] failure to raise the issue below"; distinguishing Meanel as "a case in which the claimant rest[ed] her arguments on additional evidence presented for the first time on appeal, thus depriving the Commissioner of an opportunity to weigh and evaluate that evidence. . .") (citations omitted).

Fifth, the Appeals Council explicitly instructed on remand that at step five the ALJ should identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the DOT. Given the Appeals Council's instructions, Plaintiff did not need to raise the matter before the ALJ in order to place the matter in issue.

II. The Court is Unable to Conclude that the ALJ's Error Was Harmless.

"[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and quotations omitted); see Treichler v. Commissioner, 775 F.3d 1090, 1105 (9th Cir. 2014) ("Where, as in this case, an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency"); cf. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011) (error not harmless where "the reviewing court can determine from the 'circumstances of the case' that further administrative review is needed to determine whether there was prejudice from the error"). Under these standards, the Court is unable to conclude that the ALJ's error was harmless.

First, as previously indicated, substantial evidence fails to support the ALJ's step five determination that Plaintiff can perform the jobs identified. Second, the ALJ did not inquire of the vocational expert whether the assessed limitations would erode the occupational bases for the jobs identified to determine whether a significant number of jobs would exist for a person with Plaintiff's limitations. See A.R. 156 (Appeals Council order instructing the ALJ to do the same). Whether there exists a significant number of jobs is a question of fact to be determined in the first instance by the ALJ. See Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986).

III. Remand for Further Administrative Proceedings is Appropriate.

The circumstances of this case warrant remand for further administrative proceedings, which could remedy the ALJ's errors. See McLeod v. Astrue, 640 F.3d at 888; see also INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) ("Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits"); Treichler v. Commissioner, 775 F.3d at 1101 n.5 (remand for further administrative proceedings is the proper remedy "in all but the rarest cases").

CONCLUSION

For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 24, 2016.

/s/_________

CHARLES F. EICK

UNITED STATES MAGISTRATE JUDGE