MEMORANDUM OPINION AND ORDER OF REMAND

CHARLES EICK, Magistrate Judge

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 February 3, 2005, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on March 16, 2005. Plaintiff filed a motion for summary judgment on July 14, 2005. Defendant filed a cross-motion for summary judgment on August 15, 2005. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed February 8, 2005.

BACKGROUND

Plaintiff initially filed an application for disability benefits in June 1998, asserting disability based on injuries to both arms and pain in his right leg (Administrative Record ("A.R.") 25). In a 1999 decision, the Administrative Law Judge ("ALJ"), Zane A. Lang, found that Plaintiff suffered from "residual pain and limited motion" following a 1991 surgery for a dislocated left elbow, but Plaintiff did not meet or equal any of the Listing of Impairments and was able to perform his past relevant work as a kitchen helper and car wash attendant (A.R. 30-31). The Appeals Council denied review (A.R. 4-6). Plaintiff then sought this Court's review of the denial of benefits. See Otero v. Massanari, No. CV 01-3143-E. The Court found the Administration's findings were supported by substantial evidence and free from material legal error, and granted summary judgment in favor of the Commissioner (A.R. 143).

In July 2001, Plaintiff filed the present application for disability benefits (A.R. 198-201). In the present application, Plaintiff asserts disability based on various alleged mental and physical impairments (A.R. 222, 397-457). The reviewing ALJ for Plaintiff's present application, Catherine R. Lazuran, found that Plaintiff has the severe impairments of diabetes mellitus, a history of dislocation of the left elbow, and lumbar spondylosis, but no severe mental impairment (A.R. 152). The ALJ further found that Plaintiff's impairments do not meet or equal any of the Listing of Impairments, and Plaintiff is able to perform his past relevant work as a painter and delivery driver, as well as other jobs that exist in significant numbers in the regional and national economies (A.R. 152-53). The ALJ thus found Plaintiff not disabled (A.R. 153). The Appeals Council denied review (A.R. 128-30).

STANDARD OF REVIEW

Under 42 U.S.C. section 405(g), this Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. See Swanson v. Secretary, 763 F.2d 1061, 1064 (9th Cir. 1985).

DISCUSSION

I. On the Present Record, Substantial Evidence Does Not Support the ALJ's Finding that Plaintiff Has Any Past Relevant Work.

Plaintiff argues that ALJ Lazuran erred in failing to find that Plaintiff is disabled under the "special profile" for disability set forth in 20 C.F.R. sections 404.1562 and 416.962. See also Social Security Ruling ("SSR") 82-62. Under those sections, individuals with severe impairments who are at least 55 years old, have a limited education or less, and have no past relevant work experience are deemed disabled, without regard to the individual's residual functional capacity. 20 C.F.R. §§ 404.1562(b), 416.962(b). It is undisputed that Plaintiff was 56 years old at the time of ALJ Lazuran's decision, and Plaintiff has a 6th grade education, which is lower than a limited education (A.R. 144). See 20 C.F.R. § 404.1564(b)(3) (defining "limited education" as 7th through 11th grade level of formal education). Thus, the only disputed issue is whether Plaintiff has any past relevant work experience.

A claimant's past relevant work consists of any work that was "done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. §§ 404.1565(a), 416.965(a); Vertigan v. Halter, 260 F.3d 1044, 1051 (9th Cir. 2001). The 15-year time period is measured from the date the ALJ adjudicates the claim or, in the case of disability insurance claims, the date the claimant last met the disability insured status requirement (if earlier). 20 C.F.R. § 404.1565(a); SSR 82-62. Any work performed by the claimant "15 years or more prior to" that date "is ordinarily not considered relevant." SSR 82-62. With respect to the requirement that the work must be substantial gainful activity, "[e]arnings can be a presumptive, but not conclusive, sign of whether a job is substantial gainful activity. Monthly earnings averaging less than $300 generally show that a claimant has not engaged in substantial gainful activity." Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001).

ALJ Lazuran noted in her decision that Plaintiff's earnings record shows minimal earnings from 1970 to 1973, and no earnings from 1974 to the present (A.R. 144, 209-10). On that basis, the ALJ concluded that Plaintiff has not engaged in substantial gainful activity since at least his alleged onset date of July 27, 2001 (A.R. 144). The ALJ also stated it was not clear when Plaintiff performed his prior work as a painter and delivery driver, nor was it clear whether Plaintiff's earnings from this work rose to the level of substantial gainful activity (A.R. 152). Despite these findings, the ALJ concluded that Plaintiff's prior work experience as a painter and delivery driver constituted past relevant work (A.R. 153).

Plaintiff argues that because the ALJ found that Plaintiff's earnings record shows no earnings since 1974, the ALJ should have concluded that Plaintiff had no substantial gainful activity and therefore no past relevant work. The Court agrees that, on the present record, substantial evidence does not support ALJ Lazuran's finding that Plaintiff has past relevant work as a painter and delivery driver. The finding that Plaintiff's earnings record shows no earnings from 1974 to the present triggers a presumption that Plaintiff has not engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1574(b)(3), 416.974(b)(3); Lewis v. Apfel, 236 F.3d at 515. To rebut this presumption, the ALJ must point to substantial evidence, aside from earnings, that the claimant has engaged in substantial gainful activity. Lewis, 236 F.3d at 515. Such evidence can include the nature of the claimant's work, how well the claimant does the work, whether the work is done under special conditions, whether the claimant is self-employed, and the amount of time the claimant spends at work. Id. at 515-16; 20 C.F.R. §§ 404.1573, 416.973. The ALJ, however, failed to discuss any of these factors in her decision.

Defendant argues that Plaintiff is precluded from asserting he has no past relevant work because ALJ Zane found in the first administrative proceeding that Plaintiff had past relevant work as a house painter, kitchen helper, and car wash attendant. Issue preclusion only applies, however, where (1) the issue in the two proceedings is identical, (2) the issue was actually litigated and essential to a final decision on the merits in the prior proceeding, (3) the party sought to be precluded had a full and fair opportunity to be heard on the issue, (4) the party sought to be precluded was a party or in privity with a party to the prior proceeding, and (5) the prior proceeding was of a type to which a court will give preclusive effect. Qwest Corp. v. City of Portland, 385 F.3d 1236, 1244 (9th Cir. 2004), cert. denied, 125 S. Ct. 2300 (2005). Here, the past relevant work issue in the two administrative proceedings was not identical. In the proceeding before ALJ Zane, the issue was whether Plaintiff's work experience in the 15-year time period prior to the adjudication of Plaintiff's claim in 1999 constituted past relevant work. See 20 C.F.R. § 404.1565(a); SSR 82-62. In the proceeding before ALJ Lazuran, the issue was whether Plaintiff's work experience in the 15-year time period prior to the adjudication of Plaintiff's claim in 2003 constituted past relevant work. See id. Thus, ALJ Zane's findings regarding Plaintiff's past relevant work cannot have any preclusive effect.See Stiglar v. Barnhart, 2005 WL 1030360, at *3-4 (E.D. Mich. Apr. 28, 2005) (first ALJ's finding that the claimant could not perform his past relevant work did not prevent a second ALJ from finding that the claimant was able to perform his past relevant work under the doctrine of collateral estoppel, as the claim before the first ALJ was for a different time period and therefore not identical).

Similarly, Defendant's argument that the Court is bound by ALJ Zane's findings regarding Plaintiff's past relevant work under Social Security Acquiescence Ruling 97-4(9) lacks merit. Acquiescence Ruling 97-4(9) states that, where a claimant files a subsequent claim for disability benefits after a prior claim has been denied by an ALJ, the adjudicator must give effect to the prior ALJ's findings on the claimant's residual functional capacity, education, work experience, and other required findings "unless there is new and material evidence relating to" such findings. Here, new and material evidence was presented at the second administrative hearing regarding Plaintiff's work experience over the new 15-year time period at issue in Plaintiff's second application for disability benefits (A.R. 397-457). Thus, Acquiescence Ruling 97-4(9) does not apply. See also A.R. 143, 151 (ALJ Lazuran appeared to eschew reliance on Acquiescence Ruling 97-4(9) and the Chavez decision that gave rise to the Ruling).

II. Remand is Appropriate.

When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984).

LET JUDGMENT BE ENTERED ACCORDINGLY.