Opinion
For Charles Bernard Grimes, Plaintiff: Lawrence D Rohlfing, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Annabelle J Yang, LEAD ATTORNEY, Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA.
ORDER RE MOTION TO AMEND JUDGMENT
HON. KENLY KIYA KATO, United States Magistrate Judge.
Plaintiff Charles B. Grimes has filed a motion for the Court to reconsider its Judgment affirming the denial of Plaintiff's applications for disability benefits. For the reasons set forth below, Plaintiff's motion is granted.
I .
BACKGROUND
On July 9, 2014, Plaintiff filed this action seeking review of the final decision of the Commissioner of the Social Security Administration (" Commissioner" or " Agency") denying his applications for Title II disability insurance benefits (" DIB") and Title XVI supplemental security income (" SSI"). ECF No. 1. Plaintiff argued the Administrative Law Judge (" ALJ") erred at steps four and five of the sequential evaluation for determining a claimant's eligibility for disability benefits. ECF No. 14 at 9-10; see also ECF No. 16 at 2-3 (describing the steps of the sequential evaluation). Thus, Plaintiff argued the ALJ erred in finding Plaintiff could perform his past relevant work and could perform other work in the national economy. See ECF No. 14 at 8-9.
On May 15, 2015, the Court issued a Judgment, accompanied by a Memorandum and Order, affirming the Agency's denial of Plaintiff's applications. ECF Nos. 16, 17. The Court held the ALJ made a proper finding at step five, rendering any alleged error at step four harmless. ECF No. 16 at 8.
On June 3, 2015, Plaintiff filed a Motion to amend the Judgment pursuant to Federal Rule of Civil Procedure 59 (" Motion"). ECF No. 18. On June 11, 2015, the Agency filed a response to the Motion. ECF No. 20. In its response, the Agency states that " [u]pon further review, [the Agency] concedes that the [ALJ's] step five finding as written is in error." Id. at 2. However, the Agency argues the step five error is harmless because " substantial evidence supports the ALJ's step four finding." Id. (citation omitted).
II .
DISCUSSION
The parties agree the ALJ erred at step five, but disagree as to whether the error was harmless. For the Court to find an ALJ's error harmless, it must be " clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 932 (9th Cir. 2014) (citations and internal quotation marks omitted).
The Court finds the conceded error at step five was not harmless, as the ALJ also erred at step four, by failing to address a discrepancy between Plaintiff's residual functional capacity (" RFC") and his past relevant work. See Jonker v. Astrue, 725 F.Supp.2d 902, 910-11 (C.D. Cal. 2010) (stating that, for a claimant to be found not disabled at step four, the claimant's RFC must allow him to perform his past relevant work, either as actually performed or as generally performed). Plaintiff stated his only past relevant work required him to walk eight hours per day. Administrative Record (" AR") at 165, 174. The ALJ found Plaintiff had the RFC to " stand or walk" for only six hours per day, " in increments of up to one hour in each position." Id. at 16. Notwithstanding this RFC assessment, at step four, the ALJ found Plaintiff could perform his past relevant work " as actually performed." Id. at 21. The ALJ did not address Plaintiff's claim that his job required him to walk eight hours per day. See Jonker, 725 F.Supp.2d at 911 (noting a claimant's statements are generally the primary source of information in determining how his past work was actually performed). Thus, there is an apparent discrepancy, which the ALJ must address on remand, between Plaintiff's RFC and the asserted demands of his past relevant work.
III .
ORDER
IT IS THEREFORE ORDERED that (1) Plaintiff's Motion is granted; (2) the Clerk of the Court shall vacate the Memorandum and Order and the Judgment issued on May 15, 2015; (3) the Commissioner's denial of Plaintiff's DIB and SSI applications is reversed; and (4) this action is remanded for further administrative proceedings.
JUDGMENT
Pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ADJUDGED that the decision of the Commissioner of the Social Security Administration is REVERSED and this action is REMANDED for further administrative proceedings.