MEMORANDUM OPINION AND ORDER
CRAIG M. KELLISON, Magistrate Judge.
Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 17) and defendant's motion for summary judgment (Doc. 18). For the reasons discussed below, the court will grant plaintiff's motion and deny the Commissioner's motion for summary judgment.
I. PROCEDURAL HISTORY1
Plaintiff applied for social security on March 8, 2012, alleging an onset of disability of May 1, 2007, due to heart attack, bypass surgery, depression, insomnia (Certified administrative record ("CAR") 81, 245-46, 252-53). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on August 9, 2013, before Administrative Law Judge ("ALJ") Dante M. Alegre. In an October 21, 2013, decision, the ALJ concluded that plaintiff is not disabled2 based on the following findings:
1. The claimant has not engaged in substantial gainful activity since March 8, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
2. The claimant has the following severe impairments: coronary artery disease status post cardiac catheterization; depression, panic disorder, and mild degenerative disc disease of the left hip. (20 CFR 404.1520(c) and 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except he is limited to lifting and carrying 10 pounds frequently and occasionally; standing and/or walking 2 hours in an 8-hour workday; sitting 6 hours in an 8-hour workday; never climbing ladders; occasionally climbing ramps or stairs; and performing simple 1-2 step tasks.
5. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
6. The claimant was born on October 14, 1969 and was 42 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, from March 8, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
(CAR 11-21). After the Appeals Council declined review on April 29, 2015, this appeal followed.
II. STANDARD OF REVIEW
The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is "such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
III. DISCUSSION
Plaintiff argues the ALJ erred in determining he can perform occupations identified by the vocational expert (VE), as those occupations as identified in the Dictionary of Occupational Titles (DOT) conflicts with his residual functional capacity (RFC). Defendant contends that the cases cited by plaintiff are distinguishable, and any error based on the conflict was harmless.
Residual functional capacity is what a person "can still do despite [the individual's] limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003). In determining residual functional capacity, the ALJ must assess what the plaintiff can still do in light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current "physical and mental capabilities").
At step five of the sequential evaluation process, once a claimant establishes he can no longer perform his past relevant work, the burden shifts to the Commissioner to establish the existence of alternative jobs available to the claimant, given the claimant's age, education, and work experience. See Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988) (citing Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986)). This burden can be satisfied by either applying the Medical-Vocational Guidelines ("Grids"), if appropriate, or relying on the testimony of a VE. See id. Hypothetical questions posed to a VE must set out all the substantial, supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant's limitations, the expert's testimony as to jobs in the national economy the claimant can perform has no evidentiary value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to the expert a range of hypothetical questions based on alternate interpretations of the evidence, the hypothetical that ultimately serves as the basis for the ALJ's determination must be supported by substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988). The testimony of a VE should generally be consistent with the DOT, although neither "trumps" the other if there is a conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). If there is an inconsistency between the vocational expert's testimony and the job descriptions in the DOT, the ALJ must resolve the conflict. See id. (citing SSR 00-4p).
Here, the ALJ found plaintiff had the RFC to perform sedentary work, with additional exertional limitations, and limited to "performing simple, 1-2 step tasks." (CAR 16). The ALJ called a VE to testify at the hearing, and posed a hypothetical to the VE, which is not challenged, setting forth plaintiff's limitations. The VE then testified that such an individual could perform work citing three examples: telephone order clerk (DOT 209.567-014), charge account clerk (DOT 205.367-014), and addresser (DOT 209.587-010). (CAR 54-56). The ALJ then asked the VE if the testimony given was consistent with the DOT, to which the VE verified it was.
Plaintiff argues, despite the VE's assurance that the testimony was consistent with the DOT, it was not. Specifically, that the three sample jobs the VE testified he could perform had a reasoning level of either 2 or 3, which is inconsistent with his RFC limitation to "simple, 1-2 step tasks." Defendant does not contend otherwise, but argues than the conflict was more of an arguable conflict rather than an apparent conflict, and that any error was harmless.
The Ninth Circuit has recently addressed the very issue raised in this case, a conflict between level 2 or 3 reasoning and simple 1 to 2 tasks limitations. First in Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015), the Ninth Circuit determined "that there is an apparent conflict between the residual functional capacity to perform simple, repetitive tasks, and the demands of Level 3 Reasoning." Id. at 847. In Zavalin, the Ninth Circuit found that "because the ALJ failed to recognize an inconsistency, she did not ask the expert to explain why a person with Zavalin's limitation could nevertheless meet the demands of Level 3 Reasoning. We conclude that the ALJ erred in failing to reconcile this apparent conflict." Id. Thus, the Court remanded the case for further proceedings.
Similarly, in Rounds v. Commissioner Social Security Adminstration, 807 F.3d 996 (9th Cir. 2015), the plaintiff had an RFC limitation to "one to two step tasks," and the ALJ found her capable of performing jobs with level two reasoning after the VE's testimony. The Court found Zavalin to be controlling. See id. at 1004. The Court specifically found, "[b]ecause the ALJ did not recognize the apparent conflict between [plaintiff's] RFC and the demands of Level Two reasoning, the VE did not address whether the conflict could be resolved." Id. The Court explained the six reasoning levels used in the DOT. Level 1 requires the ability to apply commonsense understanding to carry out simple one- or two-step instructions; level 2 requires the ability to apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. See id. at 1002. Therefore, the Court remanded for further proceedings, specifically that the "ALJ must determine whether there is a reasonable explanation to justify relying on the VE's testimony." Id. (citing Massachi v. Astrue, 486 F.3d 1149, 1153-54 (9th Cir. 2007); Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)).
The undersigned finds these cases directly on point and controlling. As was the case in Rounds, the ALJ determined plaintiff was limited to simple, one to two step tasks. This limitation was in conflict with the jobs identified in the DOT, which had reasoning levels of two or three. Defendant attempts to distinguish this case on the facts, arguing that plaintiff's cognitive abilities are not as severe as the plaintiff in either of the above cases. However, there is nothing in either opinion which would lead this court to conclude the Ninth Circuit intended to limit the holding in those cases. Rather, the Ninth Circuit clearly found a limitation to simple, one- to -two-step tasks is inconsistent with a job requiring level two or level three reasoning. And in order for the VE testimony to support an ALJ's determination of not-disabled, the conflict must be resolved.
Defendant further argues that any error would be harmless as substantial evidence supports the ALJ's reliance on the VE testimony. The undersigned disagrees. The Ninth Circuit cases are directly on point with the facts of this case, which requires remand for the conflict to be resolved.
IV. CONCLUSION
Based on the foregoing, the undersigned finds that the ALJ committed reversible error for failure to reconcile the conflict between the VE testimony and DOT requirements. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Doc. 17) is granted;
2. Defendant's cross-motion for summary judgment (Doc. 18) is denied;
3. This matter is remanded for further proceedings consistent with this order; and
4. The Clerk of the Court is directed to enter judgment and close this file.
