REPORT AND RECOMMENDATION
JACQUELINE M. RATEAU, Magistrate Judge.
Plaintiff Mark H. White brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f. Plaintiff presents three issues on appeal:1 (1) whether the Administrative Law Judge (ALJ) failed to obtain a "reasonable explanation" for a conflict in the vocational expert's testimony underlying the ALJ's step-five decision; (2) whether substantial evidence supports the ALJ's finding that Plaintiff could work as a conveyor tender; and (3) whether the Court can affirm the ALJ's step-five decision based on the occupation of laundry worker. Pending before the Court is an Opening Brief filed by Plaintiff (Doc. 17), the Commissioner's Brief (Doc. 18), and Plaintiff's Reply Brief (Doc. 19). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this case for further proceedings.
I. Background
Plaintiff filed an application for DIB in June 2014, alleging disability since March 7, 2014. R. at 23, 194. The Social Security Administration denied Plaintiff's application for DIB initially and upon reconsideration. R. at 131, 137. Plaintiff requested a hearing before an ALJ and, in the Decision issued on August 15, 2017, the ALJ concluded that Plaintiff was not disabled within the meaning of the SSA. R. at 140, 10-23 (Decision). On May 1, 2018, the ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. R. at 1-3. This appeal followed.
II. ALJ's Decision
For purposes of Social Security benefits determinations, a disability is defined as:
The inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.
20 C.F.R. § 404.1505.
Whether a claimant is disabled is determined using a five-step evaluation process. It is claimant's burden to show (1) he has not worked since the alleged disability onset date, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity ("RFC") precludes him from doing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies his burden though step four, the burden shifts to the Commissioner to show at step five that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
In this case, Plaintiff's claim was denied at step five of the evaluation process. According the ALJ, Plaintiff retained the RFC to perform
medium level work as defined in 20 CFR 404.1567(c)[.] he cannot use ladders, ropes or scaffolds, however; must avoid concentrated exposure to fumes, odors, dust, gases, poor ventilation or the like; is to avoid concentrated exposure to hazards, that is commonly defined as unprotected heights or dangerous machinery; cannot work in a fast-paced production environment, such that he cannot consistently work at the pace of work required in a fast-food restaurant such as McDonalds restaurant or an In-N-Out hamburger restaurant; can attend and concentrate in 2-hour blocks of time throughout an 9-hour workday with the 2 customary 10-15 minute breaks and the customary 30-60 minute lunch period.
R. at 15. Based on Plaintiff's RFC and testimony from a vocational expert, the ALJ concluded that Plaintiff could work as an automatic machine attendant, a hand packager, or a conveyor tender. R. at 22.
III. Standard of Review
The ALJ's decision to deny disability benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Substantial evidence is "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). In evaluating whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see 42 U.S.C. § 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive"). If there is sufficient evidence to support the Commissioner's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir.1990).
IV. DISCUSSION
A. Occupation of Laundry Worker
As part of his RFC determination, the ALJ concluded that Plaintiff must avoid "concentrated exposure to fumes, odors, dust, gases, poor ventilation or the like." R. at 15. Plaintiff argues, and the Commissioner concedes, that these atmospheric limitations prevent Plaintiff from working as an automatic machine attendant and hand packager. Plaintiff also argues, and the Commissioner again concedes, that substantial evidence does not support the ALJ's step-five finding that Plaintiff could work as a conveyor tender.
Because the Commissioner has conceded that the ALJ's Decision cannot be defended based on any of the three occupations cited in the Decision, Plaintiff contends that remand is appropriate for a reevaluation of Plaintiff's work abilities. In response, the Commissioner argues that the Court should affirm the ALJ's Decision based on the VE's testimony that Plaintiff could work as a laundry worker even though that occupation is not cited in the Decision. Plaintiff characterizes the Commissioner's request for affirmance based on the occupation of laundry worker as "an improper post hoc rationalization." The Court agrees with Plaintiff.
At the hearing, the VE testified that Plaintiff would be able to perform the job of laundry worker; DOT 361.685-018, medium exertional level, unskilled, with approximately 70,000 positions nationally. R. at 83. Although the ALJ did not identify the job of laundry worker at step five of the Decision, the Commissioner asserts that "a review of the hearing transcript clearly demonstrates that he intended to accept the job of laundry work over the job of conveyor tender." Defendant's Brief, p. 5. However, because the ALJ made no mention of the occupation of laundry worker in the Decision, the cases cited by the Commissioner do not authorize this Court to independently determine that Plaintiff could perform such work and affirm the Decision.
The Commissioner argues that even though not mentioned in the Decision, the transcript of the hearing demonstrates that the ALJ intended to accept the job of laundry worker and, therefore, "one can easily conclude that the ALJ's non-inclusion of the job of laundry worker within his decision was simply a scrivener's error." Defendant's Brief, p. 5. Alternatively, however, one could easily conclude that the ALJ intentionally excluded the job of laundry worker in the decision. Either conclusion would require the Court to speculate about the ALJ's intentions and conclusions. As a result, the Decision fails to clearly express the ALJ's conclusion about the jobs Plaintiff can perform. See Farris v. Barnhart, 147 Fed. Appx. 638, 640 (9th Cir. 2005) (finding error where the ALJ's decision was unclear as to whether plaintiff could perform his past work); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (court should not speculate regarding basis of ALJ's conclusion).
Contrary to the Commissioner's contentions, this is not a case of harmless error. In Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), a case cited by the Commissioner, the Ninth Circuit found harmless error where an ALJ failed to provide specific reasons for rejecting lay testimony because the unaddressed testimony did not describe any more limitations than those described by the Plaintiff. Id. at 1122. In contrast to Molina, the Decision in this case does not include evidence that would enable the Court to conclude that Plaintiff can work as a laundry attendant. Without testimony from a VE and evaluation of such testimony by the ALJ, the Court is in no position to conclude that because the ALJ found that Plaintiff could perform certain other work, he is therefore able to work as a laundry attendant.
Moreover, the Commissioner has conceded that the cited occupations of automatic machine attendant, hand packager, or conveyor tender, are insufficient support for the affirmance of the ALJ's Decision. As such, any discussion of those rejected occupations in the Decision, even if germane to the occupation of laundry attendant, would not constitute substantial evidence supporting the Court's determination that Plaintiff could perform the job of laundry worker. The Commissioner's recommended approach would additionally require the Court to act contrary to the prohibition against affirming on a ground upon which the ALJ did not rely. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (review is restricted to the "reasons the ALJ asserts").
The Commissioner, relying on Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989), further contends that the Court may affirm the Decision by drawing a "clear inference from within the decision." Defendant's Brief, p. 6. In Magallanes, the court stated that "we are not deprived of our faculties for drawing specific and legitimate inferences from the ALJ's opinion." Id. at 755 (emphasis added). Unlike the situation faced by the court in Magallanes, here the Commissioner asks the Court not to draw an inference from the ALJ's opinion, but to draw an inference from the hearing transcript. Because the job of laundry worker is not identified anywhere in the ALJ's Decision, the only "specific and legitimate inference" is that the ALJ concluded that Plaintiff could not perform the job of laundry worker. Because the Court cannot legitimately conclude that Plaintiff can perform that job, and because the Commissioner has conceded that the three jobs actually identified in the Decision do not provide a valid basis for affirming the ALJ's Decision, the Decision should be reversed.
B. Remedy
The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to order an immediate award of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Ordinarily, when a court reverses an administrative agency determination, the proper course is to remand to the agency for additional proceedings. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Generally, an award of benefits is appropriate only when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before the determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.
Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). An award of benefits is appropriate where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed. Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988).
Here, an outstanding issue remains to be resolved. On remand, at a minimum, the ALJ must reevaluate whether Plaintiff's RFC would allow him to work and, if so, identify the jobs he can perform. As such, the Court recommends that this matter be remanded.
IV. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order granting Plaintiff's request to reverse the Commissioner's final decision and remand to the ALJ to conduct further proceedings.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless leave to do so is granted by the district court. If any objections are filed, this action should be designated case number: CV 18-0310-TUC-JAS. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc).
