Beatrice Diaz Acencio v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: April 19, 2023
• Docket: 2:22-cv-01207
• Status: Unknown

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BEATRICE D. A., Case No. CV 22-01207-RAO

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social 15 Security, Defendant. 16 17 I. INTRODUCTION 18 19 Plaintiff Beatrice D. A.1 (“Plaintiff”) challenges the Commissioner’s denial of 20 her application for disability insurance benefits (“DIB”) under Title II of the Social 21 Security Act, and supplemental security income (“SSI”) under Title XVI of the Social 22 Security Act. For the reasons stated below, the decision of the Commissioner is 23 AFFIRMED. 24 /// 25 ///

26 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. 1 II. SUMMARY OF PROCEEDINGS 2 On September 18 and 26, 2018, respectively, Plaintiff filed an application for 3 DIB and an application for SSI, alleging that she had been disabled since June 11, 4 2016, due to lupus, joint pain, fatigue, fibromyalgia, asthma, constant diarrhea, lower 5 back pain, sciatic nerve pain, anxiety, and depression. (Administrative Record 6 (“AR”) 15, 237-47, 278.) Her claim was denied initially on March 6, 2019, and upon 7 reconsideration on July 16, 2019. (AR 15, 85-144.) On September 9, 2019, Plaintiff 8 filed a written request for hearing, and a telephonic hearing was held on June 17, 9 2020.2 (AR 36-84, 162-63.) Plaintiff, represented by counsel, appeared and testified, 10 along with an impartial vocational expert (“VE”). (AR 36-84.) On March 31, 2021, 11 the ALJ found that Plaintiff had not been under a disability from June 11, 2016, 12 through the date of the decision.3 (AR 30.) The ALJ’s decision became the 13 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 14 for review. (AR 1-6.) Plaintiff filed this action on February 22, 2022. (Dkt. No. 1.) 15 To determine whether Plaintiff was disabled under the Social Security Act, the 16 ALJ followed a five-step sequential evaluation process. Lester v. Chater, 81 F.3d 17 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not 18 engaged in substantial gainful activity since June 11, 2016. (AR 18.) At step two, 19 the ALJ found that Plaintiff has the severe impairments of systemic lupus 20 erythematosus, cervical stenosis with radiculopathy, degenerative changes of the 21 lumbar and thoracic spine, asthma, rheumatoid arthritis, fibromyalgia, obesity, 22 dysthymia, and depression. (Id.) At step three, the ALJ found that Plaintiff did not 23 have an impairment or combination of impairments that met or medically equaled

24 2 The hearing was telephonic due to the COVID-19 pandemic. (AR 38.) 25 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental 26 impairment expected to result in death, or which has lasted or is expected to last for 27 a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A).

28 1 the severity of a listed impairment in 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 2 416.920(d), 416.925, or 416.926. (AR 19.) 3 Before proceeding to step four, the ALJ found that Plaintiff has the residual 4 functional capacity (“RFC”) to perform light work, except she can occasionally climb 5 ramps and stairs, but never climb ladders, ropes and/or scaffolds; can occasionally 6 balance, stoop, kneel, crouch and crawl; should avoid concentrated exposure to 7 extreme cold, fumes, odors, dusts, gases and poor ventilation; cannot work with 8 hazardous machinery or around unprotected heights; can maintain attention and 9 concentration to perform simple, routine and repetitive tasks; and can work in an 10 environment with occasional changes to the work setting and occasional work-related 11 decision making. (AR 22.) At step four, the ALJ found that Plaintiff is unable to 12 perform any past relevant work. (AR 28.) At step five, the ALJ found that 13 considering Plaintiff’s age, education, work experience, RFC, and the VE’s 14 testimony, there are jobs that exist in significant numbers in the national economy 15 that Plaintiff can perform. (AR 29). Accordingly, the ALJ found that Plaintiff “has 16 not been under a disability . . . from June 11, 2016, through the date of this decision.” 17 (AR 30.) 18 III. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 20 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 21 supported by substantial evidence, and if the proper legal standards were applied. 22 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence . 23 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such 24 relevant evidence as a reasonable mind might accept as adequate to support a 25 conclusion.’” Biestek v. Berryhill, —U.S. —, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 26 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 27 An ALJ can satisfy the substantial evidence requirement “by setting out a detailed 28 and thorough summary of the facts and conflicting clinical evidence, stating his 1 interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 2 (9th Cir. 1998) (citation omitted). 3 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 4 specific quantum of supporting evidence. Rather, a court must consider the record 5 as a whole, weighing both evidence that supports and evidence that detracts from the 6 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 7 (citations and internal quotations omitted). “‘Where evidence is susceptible to more 8 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. 9 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 10 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Social Sec. Admin., 466 F.3d 11 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing 12 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The 13 Court may review only “the reasons provided by the ALJ in the disability 14 determination and may not affirm the ALJ on a ground upon which he did not rely.” 15 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 16 F.3d 871, 874 (9th Cir. 2003)). 17 IV. DISCUSSION 18 Plaintiff contends that the ALJ (1) erred in determining that Plaintiff does not 19 need a cane and/or walker in the workplace; (2) failed to provide specific, clear, and 20 convincing reasons for discounting Plaintiff’s need for a cane or walker and failed to 21 consider whether Plaintiff’s condition worsened; (3) failed to pose a complete 22 hypothetical question to the VE; and (4) erred at step five. (Joint Submission (“JS”) 23 at 2-3.) For the reasons below, the Court affirms. 24 A. The ALJ Did Not Err in Determining That Plaintiff Does Not Need 25 a Cane or Walker in the Workplace 26 Plaintiff argues that the ALJ applied a “stricter burden of persuasion” when 27 assessing her need for a cane or a walker, and remand is appropriate because the 28 evidence shows that Plaintiff “would more likely than not need to utilize a cane 1 and/or walker for ambulation.” (JS at 3-5.) The Commissioner argues that the record 2 does not support the use of a cane or a walker, and as such, the need for a cane or a 3 walker was properly omitted from the RFC. (JS 5-7.) 4 1. Applicable Legal Standards 5 A claimant’s RFC is what one can “still do despite [his or her] limitations.” 20 6 C.F.R. §§ 404.1545(a)(1)-(2), 416.945(a)(1)-(2). The ALJ is responsible for 7 assessing a claimant’s RFC “based on all of the relevant medical and other evidence.” 8 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3); see Robbins, 466 F.3d at 883 (citing 9 Soc. Sec. Ruling (“SSR”) 96-8p (July 2, 1996), 1996 WL 374184, at *5 (July 2, 10 1996)). The RFC assessment must contain “a narrative discussion describing how 11 the evidence supports each conclusion, citing specific medical facts (e.g., laboratory 12 findings) and nonmedical evidence (e.g., daily activities, observations).” See SSR 13 96-8p. An ALJ’s determination of a claimant’s RFC must be affirmed “if the ALJ 14 applied the proper legal standard and his decision is supported by substantial 15 evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); accord Morgan 16 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 17 2. The ALJ’s Decision 18 The ALJ found, in pertinent part, that Plaintiff could perform a range of light 19 work, including occasionally climbing ramps and stairs, and occasionally balancing, 20 stooping, kneeling, crouching, and crawling. (AR 22.) The ALJ considered 21 Plaintiff’s use of a cane and walker, but did not include either in the RFC. 22 The ALJ noted that Plaintiff testified in June 2020 that her legs started to feel 23 like Jell-O around 2013 and she was told that she had broken cartilage, bulging discs 24 and osteoarthritis that was pinching her nerves. (AR 23, 55.) Plaintiff explained that 25 she walked with a cane and a walker, and she felt like she had to “sit, stand, sit, stand, 26 lay.” (AR 23, 55.) She started walking more, but she still has pain in her back that 27 radiates into her lower extremities all the way down to her feet. (AR 23, 55.) She 28 takes ibuprofen and a muscle relaxer for her back, but has not had any other 1 treatment. (AR 23, 48.) Plaintiff estimated that she could stand for up to five minutes 2 and needs to lay down for about half of the day. (AR 23, 66-67.) The ALJ also noted 3 that Plaintiff uses a cane and a walker for ambulation, but uses the cane when she 4 goes out because she is too embarrassed to use the walker in public. (AR 23.) She 5 is able to drive, but only drives when necessary. (AR 23, 65.) The ALJ found that 6 Plaintiff had not established the medical necessity for the use of a cane or walker. 7 (AR 24.) 8 3. Discussion 9 Plaintiff first argues that the ALJ applied the incorrect legal standard and 10 required Plaintiff to support her need for a cane and/or walker with “all of the medical 11 evidence.” (JS at 5.) The basis for Plaintiff’s argument appears to be the ALJ’s 12 statement that “the extent of the claimant’s alleged limitations are not entirely 13 consistent with the medical evidence.” (JS at 3.) The Court declines to read the 14 ALJ’s “not entirely consistent” statement as requiring Plaintiff to support her need 15 for a cane or walker with all of the medical evidence or requiring more than a 16 preponderance of the evidence. The ALJ cited the relevant the medical evidence, 17 taking care to describe how the evidence supported his conclusion that the medical 18 necessity for the use of a cane or walker was not established. (AR 24-25.) The ALJ 19 cited Plaintiff’s conservative treatment, her partial compliance with her treatment 20 plan, her physical examination findings, her rejection of cortisone/trigger point 21 injections, and her inconsistent use of a cane. (AR 24-25.) The Court finds that the 22 ALJ did not use the incorrect legal standard. 23 Plaintiff next argues that the record evidence supports her need for a cane 24 and/or walker. (JS at 4-5.) She cites her severe impairments, including her obesity; 25 physical examination findings of diffuse arthralgias and tenderness in the lower 26 extremities and minimal restricted range of motion in the knees; ambulation with a 27 cane in 2019 and 2020; a limping gait in December 2019; and body aches and 28 weakness in January 2020. (JS 4-5.) 1 The use of a hand-held assistive device such as a cane is a functional limitation 2 only if it is medically required. See SSR 96-9p, 1996 WL 374185, at *7 (July 2, 3 1996); Quintero v. Colvin, 2014 WL 4968269, at *10 (E.D. Cal. Sept. 29, 2014) 4 (“The use of a cane or other ‘hand-held assistive device’ is probative of a claimant’s 5 functional limitations only if it is medically required.”). “To find that a hand-held 6 assistive device is medically required, there must be medical documentation 7 establishing the need for a hand-held assistive device to aid in walking or standing, 8 and describing the circumstances for which it is needed (i.e., whether all the time, 9 periodically, or only in certain situations; distance and terrain; and any other relevant 10 information).” SSR 96-9p. 11 Plaintiff’s argument is focused solely on the first element of need. She argues 12 that her impairments in combination with her morbid obesity show that she would 13 “more likely than not need to utilize a cane and/or walker for ambulation.” (JS at 5.) 14 Specifically, she points to treatment notes indicating diffuse arthralgias and 15 tenderness, pain, decreased range of motion, and joint crepitation in the lower 16 extremities; hip pain and lower back pain; a limping gait; and ambulation with a cane 17 and pending a walker with a seat. (JS at 5; AR 375, 377, 382, 395-97, 408, 430, 446, 18 452-55, 621, 623, 701-04, 762, 764-66, 812-13.) The Court notes that the record also 19 contains Plaintiff’s testimony that she used a cane or walker, although as the ALJ 20 found, it is unclear from the treatment notes whether Plaintiff consistently used either, 21 given that her specialists made no note of a cane or walker and recommended regular 22 exercise at least 30 minutes a day, five to six days per week. (AR 25, 66-70, 628, 23 668.) Plaintiff also testified that the walker was prescribed by her primary physician 24 in 2019, and she bought the cane without a prescription. (AR 68-69.) In any event, 25 Plaintiff’s own testimony and mere references in treatment notes to her use of an 26 assistive device are not enough to show medical need. See Schluter v. Berryhill, 2020 27 WL 1557773, at *5 (D. Ariz. Mar. 10, 2020) (“[A] plaintiff’s testimony regarding 28 necessity or a physician’s mere observation of the use of a cane is insufficient to 1 establish a medical necessity.”) (citing Marin v. Astrue, 2012 WL 5381374, at *4 2 (C.D. Cal. Oct. 31, 2012) (finding ALJ “justifiably concluded that plaintiff’s use of 3 a cane did not warrant a more limited RFC” where only plaintiff’s own testimony 4 corroborated her use of a cane), report and recommendation adopted by 2020 WL 5 1552839 (D. Ariz. Apr. 1, 2020); Flores v. Colvin, 2016 WL 2743228, at *14 (E.D. 6 Cal. May 11, 2016) (medical need for a cane not shown where references to cane 7 came from plaintiff’s self-reports and medical source’s observations); Cashin v. 8 Astrue, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010) (finding physician’s 9 observation of plaintiff’s use of cane was not “an objective finding that plaintiff’s 10 cane was medically required”). 11 Further, as the ALJ found, Plaintiff’s need for a cane or walker was 12 contradicted by her noncompliance with her medication, conservative treatment, 13 inconsistent use of an assistive device, and unchanged 5/5 motor strength with normal 14 sensation in December 2019 and January 2020, when she was noted to use a cane 15 with a limping gait. (AR 25.) Plaintiff has not established medical need for a cane 16 or walker. 17 Even assuming Plaintiff could show the requisite need, the record is devoid of 18 the required medical documentation describing the specific circumstance in which 19 she needs a cane or walker, and none of the evidence cited by Plaintiff addresses this 20 requirement. See Dean N. v. Saul, 2020 WL 430962, at *2 (C.D. Cal. Jan. 28, 2020) 21 (“Plaintiff was required to establish both need and the specific circumstance in which 22 he needs the cane before the ALJ could include the usage of a cane in his RFC.”). 23 For example, while the record indicates that a walker was prescribed in 2019, around 24 the time when Plaintiff was hospitalized for a lupus flare after she had run out of 25 medications for a month and had not seen her rheumatologist for seven months, the 26 record contains no explanatory information describing when the walker was needed, 27 the duration, distance, terrain, or any other relevant information. (AR 68, 707-08.) 28 See Downyell, J. v. Kijakazi, 2022 WL 971335, at *4 (C.D. Cal. Mar. 31, 2022) 1 (finding walker not medically required where record contained one reference to a 2 walker prescription but no explanation of the circumstances in which the walker was 3 needed); see also Tripp v. Astrue, 489 F. App’x 951, 955 (7th Cir. 2012) (following 4 the Third and Tenth Circuits in requiring an “unambiguous opinion from a physician 5 stating the circumstances in which an assistive device is medically necessary”). 6 Indeed, this void is consistent with Plaintiff’s testimony that her prescribing doctor 7 did not tell her why she needed a walker, and “[i]t varie[d]” whether her doctors 8 recommended that she either use or not use the walker. (AR 68-69.) Because 9 Plaintiff did not establish both need and the specific circumstance for the use of a 10 cane or walker, the ALJ could not include either assistive device in the RFC. 11 In sum, because the record evidence does not demonstrate that a cane or walker 12 was medically necessary, the ALJ did not err by not providing for use of a cane or 13 walker in the RFC. Accordingly, remand is not warranted on this issue. 14 B. The ALJ Provided Specific, Clear, and Convincing Reasons for 15 Discounting Plaintiff’s Testimony Regarding Her Need for a Cane 16 or Walker and Properly Considered Whether There was a 17 Worsening in Plaintiff’s Condition 18 Plaintiff argues that the ALJ did not provide specific, clear and convincing 19 reasons for rejecting Plaintiff’s need for a cane or walker to ambulate; and the ALJ 20 erred in reaching a single RFC determination because her ability to ambulate 21 worsened in 2019 and 2020. (JS at 8-11.) The Commissioner argues that the ALJ 22 properly found that Plaintiff did not require a cane or walker, and the RFC is 23 supported by substantial evidence. (JS at 11-12.) 24 1. Applicable Legal Standards 25 Where, as here, the claimant has presented evidence of an underlying 26 impairment and the ALJ did not make a finding of malingering (see AR 23-24), the 27 ALJ must “evaluate the intensity and persistence of [the] individual’s symptoms . . . 28 and determine the extent to which [those] symptoms limit [his or her] . . . ability to 1 perform work-related activities.” SSR 16-3p, 2017 WL 5180304, at *4. In assessing 2 the intensity and persistence of symptoms, the ALJ “examine[s] the entire case 3 record, including the objective medical evidence; an individual’s statements . . . ; 4 statements and other information provided by medical sources and other persons; and 5 any other relevant evidence in the individual’s case record.” Id. at *4. The ALJ must 6 provide “specific, clear and convincing reasons” for rejecting the claimant’s 7 statements. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (citations and 8 internal quotation marks omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 9 (9th Cir. 2017). The ALJ must identify what testimony was found not credible and 10 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d 11 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 12 834. 13 2. Discussion 14 As discussed above, the ALJ did not err by not providing for use of a cane or 15 walker in the RFC because medical necessity was not established. Plaintiff’s 16 argument that the ALJ did not provide sufficient reasons for rejecting her testimony 17 that she needed a cane or walker for ambulation does not merit a different result. (JS 18 at 10.) 19 Contrary to Plaintiff’s argument, the ALJ did not merely state that Plaintiff’s 20 alleged limitations were not entirely consistent with the medical evidence. Rather, 21 the ALJ identified at least four reasons for discounting Plaintiff’s testimony regarding 22 her need for a cane or walker as inconsistent with the record. The ALJ considered 23 (1) Plaintiff’s condition was stable with conservative treatment; (2) Plaintiff’s failure 24 to comply with her treatment plan; (3) Plaintiff’s inconsistent use of a cane or walker; 25 and (4) Plaintiff’s generally normal physical examinations of her back, joints and 26 extremities. (AR 24-25.) Generally speaking, these are valid reasons for discounting 27 a claimant’s testimony. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 28 (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 1 testimony regarding severity of an impairment.”); Tommasetti v. Astrue, 533 F.3d 2 1035, 1039-40 (9th Cir. 2008) (explaining ALJ may consider fact that claimant failed 3 to follow a course of treatment in making adverse credibility determination); 4 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (ALJ may use 5 inconsistencies between a claimant’s testimony and his or her other statements, 6 conduct, and daily activities as a basis for discounting his or her testimony); Burch, 7 400 F.3d at 681 (lack of supporting objective medical evidence cannot form the sole 8 basis for discounting testimony, but is a factor the ALJ may consider in making a 9 credibility determination). 10 The ALJ made specific findings with respect to the evidence. The ALJ found, 11 inter alia, that in July 2019, Plaintiff reported pain all over her body with weakness, 12 she was approved for Home Health Care, and was ambulating with a cane, but she 13 was off her medication for two months and in August 2019, she asked her primary 14 care doctor for a walker with a seat. (AR 25, 707, 759, 764-65.) Plaintiff continued 15 to decline cortisone/trigger point injections, she continued on prednisone, and while 16 it was noted that she was ambulating with a cane and awaiting a walker with a seat, 17 it was unclear if her rheumatologist knew about either device. (AR 25, 698, 702, 18 664, 668, 702, 704, 719, 732.) Plaintiff’s rheumatology examinations also remained 19 the same, and in December 2019 and January 2020, she was using a cane and had a 20 limping gait, but she also had 5/5 motor strength with normal sensation. (AR 25, 21 701, 766, 811-12.) 22 The ALJ drew reasonable inferences from the record that Plaintiff’s use of a 23 cane or walker was not a medical necessity and did not need to be included in the 24 RFC. The record reflects, in part, that Plaintiff fell in April 2016, but she was able 25 to walk with no numbness or tingling or clubbing, cyanosis, edema or deformity in 26 her extremities, and she had full range of motion of all joints. (AR 395-96.) She 27 reported in September and October 2017 that she walked on a treadmill three times 28 a week. (AR 380, 383.) A September 2018 examination indicates nontender, 1 nondeformed, musculoskeletal extremities with no clubbing, cyanosis or edema; 2 back without midline tenderness; normal gait; motor 5/5 in all extremities; and 3 sensory intact to soft touch in all extremities. (AR 599.) Plaintiff was noted to be 4 ambulating with a cane in November 2018, when she complained of lower back pain 5 and bilateral leg weakness. (AR 649.) At a July 2019 rheumatology appointment in 6 which a cane is not mentioned, it was noted that Plaintiff had not been seen since 7 December 2018 and she had been off her medication for two months, yet no 8 paraspinal muscle spasms were found in the lower back, ankles had good range of 9 motion with no swelling or tenderness, and both knee joints had minimal tenderness 10 and minimal restricted range of motion. (AR 707-08.) At an August 2019 11 cardiovascular examination in which a cane is not mentioned, Plaintiff had meralgia 12 paresthetica, bilateral lower limbs, but regular exercise of at least 30 minutes, five to 13 six days per week was recommended.4 (AR 731-32.) An August 2019 x-ray of the 14 lumbar spine indicated moderate degenerative changes of the spine. (AR 702.) At 15 rheumatology examinations in August and November 2019 in which a cane is not 16 mentioned, no paraspinal muscle spasms were found in the lower back, ankles had 17 good range of motion with no swelling or tenderness, both knee joints had minimal 18 tenderness and minimal restricted range of motion, and Plaintiff declined 19 cortisone/trigger point injections. (AR 701-05.) At a December 2019 neurological 20 examination, Plaintiff was noted to have a limping gait with a cane for ambulation, 21 but her extremities showed no clubbing, cyanosis or edema, 5/5 muscle strength, 22 normal muscle tone and bulk, and no involuntary movements. (AR 812.) Plaintiff’s 23 primary care doctor noted that Plaintiff ambulated with a cane in treatment notes in 24 July 2019, August 2019, and January 2020, but as Plaintiff testified, the cane was not 25 prescribed. (AR 68-69, 764-66.) The ALJ’s interpretation of the evidence is rational 26 27 4 At the hearing, Plaintiff testified that she does not remember if she told her cardiologist if she had a walker and that she “probably used the cane” when she went 28 to her appointments. (AR 70.) 1 and should be upheld. See Burch, 400 F.3d at 679. 2 With respect to Plaintiff’s argument that the ALJ erred in reaching a single 3 RFC determination because her ability to ambulate worsened in 2019 and 2020, her 4 argument is rejected. Plaintiff relies on Smith v. Kijakazi, 14 F.4th 1108, 1116 (9th 5 Cir. 2021), and argues that “there should have been an RFC to accommodate 6 limitations for [her] worsening condition” because she had no gait problem in 2018, 7 but did have a gait problem in 2019 into 2020 and was using a cane to ambulate. (JS 8 at 11; AR 417, 449, 453, 551, 554, 599, 628, 766, 812.) As discussed above, because 9 Plaintiff failed to establish medical necessity for a cane or walker, the ALJ could not 10 include either assistive device in the RFC. Unlike in Smith, where the ALJ 11 discredited evidence from early in the disability period on the basis of inconsistencies 12 applicable to only the late-period testimony, here, the ALJ considered whether there 13 was a medical necessity for a cane or walker throughout the relevant time period, 14 including 2019 and 2020. (AR 24-25.) The ALJ noted that Plaintiff had a limping 15 gait, ambulated with a cane, and was awaiting a walker with a seat in 2019 and 2020, 16 but throughout this time, she was not consistent with the use of a cane or walker and 17 her examinations remained stable with conservative treatment. (AR 25, 698, 701-02, 18 707, 764-66, 811-12.) 19 In sum, the ALJ provided specific, clear, and convincing reasons for 20 discrediting Plaintiff’s testimony regarding her need for a cane or walker for 21 ambulation, and the ALJ properly considered whether there was a worsening in 22 Plaintiff’s condition. Accordingly, remand is not warranted on this issue. 23 C. The ALJ Posed a Complete Hypothetical 24 Plaintiff contends that the ALJ posed an incomplete hypothetical to the VE 25 because he did not include a limitation regarding Plaintiff’s use of a cane or walker. 26 (JS at 12.) The Commissioner argues that the hypothetical included all the limitations 27 in the RFC that were supported by the record. (JS at 13-14.) 28 /// 1 1. Applicable Legal Standards 2 A hypothetical posed to a vocational expert must “contain[] all of the 3 limitations that the ALJ found credible and supported by substantial evidence in the 4 record.” Bayliss, 427 F.3d at 1217. “If a vocational expert’s hypothetical does not 5 reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary 6 value to support a finding that the claimant can perform jobs in the national 7 economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citation and quotation 8 marks omitted). 9 2. Discussion 10 The ALJ did not err by not including in the hypothetical a limitation regarding 11 the use of a cane or walker. As discussed above, the ALJ’s RFC determination, which 12 did not include the use of a cane or walker, is supported by substantial evidence. By 13 posing a hypothetical with limitations supported by substantial evidence, the 14 hypothetical was complete. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175- 15 76 (9th Cir. 2008) (finding that, because the ALJ’s RFC assessment was proper and 16 complete, the ALJ’s hypothetical based on the RFC was also proper and complete); 17 see also Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (finding that an 18 ALJ did not err in failing to include alleged impairments in a hypothetical when the 19 claimant failed to present evidence to support those impairments). The hypothetical 20 contained all the limitations that were supported by the record, and the ALJ properly 21 relied on the VE’s testimony. See Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th 22 Cir. 1989) (hypothetical questions posed to a vocational expert need not include all 23 alleged limitations, but rather only those limitations the ALJ finds to exist). 24 Accordingly, remand is not warranted on this issue. 25 D. Substantial Evidence Supports The ALJ’s Step Five Finding 26 Plaintiff contends there is a conflict and insufficient job numbers at step five. 27 (JS at 14-19.) Specifically, she argues that she cannot perform the jobs of assembler 28 of small products and inspector and hand packager, and there is not a significant 1 number of jobs in the national economy for the remaining job of assembler of 2 electrical accessories. (JS at 14-19, 22.) The Commissioner argues lack of apparent 3 conflict, forfeiture, and sufficient job numbers. (JS at 19-22.) 4 1. Applicable Legal Standards 5 At step five of the sequential disability analysis, it is the Commissioner’s 6 burden to establish that, considering the claimant’s residual functional capacity, the 7 claimant can perform other work. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 8 2014) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). To make this 9 showing, the ALJ may rely on the testimony of a VE. Tackett v. Apfel, 180 F.3d 10 1094, 1099 (9th Cir. 1999). The ALJ may pose accurate and detailed hypothetical 11 questions to the VE to establish (1) what jobs, if any, the claimant can do; and (2) the 12 availability of those jobs in the national economy. Garrison, 759 F.3d at 1011. The 13 VE then translates the ALJ’s scenarios into “realistic job market probabilities” by 14 testifying about what kinds of jobs the claimant can still perform and whether there 15 is a sufficient number of those jobs available in the economy. Id. (quoting Tackett, 16 180 F.3d at 1101). The burden of establishing that other work exists in “significant 17 numbers,” lies with the Commissioner. Beltran v. Astrue, 700 F.3d 386, 389-90 (9th 18 Cir. 2012); Tackett, 180 F.3d at 1099. “[I]n the absence of any contrary evidence, a 19 VE’s testimony is one type of job information that is regarded as inherently reliable; 20 thus, there is no need for an ALJ to assess its reliability.” Buck v. Berryhill, 869 F.3d 21 1040, 1051 (9th Cir. 2017). 22 2. The ALJ’s Decision 23 At step five, the VE testified that an individual with Plaintiff’s age, education, 24 work experience, and RFC would be able to perform the requirements of 25 representative occupations such as assembler of electrical accessories, assembler of 26 small products, and inspector and hand packager. (AR 81.) The ALJ determined that 27 the VE’s testimony was consistent with the information contained in the DOT. (AR 28 29.) Adopting the VE’s testimony, the ALJ found that there are jobs that exist in 1 significant numbers in the national economy that Plaintiff could perform, and 2 Plaintiff was, therefore, not disabled. (AR 29.) 3 3. Discussion 4 a. Hazardous machinery and occasional changes to the work 5 setting 6 Plaintiff contends that she is unable to perform the assembler of small products 7 job and the inspector and hand packager job because each requires her to perform 8 work that conflicts with her RFC. With respect to the assembler of small products 9 job, she argues she cannot perform that job because it would require her to work with 10 hazardous machinery and may require more than occasional changes to the work 11 setting. (JS at 15.) She argues that it would require her to use portable power tools 12 or perform light metal-cutting on an assembly line, which she interprets as “working 13 with hazardous machinery.” (JS at 16.) She also argues that this job may require her 14 to be assigned to different workstations or shift from one station to another, which 15 she interprets as “may” require more than “occasional changes to the work setting.” 16 (JS at 16.) 17 With respect to the inspector and hand packager job, she argues that she cannot 18 perform this job because she is limited to jobs with only “occasional work-related 19 decision making.” (JS at 17.) She argues that this job would require her to visually 20 examine molded products for defects and discard defective products, which in her 21 view, would require constant decision-making. (JS at 17.) 22 As to both the assembler of small products job and the inspector and hand 23 packager job, the Commissioner argues that Plaintiff failed to raise the issue of a 24 conflict at the hearing, and in any event, Plaintiff’s lay interpretation of the DOT 25 requirements do not supplant the VE’s testimony. (JS at 19-20.) 26 Here, Plaintiff’s counsel declined to cross-examine the VE and thus did not 27 question the VE regarding apparent conflicts. (AR 81.) The Court agrees with the 28 Commissioner that Plaintiff failed to raise the issue of a conflict at the hearing. 1 Regardless, Plaintiff’s argument fails on the merits. 2 The Court finds that the ALJ was entitled to rely on the VE’s testimony. The 3 VE testified that a person with Plaintiff’s RFC could perform the assembler of small 4 products job and the inspector and hand packager job. (AR 81.) Plaintiff’s lay 5 interpretation otherwise does not trump the expertise of the VE. See Bayliss, 427 6 F.3d at 1218 (“An ALJ may take administrative notice of any reliable job 7 information, including information provided by a VE. A VE’s recognized expertise 8 provides the necessary foundation for his or her testimony.”) Even if Plaintiff had 9 grounded her interpretation of the job requirements in a non-DOT source, which she 10 does not, her argument would not undermine the VE’s testimony. See, e.g., Kevin E. 11 v. Saul, 2021 WL 134584, at *6 (C.D. Cal. Jan. 14, 2021) (finding lay interpretation 12 of data from non-DOT sources “fails to undermine the reliability of the vocational 13 expert’s testimony”). The Court also notes that a DOT’s description of a job includes 14 various tasks that may not all be required. See Gutierrez v. Colvin, 844 F.3d 804, 15 807-08 (9th Cir. 2016) (explaining that DOT job descriptions are collective 16 descriptions of numerous jobs). The ALJ appropriately relied on the VE’s testimony 17 regarding Plaintiff’s ability to perform the assembler of small products job and the 18 inspector and hand packager job. 19 b. Job numbers 20 Plaintiff argues that she cannot perform the job of assembler of electrical 21 accessories because 15,000 jobs is not a significant number of jobs in the national 22 economy. (JS at 18-19) (citing Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 528, 529 23 (9th Cir. 2014) (“Under our current case law, the ALJ’s finding that 25,000 national 24 jobs is sufficient presents a close call.”)). The Commissioner argues that Plaintiff 25 waived a challenge to the job numbers by not challenging the testimony at the 26 hearing, and in any event, a significant number of jobs exists in the national economy. 27 (JS at 20-21.) 28 /// 1 Here, Plaintiff was represented by counsel at the hearing, and counsel did not 2 cross-examine the VE. (AR 81.) The Commissioner argues that Plaintiff “did not 3 challenge the jobs during the hearing] [so] [a]ny such latter argument should be 4 deemed waived.” (JS at 20) (citing Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 5 2017), as amended, February 28, 2018 (“When a claimant fails entirely to challenge 6 a vocational expert’s job numbers during administrative proceedings before the 7 agency, the claimant forfeits such a challenge on appeal, at least when that claimant 8 is represented by counsel.”)). In Shaibi, plaintiff argued for the first time on appeal 9 in federal district court that “the VE’s job estimates ‘deviated from listed sources of 10 administrative notice,’” citing discrepancies between the VE’s testimony and job 11 estimates published by the U.S. Census Bureau and the Bureau of Labor Statistics. 12 Shaibi, 883 F.3d at 1108. In holding that a claimant must challenge a VE’s job 13 numbers during the hearing to preserve the issue on appeal, the Ninth Circuit 14 explained that it was addressing challenges to “the evidentiary basis of a [VE’s] job 15 numbers.” Id. at 1109. The Ninth Circuit relied on the principle outlined in Meanel 16 v. Apfel, 172 F.3d 1111 (9th Cir. 1999), as amended, June 22, 1999, that the ALJ was 17 in “the optimal position” to resolve any conflict between a claimant’s proffered 18 evidence and the evidence relied on by the VE. Shaibi, 883 F.3d at 1109. 19 Here, because Plaintiff is not arguing that the VE’s job estimates were 20 unreliable based on evidence relied on by the VE, the Court finds that Plaintiff’s 21 argument is not forfeited. Plaintiff’s challenge to whether the number of jobs 22 represents a significant number does not require the Court “‘to weigh conflicting 23 evidence,’ the kind of task best suited to the agency and ALJ.” Maxwell v. Saul, 971 24 F.3d 1128, 1130 (9th Cir. 2020) (quoting Shaibi, 883 F.3d at 1109). Rather, Plaintiff 25 challenges the ALJ’s finding as to whether the number of jobs available is a 26 significant number, not the accuracy of the job numbers themselves. Therefore, 27 Plaintiff did not forfeit the issue. See id. (holding plaintiff did not forfeit issue 28 objecting to ALJ’s finding that she could perform a significant range of work where 1 only two occupations were identified, reasoning that to find otherwise would be 2 “task[ing] claimants with objecting to the ALJ’s decision before it is written”). 3 No “bright-line rule for what constitutes a ‘significant number’ of jobs” exists 4 in the Ninth Circuit. Beltran, 700 F.3d at 389. As Plaintiff argues, 25,000 national 5 jobs has been found to present a “close call.” Gutierrez, 740 F.3d at 529. In an 6 unpublished case, the Ninth Circuit stated that it has not found “a similar number” to 7 12,600 to be significant. Lemauga v. Berryhill, 686 F. App’x 420, 422 (9th Cir. 8 2017). As the Commissioner argues, some district courts within the Ninth Circuit 9 have determined that 14,000 jobs or more are a significant number in the national 10 economy. (JS at 21) (citing, e.g., Kimberly T. v. Kijakazi, 2022 WL 910083, at *8 11 (D. Or. Mar. 29, 2022) (concluding that 15,000 national jobs “constitutes a significant 12 number of jobs”); Davis v. Comm’r, 2018 WL 1779341, at *6 (E.D. Cal. Apr. 12, 13 2018) (finding 15,000 national jobs to be a significant number), overruled on other 14 grounds, 846 F. App’x 549 (9th Cir. 2021); Peck v. Colvin, 2013 WL 3121280, at *5 15 (C.D. Cal. June 19, 2013) (concluding that 14,000 is a significant number of jobs); 16 see also Suarez v. Astrue, 2012 WL 4848732, at *5 (C.D. Cal. Oct. 11, 2012) (finding 17 18,000 jobs nationally is not “an enormous number of jobs, [but] it is significant”). 18 On the other hand, at least one district court has found that 15,000 jobs is not a 19 significant number. See Andrea L. v. Saul, 2020 WL 888520, at *8 (E.D. Wash. Feb. 20 4, 2020) (holding 15,000 to 16,000 national jobs was not significant); see also 21 Madrigal v. Berryhill, 2017 WL 5633028, at *9 (C.D. Cal. Nov. 21, 2017) (finding 22 13,300 aggregate jobs in the national economy not a significant number). 23 Here, the Court need not decide whether 15,000 jobs is a significant number 24 in the national economy. Even assuming that the ALJ erred in finding the job of 25 assembler of electrical accessories exists in significant numbers, the error is harmless 26 because, as discussed above, Plaintiff could still perform the assembler of small 27 28 1 products job and the inspector and hand packager job. 2 Accordingly, remand is not warranted on this issue. 3 In sum, after reviewing each of Plaintiff’s claims, the Court concludes that the 4 Commissioner’s decision should be affirmed. 5 V. CONCLUSION 6 IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of 7 the Commissioner denying benefits. 8 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 9 Order and the Judgment on counsel for both parties. 10 11 12 13 DATED: April 19, 2023 /s/ ROZELLA A. OLIVER 14 UNITED STATES MAGISTRATE JUDGE 15

18 NOTICE

19 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 20 21 22 23 24 25 26 27 5 Plaintiff does not contend that these jobs do not exist in significant numbers in the 28 national economy.