8 UNITED STATES DISTRICT COURT
9 DISTRICT OF NEVADA
10 * * *
11 Justine A. Bellinsky, Case No. 2:20-cv-01734-BNW
12 Plaintiff, ORDER re ECF Nos. 17 and 18 13 v.
14 Kilolo Kijakazi,
15 Defendant.
16 17 This case involves review of an administrative action by the Commissioner of Social 18 Security denying Plaintiff1 Justine A. Bellinsky’s application for disability benefits and 19 supplemental security income under Title XVI of the Social Security Act. The Court reviewed 20 Plaintiff’s motion to remand (ECF No. 17), filed May 25, 2021, and the Commissioner’s 21 countermotion to affirm and response to Plaintiff’s motion to remand (ECF Nos. 18, 19), filed 22 June 21, 2021. Plaintiff replied on July 12, 2021. ECF No. 20. 23 The parties consented to the case being heard by a magistrate judge in accordance with 28 24 U.S.C. § 636(c) on September 18, 2020. ECF No. 3. This matter was then assigned to the 25 undersigned magistrate judge for an order under 28 U.S.C. § 636(c). Id. 26
27 Kilolo Kijakazi has been substituted for her predecessor in office, Andrew Saul, pursuant to Federal Rule of Civil Procedure 25(d). 1 1 I. BACKGROUND 2 1. Procedural History 3 On February 2, 2017, Plaintiff applied for supplemental security income under Title XVI 4 of the Act, alleging an onset date of February 1, 2008.2 ECF No. 15-13 at 168–78. Her claim was 5 denied initially and on reconsideration. Id. at 97–100; 104–09. 6 A hearing was held before an Administrative Law Judge (“ALJ”) on October 3, 2019, 7 where the ALJ heard testimony from vocational expert Erick Davis. Id. at 46–62. On December 5, 8 2019, ALJ Christopher R. Daniels issued a decision finding that Plaintiff was not disabled. Id. at 9 21–41. The ALJ’s decision became the Commissioner’s final decision when the Appeals Council 10 denied review on July 20, 2020. Id. at 6–11. Plaintiff, on September 18, 2020, timely commenced 11 this action for judicial review under 42 U.S.C. § 405(g). See Compl. (ECF No. 1). 12 II. DISCUSSION 13 1. Standard of Review 14 Administrative decisions in Social Security disability benefits cases are reviewed under 42 15 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 16 provides that “[a]ny individual, after any final decision of the Commissioner of Social Security 17 made after a hearing to which [s]he was a party, irrespective of the amount in controversy, may 18 obtain a review of such decision by a civil action . . . brought in the district court of the United 19 States for the judicial district in which the plaintiff resides.” The court may enter “upon the 20 pleadings and transcripts of the record, a judgment affirming, modifying, or reversing the 21 decision of the Commissioner of Social Security, with or without remanding the cause for a 22 rehearing.” 42 U.S.C. § 405(g). 23 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 24 See id.; Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the Commissioner’s 25
26 2 The ALJ decision provides an application date of February 6, 2017 and an alleged onset date of February 1, 2008. ECF No. 15-1 at 24. 27 3 ECF No. 15 refers to the Administrative Record in this matter which, due to COVID-19, was electronically 1 findings may be set aside if they are based on legal error or not supported by substantial evidence. 2 See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); Thomas v. Barnhart, 3 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines substantial evidence as “more than a 4 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind 5 might accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 6 Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). In determining 7 whether the Commissioner’s findings are supported by substantial evidence, the court “must 8 review the administrative record as a whole, weighing both the evidence that supports and the 9 evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1998); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 11 Under the substantial evidence test, findings must be upheld if supported by inferences 12 reasonably drawn from the record. Batson v. Commissioner, 359 F.3d 1190, 1193 (9th Cir. 2004). 13 When the evidence will support more than one rational interpretation, the court must defer to the 14 Commissioner’s interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten 15 v. Sec’y of Health and Human Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue 16 before the court is not whether the Commissioner could reasonably have reached a different 17 conclusion, but whether the final decision is supported by substantial evidence. It is incumbent on 18 the ALJ to make specific findings so that the court does not speculate as to the basis of the 19 findings when determining if the Commissioner’s decision is supported by substantial evidence. 20 Mere cursory findings of fact without explicit statements as to what portions of the evidence were 21 accepted or rejected are not sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). 22 The ALJ’s findings “should be as comprehensive and analytical as feasible, and where 23 appropriate, should include a statement of subordinate factual foundations on which the ultimate 24 factual conclusions are based.” Id. 25 2. Disability Evaluation Process 26 The individual seeking disability benefits has the initial burden of proving disability. 27 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must 1 determinable physical or mental impairment which can be expected . . . to last for a continuous 2 period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual 3 must provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. 4 § 404.1514. If the individual establishes an inability to perform her prior work, then the burden 5 shifts to the Commissioner to show that the individual can perform other substantial gainful work 6 that exists in the national economy. Reddick, 157 F.3d at 721. 7 The ALJ follows a five-step sequential evaluation process in determining whether an 8 individual is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If 9 at any step the ALJ determines that he can make a finding of disability or non-disability, a 10 determination will be made, and no further evaluation is required. See 20 C.F.R. 11 § 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires the ALJ to 12 determine whether the individual is engaged in substantial gainful activity (“SGA”). 20 C.F.R. 13 § 404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 14 doing significant physical or mental activities usually for pay or profit. Id. § 404.1572(a)–(b). If 15 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 16 engaged in SGA, then the analysis proceeds to step two. 17 Step two addresses whether the individual has a medically determinable impairment that 18 is severe or a combination of impairments that significantly limits her from performing basic 19 work activities. Id. § 404.1520(c). An impairment or combination of impairments is not severe 20 when medical and other evidence establish only a slight abnormality or a combination of slight 21 abnormalities that would have no more than a minimal effect on the individual’s ability to work. 22 Id. § 404.1521; see also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.4 If the 23 individual does not have a severe medically determinable impairment or combination of 24 impairments, then a finding of not disabled is made. If the individual has a severe medically 25 determinable impairment or combination of impairments, then the analysis proceeds to step three. 26
27 4 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see also 20 C.F.R. § 402.35(b)(1). They are “entitled to ‘some 1 Step three requires the ALJ to determine whether the individual’s impairments or 2 combination of impairments meets or medically equals the criteria of an impairment listed in 20 3 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If 4 the individual’s impairment or combination of impairments meets or equals the criteria of a 5 listing and the duration requirement (20 C.F.R. § 404.1509), then a finding of disabled is made. 6 20 C.F.R. § 404.1520(h). If the individual’s impairment or combination of impairments does not 7 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 8 to step four. 9 But before moving to step four, the ALJ must first determine the individual’s residual 10 functional capacity (“RFC”), which is a function-by-function assessment of the individual’s 11 ability to do physical and mental work-related activities on a sustained basis despite limitations 12 from impairments. See 20 C.F.R. § 404.1520(e); see also SSR 96-8p. In making this finding, the 13 ALJ must consider all the relevant evidence, such as all symptoms and the extent to which the 14 symptoms can reasonably be accepted as consistent with the objective medical evidence and other 15 evidence. 20 C.F.R. § 404.1529; see also SSRs 96-4p and 96-7p. To the extent that statements 16 about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not 17 substantiated by objective medical evidence, the ALJ must make a finding on the credibility of 18 the individual’s statements based on a consideration of the entire case record. The ALJ must also 19 consider opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and 20 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 21 Step four requires the ALJ to determine whether the individual has the RFC to perform 22 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW means work performed either as 23 the individual actually performed it or as it is generally performed in the national economy within 24 the last 15 years. In addition, the work must have lasted long enough for the individual to learn 25 the job and performed a SGA. 20 C.F.R. §§ 404.1560(b) and 404.1565. If the individual has the 26 RFC to perform her past work, then a finding of not disabled is made. If the individual is unable 27 to perform any PRW or does not have any PRW, then the analysis proceeds to step five. 1 The fifth and final step requires the ALJ to determine whether the individual is able to do 2 any other work considering her RFC, age, education, and work experience. 20 C.F.R. 3 § 404.1520(g). If she is able to do other work, then a finding of not disabled is made. Although 4 the individual generally continues to have the burden of proving disability at this step, a limited 5 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 6 responsible for providing evidence demonstrating that other work exists in significant numbers in 7 the economy that the individual can do. Yuckert, 482 U.S. at 141–42. 8 Here, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. 9 § 416.920. ECF No. 15-1 at 25–41. 10 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity 11 since the alleged onset date of February 6, 2017. Id. at 26. 12 At step two, the ALJ found that Plaintiff had the following medically determinable 13 “severe” impairments: anxiety, bipolar disorder, and fibromyalgia. Id. 14 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 15 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 16 Appendix 1, specifically citing to 12.04, 12.06, and 14.09. Id. at 26–27. 17 Before moving to step four, the ALJ also found that Plaintiff had the RFC to perform 18 “light” work with the following exceptions: She is able to lift and carry no more than ten pounds, 19 frequently, and twenty pounds, occasionally; she is able to sit for six hours, cumulatively, in an 20 eight-hour workday; she is able to stand and/or walk for six hours, cumulatively, in an eight-hour 21 workday; she is able to perform simple, routine, repetitive tasks; she is able to tolerate brief, 22 superficial contact with others; and she is able to adapt to routine work changes. Id. at 27. 23 At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as a 24 graphic designer because “it exceeds her mental residual functional capacity.” Id. at 40. 25 At step five, the ALJ found that Plaintiff could perform other jobs that exist in significant 26 numbers in the national economy. Id. at 40–41. Specifically, he found that Plaintiff can work as a 27 locker room attendant, mail clerk, and ticket taker. Id. at 41. The ALJ then concluded that 1 Plaintiff was not under a disability at any time from February 6, 2017, through the date of his 2 decision. Id. 3 3. Analysis 4 a. Whether substantial evidence supports the ALJ’s decision at step five of the sequential evaluation process 5 i. The ALJ’s decision 6 At step five of the sequential evaluation process, the ALJ found that Plaintiff could 7 perform work as a locker room attendant, mail clerk, and ticket taker. ECF No. 15-1 at 40–41. He 8 based this determination on testimony from the vocational expert (“VE”), the Dictionary of 9 Occupational Titles (“DOT”), and Plaintiff’s RFC, age, education, and work experience, and 10 found that, 11 12 [a]lthough a portion of the vocational expert’s testimony is inconsistent with the information contained in the Dictionary of Occupational Titles (DOT), there is a 13 reasonable explanation for the discrepancy. He testified with respect to lying down and absenteeism in the workday, based on his professional knowledge, experience, and 14 employer interviews. The undersigned finds that the vocational expert’s testimony is otherwise consistent with the DOT and its companion publication, Selected 15 Characteristics of Occupations.” 16 Id. at 41. 17 ii. The parties’ arguments 18 Plaintiff moves to remand, arguing that the ALJ did not meet his burden at step five of the 19 sequential evaluation process, as the jobs that the ALJ found Plaintiff could perform “do not exist 20 in significant numbers.” ECF No. 17 at 5. As a preliminary matter, Plaintiff first contends that 21 because “the rebuttal evidence was submitted to and considered by the Appeals Council, the 22 vocation issues have not been waived.” ECF No. 17 at 9. She then asserts that the three jobs that 23 the ALJ determined Plaintiff could do—locker room attendant, mail clerk, and ticket taker— 24 exceed the amount of contact with people contemplated by Plaintiff’s RFC limitation (“tolerate 25 brief, superficial contact with others”). Id. Plaintiff relies on data from the Occupational Outlook 26 Handbook (“OOH”) and O*NET to support her argument. Id. at 6–8. 27 1 The Commissioner counters that Plaintiff waived this argument by not raising it before the 2 ALJ. ECF No. 18 at 7. Although she concedes that Plaintiff raised this argument “for the first 3 time to the Appeals Council[,]” she argues that “raising the vocational issues here for the first 4 time to the Appeals Council did not preserve the issue for judicial review under existing Circuit 5 precedent . . . .” Id. at 7, 10. She further argues that even if the Court were to find that Plaintiff 6 had not waived this argument, the Court should, nonetheless, find that substantial evidence 7 supports the ALJ’s step-five findings. Id. at 11, 14. According to the Commissioner, Plaintiff’s 8 challenges to the job data rely on O*NET, which is not a source of job information that the ALJ 9 can take administrative of, though she concedes that Plaintiff’s other source—the Occupational 10 Outlook Handbook—qualifies as such a source. Id. at 11. 11 Plaintiff replies that while challenging a vocational expert’s findings “in court is too 12 late[,]” doing so before the Appeals Council is “permitted.” ECF No. 20 at 3. 13 iii. Whether Plaintiff waived the argument that contrary to the VE’s testimony, there were insufficient numbers of a particular job in the economy 14 15 Before addressing Plaintiff’s argument on the merits, the Court first must determine 16 whether, as the Commissioner argues, Plaintiff waived this argument. 17 In Shaibi v. Berryhill, the Ninth Circuit held that “a claimant must, at a minimum, raise 18 the issue of the accuracy of the expert’s estimates at some point during the administrative 19 proceedings to preserve the challenge on appeal in federal district court.” 883 F.3d 1102, 1103 20 (9th Cir. 2017) (emphasis added).5 As the appellate court repeatedly emphasized, the plaintiff in 21 Shaibi did not challenge the accuracy of the vocational expert’s findings before either the ALJ or 22 the Appeals Council. Id. at 1108–10. Rather, Plaintiff raised this argument for the first time on 23 appeal in federal district court. Id. Accordingly, the facts from Shaibi are different from those 24 present in the instant case. 25 Here, Plaintiff raised her challenge to the VE’s findings and the ALJ’s adoption of these 26 findings before the Appeals Council and, thus, raised the issue “at some point during the 27
5 1 administrative proceedings.” See ECF No. 15-1 at 310–36. Specifically, the Court notes that 2 Plaintiff’s brief to the Appeals Council addressed the arguments Plaintiff now raises. 3 Compare id. with ECF No. 17 at 5–9. 4 Additionally, the Appeals Council considered and made part of the administrative record 5 Plaintiff’s argument and her supporting evidence. See id. at 6 (“We considered the reasons and 6 exhibited them on the enclosed Order of the Appeals Council.”), 9 (enumerates the documents 7 exhibited by the Appeals Council). 8 Accordingly, the Court finds that Plaintiff, by raising the issue to the Appeals Council 9 during the administrative proceedings, did not waive this argument.6 See Shaibi, 883 F.3d at 1109 10 (“We now hold that when a claimant fails entirely to challenge a vocational expert’s job numbers 11 [based on an alleged conflict with alternative job numbers obtained from the County Business 12 Patterns or the Occupational Outlook Handbook] during administrative proceedings before the 13 agency, the claimant forfeits such a challenge on appeal, at least when that claimant is represented 14 by counsel.”) (emphasis added); see also Shawn P. v. Kijakazi, No. 20CV1054-MSB, 2021 WL 15 4460646, at *10 (S.D. Cal. Sept. 29, 2021) (“[T]his Court finds that to the extent Plaintiff 16 submitted his arguments and evidence to the Appeals Council, he has not waived his jobs- 17 numbers arguments.”); see also Gonzalez v. Saul, 833 F. App’x 464, 465 (9th Cir. 2021) (citing 18 Shaibi, 883 F.3d at 1109) (“Failure to raise the claim before either the ALJ or the Appeals 19 Council results in forfeiture of the argument.”).7 20 //
22 6 This is so even though Plaintiff was represented by the same counsel at the ALJ hearing and did not challenge the VE’s findings before the ALJ or even question the VE on his findings. See Shaibi, 883 F.3d at 1109. 23 7 There are a number of other holdings in this district that support the Court’s finding that a plaintiff does not waive or forfeit the presented issue if she—at the least—first presented it to the Appeals Council. See, e.g., 24 Albritten v. Berryhill, No. CV 17-0925-JPR, 2018 WL 3032860, at *3 (C.D. Cal. June 14, 2018) (citing Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017)) (“Issues raised to the Appeals Council but not to the ALJ are not 25 forfeited.”); Ross v. Comm’r Soc. Sec. Admin., No. 6:16-cv-00903-AA, 2018 WL 263639, at *2 (D. Or. Jan 2, 2018) (“Lamear stands for the proposition that the failure to raise an issue at the hearing can be remedied by raising it to the 26 Appeals Council.”). The Court will further note that the Meanel holding to which the Commissioner cites as authority to argue that Plaintiff forfeited her argument by not raising it before the ALJ also provides that forfeiture or waiver 27 will be excused “when necessary to avoid a manifest injustice.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Because the Court finds that substantial evidence does not support the ALJ’s step-five finding, holding that 1 iv. Whether substantial evidence supports the ALJ’s step-five findings 2 Plaintiff’s only argument for remand is that the ALJ erred at step five. ECF No. 17 at 5. 3 According to Plaintiff, the alternate jobs the ALJ identified that she could perform do not exist in 4 significant numbers because each of these three positions require more than brief, superficial 5 contact with others. Id. at 5–7. 6 At step five of the sequential evaluation analysis, the burden shifts to the Commissioner to 7 establish that (1) the claimant can perform other work despite her identified limitations, and that 8 (2) such work “exists in significant numbers in the national economy.” 20 C.F.R. 9 §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012); Zavalin v. 10 Colvin, 778 F.3d 842, 845 (9th Circ. 2015). While the Ninth Circuit has not established a 11 minimum or bright-line number of jobs that constitutes a “significant” number, it did hold 12 in Gutierrez v. Commissioner of Social Security, 740 F.3d 519, 528–29 (9th Cir. 2014) that 13 25,000 jobs in the national economy, while a close call, amounts to a significant number of jobs. 14 Finally, the ALJ’s step-five finding, like all findings under review by the district court, must be 15 supported by substantial evidence in the overall record to be affirmed. See Bayliss v. Barnhart, 16 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 17 1999)). 18 As discussed earlier, Plaintiff appealed the ALJ’s decision to the Appeals Council, 19 arguing that the ALJ “failed to sustain his burden at step five of the sequential evaluation.” ECF 20 No. 15-1 at 311. Plaintiff made similar arguments in both her brief to the Appeals Council and in 21 the instant motion to remand, arguing that she is unable to perform the three jobs identified by the 22 vocational expert (i.e., locker room attendant, mail clerk, and ticket taker) because her RFC limits 23 her to “brief, superficial contact with others” and these identified jobs require more contact than 24 permitted as evidenced by OOH and O*NET data. Id.; see also ECF No. 17 at 5–8. 25 As an initial matter, the district court must consider evidence that the Appeals Council 26 made part of the administrative record. See Brewes v. Commissioner of Social Sec. Admin., 682 27 F.3d 1157, 1163 (9th Cir. 2012) (citation omitted) (“[W]e hold that when the Appeals Council 1 considers new evidence in deciding whether to review a decision of the ALJ, that evidence 2 becomes part of the administrative record, which the district court must consider when reviewing 3 the Commissioner’s final decision for substantial evidence.”). Accordingly, this Court has 4 considered the OOH and O*NET data that Plaintiff submitted to the Appeals Council in disputing 5 the ALJ’s step-five finding because the Appeals Council made this evidence part of the 6 administrative record. See ECF No. 15-1 at 6 (“We considered the reasons and exhibited them on 7 the enclosed Order of the Appeals Council.”), 9 (list of documents exhibited by the Appeals 8 Council). 9 The Court now turns to whether the Agency should have resolved the conflict between the 10 VE’s testimony and the OOH and O*NET data. 11 The Regulations provide that when the Social Security Administration “determine[s] that 12 unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers 13 either in the region where [the claimant] live[s] or in several regions of the country), [the Agency] 14 will take administrative notice of reliable job information available from various governmental 15 and other publications.” 20 C.F.R. § 404.1566(d). The Regulations provide some—though not 16 all—examples of publications of which the Agency will take administrative notice. Id. (“For 17 example, we will take notice of—Dictionary of Occupational Titles, published by the Department 18 of Labor; County Business Patterns, published by the Bureau of the Census; Census Reports, also 19 published by the Bureau of the Census; Occupational Analyses, prepared for the Social Security 20 Administration by various State employment agencies; and Occupational Outlook Handbook, 21 published by the Bureau of Labor Statistics.”). 22 The plain language of the Regulations is instructive for several reasons. First, it makes 23 clear that the Agency will take administrative notice of “reliable” job information. See id. Second, 24 it indicates that the enumerated sources of reliable job information are not an exclusive list but, 25 rather, simply a few examples of the types of publications of which the Agency will take 26 administrative notice. See id. (“For example, we will take notice of . . . .) (emphasis added). And 27 finally, it reveals that the sources of reliable job information are not limited to governmental 1 Here, Plaintiff presented evidence to the Appeals Council, which the Appeals Council 2 made part of the administrative record, suggesting that 97 percent of the 136,4008 nationally 3 available ticket taker jobs, 91 percent of the 90,1009 nationally available mail clerk jobs, and 91 4 percent of the 15,50010 nationally available locker room attendant jobs likely exceed her RFC 5 limitation of having “brief, superficial contact with others.” ECF No. 17 at 6-7, ECF No. 15-1 at 6 27. This is because, according to O*NET data, each of these jobs require “contact with others 7 constantly or most of the time.” ECF No. 17 at 6–7 (emphasis added). The ALJ, however, found 8 that Plaintiff was limited to only brief and superficial contact with others. ECF No. 15-1 at 27. 9 As outlined above, the Regulations provide that the Agency will take administrative notice 10 of enumerated and non-enumerated governmental and other publications that provide “reliable 11 job information.” 20 C.F.R. § 404.1566(d). One of these enumerated publications is the 12 Occupational Outlook Handbook (“OOH”), which Plaintiff relies upon to provide the number of 13 nationally available jobs for each of the three jobs that the ALJ found that she could perform.11 14 The other source that Plaintiff relies on—the O*NET—is not an enumerated source but is 15 one that would qualify as a governmental publication of reliable job information. As Plaintiff 16 explains, the O*NET is sponsored by the U.S. Department of Labor’s Employment & Training 17 Administration, which is the same governmental entity that sponsored the DOT. ECF No. 17 at 8. 18
19 8 Plaintiff relies on the Occupational Outlook Handbook (“OOH”) in determining how many nationally available ticket taker jobs there are. According to the OOH, the 136,400 figure includes ushers, lobby attendants, and 20 ticket takers. Of note, at the hearing before the ALJ, the VE testified that there are 84,000 nationally available ticket taker jobs. ECF No. 15-1 at 60. 21 9 Plaintiff relies on the OOH in determining how many nationally available mail clerk jobs there are. According to the OOH, the 90,100 figure includes mail clerks and mail machine operators but excludes post service 22 positions. Of note, at the hearing before the ALJ, the VE testified that there are 74,000 nationally available mail clerk jobs. ECF No. 15-1 at 60. 23 10 Plaintiff relies on the OOH in determining how many nationally available locker room attendant jobs there are. According to the OOH, the 18,500 figure includes locker room, coatroom, and dressing room attendants. 24 Of note, at the hearing before the ALJ, the VE testified that there are 20,000 nationally available locker room attendant jobs. ECF No. 15-1 at 60. Furthermore, the Court recognizes that the number of nationally available locker 25 room attendant jobs may not constitute a “significant” number, as the figures provided by both the VE and the OOH indicate nationally available jobs that are at least 5,000 fewer than the 25,000 jobs that the Ninth Circuit held 26 constituted a “significant” number despite being a “close call[.]” Gutierrez v. Colvin, 740 F.3d 519, 529 (9th Cir. 2014). 27 11 Of note, the OOH figures are larger for two of the three jobs. This means that, under the OOH, the number of nationally available ticket taker and mail clerk positions is higher than the figures presented by the VE and relied 1 And, as Plaintiff further notes, the website for ALJs (not just those presiding over Social Security 2 cases) provides the following advice: “The O*Net is now the primary source of occupational 3 information . . . . Thus, if you are looking for current occupational information you should 4 use the O*Net.” Id. (citing U.S. Department of Labor, Dictionary of Occupational Titles – Fourth 5 Edition, Revised 1991, https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT) (bolded 6 language in original). 7 The evidence that Plaintiff submitted to the Appeals Council indicates that there are fewer 8 than 14,000 jobs nationally that she could perform. This is because, when relying on the OOH 9 and O*NET data and Plaintiff’s RFC limitation of having only brief and superficial contact with 10 others, there are only 3,692 ticket taker jobs, 8,109 mail clerk jobs, and 1,665 locker room 11 attendant jobs nationally available that do not require interacting with others “constantly or most 12 of the time.” Importantly, because the Agency is required to take administrative notice of OOH 13 data and other reliable job information available from various governmental and other 14 publications like the O*NET, it should have resolved the conflict between data from these sources 15 and the VE’s testimony. See 20 C.F.R. § 404.1566(d); see also Harris v. Berryhill, No. 5:17-CV- 16 02204-SHK, 2018 WL 3493778, at *6 (C.D. Cal. July 20, 2018). 17 Therefore, on this record, this Court finds that remand is necessary, as the ALJ’s step-five 18 finding is not supported by substantial evidence. See Harris, 2018 WL 3493778, at *6. 19 Finally, the Court will briefly address other district court cases where the courts have held 20 that the ALJ is not bound to sua sponte resolve conflicts between the VE’s testimony and 21 databases like the OOH or O*NET, as this is a key argument raised by the Commissioner.12 22 In many of these cases, the district courts hold that the plaintiff failed to cite any authority 23 to support that the ALJ must sua sponte resolve conflicts between the VE’s testimony and 24 databases like the OOH or O*NET. See, e.g., Palomino v. Colvin, 2015 WL 2409881, at *6 (C.D. 25 12 The Commissioner also argues that a recent Ninth Circuit case “forecloses” Plaintiff’s argument. ECF No. 26 18 at 13 (citing Terry v. Saul, 998 F.3d 1010 (9th Cir. 2021), cert. denied sub nom. Terry v. Kijakazi, No. 21-665, 2022 WL 89345 (U.S. Jan. 10, 2022)). While the Commissioner argues that the facts in Terry are similar to those in 27 this case, the Court disagrees. This is because the plaintiff in Terry argued that the ALJ provided the VE with an incomplete hypothetical. Terry, 998 F.3d at 1014 (“For the reasons stated above, we agree with the district court that 1 Cal. May 20, 2015) (“[P]laintiff has cited to no authority for the proposition that an ALJ is bound 2 by the OOH.”); Gandara v. Berryhill, 2017 WL 4181091, at *5 (E.D. Cal. Sept. 20, 2017) 3 (“[P]laintiff fails to provide authority for the proposition that an ALJ must sua sponte identify and 4 take administrative notice of the educational requirements in the OOH, compare them with the 5 VE’s hearing testimony, and determine any inconsistencies.”). While the Court is not bound by 6 these cases, the Court acknowledges that, in this case, Plaintiff cites to the Social Security 7 Administration’s decision to replace the DOT, which it concedes is outdated because it has not 8 been updated since at least 1991,13 with the new Occupational Information System (“OIS”) 9 Project,14 “as the primary source of occupational information SSA staff use in our disability 10 adjudication process.” ECF No. 17 at 8 (citing 11 https://www.ssa.gov/disabilityresearch/occupational_info_systems.html). And, according to the 12 Agency, the OIS will “incorporate data from other government surveys” like the OOH and 13 O*NET. Id. The Court finds Plaintiff’s argument persuasive. 14 In other cases, district courts have rejected a plaintiff’s assessment of raw vocational data 15 because it “was unaccompanied by any analysis or explanation from a vocational expert or other 16 expert source to put the raw data into context.” Valenzuela v. Colvin, 2013 WL 2285232, at *4 17 (C.D. Cal. May 23, 2013). Here, Plaintiff cites to the Social Security Administration’s decision to 18 direct its staff to rely on the data provided by sources like the OOH and O*NET to make accurate 19 occupational findings. The Court finds Plaintiff’s reasoning persuasive. 20 Finally, while testimony of a qualified VE can constitute substantial evidence, the Ninth 21 Circuit has been receptive to an “implausibility” argument. Cymande S. v. Berryhill, No. CV 18- 22 1448 FFM, 2019 WL 4148351, at *2 (C.D. Cal. May 16, 2019) (citing Farias v. Colvin, 519 Fed. 23 App’x 439, 440 (9th Cir. 2013) (“No ‘reasonable mind’ could accept the employment numbers 24 proffered by the VE . . . . ”). Here, no reasonable mind could logically accept that an individual 25 26 13 Of note, while the DOT has not been updated since 1991, some jobs identified in the DOT have not been 27 updated since the 1980s (or even earlier). For example, the mail clerk position was last updated in 1987 whereas the ticket taker and locker room attendant positions were lasted updated in 1980 and 1981, respectively. 14 1 || who is limited to brief, superficial contact with others can perform jobs that require constant 2 || interactions with others for the majority, if not, the entire eight-hour workday. 3 In short, as discussed above, the Court finds that the ALJ’s step-five finding is not 4 || supported by substantial evidence and, therefore, remand for further proceedings is necessary. On 5 || remand, the ALJ must resolve the conflict between the VE’s testimony and the data provided in 6 || the OOH and O*NET. 7 || I. CONCLUSION AND ORDER 8 IT IS ORDERED that Plaintiff's motion to remand (ECF No. 17) is GRANTED. 9 IT IS FURTHER ORDERED that the Commissioner’s countermotion to affirm and 10 || response to Plaintiffs motion to remand (ECF Nos. 18, 19) is DENIED. 11 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to close this 12 || case. 13 14 DATED: February 2, 2022. 15 Gu La WEN BRENDA WEKSLER 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28