Catherine Padilla v. Andrew Saul

• Court: District Court, C.D. California
• Decided: February 23, 2021
• Docket: 2:20-cv-00481
• Status: Unknown

Opinion

3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 CATHERINE P.,1 Case No. 2:20-cv-00481-PD 13 Plaintiff, 14 15 v. MEMORANDUM OPINION AND ORDER 16 ANDREW M. SAUL, Commissioner of Social Security, 17 18 Defendant. 19

20 Plaintiff challenges the Commissioner’s denial of her applications for 21 Disability Insurance Benefits and supplemental security income. For the 22 reasons stated below, the decision of the Commissioner is affirmed. 23

25 26 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of 27 Civil 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 I. PROCEEDINGS BELOW 2 On March 24 and March 31, 2016, Plaintiff protectively filed 3 applications for supplemental security income and period of disability and 4 disability insurance benefits, alleging an inability to work since March 1, 5 2008. [Administrative Record (“AR”) 15, 200-211.]2 Her claim was denied in 6 June 2016 and upon reconsideration in November 2016. [AR 127-145.] 7 Plaintiff requested a hearing, which was held on September 26, 2018, before 8 an Administrative Law Judge (“ALJ”). On January 9, 2019, the ALJ issued a 9 decision finding Plaintiff not disabled. [AR 15-25, 32-69, 146-147.] The ALJ 10 found that Plaintiff suffered from medically determinable impairments, did 11 not possess the residual functional capacity (“RFC”) to perform the demands 12 of past relevant work as a home attendant, but was capable of successfully 13 adjusting to other work that exists in significant numbers in the national 14 economy. [AR 18, 24-25.]3 15 The ALJ followed a five-step sequential evaluation process to assess 16 whether Plaintiff was disabled under the Social Security Act. Lester v. 17 Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995); 20 C.F.R. §§ 404.1520, 416.920. 18 At step one, the ALJ found that Plaintiff had not engaged in substantial 19 gainful activity since March 20, 2016, the amended alleged onset date. [AR 20 18, ¶ 2.] At step two, the ALJ found that Plaintiff had the following severe 21 impairments: degenerative disc disease of the lumbar spine and chronic pain 22 syndrome. [AR 18, ¶ 3.] The ALJ found that these impairments significantly 23 limit the ability to perform basic work activities. [Id.] At step three, the ALJ 24 found that Plaintiff did “not have an impairment or combination of 25 26 2 The Administrative Record is CM/ECF Docket Numbers 18-3 through 18-11. 3 After Plaintiff subsequently amended her onset date to March 20, 2016, her claim 27 no longer met the insured requirement for her disability insurance benefits application, which ended on September 30, 2009. Consequently, the ALJ dismissed 28 the claim for disability insurance benefits. [See AR 15, 18.] 1 impairments that meets or medically equals the severity of one of the listed 2 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” [AR 20, ¶ 4.] 3 Before proceeding to step four, the ALJ found that Plaintiff had the 4 RFC to perform the demands of “light work” with noted exceptions. The ALJ 5 included the following in the RFC assessment: 6 “[T]he claimant has the residual functional capacity to 7 perform light work as defined in 20 C.F.R. § 416.967(b), specifically as follows: lift and/or carry 20 pounds 8 occasionally and 10 pounds frequently; stand and/or walk for 6 hours out of an 8-hour workday with regular 9 breaks; sit for 6 hours out of an 8-hour workday with 10 regular breaks; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; never climb 11 ladders, ropes, or scaffolds; must avoid hazards, such 12 as moving mechanical parts and unprotected heights; is limited to the performance of simple repetitive tasks; 13 and occasionally interact with supervisors, coworkers, 14 and the public, and in a low stress work setting, defined as requiring no assembly-line work or strictly-enforced 15 daily production quotas, and few changes in a routine 16 work setting.” 17 [AR 20, ¶ 5.] 18 At step four, based on Plaintiff’s RFC and the vocational expert’s 19 testimony, the ALJ found that Plaintiff was not capable of performing past 20 relevant work as a home attendant. [AR 24, ¶ 6.] 21 At step five, the ALJ relied upon the vocational expert’s testimony and 22 found that Plaintiff could perform as an office helper, housecleaner, or sales 23 attendant – all jobs that existed in significant numbers in the national 24 economy. [AR 24-25, ¶ 10.] Accordingly, the ALJ found that Plaintiff had not 25 been under a disability since March 20, 2016. [AR 25, ¶ 11.] 26 II. DISPUTED ISSUES 27 Whether the ALJ committed legal error in rejecting Plaintiff’s testimony 28 concerning the intensity, persistence and limiting effects of her symptoms. 1 Whether the ALJ committed legal error in finding that Plaintiff’s RCF 2 permitted her to perform as an office helper, housecleaner, and sales 3 attendant. 4 III. STANDARD OF REVIEW 5 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 6 decision to determine whether the Commissioner’s findings are supported by 7 substantial evidence and whether the proper legal standards were applied. 8 See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 9 2014). An ALJ’s assessment of a claimant’s RFC must be affirmed if the ALJ 10 has applied the proper legal standard and substantial evidence in the record 11 as a whole supports the decision. See Bayliss v. Barnhart, 427 F.3d 1211, 12 1217 (9th Cir. 2005). Substantial evidence means “more than a mere 13 scintilla” but less than a preponderance. See Richardson v. Perales, 402 U.S. 14 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 15 Substantial evidence is “such relevant evidence as a reasonable mind might 16 accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. 17 This Court must review the record as a whole, weighing both the 18 evidence that supports and the evidence that detracts from the 19 Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. “Where evidence 20 is susceptible of more than one rational interpretation, the Commissioner’s 21 decision must be upheld.” See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 22 (citation and internal quotation marks omitted). The Court may review only 23 “the reasons provided by the ALJ in the disability determination and may not 24 affirm the ALJ on a ground upon which he did not rely.” Id. (citing Connett v. 25 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 26 In this Circuit, “harmless error principles apply in the Social Security 27 Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), 28 superseded by regulation on other grounds as stated in Sisk v. Saul, 820 1 Fed.Appx. 604, 606 (9th Cir. 2020); see also Stout v. Comm’r of Soc. Sec. 2 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (error is harmless where it is 3 “inconsequential to the ultimate nondisability determination.”). “[I]n each 4 case we look at the record as a whole to determine [if] the error alters the 5 outcome of the case.” Molina, 674 F.3d at 1115. 6 IV. DISCUSSION A. Plaintiff’s Subjective Symptoms and Functional 7 Limitations 8 1. Plaintiff’s Allegations 9 In her Function Report dated May 2016, Plaintiff wrote that she could 10 not stand for a long time, needed to rest after walking one block, and had a 11 learning disability. She also stated that she had no problems performing 12 personal care tasks; makes meals with her husband’s help; completes basic 13 chores; and goes to movies, parks, and the beach one or twice a month. [AR 14 265-270.] In May 2016, Plaintiff’s aunt completed a Third Party Function 15 Report about her views of Plaintiff’s condition, including Plaintiff’s ability to 16 engage in daily activities such as preparing meals, doing housework, and 17 carry on hobbies and interests. The report closely aligns with Plaintiff’s own 18 statements. [AR 253-260.] 19 At the hearing in September 2018, Plaintiff testified that she suffers 20 from constant lower back pain which extends down her legs, and that this 21 pain along with chronic pain syndrome and anxiety had prevented her from 22 trying to find work. [AR 42-43.] She testified that her pain level at the 23 hearing was 10, with 10 being the most painful, and that her daily average 24 pain level was 8 to 10. [AR 52.] Plaintiff also testified that she can sit for 20- 25 25 minutes, walk without a break for 3 minutes, and stand for 10 minutes 26 before needing to sit. Plaintiff is able to grocery shop using a motorized 27 scooter but requires her husband to carry the heavier items. She makes 28 1 meals for the family but receives help from her children and husband at 2 times. [AR 43, 52-53, 55-56.] 3 Plaintiff stated that she takes prescription medication for the 4 depression and has received cortisone shots for the pain. [AR 48, 59.] Her 5 counsel added that she has sleep apnea which affects her ability to work. [AR 6 38.] 7 2. ALJ’s Determination of RFC 8 In assessing the Plaintiff’s RFC, the ALJ considered the functional 9 reports completed by Plaintiff and her aunt, Plaintiff’s testimony, and various 10 medical opinions. [AR 20-23.] The ALJ found that Plaintiff’s statements 11 concerning the intensity, persistence, and limiting effects of these symptoms 12 inconsistent with and not substantiated by the medical evidence in the record. 13 [AR 21.] Specifically, the medical records corroborate that Plaintiff has lower 14 back problems and chronic pain syndrome; however, physical examinations 15 revealed no acute distress, no focal neurological deficits, 5/5 muscle strength, 16 good range of motion, and some bilateral lower extremity edema. [AR 22.] 17 Examinations from 2017 and 2018 reveal similar findings. The ALJ also 18 noted that these later examinations revealed new observations of tenderness 19 to palpation of the lumbar spine, and that a September 2018 MRI revealed a 20 moderate disc bulge at L4-L5 with mild stenosis and mild disc bulge at L5-S1 21 with no stenosis. [Id.] 22 In reaching the conclusion, ALJ noted that while Plaintiff alleged her 23 average pain level to be between 8 and 10, regular examinations revealed no 24 acute distress. Finally, the ALJ found Plaintiff’s statement that her back 25 pain had worsened in September 2016 to be inconsistent with the absence of 26 medical progress notes during that period with the nearest notation occurring 27 in January 2017. [Id.] 28 1 The ALJ gave great weight to the State’s agency medical consultants, 2 who determined the Plaintiff can lift and carry 20 pounds occasionally and 10 3 pounds frequently; sit, stand, and walk for 6 hours in an 8-hour workday; 4 frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; 5 and occasionally climb ladders, ropes, or scaffolds. [Id.] 6 The ALJ some weight to the consultative evaluation by Seung Ha Lim, 7 M.D., from October 2016. [AR 22-23.] In particular, the ALJ highlighted Dr. 8 Lim’s notes indicating Plaintiff’s normal range of back motion, full range of 9 motion of the lower extremities, normal gait and balance, and normal muscle 10 tone without sign of atrophy. [AR 23.] The ALJ noted Dr. Lim’s opinion that 11 Plaintiff could lift/carry 50 pounds occasionally and 25 pounds frequently; sit, 12 stand, and walk for 6 hours in an 8-hour workday; and frequently climb, 13 crouch, and stoop. [AR 22.] 14 The ALJ gave little weight to the opinion of Plaintiff’s treating 15 physician, Stephanie White, M.D. (“Dr. White”). [AR 23.] Dr. White’s opinion 16 from May 2018 concluded that Plaintiff was restricted to sedentary exertional 17 work. The ALJ determined that this was inconsistent with other opinion 18 evidence and internally inconsistent with Dr. White’s examination results 19 which “routinely show mild objective findings, such as tenderness to palpation 20 along with the lumbar paraspinal area and pain with facet loading.” [Id.] 21 The ALJ noted that Dr. White had indicated that these findings were benign. 22 [Id.] 23 The ALJ also gave little weight to the opinion of Plaintiff’s aunt in the 24 Third Party Function Report. The ALJ concluded that the aunt’s opinion 25 restated the limitations to which Plaintiff had testified and which the ALJ 26 had already found inconsistent with the overall evidence in the record. [Id.] 27 Additionally, the aunt’s opinion inconsistently noted that Plaintiff could 28 engage in certain daily activities as preparing meals and going to the movies. 1 Finally, the ALJ found that the aunt’s opinion was not supported by clinical or 2 diagnostic medical evidence, including evidence suggesting no focal 3 neurological deficits affecting the lower extremities. [Id.] 4 In sum, the ALJ granted the greatest weight to the state consultants 5 while discounting Plaintiff’s testimony. 6 3. Relevant Law 7 “In assessing the credibility of a claimant’s testimony regarding 8 subjective pain or the intensity of symptoms, the ALJ engages in a two-step 9 analysis.” Molina, 674 F.3d at 1112 (citing Vasquez v. Astrue, 572 F.3d 586, 10 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant 11 has presented objective medical evidence of an underlying impairment which 12 could reasonably be expected to produce the pain or other symptoms alleged.” 13 Lingenfelter, 504 F.3d at 1036 (citation and internal quotation marks 14 omitted). If so, and if the ALJ does not find evidence of malingering, the ALJ 15 must provide specific, clear and convincing reasons for rejecting a claimant’s 16 testimony regarding the severity of symptoms. Id. 17 “General findings are insufficient.” Lester v. Chater, 81 F.3d 821, 834 18 (9th Cir. 1995). Instead, the ALJ must identify what testimony was found not 19 credible and explain what evidence undermines that testimony. Holohan v. 20 Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). The ALJ may consider a 21 variety of factors in analyzing the trustworthiness and utilize “ordinary 22 techniques of credibility assessment,” such as inconsistencies in the claimant’s 23 testimony. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citation 24 omitted). However, an ALJ "may not disregard [a claimant's testimony] solely 25 because it is not substantiated affirmatively by objective medical evidence.” 26 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 27 Social Security Ruling (“SSR”) 16-3p governs the evaluation of 28 subjective symptoms and instructs the ALJ to “consider all of the evidence in 1 an individual’s record,” “to determine how symptoms limit ability to perform 2 work-related activities.” 2017 WL 5180304 at *2 (Oct. 25, 2017). SSR 16-3p 3 “makes clear what [Ninth Circuit] precedent already required.” Trevizo v. 4 Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). 5 Objective medical evidence and inconsistencies in the claimant’s 6 testimony together can be sufficient grounds for questioning a claimant's 7 testimony. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting 8 ALJ can consider objective medical evidence in determining credibility of 9 claimant); Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997) (ALJ may consider 10 "inconsistencies either in [plaintiff's] testimony or between his testimony and 11 his conduct"). 12 4. Analysis 13 Plaintiff contends that the ALJ failed to sufficiently articulate the 14 specific rationale for discounting her testimony. The Court disagrees. 15 In discounting Plaintiff’s testimony, the ALJ concluded: (1) the 16 subjective pain and limitation testimony was not entirely supported by the 17 objective medical evidence; (2) Plaintiff’s statements about experiencing a 18 pain level of 8 to 10 were inconsistent with examinations indicating that she 19 was not in acute distress; and (3) Plaintiff’s statement that her back pain 20 worsened in September 2016 was contradicted by evidence which shows the 21 closest medical progress notes to have occurred in January 2017. [AR 21-22.] 22 Contrary to Plaintiff’s contention, these reasons point to specific portions of 23 the record. 24 Plaintiff does not contest any of the three grounds which formed the 25 basis for the ALJ’s credibility determination. In addition to the objective 26 medical evidence not corroborating Plaintiff’s statements, the other two 27 grounds provide specific, clear and convincing reasons for discounting 28 Plaintiff’s subjective testimony. An inconsistency in the claimed pain level 1 with examinations revealing no acute distress is a clear and convincing reason 2 to reject testimony. See Durose v. Saul, 2021 WL 531301, at *1 (9th Cir. 2021) 3 (substantial evidence included testimony of pain level as a 9 out of 10 4 contradicted by treatment notes which reveal no acute distress). Likewise, 5 the failure to seek treatment consistent with the complained of pain provides 6 a sufficiently clear and convincing ground. Burch, 400 F.3d at 681 (failure to 7 seek treatment for back pain during three to four month period was “powerful 8 evidence”); Thompson v. Astrue, 458 Fed.Appx. 632, 634 (9th Cir. 2011). 9 Instead, Plaintiff argues that the ALJ committed error by focusing on 10 statements of her sporadic daily activities as inconsistent with her symptom 11 testimony. Critically, the ALJ did not expressly state that it was discounting 12 Plaintiff’s testimony because it was inconsistent with her description of daily 13 activities. Instead, in a later section describing Plaintiff’s aunt’s report, the 14 ALJ stated that the aunt’s testimony “inconsistently noted that the claimant 15 was able to perform several activities of daily living.” [AR 23.] Thus, despite 16 argument by both Plaintiff and Defendant disputing the sufficiency of the 17 ALJ’s statements about Plaintiff’s activities, the Court does not recognize this 18 as a ground for upon which the ALJ discounted the subjective symptom 19 testimony. 20 Moreover, had the ALJ based the adverse credibility determination in 21 part upon Plaintiff’s testimony about her daily activities, any error would not 22 have affected the ultimate disability determination. As discussed above, the 23 ALJ sufficiently articulated other rationale in coming to the credibility 24 determination. Reichley v. Berryhill, 723 Fed.Appx. 540, 541 n.2 (9th Cir. 25 2018) (citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 26 (9th Cir. 2008)) (misstatements by the ALJ amounted to harmless error where 27 he provided alternative, sufficient rationale). As Plaintiff did not address the 28 other rationale, any challenge on those grounds has been waived. Greger v. 1 Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). 2 In sum, the ALJ gave clear and convincing reasons, supported by 3 substantial evidence in the record, for discounting Plaintiff's subjective 4 symptom testimony. Accordingly, the ALJ’s finding of Plaintiff’s RFC is 5 affirmed. 6 B. The ALJ’s Step Five Finding 1. ALJ’s Determination of Plaintiff’s Ability to Perform 7 Other Work 8 At step five, the ALJ found that based on Plaintiff’s RFC for light work 9 with certain limitations, she could perform the demands of officer helper, 10 housecleaner, and sales attendant. 11 Plaintiff argues that these three jobs are inconsistent with her RFC and 12 that the ALJ failed to reconcile the inconsistencies. [Dkt. No. 22 at 15.] First, 13 she contends that the limitation to “simple and repetitive instructions” 14 excludes work as a sale attendant. [Dkt. No. 22 at 15.]. Plaintiff next argues 15 that the limitation of “few changes in a routine work setting” is inconsistent 16 with the work of an office helper because the Dictionary of Occupational Titles 17 (“DOT”) requires such an individual to have the temperament to perform a 18 “variety of duties.” [Id. at 16.] Her final argument is that the limitation of 19 “no work requiring a strictly-enforced daily production quota” is incompatible 20 with the housekeeper. [Id. at 17.] 21 2. Relevant Law 22 “When there is an apparent conflict between the vocational expert’s 23 testimony and the DOT -- for example, expert testimony that a claimant can 24 perform an occupation involving DOT requirements that appear more than 25 the claimant can handle -- the ALJ is required to reconcile the inconsistency.” 26 Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017). 27 An error in identifying jobs that can be performed will be deemed 28 1 harmless if the ALJ identified another job or jobs which the plaintiff can 2 perform and for which there are significant numbers in the national economy. 3 See Gray v. Comm'r of Soc. Sec . Admin., 365 Fed.Appx. 60, 63 (9th Cir. 2010) 4 (affirming ALJ's decision where claimant could perform only one of three jobs 5 identified by ALJ but significant number of jobs in national economy for that 6 one job supported ALJ's decision that claimant was not disabled); see also 7 Lara v. Astrue, 305 Fed.Appx. 324, 326 (9th Cir. 2008) ("To the extent the 8 [vocational expert] was overly broad and included jobs that [the claimant] 9 could both perform and not perform, any error is harmless so long as the jobs 10 that could be done are enough to support the ALJ's decision."). 11 3. Analysis 12 Defendant concedes that a job as a sales attendant requires Level Three 13 Reasoning whereas Plaintiff’s limitation is consistent with Level Two 14 Reasoning. The conflict was more than apparent; it had already been 15 established by Ninth Circuit precedent. See Zavalin v. Colvin, 778 F.3d 842, 16 847 (9th Cir. 2015) (limitation to simple, repetitive tasks is inconsistent with 17 the Level Three Reasoning); Lara, 305 Fed.Appx. at 326 (limitation consistent 18 with Level Two reasoning). Because the ALJ was required to resolve the 19 conflict but did not, she erred in determining that Plaintiff could perform as a 20 sales attendant.4 21 However, Plaintiff’s argument that the limitation of “few changes in a 22 routine work setting” is inconsistent with an office helper fails because it is 23 based on her own subjective opinion of “variety of duties” and without citation 24 to any authority. As Defendant notes, the inconsistency Plaintiff raises is not 25 with the DOT’s definition but another source, The Revised Handbook for 26 4 Defendant argues that Plaintiff nonetheless cannot succeed on this ground because 27 she has failed to explain why she could not perform the job. Because of the Court’s analysis in the remaining two identified jobs, it is not necessary to resolve whether 28 the ALJ’s error in this instance was harmless. 1 Analyzing Jobs. The Social Security Regulations require the ALJ to provide 2 an explanation and resolution when the expert’s testimony conflicts with the 3 DOT and another publication by the Department of Labor, the Selected 4 Characteristics of Occupations Defined in the Revised Dictionary of 5 Occupational Titles. SSR 00-4p, 2000 WL 1898704, at *1 (Dec. 4, 2000) 6 However, the ALJ is not required to resolve conflicts between the expert’s 7 testimony of a suitable job and requirements which are described by a source 8 not listed in the regulation. Lewis v. Berryhill, 708 Fed.Appx. 919, 920 (9th 9 Cir. 2018). In Lewis, the Ninth Circuit declined to hold that the regulation 10 required the ALJ to resolve a conflict between the expert’s testimony and 11 information provided in The Revised Handbook for Analyzing Jobs. 12 Similarly, the ALJ was not required to resolve any conflict with the 13 same source. “[N]ot all potential conflicts between an expert's job suitability 14 recommendation and the DOT’s listing of maximum requirements for an 15 occupation will be apparent or obvious. [A]n ALJ need only follow up on those 16 that are.” Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016) (internal 17 quotation marks omitted). Here, Plaintiff fails to explain the conflict beyond 18 providing her own definition and stating in a conclusory fashion that one 19 exists. “Few changes in a routine work setting” has been defined as “work 20 that is generally the same every day, with slowly implemented changes to 21 work routines.” See Ernesto S. S. By Ramirez v. Berryhill, 2019 WL 285796, 22 at *1 (C.D. Cal. 2019). Even accepting Plaintiff’s definition, the requirement 23 of performing a variety of duties is not clearly inconsistent with a limitation to 24 few changes in a routine work setting. See Kevin E. v. Saul, 2021 WL 134584,

25 5 Defined as: “Performing a VARIETY of Duties: Involves frequent changes of tasks 26 involving different aptitudes, technologies, techniques, procedures, working conditions, physical demands, or degrees of attentiveness without loss of efficiency or 27 composure. The involvement of the worker in two or more work fields may be a clue that this temperament is required.” The Revised Handbook for Analyzing Jobs, 28 (1991), p. 10-2.4. 1 at * 5 (C.D. Cal 2021) (“[A]s numerous courts in this Circuit have concluded, 2 the requirements of the office helper job are consistent with a limitation to 3 simple, routine, repetitive tasks, notwithstanding the job's requirement of 4 switching between a variety of tasks.” (emphasis added)). 5 Importantly, Plaintiff’s counsel had an opportunity to cross-examine the 6 vocational expert, who provided the basis for the ALJ’s finding. Counsel did 7 not raise any perceived inconsistencies at the time. See Solorzano v. Astrue, 8 2012 WL 84527, at *6 (C.D. Cal. 2012) (“[Counsel] have an obligation to take 9 an active role and to raise issues that may impact the ALJ's decision while the 10 hearing is proceeding so that they can be addressed.”). The ALJ was therefore 11 entitled to rely on the vocational expert’s testimony. See Bayliss v. Barnhart, 12 427 F.3d 1211, 1218 (9th Cir. 2005) (holding that vocational expert’s 13 recognized expertise provides necessary foundation for testimony). 14 Similarly, Plaintiff’s argument that work as a housecleaner requires 15 strictly-enforced daily production quotas is based wholly on Plaintiff’s own 16 subjective opinion and fails to cite support which shows otherwise. 17 Because substantial evidence supports the ALJ’s finding that Plaintiff 18 can perform the work of office helper and housecleaner, for which a significant 19 number of jobs exist in the national economy, the error in identifying sales 20 attendant as a suitable job swas harmless. 21 22 23 24 25 26 27 28 1 || IV. CONCLUSION 2 For the reasons set forth above, IT IS ORDERED that Judgment shall 3 || be entered affirming the decision of the Commissioner and dismissing this 4 || case with prejudice. 5 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of 6 || this Order and the Judgment on counsel for both parties. 7 DATED: February 23, 2021 2 □ AP abuuay Lonahoe_ 10 PATRICIA DONAHUE UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

1 NOTICE 2 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN 3 WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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