1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 CHRISTINA E. S.,1 ) Case No. 2:19-cv-00557-JDE ) 12 ) Plaintiff, ) MEMORANDUM OPINION AND 13 ) ORDER ) 14 v. ) ) 15 ANDREW M. SAUL,2 ) )
Commissioner of Social Security, ) 16 ) ) 17 Defendant. ) 18 19 Plaintiff Christina S. (“Plaintiff”) filed a Complaint on January 24, 2019, 20 seeking review of the Commissioner’s denial of her application for disability 21 insurance benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”) 22 regarding the issues in dispute on January 23, 2020. The matter now is ready 23 for decision. 24 1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P. 25 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 26 27 2 Andrew M. Saul, now Commissioner of the Social Security Administration, is substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d). 28 1 I. 2 BACKGROUND 3 On August 27, 2015, Plaintiff filed an application for DIB alleging 4 disability starting on April 2, 2015. AR 15, 32. On November 20, 2017, after 5 her application was denied initially and on reconsideration (AR 88-91, 94-96), 6 Plaintiff, represented by counsel, testified before an Administrative Law Judge 7 (“ALJ”), as did Plaintiff’s husband and a vocational expert (“VE”). AR 29-63. 8 On February 14, 2018, the ALJ found Plaintiff was not disabled. AR 15- 9 21. The ALJ found Plaintiff had not engaged in substantial gainful activity 10 since the alleged-onset date and found she had severe impairments of Chiari 11 malformation3 and hip bursitis. AR 17. The ALJ also found Plaintiff did not 12 have an impairment or combination of impairments that met or medically 13 equaled a listed impairment and had the residual functional capacity (“RFC”) 14 to perform a light work4, except: (1) frequently push/pull with the right lower 15 extremity; (2) occasionally reach overhead with the bilateral upper extremities; 16 (3) occasionally climb ramps/stairs; (4) occasionally balance, stoop, kneel, 17 crouch, crawl, climb ladders, ropes, and scaffolds; and (5) avoid concentrated 18 exposure to extreme cold, heat, vibrations. AR 17-18. 19
20 3 “Chiari malformation is a condition in which brain tissue extends into the spinal canal due to an abnormally small or misshapen skull.” Johnson v. Saul, 2019 WL 21 4747701, at *4 (E.D. Cal. Sept. 30, 2019). 22 4 “Light work” is defined as 23 lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight 24 lifted may be very little, a job is in this category when it requires a good 25 deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered 26 capable of performing a full or wide range of light work, you must have 27 the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b); see also Rendon G. v. Berryhill, 2019 WL 2006688, at *3 28 n.6 (C.D. Cal. May 7, 2019). 1 The ALJ further found Plaintiff, 42 years old on the alleged disability 2 onset date, was a “younger individual” who could not perform her past relevant 3 work as a cashier/checker (Dictionary of Occupational Titles [“DOT”] 4 211.462-014). AR 20. However, considering her age, education, work 5 experience, and RFC, the ALJ found she could successfully adjust to other 6 work existing in significant numbers in the national economy, including to the 7 positions of case aide (DOT 195.367-010), bakery conveyor line (DOT 524.687- 8 022), and children’s attendant (DOT 349.677-018). AR 21. Thus, the ALJ 9 concluded Plaintiff was not under a “disability,” as defined in the Social 10 Security Act, through the date of the decision. AR 21. Plaintiff’s request for 11 review of the ALJ’s decision by the Appeals Council was denied, making the 12 ALJ’s decision the agency’s final decision. AR 1-6. This action followed. 13 II. 14 LEGAL STANDARDS 15 A. Standard of Review 16 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s 17 decision to deny benefits. The ALJ’s findings and decision should be upheld if 18 they are free from legal error and supported by substantial evidence based on 19 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 20 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 21 Substantial evidence means such relevant evidence as a reasonable person 22 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 23 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a 24 preponderance. Id. To determine whether substantial evidence supports a 25 finding, the reviewing court “must review the administrative record as a whole, 26 weighing both the evidence that supports and the evidence that detracts from 27 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th 28 Cir. 1998). “If the evidence can reasonably support either affirming or 1 reversing,” the reviewing court “may not substitute its judgment” for that of 2 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104, 3 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one 4 rational interpretation, [the court] must uphold the ALJ’s findings if they are 5 supported by inferences reasonably drawn from the record.”). 6 Lastly, even if an ALJ errs, the decision will be affirmed where such 7 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to 8 the ultimate nondisability determination,” or if “the agency’s path may 9 reasonably be discerned, even if the agency explains its decision with less than 10 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted). 11 B. Standard for Determining Disability Benefits 12 When the claimant’s case has proceeded to consideration by an ALJ, the 13 ALJ conducts a five-step sequential evaluation to determine at each step if the 14 claimant is or is not disabled. See Molina, 674 F.3d at 1110. 15 First, the ALJ considers whether the claimant currently works at a job 16 that meets the criteria for “substantial gainful activity.” Id. If not, the ALJ 17 proceeds to a second step to determine whether the claimant has a “severe” 18 medically determinable physical or mental impairment or combination of 19 impairments that has lasted for more than twelve months. Id. If so, the ALJ 20 proceeds to a third step to determine whether the claimant’s impairments 21 render the claimant disabled because they “meet or equal” any of the “listed 22 impairments” set forth in the Social Security regulations at 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 24 996, 1001 (9th Cir. 2015). If the claimant’s impairments do not meet or equal a 25 “listed impairment,” before proceeding to the fourth step the ALJ assesses the 26 claimant’s RFC, that is, what the claimant can do on a sustained basis despite 27 the limitations from her impairments. See 20 C.F.R. § 404.1520(a)(4); Social 28 Security Ruling (“SSR”) 96-8p. 1 After determining the claimant’s RFC, the ALJ proceeds to the fourth 2 step and determines whether the claimant has the RFC to perform her past 3 relevant work, either as she “actually” performed it when she worked in the 4 past, or as that same job is “generally” performed in the national economy. See 5 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot 6 perform her past relevant work, the ALJ proceeds to a fifth and final step to 7 determine whether there is any other work, in light of the claimant’s RFC, age, 8 education, and work experience, that the claimant can perform and that exists 9 in “significant numbers” in either the national or regional economies. See 10 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can 11 do other work, she is not disabled; but if the claimant cannot do other work 12 and meets the duration requirement, the claimant is disabled. See id. at 1099. 13 The claimant generally bears the burden at each of steps one through 14 four to show she is disabled, or she meets the requirements to proceed to the 15 next step; and the claimant bears the ultimate burden to show she is disabled. 16 See, e.g., Molina, 674 F.3d at 1110; Johnson v. Shalala, 60 F.3d 1428, 1432 17 (9th Cir. 1995). However, at Step Five, the ALJ has a “limited” burden of 18 production to identify representative jobs that the claimant can perform and 19 that exist in “significant” numbers in the economy. See Hill v. Astrue, 698 20 F.3d 1153, 1161 (9th Cir. 2012); Tackett, 180 F.3d at 1100. 21 III. 22 DISCUSSION 23 The parties present three5 disputed issues (Jt. Stip. at 4): 24 Issue No. 1: Did the ALJ properly consider Plaintiff’s subjective testimony; 25 5 The Court reorders the issues as presented by the parties to track the ALJ’s decision 26 and the five-step analysis. Also, although parties present the challenge to the 27 testimony as a single issue, it addresses two witnesses reviewed under different standards. Accordingly, the Court addresses them separately. 28 1 Issue No. 2: Did the ALJ properly reject third-party witness evidence; and 2 Issue No. 3: Did the ALJ properly determine Plaintiff was able to perform a 3 significant number of jobs at Step Five. 4 A. Plaintiff’s Subjective Symptom Testimony 5 In Issue No. 1, Plaintiff argues the ALJ improperly discounted her 6 subjective symptom testimony. Jt. Stip. at 17-24. 7 1. Applicable Law 8 Where a disability claimant produces objective medical evidence of an 9 underlying impairment that could reasonably be expected to produce the pain 10 or other symptoms alleged, absent evidence of malingering, the ALJ must 11 provide “‘specific, clear and convincing reasons for’ rejecting the claimant’s 12 testimony regarding the severity” of the symptoms. Treichler v. Comm’r Soc. 13 Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citation omitted); Moisa v. 14 Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). The ALJ’s findings “must be 15 sufficiently specific to allow a reviewing court to conclude that the [ALJ] 16 rejected [the] claimant’s testimony on permissible grounds and did not 17 arbitrarily discredit the claimant’s testimony.” Id. at 885 (citation omitted). But 18 if the ALJ’s assessment of the claimant’s testimony is reasonable and is 19 supported by substantial evidence, it is not the Court’s role to “second-guess” 20 it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Finally, the 21 ALJ’s credibility finding may be upheld even if not all the ALJ’s reasons for 22 rejecting the claimant’s testimony are upheld. See Batson v. Comm’r Soc. Sec. 23 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 24 2. Analysis 25 At the November 2017 hearing, Plaintiff testified she completed high 26 school and some college. AR 32. She worked as a grocery store cashier for 25 27 years. AR. 32-33. In April 2015, her arm “stopped working,” caused in part by 28 Chiari and a bulging disk that impinges on her spinal cord. AR 33. In May 1 2017 she had a successful cervical fusion but could not return to work as she 2 still had problems from the Chiari. AR 33. She described continuing weakness 3 “off and on” in her arms, legs, and feet, swelling and burning in her feet when 4 sitting, blurry vision when bending her neck, cervical pain up to four times per 5 week, and hearing that at times goes quiet. AR 34, 42-43, 48-49. 6 Plaintiff advised that her doctors recommend surgery for Chiara, but she 7 declined because she recovered poorly after her last surgery, and it is not 8 guaranteed to work. AR 36, 50, 53. She tried physical therapy, acupuncture, a 9 TENS Unit, and a brace, but none helped. AR 50-51. She tried Norco and 10 Valium, but they caused hallucinations and diarrhea. AR 53. She had vein 11 surgery in her legs in 2017, but it did not help, as her condition was 12 neurological. AR 38. She had cortisone shots in her hip and a fluoroscopy, 13 takes Tylenol or Motrin for inflammation without ill effects, ices the base of 14 her brain, lays down, and elevates her legs. AR 38-39, 42, 47-49, 51, 53-54. 15 She lives with her husband and three boys. AR 39, 45. She has a driver’s 16 license and still drives. AR 46. She or her husband take the kids to school. AR 17 39. The children are involved in sports, and when she attends their games she 18 sits in a special chair. AR 39-40. Cooking is a group effort around the house. 19 AR 40. She does not need help getting dressed, or in the bathroom, shower, or 20 toilet. AR 41. She leaves the house once or twice a day. AR 41. She has 21 trouble using the stairs in her house, so she mostly stays downstairs. AR 46, 22 49, 54. She can stand and sit about an hour, and she can walk about a block. 23 AR 43-44. She can lift three to four pounds. AR. 43-44. 24 The ALJ summarized Plaintiff’s hearing testimony and found her 25 medically determinable impairments could reasonably be expected to cause her 26 alleged symptoms, but her statements “concerning the intensity, persistence[,] 27 and limiting effects of [the] symptoms” were not entirely consistent with the 28 medical evidence and other evidence in the record. AR 18-19. Specifically, the 1 ALJ found: (1) Plaintiff’s testimony was not fully supported by objective 2 findings; (2) after her cervical fusion, Plaintiff received conservative treatment; 3 and (3) there was no opinion from a treating or examining physician 4 supporting disability.6 AR 19. 5 As explained below, the ALJ provided legally sufficient reasons for 6 discounting Plaintiff’s subjective-symptom complaints. 7 First, the ALJ found the medical evidence was not entirely consistent 8 with Plaintiff’s statements. AR 19. “Although lack of medical evidence cannot 9 form the sole basis for discounting pain testimony, it is a factor that the ALJ 10 can consider in [her] credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 11 681 (9th Cir. 2005); see also Rollins, 261 F.3d at 857. For example: (1) after 12 Plaintiff’s cervical discectomy in May 2015, records show good results and 13 grossly normal physical exam at later visits (AR 19, 292, 372 (follow-up exam 14 stating Plaintiff “is an alert, cheerful lady in no acute distress”), 588, 590 15 (follow-up describing “excellent surgical outcome,” full range of motion, no 16 neck pain, and full strength), 591 (follow-up stating Plaintiff healed well, no 17 evidence of instability), 592 (follow-up exam indicating full strength and range 18 of motion but noting subjective pinching and neck pain from intervening July 19 2015 car wreck); (2) the doctor provided no recommendation for specific 20 treatment other than continued follow-up (AR 19, 375-76, 592); (3) August 21
6 Before the Appeals Council, Plaintiff did not challenge the ALJ’s assessment of her 22 testimony. AR 151-54. In the joint submission here, she addresses the first and second 23 reasons in a cursory fashion (Jt. Stip. at 19-22), briefs a reason not relied upon by the ALJ (Jt. Stip. at 23-24 (daily activities)), and does not acknowledge the third reason. 24 The Court may take a Plaintiff’s failure to address aspects of the ALJ’s reasoning in 25 this regard as a waiver of a challenge to those aspects. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (claimant waived issues not raised before the district court); 26 Owens v. Colvin, 2014 WL 5602884, at *4 (C.D. Cal. Nov. 4, 2014) (claimant’s 27 failure to discuss, or even acknowledge, ALJ’s reliance on certain reasons waived any challenge to those aspects of ALJ’s finding). 28 1 2016 imaging showed stable pathology, and physical exam showed normal 2 strength in the upper extremities (AR 19, 650, 701); (4) regarding weakness, 3 Plaintiff reported she had only “some” weakness in her foot, but her gait was 4 normal and her strength was symmetric (AR 19, 564-65, 701 (Plaintiff reports 5 she is “functionally and symptomatically stable”); and (5) electromyography 6 findings in August 2017 were “unremarkable,” showing no evidence of 7 cervical radiculopathy or other neuropathies of the upper extremities (AR 19, 8 680). The ALJ properly considered the inconsistency between the medical 9 evidence and Plaintiff’s subjective symptom complaints as one of at least three 10 valid factors supporting the decision. See Burch, 400 F.3d at 681. 11 Second, after the cervical fusion, Plaintiff’s physicians responded with 12 conservative treatment.7 (AR 19, 591 (physical therapy referral), 710 (treating 13 physician stating he will “proceed with conservative care” and implement 14 “nonoperative treatments”). Indeed, at the hearing Plaintiff admitted she 15 managed her condition with only Tylenol,8 Motrin,9 icing, and lying down. 16 AR 38, 42, 47-49, 51, 53-54. An ALJ may properly discount symptom 17 testimony at odds with conservative treatment. See Hanes v. Colvin, 651 F. 18 App’x 703, 705 (9th Cir. 2016) (credibility determination supported in part by 19 evidence of conservative treatment consisting primarily of minimal 20 21 7 Contrary to Plaintiff’s assertion, the ALJ did not label Plaintiff’s surgery 22 conservative. See Jt. Stip. at 21. Instead, the ALJ found: “After [Plaintiff]’s cervical fusion, [Plaintiff]’s physicians only responded with conservative treatment, which is 23 strong evidence that [Plaintiff]’s symptoms were not as serious or bothersome as now 24 alleged.” AR 19 (emphasis added). 25 8 Medel v. Colvin, 2014 WL 6065898, at *8 (C.D. Cal. Nov. 13, 2014) (Tylenol is conservative treatment). 26 27 9 Pruitt v. Astrue, 2012 WL 2006150, at *2 (C.D. Cal. June 5, 2012) (Motrin is conservative treatment). 28 1 medication, limited injections, physical therapy, and exercise); Lindquist v. 2 Colvin, 588 F. App’x 544, 547 (9th Cir. 2014) (ALJ properly discounted 3 claimant’s testimony in part because symptoms controlled by medication); 4 Vasquez v. Comm’r of Soc. Sec., 2017 WL 4181089, at *3 (E.D. Cal. Sept. 20, 5 2017) (ALJ properly relied on Plaintiff’s conservative treatment of medication, 6 lying down, and physical therapy, in discounting subjective complaints). 7 Third, and finally, the ALJ properly noted that there was no opinion 8 from any treating or examining physician indicating Plaintiff was completely 9 disabled from all work activity, or that she even has permanent limitations 10 greater than those assessed by the ALJ. AR 19; Willens v. Berryhill, 709 F. 11 App’x 867, 868 (9th Cir. 2017) (analysis of subjective complaints upheld in 12 part because “no physician made an assessment that [claimant] was disabled”); 13 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (substantial evidence 14 supported finding claimant, although impaired, was not disabled and could 15 perform work because “[n]one of the doctors who examined [claimant] 16 expressed the opinion that he was totally disabled”). 17 The Court finds the ALJ provided sufficiently specific, clear, and 18 convincing reasons for discounting Plaintiff’s symptom testimony, that is, its 19 inconsistency with the medical evidence, conservative treatment after surgery, 20 and the lack of an opinion supporting disability or more restrictive limitations. 21 Those grounds are sufficient to affirm the ALJ’s decision on the issue. 22 B. Third-Party Evidence 23 In Issue No. 2, Plaintiff contends the ALJ improperly rejected third-party 24 evidence, arguing the ALJ erred by failing to give full consideration to her 25 husband’s testimony. Jt. Stip. at 24. 26 1. Applicable Law 27 “In determining whether a claimant is disabled, an ALJ must consider 28 lay witness testimony concerning a claimant’s ability to work.” Bruce v. 1 Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm’r Soc. 2 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006)); see also 20 C.F.R. 3 § 404.1513(a)(4). Friends and family members in a position to observe a 4 symptoms and activities are competent to testify as to a claimant’s condition. 5 See Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). Such testimony 6 “cannot be disregarded without comment.” Bruce, 557 F.3d at 1115 (quoting 7 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)); Robbins v. Comm’r 8 Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (“[T]he ALJ is required to 9 account for all lay witness testimony in the discussion of his or her findings.”). 10 When rejecting lay witness testimony, an ALJ must give specific reasons 11 germane for discounting the testimony. Valentine v. Comm’r Soc. Sec. 12 Admin., 574 F.3d 685, 694 (9th Cir. 2009). 13 2. Analysis 14 Plaintiff’s husband, an accountant, completed a “Function Report- 15 Adult-Third Party” in September 2015. AR 46, 187-95. He explained how 16 Plaintiff is affected by her illness, injuries, and conditions, including stating 17 that she is limited to standing for an hour, cannot walk for long periods, and 18 sleeps on the couch. AR 187-88. He described her activities, including her 19 ability to drive the kids to school. AR 188, 190. He explained that she cooks 20 about a meal a week but usually goes to the drive thru or to lunch with her 21 friends. AR 189, 191. He stated Plaintiff did some laundry, but they needed a 22 house cleaner. AR 189-90. He checked boxes indicating the abilities affected 23 by her illness, injuries, or conditions. AR 192. He said she can lift up to five 24 pounds, described her problems with her vision and neck, and her ability to 25 complete tasks and follow instructions. AR 192, 194. Finally, he stated that she 26 takes Tylenol for her condition with no side effects. AR 194. 27 Plaintiff’s husband also testified at the November 2017 hearing. AR 46, 28 59-62. He said he does most of the grocery shopping, but his wife will come 1 with him. AR 59. He reiterated that Plaintiff cooks but stated he cleans up. AR 2 59. Plaintiff does some laundry, but he folds and takes it upstairs. AR 60. He 3 stated they have a house cleaner, but said he and their sons take out the trash. 4 AR 60. He does the yardwork. AR 60. Plaintiff does not need help getting 5 dressed, or in the shower, bath, or toilet. AR 60. Plaintiff drives and picks up 6 the kids from school, leaving the house twice a day. AR 60. She volunteered at 7 the school until last year. AR 61. He hopes she has surgery again soon, but he 8 said Plaintiff is apprehensive about having it done. AR 62. 9 In the written decision, the ALJ cited Plaintiff’s husband’s third-party 10 function report and summarized his hearing testimony. AR 18, 20. The ALJ 11 assigned “little weight” to his statements for the same reason he discounted 12 Plaintiff’s testimony. AR 19-20. The ALJ specifically noted that Plaintiff’s 13 husband’s statements were “cumulative with respect to the allegations by 14 [Plaintiff],” and reiterated that “the objective evidence provides good reasons 15 for questioning the reliability of [Plaintiff]’s subjective complaints.” AR 20. 16 Plaintiff does not dispute that her husband’s statements were cumulative 17 of her own testimony.10 Because the ALJ properly discounted Plaintiff’s 18 testimony, and Plaintiff’s husband’s third-party evidence was merely reflective 19 of that testimony, the ALJ properly assigned it less weight for the same 20 reasons. To the extent Plaintiff contends the ALJ should have provided more 21 rationale for discounting the testimony, any error is necessarily harmless. See 22 Woodmass v. Berryhill, 707 F. App’x 432, 436 (9th Cir. 2017) (even when ALJ 23 fails to provide germane reason for discounting third-party testimony, error 24 harmless where third-party statements provided “essentially the same 25 information” as claimant’s properly discounted statements); Zerba v. Comm’r 26
27 10 Before the Appeals Council, Plaintiff admitted that her husband’s statements “aligned with [her] testimony almost identically[.]” AR 154. 28 1 of Soc. Sec. Admin., 279 F. App’x 438, 440 (9th Cir. 2008) (no harmful error 2 in ALJ’s failure to discuss husband’s testimony where it was substantially 3 similar to claimant’s own properly discredited testimony); Smith v. Berryhill, 4 2018 WL 468281, at *5 (D. Or. Jan. 18, 2018) (“It is . . . harmless error when 5 an ALJ ignores portions of lay witness testimony if that testimony is 6 contradicted by other properly credited substantial evidence or cumulative of 7 other testimony that the ALJ properly rejected.” (internal quotation marks and 8 citation omitted)). 9 C. Step-Five Determination 10 In Issue No. 3, Plaintiff challenges the ALJ’s Step-Five determination, 11 claiming it lacks support because she does not have transferrable skills from her 12 cashier/checker position to the alternative case aide position identified by the 13 ALJ, and the ALJ therefore erred by relying on the available jobs for that 14 position in the national economy. Plaintiff further argues that the remaining 15 occupations also do not constitute a significant number of jobs. Jt. Stip. at 5- 16 12. In support, she presents an analysis of several sources not relied upon by 17 the ALJ or the VE, including the SkillTran publication11, Wikipedia.org, and 18 the Program Operations Manual System (“POMS”). Jt. Stip. 8-10. 19 1. Applicable Law 20 The Commissioner bears the burden of “show[ing] that the claimant can 21 perform some other work that exists in ‘significant numbers’ in the national 22 economy, taking into consideration the claimant’s [RFC], age, education, and 23 work experience.” Tackett, 180 F.3d at 1100 (citation omitted). There is no 24 bright-line rule for what constitutes a significant number of jobs. Beltran v. 25
26 11 Wendei L. P. v. Comm’r of Soc. Sec., 2020 WL 433365, at *1 (W.D. Wash. Jan. 27 27, 2020) (describing SkillTran as a manual authored by a private company that purports to rely on the DOT). 28 1 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Commissioner’s burden can be 2 met: “(a) by the testimony of a VE, or (b) by reference to the Medical- 3 Vocational Guidelines [‘the Grids’] . . ..” Tackett, 180 F.3d at 1101. 4 The Grids are matrices of “four factors identified by Congress—physical 5 ability, age, education, and work experience—and set forth rules that identify 6 whether jobs requiring specific combinations of these factors exist in significant 7 numbers in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461-62 8 (1983). When properly applied, the Grids “render[ ] a conclusion of either 9 ‘disabled’ or ‘non-disabled’” based on the number of jobs “that the 10 Administration has determined exist in significant numbers in the national 11 economy.” Barnes v. Berryhill, 895 F.3d 702, 706 (9th Cir. 2018); 42 U.S.C. 12 § 423(d)(1)(A). 13 When the claimant cannot perform substantially all the exertional 14 demands of work at a given level of exertion and/or has nonexertional 15 limitations, the Grids are used as a “framework” for decision-making, unless 16 there is a rule that directs a conclusion of “disabled” without considering the 17 additional exertional and/or nonexertional limitations. SSR 83-12, 83-14. 18 If the claimant is disabled under the Grids, the analysis ends there. See 19 Lounsburry v. Barnhart, 468 F.3d 1111, 1115-16 (9th Cir. 2006). “Under no 20 circumstances may a [VE]’s testimony supplant or override a disability 21 conclusion dictated by the [Grids].” Id. at 1116. 22 2. Analysis 23 Preliminarily, the Court notes that Plaintiff did not raise this issue below 24 despite an opportunity to do so. Plaintiff was represented by counsel at the 25 administrative hearing and was allowed to pose questions to the VE, but she 26 failed to challenge the VE’s methodology for determining the other work she 27 could perform or in calculating the number of estimated jobs. AR 55-57. 28 Plaintiff was also represented before the Appeals Council but did not raise the 1 issue there, either. AR 151-54; see Hurtado v. Berryhill, 749 F. App'x 663, 664 2 (9th Cir. 2019) (“[Because claimant], who was represented by counsel at his 3 administrative hearing . . . did not raise [issues regarding his past relevant 4 work], present any evidence, or challenge the [VE]’s testimony at the 5 administrative hearing, those arguments are forfeited.”); Meanel v. Apfel, 172 6 F.3d 1111, 1115 (9th Cir. 1999) (claimant’s argument – that there was 7 insufficient jobs in local area for a particular position – not properly preserved 8 for appeal); Aragon v. Colvin, 2016 WL 1257785, at *4 (C.D. Cal. Mar. 30, 9 2016) (in addressing argument that SkillTran publication revealed fewer jobs 10 available than identified by ALJ, court noted plaintiff failed to raise any 11 objection at the hearing or ask the VE any pertinent questions about his 12 methodology). Nonetheless, the Court concludes there is no error at Step Five. 13 Here, as mentioned, the ALJ found Plaintiff was a younger individual, 14 but she could no longer perform her past relevant work as a cashier/checker. 15 AR 20. The ALJ further found that transferability of job skills was not material 16 because using the Medical-Vocational Rules as a framework supports a finding 17 that Plaintiff was “not disabled,” whether or not she has transferable skills. AR 18 20. However, the ALJ noted that the VE testified Plaintiff had acquired 19 transferable skills, and he listed those skills. AR 20. 20 Next, the ALJ found that if Plaintiff had an RFC to perform the full 21 range of light work, a finding of “not disabled’ would have been directed by 22 the Medical-Vocational Rule 202.21. However, because Plaintiff’s ability to 23 perform all or substantially all of the requirements of that level of work had 24 been impeded by her limitations, the ALJ consulted the VE to determine 25 whether jobs existed in the national economy for an individual with Plaintiff’s 26 age, education, work experience, transferable skills, and RFC. AR 21. Based 27 on the VE’s testimony, the ALJ found Plaintiff was capable of making a 28 successful adjustment to the positions of case aide (11,000 jobs nationally); 1 bakery conveyor line (3,700 jobs nationally); and children’s attendant (1,800 2 jobs nationally). AR 21. Accordingly, the ALJ found Plaintiff not disabled 3 under this framework analysis. AR 21. 4 Plaintiff has failed to demonstrate error in this determination. During the 5 hearing, the VE outlined Plaintiff’s past work, detailed her transferable skills, 6 and, in responding to questions about a hypothetical person matching 7 Plaintiff’s limitations, concluded Plaintiff could perform the case aide position. 8 AR 55-56. The VE noted that his testimony was consistent with the DOT and 9 his 27 plus years of experience. AR 57. That testimony is substantial evidence 10 supporting the ALJ’s determination and meets the Commissioner’s burden. 11 See, e.g., Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Aragon, 12 2016 WL 1257785 at *4 (“VE testimony, by itself, constitutes substantial 13 evidence when in response to a complete hypothetical.”); Migliore v. Colvin, 14 2013 WL 3935879, at *2 (C.D. Cal. July 29, 2013) (VE's testimony was 15 substantial evidence supporting Step-Five determination because VE 16 “identif[ied] a specific job or jobs in the national economy having requirements 17 that the claimant’s physical and mental abilities and vocational qualifications 18 would satisfy” (quoting Osenbrock)). Moreover, the VE was not required to 19 explain the methodology of how he reached the job numbers. See Aragon, 20 2016 WL 1257785 at *4; Zalesny v. Comm’r of Soc. Sec., 2014 WL 4418215, 21 at *3 (E.D. Cal. Sept. 5, 2014). 22 While Plaintiff offers a different analysis under various sources, she has 23 not shown those sources are binding on this Court or the Agency. See, e.g., 24 Shaibi v. Berryhill, 883 F.3d 1102, 1107 (9th Cir. 2017) (“POMS guidance is 25 not binding either on the ALJ or on a reviewing court.”); Wendei L. P., 2020 26 WL 433365 at *1 (vacating order reversing ALJ’s decision because court 27 erroneously relied on SkillTran job listing, which included more limitations 28 than the DOT); Aragon, 2016 WL 1257785 at *3 (noting that private SkillTran 1 ||software program is not referenced in the list of published sources recognized 2 authoritative by Social Security regulations). At best, Plaintiff presents an 3 || alternate interpretation of transferability and resulting numbers of jobs 4 available, which is insufficient to undermine the VE’s testimony. See Shaibi, 5 F.3d at 1108 (“Where evidence is susceptible to more than one rational 6 interpretation, it 1s the ALJ's conclusion that must be upheld.” (internal 7 || quotation marks and citation omitted)); Aragon, 2016 WL 1257785 at *5 8 || (collecting cases uniformly rejecting lay interpretation and analysis of SkillTran 9 || publication job numbers). Reversal is not warranted on this ground.” 10 IV. 11 ORDER 12 IT THEREFORE IS ORDERED that Judgment be entered affirming 13 decision of the Commissioner and dismissing this action with prejudice. 14 15 || Dated: February 21, 2020 16 M ND. EARLY 18 nited States Magistrate Judge 19 20 21 22 23 24 25 26 Having determined the Commissioner met his burden with the case aide position, 27 Court does not also consider whether a significant number of jobs existed for the 28 other representative occupations. 17