Donna Citizen v. Andrew Saul

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2020
• Docket: 18-55734
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DONNA RENEE CITIZEN, No. 18-55734

Plaintiff-Appellant, D.C. No. 5:17-cv-01505-AGR

v. MEMORANDUM* ANDREW M. SAUL, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Alicia G. Rosenberg, Magistrate Judge, Presiding

Submitted November 23, 2020**

Before: GOODWIN, SCHROEDER, and SILVERMAN, Circuit Judges.

Donna Renee Citizen appeals the district court’s judgment affirming the

Commissioner of Social Security’s denial of Citizen’s application for disability

insurance benefits and supplemental security income under Titles II and XVI of the

Social Security Act. We review de novo, Ford v. Saul, 950 F.3d 1141, 1153-54

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (9th Cir. 2020), and we affirm.

The administrative law judge (“ALJ”) did not err in failing to afford Citizen

the opportunity to cross-examine the vocational expert or to assist her with cross-

examination. The vocational expert’s testimony that Citizen could perform three

occupations despite her ability to stand and walk for only six hours in an eight-

hour workday did not trigger the ALJ’s duty to develop the record because it did

not conflict with the Dictionary of Occupational Titles (“DOT”), which describes

these occupations as light work. See Ford, 950 F.3d at 1160 (an obvious or

apparent conflict between a vocational expert’s testimony and the DOT triggers the

ALJ’s duty to develop the record, and the ALJ is obligated to investigate and

resolve the conflict); Social Security Ruling 83-10, 1983 WL 31251, at *5 (Jan. 1,

1983) (defining light work). Nor did any apparent conflict between the vocational

expert’s testimony and the Occupational Outlook Handbook (“OOH”) or other

publications trigger the ALJ’s duty to further develop the record. See Shaibi v.

Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2018) (rejecting the claimant’s

contention that ALJ was required sua sponte to investigate a conflict between the

vocational expert’s testimony and the OOH or a publication other than the DOT).

Citizen has not raised a colorable due process claim in the ALJ’s failure to

orally advise her of her right to cross examine the vocational expert because

Citizen twice received written notice of her right to question witnesses. See Dexter

2 v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (a claimant generally must exhaust

administrative remedies, but an exception exists for a colorable due process claim

that implicates the right to a meaningful opportunity to be heard); Roberts v.

Comm’r of the Soc. Sec. Admin., 644 F.3d 931, 934 (9th Cir. 2011) (per curiam)

(agency satisfied its duty to inform pro se claimant of his statutory right to

representation at a hearing by sending written notices that explained that right).

Moreover, although the ALJ did not orally advise Citizen of her right to cross

examine the vocational expert, immediately after the vocational expert testified the

ALJ asked Citizen, “Now is there anything else that I need to know before I make

this decision? Anything that we haven’t covered?”

Citizen’s motion for judicial notice (Docket Entry No. 12) is DENIED.

AFFIRMED.