Klaas v. Kijakazi

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMY CATHERINE K., Case No.: 20cv1463-KSC

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION FOR SUMMARY JUDGMENT [Doc. No. 14] AND 14 KILOLO KIJAKAZII, Acting GRANTING DEFENDANT’S CROSS- Commissioner of Social Security, 15 MOTION FOR SUMMARY Defendant. JUDGMENT [Doc. No. 18.] 16

17 18 On July 29, 2020, plaintiff Amy Catherine K. commenced an action pursuant to 19 Title 42, United States Code, Section 405(g), against Andrew M. Saul, the Commissioner 20 of Social Security, seeking review of a final adverse decision of the Commissioner. [Doc. 21 No. 1.] Currently before the Court are plaintiff’s Motion for Summary Judgment seeking 22 a reversal with an award of benefits or a remand for further proceedings [Doc. No. 14]; 23 defendant’s Opposition and Cross-Motion for Summary Judgment seeking an order 24 affirming the Commissioner’s denial of benefits [Doc. No. 18]; and plaintiff’s Reply 25 [Doc. No. 19]. For the reasons outlined more fully below, the Court finds that plaintiff’s 26 Motion for Summary Judgment [Doc. No. 14] must be DENIED, and defendant’s Cross- 27 Motion for Summary Judgment must be GRANTED. 28 / / / 1 I. Procedural History. 2 Plaintiff filed applications for disability insurance benefits and supplemental 3 security income on March 27, 2018 and June 22, 2018 alleging she became unable to 4 work as of September 15, 2017. [Doc. No. 11-7, at pp. 2-10; 11-20.] Plaintiff’s 5 application for benefits was denied on June 12, 2018, because it was determined that her 6 condition was not severe enough to keep her from working. [Doc. No. 11-6, at p. 5.] 7 Plaintiff then submitted a request for reconsideration on June 20, 2018, which was denied 8 on September 12, 2018. [Doc. No. 11-6, at pp. 10-11.] 9 On September 24, 2018, plaintiff requested a hearing, and a hearing was then held 10 before an ALJ on February 10, 2020. [Doc. No. 11-6, at p. 17; Doc. No. 11-4, at p. 112.] 11 In a written decision dated February 26, 2020, the ALJ concluded plaintiff is not eligible 12 for benefits, because she is not disabled. [Doc. No. 11-2, at pp. 54-64.] Plaintiff then 13 requested review of the ALJ’s decision by the Appeals Council, but the Appeals Council 14 concluded in a letter dated June 10, 2020 that there was no basis for changing the ALJ’s 15 decision. [Doc. No. 11-2, at pp. 4, 43.] Therefore, the ALJ’s denial became the final 16 decision of the Commissioner. 17 Next, on July 29, 2020, plaintiff filed her Complaint in this action seeking review 18 of the ALJ’s decision. [Doc. No. 1.] Plaintiff then filed a Consent to jurisdiction for all 19 purposes by the undersigned Magistrate Judge. [Doc. No. 8.] 20 II. Summary of the ALJ’s Findings. 21 The ALJ followed the Commissioner’s five-step sequential evaluation process for 22 determining whether an applicant is disabled under this standard. 20 C.F.R. 23 § 404.1520(a). At steps one and two, the ALJ concluded that plaintiff has not engaged in 24 substantial gainful activity since September 15, 2017, and she has the severe impairments 25 of depression, anxiety, personality disorder, and post-traumatic stress disorder. [Doc. 11- 26 2, at p. 56.] At step three, the ALJ concluded that plaintiff’s impairments do not meet or 27 equal any of the relevant listings in the SSA’s Listing of Impairments. [Doc. No. 11-2, at 28 p. 57.] 1 At step four, the ALJ must determine the claimant’s residual functional capacity 2 (“RFP”) to work based on all impairments, including impairments that are not severe. 20 3 C.F.R. § 404.1520(e), § 404.1545(a)(2). RFP is “the most [an applicant] can still do 4 despite [his] limitations.” 20 C.F.R. § 404.1545(a)(1). As part of this assessment, the ALJ 5 must determine whether the applicant retains the RFP to perform his or her past relevant 6 work. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ concluded plaintiff is unable to 7 perform her past relevant work as a receptionist but does have the RFP to perform a full 8 range of work at all exertional levels with certain non-exertional limitations. [Doc. No. 9 11-2, at pp. 59-62.] The non-exertional limitations or restrictions cited by the ALJ are as 10 follows: “she can understand, remember, and carry out simple, routine tasks in a routine, 11 low stress work setting involving few workplace changes; she can never perform rapid 12 pace assembly line work; she can tolerate no interaction with the public, but she can 13 tolerate incidental superficial contact with the public; she can tolerate occasional 14 interaction with supervisors; and she can tolerate occasional interaction with co-workers 15 but not in a cooperative or team effort.” [Doc. No. 11-2, at p. 59.] 16 Because the ALJ concluded plaintiff is unable to perform her past relevant work 17 and is impeded from performing a full range of work by the non-exertional limitations or 18 restrictions listed above, he made a finding at step five of the disability analysis. If the 19 applicant cannot perform past relevant work, the ALJ at step five must consider the RFP 20 assessment, along with the applicant's age, education, and work experience, to determine 21 whether the applicant could "make an adjustment to other work" that is available in 22 significant numbers in the national economy. 20 C.F.R. § 404.1520(a)(4)(v); 42 U.S.C. § 23 1382c(a)(3)(B). While the applicant carries the burden of proving eligibility at steps one 24 through four, the burden at step five rests on the agency. Celaya v. Halter, 332 F.3d 1177, 25 1180 (9th Cir. 2003). “To determine the extent to which [the above-listed] limitations 26 erode the occupational base of unskilled work at all exertional levels, the [ALJ] asked the 27 vocational expert whether jobs exist in the national economy for an individual with the 28 claimant’s age, education, work experience, and residual functional capacity. The 1 vocational expert testified that given all of these factors the individual would be able to 2 perform the requirements of representative occupations,” including housekeeping cleaner, 3 photocopy machine operator, and laundry laborer. [Doc. No. 11-2, at p. 63.] Based on 4 the record and the testimony of the vocational expert, the ALJ concluded plaintiff is not 5 disabled, because she has the capability to make a successful adjustment to other work 6 that exists in significant numbers in the national economy. [Doc. No. 11-2, at p. 63.] 7 III. Standards of Review – Final Decision of the Commissioner. 8 The final decision of the Commissioner must be affirmed if it is supported by 9 substantial evidence and if the Commissioner has applied the correct legal standards. 10 Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 11 Under the substantial evidence standard, the Commissioner's findings are upheld if 12 supported by inferences reasonably drawn from the record. Id. If there is evidence in the 13 record to support more than one rational interpretation, the District Court must defer to 14 the Commissioner's decision. Id. "Substantial evidence means such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion." Osenbrock v. Apfel, 16 240 F.3d 1157, 1162 (9th Cir. 2001). "In determining whether the Commissioner's 17 findings are supported by substantial evidence, we must consider the evidence as a 18 whole, weighing both the evidence that supports and the evidence that detracts from the 19 Commissioner's conclusion." Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 20 IV. Discussion. 21 A. The Parties’ Motions. 22 Plaintiff does not dispute the ALJ’s summary of her medical records or the ALJ’s 23 findings at steps one through four of the five-step sequential evaluation. Rather, she 24 contends that the ALJ’s findings at step five are not supported by substantial evidence 25 [Doc. No. 14, at p. 5.] To support this argument, plaintiff challenges the ALJ’s reliance 26 on the vocational expert’s testimony that there are a significant number of jobs in the 27 national economy in three representative occupations that could be performed by a person 28 with plaintiff’s RFC. [Doc. No. 14, at pp. 5-9.] More specifically, plaintiff argues there 1 are reliable government sources of information and data showing that the representative 2 occupations of housekeeping cleaner, photocopy machine operator, and laundry laborer 3 are not available in significant numbers for a person with her non-exertional limitations. 4 [Doc. No. 14, at pp. 5-9.] 5 Defendant contends that the ALJ’s step five determination is supported by 6 substantial evidence, because plaintiff has not presented anything to establish that the 7 supplemental vocational information referenced in her Motion is more reliable than 8 and/or deserves greater weight than the testimony of the vocational expert. Even if 9 plaintiff’s supplemental information is accurate, defendant argues it only qualifies as 10 “conflicting evidence in the record,” and the ALJ’s decision must be upheld “[w]here 11 evidence is susceptible to more than one rational interpretation, one of which supports the 12 ALJ’s decision.” [Doc. No. 18, at p. 7, quoting Thomas v. Barnhart, 278 F.3d 947, 954 13 (9th Cir. 2002).] 14 B. The Vocational Expert’s Testimony. 15 The ALJ relied on the following testimony of the vocational expert to reach his 16 conclusion at step five: 17 Q . . . Please assume a hypothetical individual with the Claimant’s same age, education, work experience, who has a residual functional capacity to 18 work at all exertional levels, but with the following non-exertional 19 limitations, can understand, remember, and carry out simple, routine tasks, in a routine, low-stress work setting, involving few workplace changes, can 20 never perform rapid pace assembly line work, can tolerate no interaction 21 with the public, but can tolerate incidental superficial contact with the public, can tolerate occasional interaction with supervisors, and occasional 22 interaction with co-workers, but not in a cooperative, routine effort. Looks 23 like past work is out.

24 A Right. 25 Q Would there be any other work such an individual could 26 perform, and if so, three representative occupations. 27 28 1 A Yes. One example would be housekeeping, cleaner, DOT 323.687-014. That is light and unskilled, at SVP-2, approximately 250,000 2 of those jobs in the nation. A second example would be photocopy machine 3 operator, DOT 207.685-014. That is light, unskilled, at SVP-2, approximately 20,000 of those jobs in the nation. And a third example 4 would be laundry laborer, DOT 361.687-018. That is medium, unskilled, at 5 SVP-2, approximately 50,000 of those jobs in the nation.

6 7 [Doc. No. 11-4, at pp. 117-118.] 8 The ALJ concluded in his decision that the vocational expert’s testimony is 9 consistent with the Dictionary of Occupational Titles. [Doc. No. 11-2, at p. 63.] 10 Plaintiff does not challenge the ALJ’s conclusion in this regard. 11 C. Plaintiff’s Supplemental Evidence. 12 Although plaintiff did not object to the vocational expert’s qualifications or 13 testimony at the hearing [Doc. No. 11-4, at pp. 117-119], she argued in her May 18, 2020 14 appeal of the ALJ’s decision to the Appeals Council that “the vocational expert’s 15 testimony is contradicted by reliable government data and thus cannot be substantial 16 evidence to support the ALJ’s non-disability finding.” [Doc. No. 11-8, at p. 92-93.] 17 “[W]hen the Appeals Council considers new evidence in deciding whether to review a 18 decision of the ALJ, that evidence becomes part of the administrative record, which the 19 district court must consider when reviewing the Commissioner's final decision for 20 substantial evidence.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th 21 Cir. 2012). 22 Plaintiff refers the Court to information from two sources that she believes is 23 enough to establish that the vocational expert’s testimony as to all three representative 24 occupations is unreliable and unbelievable: (1) the Occupational Outlook Handbook 25 (“OOH”), which is published by the United States Department of Labor’s Bureau of 26 Labor Statistics [Doc. No. 14, at p. 8]; and (2) the O*NET On Line, which is a publicly 27 available database that is apparently being developed to replace the DOT. [See Doc. No. 28 14, at p. 8 n.1, referencing https://www.dol.gov/agencies/oalj/topics/libraries/LIBDOT.] 1 The Court notes that Social Security regulations do reference both the DOT and the OOH 2 as reliable sources of information.1 3 With respect to the first representative occupation of “housekeeping, cleaner,” 4 plaintiff refers to the OOH, which indicates the number of jobs available for this 5 occupation in 2018 was 1,494,400. [Doc. No. 14, at p. 6, referring to Doc. No. 13-2, at 6 p. 88.] As noted above, the vocational expert testified there are approximately 250,000 of 7 these jobs in the national economy for a person with plaintiff’s RFC. [Doc. No. 11-4, at 8 pp. 117-118.] Plaintiff also refers the Court to the O*NET, which indicates that 96 9 percent of the jobs in this occupation require contact with others from half the time to 10 constantly when, as noted above, the ALJ’s RFP states that plaintiff can only tolerate 11 occasional interaction with supervisors and co-workers. [Doc. No. 13-2, at p. 90 and 12 Doc. No. 11-2, at p. 59.] Additionally, plaintiff points out that the O*NET indicates the 13 importance of teamwork in 99 percent of the jobs in this occupation ranges from “fairly 14 important” to “extremely important,” and teamwork is “not important at all” in only one 15 percent of the jobs in this occupation. [Doc. No. 13-2, at p. 92.] This information 16 conflicts with the ALJ’s RFC, which states that plaintiff can “tolerate occasional 17 interaction with co-workers but not in a cooperative or team effort.” [Doc. No. 11-2, at p. 18 59.] Therefore, plaintiff argues that the vocational expert’s testimony is unreliable and 19 unbelievable, because the OOH and the O*NET indicate the jobs in this representative 20 21 1 “When we determine that unskilled, sedentary, light, and medium jobs exist in the 22 national economy (in significant numbers either in the region where you live or in several 23 regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take 24 notice of— 25 (1) Dictionary of Occupational Titles, published by the Department of Labor; 26 * * * * 27 (5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.”

28 1 occupation are not available in significant number for someone with plaintiff’s RFP. 2 [Doc. No. 14, at p. 6.] 3 Turning to the second representative occupation of “photocopy machine operator,” 4 plaintiff refers once again to the OOH, which indicates the number of jobs available for 5 this occupation in 2018 was 50,100. [Doc. No. 14, at pp. 6-7, referring to Doc. No. 13-2, 6 at p. 60.] The ALJ testified there were approximately 20,000 jobs in this occupation that 7 could be performed by an individual with plaintiff’s RFC. [Doc. No. 11-4, at pp. 117- 8 118.] Plaintiff also refers the Court to the O*NET, which indicates that 85 percent of the 9 jobs in this occupation require contact with others in a range from half the time to 10 constantly and that only 15 percent of jobs in this occupation require “occasional contact 11 with others.” [Doc. No. 13-2, at p. 62.] This conflicts with the ALJ’s RFP, which states 12 that plaintiff can only tolerate occasional interaction with supervisors and co-workers. 13 [Doc. No. 11-2, at p. 59.] In addition, plaintiff points out that the O*NET indicates the 14 importance of teamwork in 82 percent of the jobs in this occupation ranges from “fairly 15 important” to “extremely important,” and teamwork is “not important at all” in only 17 16 percent of the jobs in this occupation. [Doc. No. 13-2, at p. 92.] As a result, plaintiff 17 contends many jobs in this occupation may not be available to her, because the ALJ 18 concluded in his RFP that she can “tolerate occasional interaction with co-workers but 19 not in a cooperative or team effort.” [Doc. No. 11-2, at p. 59.] Therefore, plaintiff argues 20 that the vocational expert’s testimony is unreliable and unbelievable, because the OOH 21 and the O*NET indicate the jobs in this representative occupation are not available in 22 significant number for someone with plaintiff’s RFP. [Doc. No. 14, at p. 7.] 23 Finally, with respect to the third representative occupation of “laundry laborer,” 24 plaintiff once again refers the Court to the OOH, which indicates the number of jobs 25 available for this occupation in 2018 was 354,600. [Doc. No. 14, at p. 7, referring to 26 Doc. No. 13-2, at p. 13.] As noted above, the vocational expert testified there are 27 approximately 50,000 of these jobs in the national economy that could be performed by 28 an individual with plaintiff’s RFP. [Doc. No. 11-4, at pp. 117-118.] Plaintiff then refers 1 to the O*NET, which indicates that 83 percent of the jobs in this occupation require 2 contact with others in a range from half the time to constantly when, as noted above, the 3 ALJ’s RFP states that plaintiff can only tolerate occasional interaction with supervisors 4 and co-workers. According to the O*NET, only 17 percent of the jobs in this category 5 require “occasional contact with others.” [Compare Doc. No. 13-2, at p. 15 and Doc. 6 No. 11-2, at p. 59.] In addition, plaintiff points out that the O*NET indicates the 7 importance of teamwork in 92 percent of the jobs in this occupation ranges from “fairly 8 important” to “extremely important,” and teamwork is “not important at all” in only 9 8 percent of the jobs in this occupation. [Doc. No. 13-2, at p. 17.] This information also 10 conflicts with the ALJ’s RFC, which states that plaintiff can “tolerate occasional 11 interaction with co-workers but not in a cooperative or team effort.” [Doc. No. 11-2, at 12 p. 59.] Plaintiff therefore contends that the vocational expert’s testimony is unreliable 13 and unbelievable, because the OOH and the O*NET indicate the jobs in this 14 representative occupation are not available in significant number for someone with 15 plaintiff’s RFP. [Doc. No. 14, at p. 7.] 16 D. Sufficiency of the Evidence to Support the ALJ’s Step Five Findings. 17 To determine “the number of relevant jobs in the national economy,” the ALJ 18 “may take administrative notice of any reliable job information, including information 19 provided by a VE.” [Citation omitted.] A VE's recognized expertise provides the 20 necessary foundation for his or her testimony. Thus, no additional foundation is 21 required.” 2 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). “[I]n the absence 22 of any contrary evidence, a VE's testimony is one type of job information that is regarded 23 as inherently reliable.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). “Given 24 25 2 The Court notes that the Federal Rules of Evidence “do not apply to the admission 26 of evidence in Social Security administrative proceedings. See 42 U.S.C. § 405(b)(1); 20 27 C.F.R. §§ 404.950(c), 416.1450(c) (‘The administrative law judge may receive evidence at the hearing even though the evidence would not be admissible in court under the rules 28 1 its inherent reliability, a qualified vocational expert's testimony as to the number of jobs 2 existing in the national economy that a claimant can perform is ordinarily sufficient by 3 itself to support an ALJ's step-five finding.” Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 4 2020). “[A] vocational expert's testimony may count as substantial evidence even when 5 unaccompanied by supporting data.” Biestek v. Berryhill, 139 S. Ct. 1148, 1155, 203 L. 6 Ed. 2d 504 (2019). 7 “[A]s numerous courts in this Circuit have concluded, a lay assessment of [raw] 8 data from [sources such as the OOH and the O*NET] fails to undermine the reliability of 9 [a] vocational expert's testimony” in the absence of expert opinion interpreting and 10 assessing that data. Kevin E. v. Saul, No. 2:19-CV-09831-JC, 2021 WL 134584, at 6 11 (C.D. Cal. Jan. 14, 2021) (and cases cited therein). See also Roderick L. A. G. v. Saul, 12 No. CV 20-5727-RAO, 2021 WL 2590159, at *7 (C.D. Cal. June 24, 2021) (stating that 13 “[p]laintiff's lay interpretation of the vocational evidence does not trump the expertise of 14 the [vocational expert]”); Tommy D. J. v. Saul, No. EDCV 20-1013-RAO, 2021 WL 15 780479, at *6 (C.D. Cal. Mar. 1, 2021) (same); Marcelino P. v. Saul, No. 2:20-CV- 16 05341-GJS, 2021 WL 1215794, at *4 (C.D. Cal. Mar. 30, 2021) (concluding the Court 17 could not “credit plaintiff's lay interpretation of raw statistical vocational data over the 18 expertise of the [vocational expert]”). Without expert opinion interpreting and assessing 19 the raw data, information obtained by a lay person from sources such as OOH and 20 O*NET can only show that “evidence can be interpreted in different ways.” Id. In other 21 words, as defendant contends, the supplemental information presented by plaintiff is only 22 conflicting evidence. Therefore, without more, there is no basis for a remand or reversal 23 under the circumstance presented, because the ALJ’s decision is supported by substantial 24 evidence. 25 In reaching this conclusion, the Court rejects plaintiff’s reliance on a recent 26 reversal and remand in an unpublished Ninth Circuit decision entitled Jacquez v. Saul, 27 840 Fed. App’x 246 (9th Cir. 2021), because this case is factually distinguishable. In 28 Jacquez v. Saul, the ALJ relied on the testimony of a vocational expert to conclude the 1 claimant could find substantial gainful employment as a counter clerk or usher. Id. at 2 247. On appeal, the Commissioner conceded the ALJ “erred about the counter clerk 3 position,” so only the representative usher job remained as potentially gainful 4 employment. Id. The Ninth Circuit explained that a vocational expert testified there 5 were 90,200 available usher positions in the national economy. However, “[t]he agency's 6 Program Operations Manual System [“POMs”] in effect at the time of [the plaintiff’s] 7 hearing required a claimant to earn at least $1130 per month to engage in substantial 8 gainful employment.” Id. The POMs, together with the plaintiff’s evidence, indicated 9 90 percent of usher jobs are part time, and this “suggest[ed]” there might not be a 10 significant number of usher jobs in the national economy constituting substantial gainful 11 employment, which would require at least 29.49 hours of work per week. Under these 12 circumstances, which included an admitted error about job numbers at the administrative 13 level, substantial evidence to support the ALJ’s decision was doubtful at best, because a 14 material ambiguity was obvious on the record without the need for a supporting 15 interpretation and analysis of raw data by an expert. The Ninth Circuit therefore reversed 16 and remanded the case for further fact finding “[g]iven the ambiguity about the 17 availability of substantial gainful employment as an usher.” Id. Therefore, in this 18 Court’s view, the Ninth Circuit’s unpublished decision in Jacquez v. Saul, 840 Fed. 19 App’x at 246, does not support a remand or reversal under the facts and circumstance of 20 this case. 21 Conclusion 22 Based on the foregoing, substantial evidence supports the ALJ’s decision that 23 plaintiff is not disabled, because she is able to perform a full range of work with certain 24 exertional limitations and restrictions set forth in the ALJ’s RFC assessment, and she is 25 able to perform a significant number of jobs available in the national economy. 26 Therefore, IT IS HEREBY ORDERED that defendant’s Cross-Motion for 27 Summary Judgment is GRANTED [Doc. No. 18] and plaintiff’s Motion for Summary 28 Judgment seeking reversal or remand is DENIED [Doc. No. 14]. 1 IT IS FURTHER ORDERED that the final decision of the Commissioner of 2 || Social Security is affirmed. The Clerk of the Court shall enter judgment accordingly 3 terminate the case. 4 IT IS SO ORDERED. 5 ||Dated: September 27, 2021 Me Ui ) 6 VL LL fa 7 Hori. Karen S. Crawford United States Magistrate Judge

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