1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Mandy R Pleis, No. CV-22-01862-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Mandy R. Pleis’ Application for Social Security Disability 16 Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) under the 17 Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an Opening 18 Brief, (Doc. 13), seeking judicial review of that denial. Defendant SSA filed an Answering 19 Brief, (Doc. 15), to which Plaintiff replied, (Doc. 16). After reviewing the parties’ briefs, 20 the Administrative Record, (Doc. 10; 12), and the Administrative Law Judge’s (“ALJ”) 21 decision, (Doc. 10 at 16–30), the Court will affirm the ALJ’s decision for the reasons 22 addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in December 2018, alleging 25 disability beginning in June 2016. (Doc. 10-3 at 16.) Plaintiff’s claim was initially denied 26 in April 2019. (Id.) After reconsideration, Plaintiff’s claim was again denied on September 27 6, 2019. (Id.) A hearing was held before ALJ Kelly Walls on June 2, 2021. (Id.) After 28 considering the medical evidence and opinions, the ALJ determined that Plaintiff suffered 1 from severe impairments including right ankle impingement syndrome with synovitis, 2 status post arthroscopic repair, plantar fasciitis, equinus deformity, right foot drop, asthma, 3 chronic rhinitis, obesity, major depressive disorder, generalized anxiety disorder, and 4 unspecified anxiety disorder. (Id. at 19.) However, the ALJ concluded that despite these 5 impairments Plaintiff had the residual functional capacity (“RFC”) to perform light work 6 as defined in 20 CFR §§ 404.1567(b) and 416.967(b). (Id. at 22.) In light of this, the ALJ 7 concluded that Plaintiff is not disabled. (Id. at 30.) Thereafter, the Appeals Council denied 8 Plaintiff’s Request for Review of the ALJ’s decision—making it the SSA Commissioner’s 9 (the “Commissioner”) final decision—and this appeal followed. (Id. at 2–5.) 10 II. LEGAL STANDARD 11 An ALJ’s factual findings “shall be conclusive if supported by substantial 12 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 13 the Commissioner’s disability determination only where it is not supported by substantial 14 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 15 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 16 to support a conclusion when considering the record as a whole. Id. Generally, “[w]here 17 the evidence is susceptible to more than one rational interpretation, one of which supports 18 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 19 47, 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, district 20 courts review only those issues raised by the party challenging the decision. See Lewis v. 21 Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 22 III. DISCUSSION 23 Plaintiff argues that the ALJ committed harmful error in evaluating an unresolved 24 conflict between the vocational expert’s testimony and the Dictionary of Occupational 25 Titles (“DOT”) and by not considering post-hearing objections to the vocational expert 26 testimony. (Doc. 13.) The Commissioner counters that Plaintiff’s assertions overlook 27 relevant case law and guidance and therefore the Court should uphold the ALJ’s decision. 28 (Doc. 15.) After reviewing the administrative record, the Court agrees with the 1 Commissioner for the following reasons. 2 A. Vocational Conflict 3 Plaintiff first argues that the ALJ’s finding is based upon an unresolved vocational 4 conflict. (Doc. 13 at 4.) Plaintiff contends that the occupations identified by the vocational 5 expert and cited by the ALJ are precluded by the restrictions identified by the ALJ. (Id. at 6 5.) Specifically, Plaintiff argues that her limitations precluded “the ability to carry out 7 detailed written and oral instructions” per the DOT language, which created a conflict 8 between the DOT and the ALJ’s RFC determination. (Id. at 7.) The Commissioner 9 counters that there is no conflict and that Plaintiff’s argument ignores relevant case law. 10 (Doc. 15 at 6–9.) 11 Here, the ALJ restricted Plaintiff to “simple, routine tasks,” stating that she can 12 make “simple work-related decisions in a routine work setting where change is infrequent 13 and introduced gradually.” (Doc. 10-3 at 22.) In turn, the ALJ found, in part based on the 14 vocational expert’s testimony, that Plaintiff could perform a significant number of 15 unskilled jobs including routing clerk, marker, and mail clerk. (Id. at 29–30.) Two of these 16 jobs, routing clerk and marker, are considered “level two” occupations under the general 17 educational development reasoning framework. The mail clerk job is considered a “level 18 three” occupation. 19 Plaintiff contends that the ALJ’s restriction would mean that Plaintiff is unable to 20 complete any level two or three occupations because they require the ability to carry out 21 detailed instructions. (Doc. 13 at 7.) That is not the case. Rather, the listed limitations 22 comport with level two occupations, which require the ability to “apply commonsense 23 understanding to carry out detailed but uninvolved written or oral instruction.” DOT, App. 24 C., 1991 WL 688702. The Ninth Circuit has repeatedly held that level two occupations are 25 compatible with RFC’s that include simple and routine tasks. See Hernandez v. Berryhill, 26 707 F. App’x 456, 458–59 (9th Cir. 2017); Miller v. Kijakazi, No. CV-20-1725-PHX-MTL, 27 2021 WL 5768811, at *8–9 (D. Ariz. Dec. 6, 2021) (collecting cases). Plaintiff’s citations 28 to out-of-circuit authority are unpersuasive. In short, there is no conflict between the ability 1 to perform “simple, routine tasks” and the ability to perform level two jobs. 2 The Commissioner concedes that Plaintiff is unable to perform the mail clerk job 3 because it has a reasoning level of three. (Doc. 15 at 6.) Ninth Circuit case law also 4 supports this position. See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). However, 5 the Commissioner argues that Plaintiff remains able to perform a significant number of 6 jobs in the national economy—including routing clerk and marker. (Id.) The Court agrees. 7 Considering Plaintiff’s ability to work in level two occupations, Plaintiff remains able to 8 perform a significant number of jobs in the national economy. See Gutierrez v. Colvin, 9 740 F.3d 519, 527–29 (9th Cir. 2014). Accordingly, substantial evidence supported the 10 ALJ’s finding on this issue. 11 B. Objections to the Vocational Expert’s Testimony 12 Plaintiff next contends that remand is required because the ALJ did not address her 13 post-hearing objection to the vocational expert’s testimony. (Doc. 13 at 14–15.) After the 14 close of the hearing, but on the same day, Plaintiff sent a letter to the ALJ objecting to the 15 vocational expert’s testimony on the grounds discussed in the previous section. (Doc. 10- 16 7 at 172.) The ALJ did not rule on this objection. Plaintiff contends that the ALJ’s failure 17 to do so violates the SSA’s Hearing, Appeals and Litigation Law Manual (“HALLEX”). 18 This argument fails for two reasons.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Mandy R Pleis, No. CV-22-01862-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Mandy R. Pleis’ Application for Social Security Disability 16 Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) under the 17 Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an Opening 18 Brief, (Doc. 13), seeking judicial review of that denial. Defendant SSA filed an Answering 19 Brief, (Doc. 15), to which Plaintiff replied, (Doc. 16). After reviewing the parties’ briefs, 20 the Administrative Record, (Doc. 10; 12), and the Administrative Law Judge’s (“ALJ”) 21 decision, (Doc. 10 at 16–30), the Court will affirm the ALJ’s decision for the reasons 22 addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in December 2018, alleging 25 disability beginning in June 2016. (Doc. 10-3 at 16.) Plaintiff’s claim was initially denied 26 in April 2019. (Id.) After reconsideration, Plaintiff’s claim was again denied on September 27 6, 2019. (Id.) A hearing was held before ALJ Kelly Walls on June 2, 2021. (Id.) After 28 considering the medical evidence and opinions, the ALJ determined that Plaintiff suffered 1 from severe impairments including right ankle impingement syndrome with synovitis, 2 status post arthroscopic repair, plantar fasciitis, equinus deformity, right foot drop, asthma, 3 chronic rhinitis, obesity, major depressive disorder, generalized anxiety disorder, and 4 unspecified anxiety disorder. (Id. at 19.) However, the ALJ concluded that despite these 5 impairments Plaintiff had the residual functional capacity (“RFC”) to perform light work 6 as defined in 20 CFR §§ 404.1567(b) and 416.967(b). (Id. at 22.) In light of this, the ALJ 7 concluded that Plaintiff is not disabled. (Id. at 30.) Thereafter, the Appeals Council denied 8 Plaintiff’s Request for Review of the ALJ’s decision—making it the SSA Commissioner’s 9 (the “Commissioner”) final decision—and this appeal followed. (Id. at 2–5.) 10 II. LEGAL STANDARD 11 An ALJ’s factual findings “shall be conclusive if supported by substantial 12 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 13 the Commissioner’s disability determination only where it is not supported by substantial 14 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 15 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 16 to support a conclusion when considering the record as a whole. Id. Generally, “[w]here 17 the evidence is susceptible to more than one rational interpretation, one of which supports 18 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 19 47, 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, district 20 courts review only those issues raised by the party challenging the decision. See Lewis v. 21 Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 22 III. DISCUSSION 23 Plaintiff argues that the ALJ committed harmful error in evaluating an unresolved 24 conflict between the vocational expert’s testimony and the Dictionary of Occupational 25 Titles (“DOT”) and by not considering post-hearing objections to the vocational expert 26 testimony. (Doc. 13.) The Commissioner counters that Plaintiff’s assertions overlook 27 relevant case law and guidance and therefore the Court should uphold the ALJ’s decision. 28 (Doc. 15.) After reviewing the administrative record, the Court agrees with the 1 Commissioner for the following reasons. 2 A. Vocational Conflict 3 Plaintiff first argues that the ALJ’s finding is based upon an unresolved vocational 4 conflict. (Doc. 13 at 4.) Plaintiff contends that the occupations identified by the vocational 5 expert and cited by the ALJ are precluded by the restrictions identified by the ALJ. (Id. at 6 5.) Specifically, Plaintiff argues that her limitations precluded “the ability to carry out 7 detailed written and oral instructions” per the DOT language, which created a conflict 8 between the DOT and the ALJ’s RFC determination. (Id. at 7.) The Commissioner 9 counters that there is no conflict and that Plaintiff’s argument ignores relevant case law. 10 (Doc. 15 at 6–9.) 11 Here, the ALJ restricted Plaintiff to “simple, routine tasks,” stating that she can 12 make “simple work-related decisions in a routine work setting where change is infrequent 13 and introduced gradually.” (Doc. 10-3 at 22.) In turn, the ALJ found, in part based on the 14 vocational expert’s testimony, that Plaintiff could perform a significant number of 15 unskilled jobs including routing clerk, marker, and mail clerk. (Id. at 29–30.) Two of these 16 jobs, routing clerk and marker, are considered “level two” occupations under the general 17 educational development reasoning framework. The mail clerk job is considered a “level 18 three” occupation. 19 Plaintiff contends that the ALJ’s restriction would mean that Plaintiff is unable to 20 complete any level two or three occupations because they require the ability to carry out 21 detailed instructions. (Doc. 13 at 7.) That is not the case. Rather, the listed limitations 22 comport with level two occupations, which require the ability to “apply commonsense 23 understanding to carry out detailed but uninvolved written or oral instruction.” DOT, App. 24 C., 1991 WL 688702. The Ninth Circuit has repeatedly held that level two occupations are 25 compatible with RFC’s that include simple and routine tasks. See Hernandez v. Berryhill, 26 707 F. App’x 456, 458–59 (9th Cir. 2017); Miller v. Kijakazi, No. CV-20-1725-PHX-MTL, 27 2021 WL 5768811, at *8–9 (D. Ariz. Dec. 6, 2021) (collecting cases). Plaintiff’s citations 28 to out-of-circuit authority are unpersuasive. In short, there is no conflict between the ability 1 to perform “simple, routine tasks” and the ability to perform level two jobs. 2 The Commissioner concedes that Plaintiff is unable to perform the mail clerk job 3 because it has a reasoning level of three. (Doc. 15 at 6.) Ninth Circuit case law also 4 supports this position. See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). However, 5 the Commissioner argues that Plaintiff remains able to perform a significant number of 6 jobs in the national economy—including routing clerk and marker. (Id.) The Court agrees. 7 Considering Plaintiff’s ability to work in level two occupations, Plaintiff remains able to 8 perform a significant number of jobs in the national economy. See Gutierrez v. Colvin, 9 740 F.3d 519, 527–29 (9th Cir. 2014). Accordingly, substantial evidence supported the 10 ALJ’s finding on this issue. 11 B. Objections to the Vocational Expert’s Testimony 12 Plaintiff next contends that remand is required because the ALJ did not address her 13 post-hearing objection to the vocational expert’s testimony. (Doc. 13 at 14–15.) After the 14 close of the hearing, but on the same day, Plaintiff sent a letter to the ALJ objecting to the 15 vocational expert’s testimony on the grounds discussed in the previous section. (Doc. 10- 16 7 at 172.) The ALJ did not rule on this objection. Plaintiff contends that the ALJ’s failure 17 to do so violates the SSA’s Hearing, Appeals and Litigation Law Manual (“HALLEX”). 18 This argument fails for two reasons. First, the HALLEX is the SSA’s internal 19 guidelines for processing and adjudicating claims. It is “strictly an internal guidance tool” 20 that does not outline substantive rules or carry the force of law. Moore v. Apfel, 216 F.3d 21 864, 868 (9th Cir. 2000). A reviewing court “will not review allegations of noncompliance 22 with the manual.” Id. at 869; see also W. Radio Servs. Co. v. Espy, 79 F.3d 896, 900 (9th 23 Cir. 1996). Therefore, the Court need not even consider this argument. 24 Second, even considering the merits, Plaintiff’s argument fails. The relevant 25 HALLEX provision requires the ALJ to rule on objections made at the hearing, not post- 26 hearing objections. HALLEX I-2-6-74(B), 1993 WL 751902. Plaintiff did not object to 27 the vocational expert’s testimony at the hearing. (Doc. 10-13 at 79, 85.) Additionally, 28 Plaintiff cites to an outdated provision of the HALLEX, which was replaced by the current 1 || provision that clearly pertains to objections made at the hearing. HALLEX I-2-6-74(B), 1993 WL 751902. In short, the ALJ also did not err on this issue. IV. CONCLUSION 4 For the reasons discussed above, 5 IT IS ORDERED affirming the August 30, 2021 decision of the ALJ, as upheld by 6 || the Appeals Council. 7 IT IS FURTHER ORDERED directing the Clerk to enter final judgement 8 || consistent with this Order and close this case. 9 Dated this 29th day of February, 2024. 10 a . ~P ox —
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