1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8
9 ANNE M. STAMPS, Case No. 1:23-cv-00255-SKO
10 ORDER ON PLAINTIFF’S SOCIAL Plaintiff, SECURITY COMPLAINT 11 (Doc. 1) 12 v. 13 MARTIN O’MALLEY, Commissioner of Social Security,1 14 Defendant. 15 _____________________________________/ 16
17 I. INTRODUCTION 18 19 On February 18, 2023, Plaintiff Anne M. Stamps (“Plaintiff”) filed a complaint seeking 20 judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” or 21 “Defendant”) denying her application for Supplemental Security Income (“SSI”) under the Social 22 Security Act (the “Act”). (Doc. 1.) The matter is currently before the Court on the parties’ briefs, 23 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 24 Magistrate Judge.2 25 26 1 On December 20, 2023, Martin O’Malley was named Commissioner of the Social Security Administration. See 27 https://www.ssa.gov/history/commissioners.html. He is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office 28 of the Commissioner shall, in [their] official capacity, be the proper defendant.”). 1 2 On September 20, 2019, Plaintiff protectively filed a claim for SSI, alleging she became 3 disabled on May 22, 2012, due to major depression, anxiety attacks, insomnia, memory issues, spine 4 realignment, pinched spinal cord, problems with spinal discs, and asthma. (Administrative Record 5 (“AR”) 76, 77, 90, 91, 216, 220, 221, 284, 286.) 6 A. Administrative Proceedings 7 The Commissioner denied Plaintiff’s application for benefits initially on April 20, 2020, and 8 again on reconsideration on July 27, 2020. (AR 105–109, 113–17.) Consequently, Plaintiff requested 9 a hearing before an Administrative Law Judge (“ALJ”). (AR 118–72.) The ALJ conducted a hearing 10 on June 5, 2018. (AR 37–82.) Plaintiff appeared at the hearing without a representative or an attorney 11 and testified as to her alleged disabling conditions. (AR 59–67.) 12 A Vocational Expert (“VE”) also testified at the hearing. (AR 68–73.) The ALJ asked the 13 VE to consider a person of Plaintiff’s age, education, and past work history. (AR 68.) The VE was 14 also to assume this person is limited to lifting and carrying 20 pounds occasionally and 10 pounds 15 frequently, can stand and/or walk for approximately six hours in an eight-hour workday; can sit for 16 approximately six hours in an eight-hour workday, with normal breaks; cannot climb ladders, ropes, 17 and scaffolds; can occasionally climbs stairs and ramps, stoop, kneel, crouch, and balance; and should 18 not crawl. (AR 68.) Such person can occasionally reach overhead with the bilateral upper 19 extremities; can frequently handle and finger with the bilateral upper extremities; should have no 20 more than occasional concentrated exposure to atmospheric conditions; and no exposure to moving 21 mechanical parts and high exposed place hazards. (AR 68–69.) Such person is limited to 22 understanding, remembering, and carrying out simple, routine, and repetitive instructions and tasks, 23 and should do “isolated work,” which is work that requires no direct public contact, occasional direct 24 co-worker and supervisor interaction, with no group tasks. (AR 69.) Lastly, the person should do 25 “low stress work,” which is work that requires only occasional changes in work setting, occasional 26 changes in work duties, and no work on a moving conveyor belt. (AR 69.) 27 The VE testified that such a person could perform light jobs in the national economy, such as 28 garment sorter, Dictionary of Operational Titles (DOT) code 222.687-014 with a specific vocational 1 preparation (SVP)3 of 2; warehouse checker, DOT code 222.587-010 with an SVP of 2; and cleaner 2 (housekeeping), DOT code 323.687-014 with an SVP of 2. (AR 69–70.) The VE testified that, were 3 such person limited to standing and walking for approximately four hours, and sitting for 4 approximately four hours, a person with the above-described limitations could still perform the 5 garment sorter job, which would be eroded from 30,000 to 20,000 jobs in the national economy “on 6 the basis of the need for positional changes.” (AR 70.) Such a person could also perform the jobs of 7 injection molding machine tender, DOT code 556.685-038 with an SVP of 2, which would be eroded 8 from 40,000 to 20,000 jobs in the national economy; and office helper, DOT code 239.567-010 with 9 an SVP of 2, and 45,000 jobs in the national economy. (AR 70–72.) 10 In addition to the above-described limitations, missing one day of work per month would be 11 work preclusive. (AR 72.) The VE further testified that a person who is off task and nonproductive 12 at a rate of ten percent or more than the average worker performing the same job would not be able 13 to sustain competitive employment. (AR 72–73.) 14 B. The ALJ’s Decision 15 In a decision dated January 21, 2022, the ALJ found that Plaintiff was not disabled, as defined 16 by the Act. (AR 24–39.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. 17 § 416.920. (AR 27–39.) The ALJ decided that Plaintiff had not engaged in substantial gainful activity 18 since September 20, 2019, the application date (step one). (AR 27.) At step two, the ALJ found 19 Plaintiff’s following impairments to be severe: anxiety disorder; major depressive disorder; 20 personality disorder; cervical and lumbar degenerative disc disease status-post discectomy and 21 fusion; amphetamine use disorder; asthma; neuropathy; and chronic pain disorder. (AR 27–28.) 22 Plaintiff did not have an impairment or combination of impairments that met or medically equaled 23 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”) (step 24 three). (AR 28–31.) 25 The ALJ then assessed Plaintiff’s RFC and applied the assessment at steps four and five. See 26 3 Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical worker 27 to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991). Jobs in the 28 DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the highest level – 1 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we assess your residual 2 functional capacity . . . . We use this residual functional capacity assessment at both step four and 3 step five when we evaluate your claim at these steps.”). The ALJ determined that Plaintiff retained 4 the RFC: 5 to perform light work as defined in 20 CFR [§] 416.967(b) subject to the following limitations: [Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds 6 frequently. She can stand and/or walk for approximately four hours and sit for approximately four hours, in an eight-hour workday, with normal breaks. 7 [Plaintiff] cannot climb ladders, ropes, and scaffolds and can occasionally climb 8 stairs and ramps. [Plaintiff] can occasionally stoop, crouch, kneel, and balance, as defined by the Selective Characteristics of Occupations of the Dictionary of 9 Occupational Titles (SCO-DOT). She cannot crawl. [Plaintiff] can occasionally reach overhead and frequently handle and finger with the bilateral upper 10 extremities. [Plaintiff] should have only occasional, concentrated exposure to 11 atmospheric conditions and no exposure to moving mechanical parts and high, exposed place hazards, as rated by the SCO-DOT. [Plaintiff] can understand, 12 remember, and carry out simple, routine, and repetitive instructions and tasks. [Plaintiff] is limited to isolated work, which involves no direct public contact, 13 occasional direct co-worker and supervisor interaction, and no group tasks. (There is no limit on incidental contact.) [Plaintiff] should perform only low stress work, 14 which is defined as requiring only occasional changes in work setting, occasional 15 changes in work duties and no work on a moving conveyor belt. 16 (AR 20–25.) Although the ALJ recognized that Plaintiff’s impairments “could reasonably be 17 expected to cause some of the alleged symptoms[,]” they rejected Plaintiff’s subjective testimony as 18 “not entirely consistent with the longitudinal treatment record.” (AR 32.) The ALJ determined that 19 Plaintiff had no past relevant work (step 4), and was not disabled because, given her RFC, she could 20 perform a significant number of other jobs in the local and national economies, specifically garment 21 sorter, injection molding machine tender, and office helper (step 5). (AR 38–39.) 22 Plaintiff sought review of this decision before the Appeals Council, which denied review on 23 January 5, 2023. (AR 1–7.) Therefore, the ALJ’s decision became the final decision of the 24 Commissioner. 20 C.F.R. § 416.1481. 25 III. LEGAL STANDARD 26 A. Applicable Law 27 An individual is considered “disabled” for purposes of disability benefits if they are unable 28 “to engage in any substantial gainful activity by reason of any medically determinable physical or 1 mental impairment which can be expected to result in death or which has lasted or can be expected 2 to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). However, 3 “[a]n individual shall be determined to be under a disability only if [their] physical or mental 4 impairment or impairments are of such severity that [they are] not only unable to do [their] previous 5 work but cannot, considering [their] age, education, and work experience, engage in any other kind 6 of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 7 “In determining whether an individual’s physical or mental impairment or impairments are of 8 a sufficient medical severity that such impairment or impairments could be the basis of eligibility [for 9 disability benefits], the Commissioner” is required to “consider the combined effect of all of the 10 individual’s impairments without regard to whether any such impairment, if considered separately, 11 would be of such severity.” Id. § 423(d)(2)(B). For purposes of this determination, “a ‘physical or 12 mental impairment’ is an impairment that results from anatomical, physiological, or psychological 13 abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic 14 techniques.” Id. § 423(d)(3). 15 “The Social Security Regulations set out a five-step sequential process for determining 16 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 180 17 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. The 18 Ninth Circuit has provided the following description of the sequential evaluation analysis: 19 In step one, the ALJ determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. If not, the ALJ 20 proceeds to step two and evaluates whether the claimant has a medically severe impairment or combination of impairments. If not, the claimant is not disabled. If 21 so, the ALJ proceeds to step three and considers whether the impairment or 22 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. 23 If not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing [their] past relevant work. If so, the claimant is not disabled. If not, 24 the ALJ proceeds to step five and examines whether the claimant has the [RFC] . . 25 . to perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 26 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) (providing 27 the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found to be 28 1 ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider subsequent steps.” 2 Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 3 “The claimant carries the initial burden of proving a disability in steps one through four of the 4 analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 5 “However, if a claimant establishes an inability to continue her past work, the burden shifts to the 6 Commissioner in step five to show that the claimant can perform other substantial gainful work.” Id. 7 (citing Swenson, 876 F.2d at 687). 8 B. Scope of Review 9 “This court may set aside the Commissioner’s denial of [social security] benefits [only] when 10 the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record 11 as a whole.” Tackett, 180 F.3d at 1097 (citation omitted). “Substantial evidence is defined as being 12 more than a mere scintilla, but less than a preponderance.” Edlund v. Massanari, 253 F.3d 1152, 13 1156 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). “Put another way, substantial evidence is 14 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. 15 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). 16 “This is a highly deferential standard of review . . . .” Valentine v. Comm’r of Soc. Sec. 17 Admin., 574 F.3d 685, 690 (9th Cir. 2009). “The ALJ’s findings will be upheld if supported by 18 inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 19 2008) (citation omitted). Additionally, “[t]he court will uphold the ALJ’s conclusion when the 20 evidence is susceptible to more than one rational interpretation.” Id.; see, e.g., Edlund, 253 F.3d at 21 1156 (“If the evidence is susceptible to more than one rational interpretation, the court may not 22 substitute its judgment for that of the Commissioner.” (citations omitted)). 23 Nonetheless, “the Commissioner’s decision ‘cannot be affirmed simply by isolating a specific 24 quantum of supporting evidence.’” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 25 1240, 1243 (9th Cir. 1998)). “Rather, a court must ‘consider the record as a whole, weighing both 26 evidence that supports and evidence that detracts from the [Commissioner’s] conclusion.’” Id. 27 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 28 Finally, courts “may not reverse an ALJ’s decision on account of an error that is harmless.” 1 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 2 F.3d 1050, 1055–56 (9th Cir. 2006)). Harmless error “exists when it is clear from the record that ‘the 3 ALJ’s error was inconsequential to the ultimate nondisability determination.’” Tommasetti, 533 F.3d 4 at 1038 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)). “[T]he burden of 5 showing that an error is harmful normally falls upon the party attacking the agency’s determination.” 6 Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citations omitted). 7 IV. DISCUSSION 8 Plaintiff asserts the ALJ harmfully erred by not following the Commissioner’s procedural 9 guidelines, as set forth in its Hearings, Appeals, and Litigation Law Manual (“HALLEX”) I-2-6- 10 74(B), and that substantial evidence does not support the ALJ’s step five finding because the jobs 11 identified by the VE are not consistent with Plaintiff’s RFC and/or do not exist in significant numbers, 12 as set forth in a memorandum Plaintiff submitted to the Appeals Council. (Doc. 12.) The Court 13 disagrees, and finds that remand is not warranted in this case. 14 A. Lack of Compliance with HALLEX 15 HALLEX is the Social Security Administration (“SSA”)’s “internal guidance tool, providing 16 policy and procedural guidelines to ALJs and other staff members.” Moore v. Apfel, 216 F.3d 864, 17 868 (9th Cir. 2000). Plaintiff specifically alleges the ALJ violated HALLEX I-2-6-74(B), which 18 states: 19 At the hearing, the ALJ must advise the claimant of the reason for the VE’s presence and explain the procedures to be followed . . . . After administering the oath or 20 affirmation, the ALJ must (on the record) . . . [a]sk the claimant and the representative whether they have any objection(s) to the VE testifying. 21 22 I-2-6-74. TESTIMONY OF A VOCATIONAL EXPERT, HALLEX I-2-6-74, 1993 WL 751902 (updated 23 June 16, 2016). Plaintiff contends that the ALJ did not ask her at the hearing, at which she was 24 unrepresented, whether she had any objections to the VE testifying as required by HALLEX I-2-6- 25 74(B). (Doc. 12 at 11.) 26 The ALJ observed in their decision, “Notably, [Plaintiff] did not offer any objections to the 27 [VE’s] qualifications when given an opportunity to do so at the hearing.” (AR 39.) The record shows, 28 however, that Plaintiff was not given an opportunity to object to the VE’s testimony. Upon the 1 conclusion of the VE’s testimony, the ALJ asked Plaintiff whether she wanted the ALJ “to ask any 2 questions of the vocational expert on your behalf.” (AR 73.) The language of the relevant HALLEX 3 guideline appears to require a more specific solicitation of Plaintiff’s objections. 4 However, while the ALJ did violate HALLEX, “the Ninth Circuit has plainly . . . taken the 5 position that HALLEX does not . . . create judicially enforceable duties” upon ALJs or courts. 6 Lehman v. Saul, No. 3:20-CV-0184-HRH, 2021 WL 1232670, at *10 (D. Alaska Apr. 1, 2021). See 7 also Ronquillo v. Saul, No. 1:19-CV-1665 JLT, 2021 WL 614637, at *4 (E.D. Cal. Feb. 17, 2021) 8 (“[T]he Ninth Circuit determined failure to comply with HALLEX standards is not a reversible error 9 because ‘HALLEX is strictly an internal guidance tool.’”) (quoting Moore v. Apfel, 216 F.3d 864, 10 868 (9th Cir. 2000)). The ALJ’s failure to comply with HALLEX is therefore not a reversible error.4 11 B. Conflict with RFC 12 Plaintiff next contends that ALJ’s finding that Plaintiff could perform jobs as an injection 13 molding machine tender (DOT code 556.685-038) or an office helper (DOT code 239.567-010) 14 conflicts with her RFC. (Doc. 12 at 16.) The Court takes each argument in turn. 15 1. Injection Molding Machine Tender 16 Plaintiff asserts that the job of injection molding machine tender “necessarily involves 17 working with moving machinery,” which is “in direct conflict with the ALJ’s RFC determination that 18 [Plaintiff] is only capable of jobs that have ‘no exposure to moving mechanical parts[.]’” (Id.) 19 Plaintiff relies on the DOT’s job description (see id.), but it directly contradicts her argument. 20 The DOT, which is “the best source for how a job is generally performed,” Pinto v. Massanari, 249 21 F.3d 840, 845 (9th Cir. 2001), provides that the job of injection molding machine tender requires no 22 exposure to moving mechanical parts. See 556.685-038, INJECTION-MOLDING-MACHINE TENDER, 23
24 4 Even if the court were to find the HALLEX judicially enforceable, Plaintiff has not established that the ALJ’s failure to follow it was prejudicial to warrant remand in this case. “Reversal on account of error is not automatic, but requires 25 a determination of prejudice.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “The burden is on the party claiming error to demonstrate not only the error, but also that it affected his [or her] ‘substantial rights,’ which is to say, 26 not merely his [or her] procedural rights.” Id. Here, Plaintiff presented her arguments regarding the VE’s testimony to both the Appeals Council and this Court, each of which has considered the arguments and found them unavailing for 27 the reasons stated herein. See, e.g., Mangune v. Berryhill, No. 5:16-CV-00632 (VEB), 2017 WL 3160562, at *5 (C.D. Cal. July 25, 2017) (finding, despite ALJ’s “apparent disregard for HALLEX” requirement to proffer consultative 28 examiner’s report prior to hearing, no prejudice where the claimant had the opportunity, and did, raise arguments 1 DICOT 556.685-038, 1991 WL 683482 (“Moving Mech. Parts: Not Present - Activity or condition 2 does not exist”). This is consistent with Plaintiff’s RFC. (See AR 31 (“Plaintiff should have . . . no 3 exposure to moving mechanical parts . . . .”).) There is therefore no conflict between the injection 4 molding machine tender job and Plaintiff’s RFC. 5 2. Office Helper 6 Plaintiff asserts that she also cannot perform the duties of office helper because the DOT 7 description for that occupation “involves helping people in an office,” which conflicts with her RFC 8 limitation to “isolated work.” (Doc. 12 at 18.) Plaintiff adds that the job exceeds Plaintiff’s mental 9 limitation to “simple, routine, and repetitive instructions and tasks” because “[i]n the modern world, 10 office work involves working with computers, software, and office machines.” (Id. at 18–19.) 11 Plaintiff’s RFC permits occasional interaction with coworkers and supervisors. (See AR 31.) 12 Nothing about the DOT listing suggests that greater interaction is necessarily part of the job. In fact, 13 the DOT describes the “Speaking-Signaling” component of the job as “Not Significant.” See 14 239.567-010, OFFICE HELPER, DICOT 239.567-010, 1991 WL 672232. Moreover, several courts in 15 this Circuit have expressly rejected Plaintiff’s argument. See, e.g., Robinson v. Comm’r of Soc. Sec. 16 Admin., No. CV-22-00070-PHX-DGC, 2022 WL 9833906, at *9 (D. Ariz. Oct. 17, 2022) (rejecting 17 the plaintiff’s contention “that the plain language of the office helper position exceeds her RFC 18 limitation of interacting with coworkers occasionally (one-third of the time),” noting that the position 19 requires only sporadic interaction with others); Troy H. v. Berryhill, 2019 WL 2413020, at *2 (C.D. 20 Cal. June 7, 2019) (finding “no actual or apparent conflict” between office helper job and claimant’s 21 limitation to incidental contact with coworkers); Perez v. Berryhill, 2018 WL 3636883, at *4 (C.D. 22 Cal. July 29, 2018) (finding no “apparent conflict” between office helper job and claimant’s limitation 23 to incidental contact with the public and with coworkers). See also Hayes v. Colvin, No. 3:13-CV- 24 01506-MC, 2014 WL 7405647, at *8 (D. Or. Dec. 30, 2014) (“As defined in DOT § 239.567-010 . . 25 . the need for speaking and signaling in an office helper position is not significant.”). 26 Plaintiff’s contention that the requirements of the office helper job, with an SVP and 27 Reasoning Level of 2 per the DOT5, are inconsistent with her limitation to “simple, routine, and 28 1 repetitive instructions and tasks” has also been repeatedly rejected by this Circuit’s district courts, 2 including this one. See, e.g., Alacar v. Comm'r of Soc. Sec., No. 2:22-CV-149-TLN-KJN, 2022 WL 3 17418356, at *9 (E.D. Cal. Dec. 5, 2022) (“Office Helper is classified as a Specific Vocational 4 Preparation Level 2, which corresponds with simple, non-complex, routine work.”); Lyn B. v. Comm'r 5 of Soc. Sec., No. 5:18-CV-00298-AFM, 2019 WL 1491174, at *8 (C.D. Cal. Apr. 3, 2019) 6 (“limitation to simple, routine, and repetitive tasks” did not conflict with office helper job’s 7 requirement of “performing a variety of duties”); Jerome M. H. v. Berryhill, No. CV 17-7423-FFM, 8 2019 WL 994966, at *2 (C.D. Cal. Feb. 7, 2019) (finding office helper position compatible with 9 limitation to simple repetitive tasks and noting plaintiff had “failed to demonstrate why a person 10 limited to simple repetitive tasks could not also frequently change tasks”); Lewis v. Colvin, No. 1:14- 11 CV-1654-SMS, 2016 WL 397626, at *5 (E.D. Cal. Feb. 2, 2016) (finding no conflict between 12 plaintiff’s limitation to simple instructions or simple, repetitive tasks and performing a variety of job 13 duties as an office helper); Chavez v. Astrue, 699 F. Supp. 2d 1125, 1136 n.10 (C.D. Cal. 2009) (office 14 helper job with Reasoning Level 2 consistent with a limitation to simple, repetitive tasks). Plaintiff 15 has therefore failed to show a conflict between her RFC and the office helper job.6 16 C. Evidence Regarding Jobs in the National Economy 17 At step five, the Commissioner has the burden “to identify specific jobs existing in substantial 18 numbers in the national economy that claimant can perform despite [their] identified limitations.” 19 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); see 20 C.F.R. § 416.960(c)(2). “Whether 20 there are a significant number of jobs a claimant is able to perform with [their] limitations is a question 21 of fact to be determined by a judicial officer.” Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986). 22 As described above, the VE testified an individual with Plaintiff’s limitations would be able 23 to perform at least three jobs: garment sorter, with approximately 30,000 jobs in the national 24 economy; injection molding machine tender, with approximately 40,000 jobs in the national 25
26 6 Even were the Court to find a conflict, such error would be harmless because the ALJ relied upon two additional occupations identified by the VE: garment sorter and, as discussed above, injection molding machine tender. Because 27 the ALJ determined that Phillips’s RFC permits her to perform at least one job that exists in significant numbers in the national economy, the ALJ did not err at step five. See Phillips v. Kijakazi, No. 20-17178, 2021 WL 5506341, at *2 28 (9th Cir. Nov. 24, 2021) (finding harmless error where the ALJ properly identified at least one job that was consistent 1 economy; and office helper, with approximately 45,000 jobs in the national economy. (AR 70–72.) 2 The VE reduced the garment sorter and injection molding machine tender jobs each to 20,000 “to 3 account for the reduced standing, walking, and sitting limitations.” (AR 70.) Relying on the VE’s 4 testimony, the ALJ found jobs exist in significant numbers in the national economy that Plaintiff 5 could perform. (AR 38–39.) 6 After the ALJ issued the decision, Plaintiff submitted a “memorandum” to the Appeals 7 Council attaching 37 pages of printouts, comprised, according to the memorandum, of “screenshots” 8 from “SkillTRAN’s Job Brower Pro” and webpages from “the BLS Occupational Requirements 9 Survey” and the “O*Net,” that purportedly contain contrary job-number estimates. (AR 315–53.) 10 The Appeals Council exhibited Plaintiff’s memorandum and attached printouts as part of the record; 11 however, the Appeals Council found Plaintiff’s evidence did not provide a basis for changing the 12 ALJ’s decision. (AR 1, 5–6.) 13 Plaintiff contends the Commissioner failed to resolve the conflict raised by Plaintiff’s rebuttal 14 job numbers. (Doc. 12 at 19–20.) An ALJ’s duty to resolve a conflict between inconsistent evidence 15 arises “only where the purportedly inconsistent evidence is both significant and probative, as opposed 16 to ‘meritless or immaterial.’” Wischmann v. Kijakazi, 68 F.4th 498, 505 (9th Cir. 2023) (quoting 17 Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193–94 (9th Cir. 2022)). Here, the recent decision in 18 Wischmann is controlling, as the facts of Wischmann are strikingly similar to the facts presented here. 19 In Wischmann, the claimant’s attorney submitted a letter to the Appeals Council that “using 20 Job Browser Pro” said the available job numbers were significantly lower than what the VE had 21 testified to at the hearing. Id. The Ninth Circuit found that “[t]he letter by [the claimant’s] counsel 22 and the six pages of printouts together provide no basis to conclude that these results qualified as 23 significant probative evidence.” Id. at 506. The court proceeded to explain that the “letter does not 24 show that the data enclosed were produced using the same methodology as that used by the VE.” Id. 25 at 506–07. The software is meant only to “assist a VE in performing a complex matching exercise 26 of various sources of information from official and private sources,” and it does not create the data 27 itself. Id. at 507. The Ninth Circuit also noted that the letter did not state “which version of the 28 program was used, so we do not know whether the information used by the program was current or 1 out of date.” Id. Finally, the court noted that the raw data of these pages are “not comprehensible to 2 a lay person, and [the claimant’s attorney] does not provide the interpretation necessary to make the 3 pages meaningful.” Id. Therefore, the Ninth Circuit concluded that “because the letter and 4 attachments are not probative evidence, they do not give rise to the sort of inconsistency in the 5 evidence that an ALJ is required to resolve. Therefore, there is no need to remand.” Id. (citation 6 omitted). 7 Here, as in Wischmann, the evidence submitted by Plaintiff to the Appeals Council was not 8 sufficiently “probative” to trigger a duty of reconciliation. Plaintiff attached to his memorandum 9 screenshots from Job Browser Pro, three O*NET Online webpages (one for each job the VE 10 identified), and results from the BLS Occupational Research Survey (“ORS”).7 (See AR 317–53.) 11 Although this evidence contained numerous values and data, Plaintiff’s counsel made no effort to 12 explain it in his memorandum. He does not identify what queries were run, what variables were 13 changed, or what filters were applied to the data. See Wischmann, 68 F.4th at 507. Instead, Plaintiff’s 14 counsel claims in his memorandum that the evidence “demonstrate[s] . . . that these occupations 15 account for far fewer jobs than the VE testified to.” (AR 316.) This bare assertion is “insufficient to 16 contradict the VE’s calculations in a manner that would require a more searching inquiry by the 17 ALJ.”8 Caley v. Comm’r of Soc. Sec. Admin., No. CV-22-01735-PHX-DWL, 2023 WL 6632990, at 18 *8 (D. Ariz. Oct. 12, 2023) (citing Lloyd v. Kijakazi, No. 22-35684, 2023 WL 4044415, at *1 (9th 19 Cir. June 16, 2023)). See Wischmann, 68 F.4th at 505 (Job Browser Pro is “raw data” that is “not 20 comprehensible to a lay person” and requires some “interpretation necessary to make the pages 21 7 The O*NET Online webpages have information about each job’s requirements, while the ORS printouts provide “job- 22 related information regarding physical demands; environmental conditions; education, training, and experience; as well as cognitive and mental requirements.” (AR 317–53.) The ORS printouts state that the data collection is funded by the 23 SSA as part of its effort to develop a new system to replace the DOT. (AR 317–53.) 8 To be sure, Plaintiff has submitted an explanation to this Court that provides some context to his competing job 24 numbers data. (See Doc. 12 at 13–18.) This explanation was not provided to the ALJ or Appeals Council, so it is unclear if it is even properly before this Court on appeal. See Lamear v. Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017) 25 (explaining that all evidence and issues must be raised before the ALJ and Appeals Council to be preserved for appeal). That said, even were the Court to consider Plaintiff’s explanation, it is not responsive to the flaws outlined herein— 26 indeed, Plaintiff does not address the Wischmann factors in her briefing. Plaintiff’s explanation does not, for example, shed light on counsel’s expertise in using Job Browser Pro or how he used the program to arrive at his competing job 27 numbers data. And the data, even with additional context, does not call into question the VE’s methodology, which he testified was based not on the Job Browser Pro, but rather his “experience and from resources developed by professionals 28 in [the] industry.” (AR 73.) Accordingly, the Court is not persuaded by Plaintiff’s explanation provided for the first 1 meaningful to a court.”); cf. Caley, 2023 WL 6632990, at *8 (“[A]ttorney argument does not 2 constitute the sort of probative, contradictory evidence that would compel the ALJ to resolve the 3 alleged conflict.”) (citing Kilpatrick, 35 F.4th at 1194). 4 Even if he had provided an explanation of the evidence, Plaintiff’s counsel has not shown that 5 he possesses the same level of expertise in interpreting the number and type of jobs available in 6 national economy as the VE, such that the Court might find counsel’s submission meaningful to 7 Plaintiff’s argument. In short, Plaintiff has failed to show the memorandum submitted to the Appeals 8 Council qualifies as probative evidence that would warrant a remand.9 See Wischmann, 68 F.4th at 9 507. Accordingly, the Court finds that the materials “do not give rise to the sort of inconsistency in 10 the evidence that an ALJ is required to resolve,” id., and the ALJ did not err at step five by relying 11 on the VE’s testimony, see Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020) (“Given its inherent 12 reliability, a qualified vocational expert’s testimony as to the number of jobs existing in the national 13 economy that a claimant can perform is ordinarily sufficient by itself to support an ALJ’s step-five 14 finding.”). 15 V. CONCLUSION AND ORDER 16 After consideration of Plaintiff’s and the Commissioner’s briefs and a thorough review of the 17 record, the Court finds that the ALJ’s decision is supported by substantial evidence and is therefore 18 AFFIRMED. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Martin 19 O’Malley, Commissioner of Social Security, and against Plaintiff. 20 IT IS SO ORDERED. 21
22 Dated: January 31, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23
24 25 26
27 9 Relying on Wischmann, other district courts in this Circuit have similarly held. See, e.g., Candy G. v. Comm’r, Soc. Sec. Admin., No. 3:23-CV-0007-MC, 2023 WL 8433169, at *7 (D. Or. Dec. 5, 2023); Caley, 2023 WL 6632990, at *8; 28 Karol B. v. Acting Comm’r of Soc. Sec., No. 2:22-CV-01593-TLF, 2023 WL 5509071, at *4 (W.D. Wash. Aug. 25,