(SS) Westfield v. Commissioner of Social Security

E.D. California

(SS) Westfield v. Commissioner of Social Security

DecidedJune 4, 2024

Docket1:23-cv-00584

StatusUnknown

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN WESTFIELD, Case No. 1:23-cv-00584-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, GRANTING 13 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING THE 14 MARTIN O’MALLEY, DECISION OF THE COMMISSIONER OF COMMISSIONER OF SOCIAL SOCIAL SECURITY2 15 SECURITY,1 (Doc. Nos. 21, 25) 16 Defendant. 17 18 19 Kathleen Westfield (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the undersigned on the parties’ briefs, which were submitted without oral 23 argument. (Doc. Nos. 21, 25). For the reasons stated, the Court denies Plaintiff’s motion for 24 summary judgment, grants Defendant’s motion for summary judgment, and affirms the 25

26 1 This action was originally filed against Kilolo Kijakazi in his capacity as the Commissioner of Social Security. (See Doc. No. 1). The Court has substituted Martin O’Malley, who has since been appointed the 27 Acting Commissioner of Social Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 6). 1 Commissioner’s decision. 2 I. JURISDICTION 3 Plaintiff protectively filed for supplemental security income on December 24, 2020, 4 alleging a disability onset date of March 30, 2017. (AR 302-08). Before the hearing, the alleged 5 onset date was amended to December 24, 2020. (AR 55, 415). Benefits were denied initially 6 (AR 120-35, 164-69) and upon reconsideration (AR 136-57, 173-78). Plaintiff appeared for a 7 hearing before an administrative law judge (“ALJ”) on January 12, 2022. (AR 42-79). Plaintiff 8 testified at the hearing and was represented by counsel. (Id.). The ALJ denied benefits (AR 12- 9 34) and the Appeals Council denied review (AR 1-6). The matter is before the Court under 42 10 U.S.C. § 1383(c)(3). 11 II. BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 14 summarized here. 15 Plaintiff was 52 years old at the time of the hearing. (See AR 327). She has her associate 16 degree in science and a license in massage therapy. (AR 51-52). She lives with her adult 17 daughter and 17-year-old son. (AR 50). She has no past relevant work history. (AR 26, 73). 18 Plaintiff testified she is unable to work because she is up and down emotionally, and “fighting 19 [her] anxiety constantly” especially when dealing with “other people.” (AR 56). She cannot pay 20 attention long enough to watch a 30-minute television show, and she does not socialize or have 21 any “personal friends.” (AR 59-60). Plaintiff testified that she thinks she might “hurt or say 22 things to people that [she] worked with” if she was in a work situation. (AR 68-69). She reported 23 it can take over four days to answer three questions for the class she is taking, she is distracted by 24 “back and forth conversations” in her head, and she gets “lost” in conversations. (AR 69-71). 25 Plaintiff reported she uses marijuana daily and it is not prescribed. (AR 66). 26 III. STANDARD OF REVIEW 27 A district court’s review of a final decision of the Commissioner of Social Security is 28 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 1 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 2 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 3 evidence e” means “relevant evidence that a reasonable mind might accept as adequate to support 4 a conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial 5 evidence equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation 6 and citation omitted). In determining whether the standard has been satisfied, a reviewing court 7 must consider the entire record as a whole rather than searching for supporting evidence in 8 isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 10 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 11 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 12 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 13 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 14 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 15 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 16 U.S. 396, 409-10 (2009). 17 IV. SEQUENTIAL EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 19 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 20 activity by reason of any medically determinable physical or mental impairment which can be 21 expected to result in death or which has lasted or can be expected to last for a continuous period 22 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 23 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 24 considering his age, education, and work experience, engage in any other kind of substantial 25 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 26 The Commissioner has established a five-step sequential analysis to determine whether a 27 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 28 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 1 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 4 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 5 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 6 impairments which significantly limits [his or her] physical or mental ability to do basic work 7 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN WESTFIELD, Case No. 1:23-cv-00584-HBK 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, GRANTING 13 v. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, AND AFFIRMING THE 14 MARTIN O’MALLEY, DECISION OF THE COMMISSIONER OF COMMISSIONER OF SOCIAL SOCIAL SECURITY2 15 SECURITY,1 (Doc. Nos. 21, 25) 16 Defendant. 17 18 19 Kathleen Westfield (“Plaintiff”) seeks judicial review of a final decision of the 20 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 21 supplemental security income under the Social Security Act. (Doc. No. 1). The matter is 22 currently before the undersigned on the parties’ briefs, which were submitted without oral 23 argument. (Doc. Nos. 21, 25). For the reasons stated, the Court denies Plaintiff’s motion for 24 summary judgment, grants Defendant’s motion for summary judgment, and affirms the 25

26 1 This action was originally filed against Kilolo Kijakazi in his capacity as the Commissioner of Social Security. (See Doc. No. 1). The Court has substituted Martin O’Malley, who has since been appointed the 27 Acting Commissioner of Social Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. 28 §636(c)(1). (Doc. No. 6). 1 Commissioner’s decision. 2 I. JURISDICTION 3 Plaintiff protectively filed for supplemental security income on December 24, 2020, 4 alleging a disability onset date of March 30, 2017. (AR 302-08). Before the hearing, the alleged 5 onset date was amended to December 24, 2020. (AR 55, 415). Benefits were denied initially 6 (AR 120-35, 164-69) and upon reconsideration (AR 136-57, 173-78). Plaintiff appeared for a 7 hearing before an administrative law judge (“ALJ”) on January 12, 2022. (AR 42-79). Plaintiff 8 testified at the hearing and was represented by counsel. (Id.). The ALJ denied benefits (AR 12- 9 34) and the Appeals Council denied review (AR 1-6). The matter is before the Court under 42 10 U.S.C. § 1383(c)(3). 11 II. BACKGROUND 12 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s 13 decision, and the briefs of Plaintiff and Commissioner. Only the most pertinent facts are 14 summarized here. 15 Plaintiff was 52 years old at the time of the hearing. (See AR 327). She has her associate 16 degree in science and a license in massage therapy. (AR 51-52). She lives with her adult 17 daughter and 17-year-old son. (AR 50). She has no past relevant work history. (AR 26, 73). 18 Plaintiff testified she is unable to work because she is up and down emotionally, and “fighting 19 [her] anxiety constantly” especially when dealing with “other people.” (AR 56). She cannot pay 20 attention long enough to watch a 30-minute television show, and she does not socialize or have 21 any “personal friends.” (AR 59-60). Plaintiff testified that she thinks she might “hurt or say 22 things to people that [she] worked with” if she was in a work situation. (AR 68-69). She reported 23 it can take over four days to answer three questions for the class she is taking, she is distracted by 24 “back and forth conversations” in her head, and she gets “lost” in conversations. (AR 69-71). 25 Plaintiff reported she uses marijuana daily and it is not prescribed. (AR 66). 26 III. STANDARD OF REVIEW 27 A district court’s review of a final decision of the Commissioner of Social Security is 28 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the 1 Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or 2 is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 3 evidence e” means “relevant evidence that a reasonable mind might accept as adequate to support 4 a conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, substantial 5 evidence equates to “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation 6 and citation omitted). In determining whether the standard has been satisfied, a reviewing court 7 must consider the entire record as a whole rather than searching for supporting evidence in 8 isolation. Id. 9 In reviewing a denial of benefits, a district court may not substitute its judgment for that of 10 the Commissioner. “The court will uphold the ALJ's conclusion when the evidence is susceptible 11 to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 12 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is 13 harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate 14 nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s 15 decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 16 U.S. 396, 409-10 (2009). 17 IV. SEQUENTIAL EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the meaning of 19 the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful 20 activity by reason of any medically determinable physical or mental impairment which can be 21 expected to result in death or which has lasted or can be expected to last for a continuous period 22 of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment 23 must be “of such severity that he is not only unable to do his previous work[,] but cannot, 24 considering his age, education, and work experience, engage in any other kind of substantial 25 gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). 26 The Commissioner has established a five-step sequential analysis to determine whether a 27 claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the 28 Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the 1 claimant is engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step 4 two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 5 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of 6 impairments which significantly limits [his or her] physical or mental ability to do basic work 7 activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s 8 impairment does not satisfy this severity threshold, however, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(c). 10 At step three, the Commissioner compares the claimant’s impairment to severe 11 impairments recognized by the Commissioner to be so severe as to preclude a person from 12 engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as 13 severe or more severe than one of the enumerated impairments, the Commissioner must find the 14 claimant disabled and award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the severity of the 16 enumerated impairments, the Commissioner must pause to assess the claimant’s “residual 17 functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s 18 ability to perform physical and mental work activities on a sustained basis despite his or her 19 limitations, 20 C.F.R. § 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 20 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the 21 claimant is capable of performing work that he or she has performed in the past (past relevant 22 work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant 23 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If 24 the claimant is incapable of performing such work, the analysis proceeds to step five. 25 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the 26 claimant is capable of performing other work in the national economy. 20 C.F.R. § 27 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational 28 factors such as the claimant’s age, education, and past work experience. 20 C.F.R. § 1 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must 2 find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of 3 adjusting to other work, analysis concludes with a finding that the claimant is disabled and is 4 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 5 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 6 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the 7 Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such 8 work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran 9 v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 10 V. ALJ’S FINDINGS 11 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 12 since December 24, 2020, the amended alleged onset date, and the application date. (AR 17). At 13 step two, the ALJ found that Plaintiff has the following severe impairment: posttraumatic stress 14 disorder (PTSD), depressive disorder, anxiety disorder, personality disorder, substance abuse, and 15 unspecified schizophrenia spectrum and other psychotic disorder. (AR 17). At step three, the 16 ALJ found that Plaintiff does not have an impairment or combination of impairments that meets 17 or medically equals the severity of a listed impairment. (AR 18). The ALJ then found that 18 Plaintiff has the RFC to 19 perform a full range of work at all exertional levels but with the following nonexertional limitations: she is able to perform simple, 20 routine, and repetitive tasks but not at a production rate or pace (e.g. assembly line work); she is able to perform simple work-related 21 decisions; she is able to tolerate few changes in a routine work setting defined as performing the same duties at the same station or location 22 day-to-day; she can have occasional interaction with supervisors; she can have occasional contact with coworkers with no tandem tasks or 23 team type activities; and she can have no contact with the public. 24 (AR 20). At step four, the ALJ found that Plaintiff has no past relevant work. (AR 26). In the 25 alternative, at step five, the ALJ found that considering Plaintiff’s age, education, work 26 experience, and RFC, there are jobs that exist in significant numbers in the national economy that 27 Plaintiff can perform, including machine packager, cleaner, and hand packager. (AR 27). On 28 that basis, the ALJ concluded that Plaintiff has not been under a disability, as defined in the 1 Social Security Act, since December 24, 2020, the amended alleged onset date, and the date the 2 application was filed. (AR 28). 3 VI. ISSUES 4 Plaintiff seeks judicial review of the Commissioner’s final decision denying her 5 supplemental security income benefits under Title XVI of the Social Security Act. (Doc. No. 1). 6 Plaintiff raises the following issue for this Court’s review: whether the ALJ erred at step five. 7 (Doc. No. 21 at 11-19). 8 VII. DISCUSSION 9 At step five of the sequential evaluation analysis, the burden shifts to the Commissioner to 10 establish that (1) the claimant is capable of performing other work; and (2) such work “exists in 11 significant numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); 12 Beltran, 700 F.3d at 389. The Commissioner can meet this burden by “eliciting the testimony of 13 a vocational expert in response to a hypothetical that sets out all the limitations and restrictions of 14 the claimant.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s hypothetical 15 must be based on medical assumptions supported by substantial evidence in the record which 16 reflect all of a claimant’s limitations. Osenbrook v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). 17 The hypothetical should be “accurate, detailed, and supported by the medical record.” Tackett v. 18 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). If the hypothetical does not reflect all the claimant’s 19 limitations, the expert’s testimony has no evidentiary value to support a finding that the claimant 20 can perform jobs in the national economy. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 21 1991). 22 In addition, the occupational evidence provided by a vocational expert should be 23 consistent with the Dictionary of Occupational Titles (“DOT”). Massachi v. Astrue, 486 F.3d 24 1149, 1152-53 (9th Cir. 2007). “The [DOT], a resource compiled by the Department of Labor 25 that details the specific requirements for different occupations, guides the analysis. If the expert’s 26 opinion that the applicant is able to work conflicts with, or seems to conflict with, the 27 requirements listing in the [DOT], then the ALJ must ask the expert to reconcile the conflict 28 before relying on the expert to decide if the claimant is disabled. . . . For a difference between an 1 expert’s testimony and the [DOT’s] listings to be fairly characterized as a conflict, it must be 2 obvious or apparent. That means that the testimony must be at odds with the [DOT’s] listing of 3 job requirements that are essential, integral, or expected.” Gutierrez v. Colvin, 844 F.3d 804, 4 807-08 (9th Cir. 2016) (citing SSR 00-4P, 2000 WL 1898704, at *2 (2000)); see also Martinez v. 5 Colvin, 2015 WL 5231973, at *4 (E.D. Cal. Sept. 8, 2015) (“An example of a conflict between 6 the DOT and a VE’s testimony is when the DOT’s description of a job includes activities a 7 claimant is precluded from doing, and the VE nonetheless testifies the claimant would be able to 8 perform that job.”). The ALJ may rely on VE testimony that conflicts with the DOT as long as 9 there is “persuasive testimony” to support the deviation. Massachi, 486 F.3d at 1153 (citing 10 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 11 Here, the vocational expert (“VE”) testified that a hypothetical individual of Plaintiff's 12 age, education, work experience, and residual functional capacity could perform the requirements 13 of representative jobs such as machine packager (DOT 920.685-078), cleaner (DOT 381.687- 14 018), and hand packager (DOT 920.587-018). The VE confirmed at the hearing that there are no 15 conflicts “apparent or otherwise between the DOT’s requirements and [the RFC] hypothetical 16 limitations.” (AR 76); see Massachi, 486 F.3d at 1153 (“SSR 00-4p further provides that the 17 adjudicator ‘will ask’ the [VE] ‘if the evidence he or she has provided’ is consistent with the 18 [DOT]”). Based on the VE testimony, the ALJ concluded at step five that “considering 19 [Plaintiff’s] age, education, work experience, and [RFC], [she] was capable of making a 20 successful adjustment to other work that existed in significant numbers in the national economy.” 21 (AR 27). Plaintiff argues the ALJ failed to identify and resolve multiple conflicts between the 22 DOT and the vocational expert testimony regarding all three of the identified occupations; and 23 correspondingly erred in finding that she could perform a significant number of jobs in the 24 national economy. (Doc. No. 21 at 11-19). 25 First, Plaintiff argues DOT requirements for all three representative jobs identified by the 26 VE conflict with the RFC limiting Plaintiff to “performing the same duties at the same station or 27 location day-to-day.” (Doc. No. 21 at 12-15). Specifically, Plaintiff argues, without citation to 28 legal authority, it is “reasonable to assume that there are many different ‘essential, integral or 1 expected’ ‘duties’ that are required to be performed in order to tend to the various enumerated 2 functions/duties” in the DOT descriptions of the occupations identified by the VE that would 3 require Plaintiff to “move to different work locations or even building locations,” which creates 4 an “apparent conflict” with the work setting limitations assessed in the RFC. (Doc. No. 21 at 13- 5 15 (emphasis added)). In support of this argument, Plaintiff cites each of the jobs identified by 6 the VE and emphasizes in bold type what she has identified as specific “essential, integral or 7 expected” duties in apparent or obvious conflict with the RFC limitations. (Id.). First, Plaintiff 8 cites the DOT description of machine packager as 9 Tending machine that performs one or more packaging functions, such as filling, marking, labeling, banding, tying, packing, or 10 wrapping containers: Starting machine and observing operation to detect malfunctions of machine. Stopping machine and reporting 11 malfunction to supervisor. Makes minor adjustments or repairs, such as opening valves, changing forming and cutting dies, setting guides, 12 or clearing away damaged product containers. Inspects filled container to ensure that product is packaged according to 13 specifications. 14 (Id. at 13) (emphasis in Plaintiff’s brief) (arguing the DOT description would “logically require” 15 Plaintiff to move to different stations to perform the tasks and move to various locations to make 16 repairs and attend to the machine); DOT 920.685-078, available at 1991 WL 687942. Second, 17 cleaner, industrial, is described in Plaintiff’s brief as 18 Keeping working areas in production departments of industrial establishment in clean and orderly condition, performing any 19 combination of the following duties: Transports raw materials and semifinished products or supplies between departments or 20 buildings to supply machine tenders or operators with materials for processing, using handtruck. Arranges boxes, material, and 21 handtrucks or other industrial equipment in neat and orderly manner. Cleans lint, dust, oil, and grease from machines, overhead 22 pipes, and conveyors, using brushes, airhoses, or steam cleaner. Cleans screens and filters. Scrubs processing tanks and vats. Cleans 23 floors, using water hose, and applies floor drier. Picks up reusable scrap for salvage and stores in containers. Performs other duties as 24 described under CLEANER (any industry) I Master Title. 25 (Id. at 14) (emphasis in Plaintiff’s brief) (arguing it is “reasonable to assume” using the tools and 26 equipment, and cleaning “various areas” would require Plaintiff to move to different stations and 27 locations); DOT 381.687-018, available at 1991 WL 673258. Finally, hand packager is described 28 as 1 Packages materials and products manually, performing any combination of the following duties: Cleans packaging containers. 2 Lines and pads crates and assembling cartons. Obtains and sorts products. Wraps protective material around product. Starts, stops, 3 and regulates speed of conveyor. Inserts or pours products into containers or fills containers from spout or chute. Weighs containers 4 and adjusts quantity. Nails, glues, or closes and seals containers. Labels containers, container tags, or products. Sorts bundles or filled 5 containers. Packs special arrangements or selections of product. Inspects materials, products, and containers at each step of 6 packaging process. Records information, such as weight, time, and date packaged. 7 8 (Id. at 14) (emphasis in Plaintiff’s brief) (arguing it is “reasonable to assume” that tasks such as 9 lining, wrapping, padding, assembling, weighing, nailing, gluing, labeling, packing, inspecting, 10 and recording “at each step of the packaging process” would require to move from different work 11 stations “or even building locations depending on where each part of the ‘packaging process’ is 12 located”); DOT 920.587-018, available at 1991 WL 687916. 13 In response, Defendant argues:

14 not only is there no obvious or apparent conflict, there is no conflict whatsoever. . . Plaintiff relies on her own interpretation of the DOT’s 15 descriptions of machine packager, cleaner, and hand packager. The DOT’s description of any given occupation, however, ‘includes the 16 collective description of numerous jobs and lists maximum requirements of the job as generally performed. Accordingly, that 17 description may include ‘tasks that aren’t essential, integral, or expected parts of a job.’ Plaintiff cannot show an obvious or 18 apparent conflict merely by pointing out that occupations can conceivably include ‘various tasks.’ 19 20 (Doc. No. 25 at 5 (citing Gutierrez, 844 F.3d at 807)). The Court agrees. Plaintiff does not cite, 21 nor does the Court discern, any legal authority to support Plaintiff’s argument that the portions of 22 the DOT descriptions highlighted by Plaintiff are “essential, integral, or expected” duties that 23 would rise to the level of an “obvious or apparent” conflict with VE testimony and the assessed 24 RFC limiting Plaintiff to “tolerating few changes in routine work setting defined as performing 25 the same duties at the same station or location day-to-day.” Rather, Plaintiff highlights “different 26 duties” or “various tasks” in each of the DOT descriptions and asks the Court to “assume” 27 conflicts between the descriptions and VE testimony that Plaintiff would be able to perform those 28 1 jobs with the assessed limitation regarding changes in routine work setting.3 However, “not all 2 potential conflicts between an expert’s job suitability recommendation and the [DOT’s] listing of 3 ‘maximum requirements’ for an occupation will be apparent or obvious. And, to reiterate, an 4 ALJ need only follow up on those that are.” (See Doc. No. 25 at 5); Gutierrez, 844 F.3d at 807. 5 Moreover, as noted by Defendant, Plaintiff mischaracterizes the hypothetical propounded to the 6 VE, and the resulting RFC, as imposing a “rigid limitation to same duties, same station and same 7 location” which would “logically result in some, if not considerable erosion of the occupational 8 base.” (Doc. No. 21 at 13). A plain reading of the RFC defines the limitation of “few changes in 9 a routine work setting” as “performing the same duties at the same station or location day-to- 10 day,” as opposed to Plaintiff’s suggestion that the RFC limits her to performing a singular duty at 11 a singular station. (See Doc. No. 25 at 5-6 (“There is nothing apparent in these occupation 12 descriptions that suggests an individual could not perform the same ‘various tasks’ at the ‘same 13 station or location.’”)). For the foregoing reasons, the Court finds no apparent conflict between 14 the jobs identified by the VE and the assessed RFC limitation on tolerating changes in a routine 15 work setting “defined as performing the same duties at the same station or location day-to-day.” 16 Second, Plaintiff argues the ALJ erred by failing to resolve a conflict between the RFC 17 limitation to “few changes in a routine work setting defined as performing the same duties at the 18 same station or location day-to-day” and the Reasoning Level 2 DOT requirements of the three 19 jobs identified by the VE. 4 (Doc. No. 21 at 16 (citing Rounds v. Comm’r Soc. Sec. Admin., 807

20 3 Plaintiff also argues the DOT descriptions at issue here “involve ‘essential, integral, or expected’ work requirements in rather esoteric, technical and mechanized ‘industrial’ settings that are not necessarily 21 familiar to the average person. This lack of general familiarity with this type of industrial work, triggers 22 the ALJ’s duty to further scrutinize the VE’s testimony for ‘conflict,’ especially given the rigidity of the ALJ’s concrete RFC restrictions regarding change in the work environment.” (Doc. No. 21 at 15) (citing 23 Gutierrez, 844 F.3d at 808) (“where the job itself is a familiar one – like cashiering – less scrutiny by the ALJ is required.”). However, Gutierrez does not impose a higher standard on the ALJ to inquire after the 24 VE testimony merely because it is “technical” or in an “industrial setting”; rather, the court noted a lesser scrutiny required in a more “familiar” job like cashiering. Regardless, as discussed in detail supra, 25 Plaintiff failed to identify any specific “essential, integral or expected” requirements of the DOT job requirements of machine packager, cleaner, or hand packager that that are “at odds” with the VE testimony 26 such that it would be “fairly characterized” as an obvious or apparent conflict. (See id.). 4 In the DOT, each job description includes a General Educational Development (“GED”) definition that 27 “embraces those aspects of education (formal and informal) which are required of the worker for satisfactory job performance.” Salas v. Astrue, 2011 WL 2620370 at *5 (E.D. Cal. June 29, 2011). The 28 GED includes a scale for “reasoning development,” which ranges from Level 1 (low) to Level 6 (high). Id. 1 F.3d 996, 1003 (9th Cir. 2015)). Specifically, Plaintiff contends that “taken at face value,” the 2 “ALJ’s concrete limitations to same duties, same station and same location” assessed in the RFC 3 are more akin to reasoning level 1 jobs requiring the ability to “[d]eal with standardized situations 4 with occasional or no variables in or from these situations encountered on the job,” as opposed to 5 the reasoning level 2 jobs identified by the VE that require the ability to “[d]eal with problems 6 involving a few concrete variables in or from standardized situations.” (Id.); see DOT, App. C., 7 1991 WL 688702. Defendant argues these requirements “clearly concern dealing with problems 8 – not ‘change in situations,’ as Plaintiff claims.” (Doc. No. 25 at 6) (noting “Plaintiff elsewhere 9 concedes the DOT is ‘silent on the issue of change’ in the work environment.”). 10 Here, Plaintiff cites no legal authority in support of this specific argument, and a plain 11 reading of the requirements of Reasoning Level 2 does not support an apparent or obvious 12 conflict between the enumerated limitations regarding “problems” or “situations” encountered on 13 the job, and the assessed RFC limitation on Plaintiff’s ability to tolerate “few changes in a routine 14 work setting.” (See AR 20); see also Kelly P. v. Saul, 2019 WL 3573591, at *5 (C.D. Cal. Aug. 15 6, 2019) (“An occupation that requires a worker to employ Reasoning Level 2 by dealing with 16 problems involving a few concrete variables does not raise an obvious or apparent conflict with 17 [p]laintiff’s limitation to only minimal changes in the workplace setting or routine.”) (collecting 18 cases). Moreover, as noted by Defendant, the RFC limited Plaintiff to “simple, routine and 19 repetitive tasks” and “simple work-related decisions,” consistent with reasoning level 2 DOT 20 requirements. (Doc. No. 25 at 6); see Cervantes v. O’Malley, 2024 WL 1173827, at *4 (E.D. Cal. 21 Mar. 19, 2024) (“The Ninth Circuit has repeatedly indicated that the ability to perform ‘simple’ 22 work corresponds with Reasoning Level 2 abilities” and “courts also indicated there is not a 23 conflict between simple work and Reasoning Level 2”) (collecting cases). Thus, the Court finds 24 no apparent conflict between Plaintiff’s RFC and the Reasoning Level 2 requirements of the jobs 25 identified by the VE. 26 Third, Plaintiff argues DOT requirements for the machine packager and hand packager 27 jobs identified by the VE conflict with the RFC limiting Plaintiff to “perform simple, routine, and 28 repetitive tasks but not at a production rate or pace (e.g. assembly line work).” (Doc. No. 21 at 1 17 (emphasis in original). In support of this argument, Plaintiff cites portions of the DOT 2 description of machine packager responsibilities including tending, starting, and stopping a 3 machine, and the DOT description of hand packager as requiring the ability to “start, stop and 4 regulate[] speed of conveyer,” “inspect material, product, and container at each step of the 5 packing process,” and “record information, such as weight, time, and date packaged.” (Doc. No. 6 21 at 17-18). However, as above, a plain reading of these descriptions indicates they do not 7 include any requirement regarding production rate or pace, and/or “assembly line work.” 8 Moreover, as noted by Defendant, courts have specifically found no apparent conflict between an 9 RFC assessing “no fast-paced work, such as moving assembly lines” and the DOT description of 10 machine packager and hand packager. See Bryant v. Colvin, 2014 WL 1831016, at *3-4 (C.D. 11 Cal. May 7, 2014); see also James W.K. v. Kijakazi, 2023 WL 1861214, at *6 (N.D. Ok. Feb. 9, 12 2023) (“there is nothing in the DOT description for the hand packager job that indicates it 13 requires very fast-paced work”). Likewise, the Court finds no apparent conflict between the DOT 14 requirements for hand packager and machine packager jobs identified by the VE and the assessed 15 RFC.5 16 Based on the foregoing, it was reasonable for the ALJ to rely on the VE testimony to 17 support the finding at step five that there are jobs in significant numbers in the national economy 18 that Plaintiff can perform, including machine packager, cleaner, and hand packager. The Court 19 finds no error at step five. 20 VIII. CONCLUSION 21 A reviewing court should not substitute its assessment of the evidence for the ALJ’s. 22 Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must defer to an ALJ’s assessment 23 5 Plaintiff further argues that if hand packager and machine packager jobs are eliminated due to conflict 24 between the RFC and the DOT descriptions of the jobs identified by the VE, the only remaining job is cleaner, with 18,000 jobs in the national economy, which “is not considered a ‘significant number of 25 jobs.’” (Doc. No. 21 at 18-19). It is unnecessary for the Court to consider this argument because, as discussed in detail above, the Court finds no apparent conflict between the assessed RFC and the three 26 jobs identified by the VE. The 190,000 aggregate jobs of hand packager, machine packager, and cleaner identified by the VE at the hearing meets the legal threshold for a significant number of jobs in the 27 national economy. See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (holding the availability of 25,000 national jobs presents a “close call,” but still constitutes a significant number of 28 jobs). 1 | as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). As discussed in detail 2 | above, the ALJ did not err at step five. After review, the Court finds the ALJ’s decision is 3 | supported by substantial evidence and free of harmful legal error. 4 Accordingly, it is ORDERED: 5 1. Plaintiff's Motion for Summary Judgment (Doc. No. 21) is DENIED. 6 2. Defendant’s Cross-Motion for Summary Judgment (Doc. No. 25) is GRANTED and 7 the decision of the Commissioner of Social Security is AFFIRMED for the reasons set 8 forth above. 9 3. The Clerk is directed to enter judgment in favor of the Commissioner of Social 10 Security, terminate any pending motions/deadlines, and close this case. 11 | Dated: _ June 3. 2024 Mihaw. □□□ foareh Yack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE

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